Mohareb v Horowitz and Bilinsky Solicitors

District Court

New South Wales

Medium Neutral Citation:

Mohareb v Horowitz & Bilinsky Solicitors [2011] NSWDC 170

Hearing dates:

4 October 2011 (written submissions)

Decision date:

04 October 2011

Jurisdiction:

Civil

Before:

Gibson DCJ (in Chambers)

Decision:

(1) Plaintiff's summons filed on 19 August 2011 dismissed.

(2) Plaintiff pay defendant's costs.

Catchwords:

COSTS - application for leave to appeal from costs assessment (s 385 Legal Profession Act 2004 (NSW)) - challenge to evidence of retainer - obligation of costs assessor to provide reasons - appeal dismissed

Legislation Cited:

Legal Profession Act 2004 (NSW), ss 309-316, 322, 327, 361, 363, 384 and 385
Local Court Act 2007 (NSW), ss 39(1) and 40(1)
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), Division 4, Part 50

Cases Cited:

Australian International Academy of Education Limited v Dr Nirmal Taluja & Ors (No 2) [2011] NSWSC 880
Cachia v Hanes (1994) 179 CLR 403
Frumar v The Owners of Strata Plan 36957 [2006] NSWCA 278
Gorczynski v AWM Dickinson & Son [2005] NSWSC 277
Larsen v Vile [1999] NSWCA 397
Levy v Bergseng [2008] NSWSC 294
Randall Pty Ltd v Willoughby City Council [2009] NSWDC 118
The Herald and Weekly Times Ltd v The Federal Commissioner of Taxation (1932) 48 CLR 113.

Texts Cited:

-

Category:

Principal judgment

Parties:

Plaintiff/Appellant: Nader Mohareb
Defendant/Respondent: Horowitz & Bilinsky Solicitors

Representation:

Plaintiff: - Defendant: -
Plaintiff: Mr N Mohareb (in person) Defendant: Horowitz & Bilinsky Solicitors

File Number(s):

2011/121953

Publication restriction:

None

Judgment

1. By summons filed on 19 August 2011, Mr Mohareb ("the plaintiff") seeks leave to appeal from a Certificate of Determination of Costs and Statement of Reasons of Ian Dwyer, Costs Assessor, issued on 21 July 2011. Horowitz & Bilinsky ("the defendant") are a firm of solicitors who sent the plaintiff a memorandum of costs for services in relation to defending an appeal to the Supreme Court from a judgment in the plaintiff's favour in the Local Court.

1. The grounds of appeal are:

"1. On Page (4) of his decision, Mr. Ian Dwyer, Costs Assessor states: "I am satisfied particularly having regard to the wording of the letter dated 20 th July 2010 enclosing the Costs Agreement and the terms of the Costs Agreement that the Costs Applicant was retained by the Costs Respondent."

2. In stating the above Mr. Ian Dwyer, Costs Assessor, has failed to point out which wording he refers to and in what way does this wording make it indisputably clear that the Costs Applicant was retained by the Costs Respondent.

3. In the same Paragraph, Mr. Ian Dwyer, Costs Assessor, further states: "In this regard I noted that the Costs Respondent continued to instruct the Costs Applicant after receipt of the Costs Agreement."

4. In making the above statement, Mr. Ian Dwyer, Costs Assessor, has failed to point out any fact or evidence he has relied upon and which would lead him to make such an assertion.

5. Similarly and in the same vein, Mr.…