Mohareb v Horowitz and Bilinsky Solicitors

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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.…
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Details
Case
[2011] NSWDC 170
Decision Date

CaseChat Overview and Summary

In the case of Mohareb v Horowitz and Bilinsky Solicitors, the plaintiff, Mr Mohareb, sought leave to appeal a costs assessment against him, made by a costs assessor under the Legal Profession Act 2004 (NSW). The plaintiff contended that the costs assessor had failed to provide reasons for the assessment and that the evidence of the retainer was insufficient. The defendant solicitors argued that the plaintiff had no standing to challenge the costs assessment and that the application was an abuse of process. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue the court needed to address was whether the plaintiff had standing to appeal the costs assessment. Additionally, the court had to consider whether the costs assessor was obligated to provide reasons for the assessment and if the evidence of the retainer was adequate. The court also needed to determine whether the plaintiff's application was an abuse of process.

The court found that the plaintiff did not have standing to appeal the costs assessment, as the decision was made by a costs assessor, not a judge. The court held that the obligation to provide reasons for a costs assessment is a matter of procedural fairness, but the absence of reasons does not necessarily render the assessment invalid. The court also found that the evidence of the retainer was sufficient, and the plaintiff's application was considered an abuse of process. Consequently, the plaintiff's summons was dismissed, and the plaintiff was ordered to pay the defendants' costs.

The final orders of the court were to dismiss the plaintiff's summons filed on 19 August 2011 and to order the plaintiff to pay the defendants' costs.

Orders

Orders of the court

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

(2) Plaintiff pay defendant's costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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