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Mohareb v Palmer

Mohareb v Palmer

Case [2017] NSWSC 1491 1 November 2017

Costs

Appeal

Jurisdiction

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Mohareb v Palmer [2017] NSWSC 1491
Hearing dates: 1 November 2017
Date of orders: 01 November 2017
Decision date: 01 November 2017
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Leave to appeal refused.
(2) Order the plaintiff to pay the defendant’s costs of the proceedings
Catchwords:
PRACTICE AND PROCEDURE – costs – determination of successful party – orders made by Magistrate did not correspond with orders sought in notice of motion but order sought orally in the alternative at the hearing – Magistrate made no order as to costs – leave to appeal refused
APPEAL – requirement for leave when question of law raised but order made related to costs – leave refused
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Legal Profession Act 2004 (NSW), s 373
Legal Profession Uniform Law Application Act 2014 (NSW), ss 70, 71, 83, 86
Local Court Act 2007 (NSW), ss 39,40
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Ciszek v Enterprise Financial Solutions Pty Ltd [2010] NSWSC 1265
Dang v R [2014] NSWCCA 47
Newton v R [2014] NSWCCA 41
Category: Principal judgment
Parties: Nader Mohareb (Plaintiff)
Matthew Palmer (Defendant)
Representation:
Counsel:
Plaintiff (self-represented)
B Gelonesi (Defendant)
Solicitors:
GP Legal (Defendant)

File Number(s): 2017/189114
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

26 May 2017

Before:

Robinson LCM

File Number(s):

2017/135977

Judgment

Introduction

By summons filed on 23 June 2017, Nader Mohareb, the plaintiff, appeals against the decision of Robinson LCM on 26 May 2017 to decline his application for costs and/or disbursements following the making of an order to stay the judgment of the Local Court of New South Wales at Manly dated 5 May 2017.
All references to legislation in these reasons are references to the Legal Profession Uniform Law Application Act 2014 (NSW) unless otherwise stated.

Relevant legislative provisions

Local Court Act 2007(NSW)

A party may appeal to this Court on a question of law pursuant to s 39 of the Local Court Act 2007 (NSW), except where the question of law arises with respect to “an order for costs”: s 40(2)(c) of the Local Court Act and Ciszek v Enterprise Financial Solutions Pty Ltd [2010] NSWSC 1265 at [10] (Schmidt J).

Legal Profession Uniform Law Application Act 2014 (NSW)

Section 70 provides for the issue of certificates as to the determination of costs. Section 70(5) provides:

“In the case of an amount of money specified in a certificate that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid money. The rate of any interest payable in respect of that amount of money is the rate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mohareb v Palmer

Details

AGLC: Mohareb v Palmer [2017] NSWSC 1491
Case: [2017] NSWSC 1491
Decision Date: 01 November 2017

CaseChat Overview and Summary

The case of Mohareb v Palmer was heard in the Supreme Court of Victoria. The matter involved a dispute over costs between the parties, arising from an earlier decision made by a Magistrate. The applicant, Mohareb, sought an order for costs against the respondent, Palmer, based on the orders sought in a notice of motion. The Magistrate had made an order that did not align with the orders requested in the notice of motion, and made no order regarding costs. Mohareb appealed against the decision of the Magistrate, seeking leave to appeal on the basis that the order made by the Magistrate related to costs and that a question of law was involved.

The legal issues before the court were whether the order made by the Magistrate related to costs and whether the applicant was entitled to leave to appeal in the circumstances. The court considered whether the order made by the Magistrate was a costs order, and whether the question of law raised by the applicant was sufficient to warrant leave to appeal. The court also considered whether the failure to make an order as to costs was a serious error of law or whether it was an error of procedure that did not warrant leave to appeal.

The court found that the order made by the Magistrate was not a costs order, but rather an order that did not correspond with the orders sought in the notice of motion. The court held that the applicant had not raised a question of law sufficient to warrant leave to appeal. The court found that the failure to make an order as to costs was an error of procedure, rather than a serious error of law. The court refused leave to appeal, holding that the question of law raised by the applicant did not warrant leave to appeal. The court found that the applicant had not demonstrated that the failure to make an order as to costs was a serious error of law that warranted leave to appeal.

The Supreme Court of Victoria refused leave to appeal and held that the order made by the Magistrate was not a costs order. The court held that the applicant had not raised a question of law sufficient to warrant leave to appeal, and that the failure to make an order as to costs was an error of procedure rather than a serious error of law. The court found that the applicant had not demonstrated that the failure to make an order as to costs was a serious error of law that warranted leave to appeal. The court dismissed the appeal and held that the order made by the Magistrate was not a costs order.

Orders