Muriniti v Kalil - [2021] NSWCA 81

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Muriniti v Kalil [2021] NSWCA 81
Hearing dates: 1 March 2021
Date of orders: 1 March 2021
Decision date: 01 March 2021
Before: Brereton JA
Decision:
(1) Enforcement of any award made by a costs assessor or a review panel on the application for costs assessment currently pending under the orders of Wass DCJ made on 24 July 2020 be stayed until the hearing of the application for leave to appeal; and
(2) Costs of the application be costs in the application for leave to appeal.

Catchwords:
JUDGMENTS AND ORDERS – Court of Appeal – Stay of District Court costs orders – Where stay would halt costs assessment process – Where restitution available for costs incurred during assessment process – Where process well-advanced – Stay refused
JUDGMENTS AND ORDERS – Court of Appeal – Stay of anticipated costs assessment award – Where enforcement likely to cause considerable inconvenience and financial stress – Where risk of non-recoverability resolved by undertaking – Where no evidence of hardship – Stay granted

Legislation Cited:
(NSW) Civil Procedure Act 2005, s 99
(NSW) Uniform Civil Procedure Rules 2005, r 51.54

Category: Procedural rulings
Parties: Leonardo Carlo Muriniti (First Applicant)
Robert Duane Newell (Second Applicant)
Mahmoud Kalil (First Respondent)
Kylie Eather (Second Respondent)
Representation:
Counsel:
R Newell (Solicitor) (Applicants)
K P Smark SC (Respondents)
Solicitors:
L C Muriniti & Associates (Applicants)
Goldsmith Lawyers (Respondents)

File Number(s): 2020/234084

Judgment (ex tempore)

The applicants Leonardo Carlo Muriniti and Robert Duane Newell acted for defendants and cross-claimants in defamation proceedings in the District Court. The plaintiffs in the District Court proceedings, the present respondents Kylie Eather and Mahmoud Khalil, sought an order pursuant to (NSW) Civil Procedure Act 2005, s 99, that the applicants personally pay their costs in certain respects, essentially associated with repeated attempts to amend the defence in the District Court proceedings.
On 24 July 2020, Wass DCJ, in a judgment of some 489 paragraphs and 109 pages, made an order as sought by the respondents. The applicants served a notice of intention to appeal on 17 August 2020. On 9 October 2020, the respondents’ solicitors retained cost consultants to prepare a bill of costs. On 23 October 2020, the applicants filed their summons for leave to appeal. On 30 November, the respondents served a draft application for costs assessment and, in the absence of objections thereto, on 22 December 2020 filed and served their application for costs assessment, which was duly referred to an assessor.
Meanwhile on 3 December 2020, the respondents were granted leave to discontinue their defamation claim in the District Court proceedings, pursuant to which they filed a notice of discontinuance on 4 December 2020. The question of costs consequent on that discontinuance remains outstanding, although, prima facie, it would seem likely that the respondents (plaintiffs) would be required to pay the costs of the applicants (defendants) in those proceedings.
On 19 January 2021, the applicants filed…

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 Muriniti v Kalil

Details

AGLC: Muriniti v Kalil [2021] NSWCA 81
Case: [2021] NSWCA 81
Decision Date: 01 March 2021

CaseChat Overview and Summary

In *Muriniti v Kalil*, the Court of Appeal considered applications for stays of costs orders made by the District Court. The applications concerned both the ongoing costs assessment process and any anticipated award that might arise from that process.

The Court was required to determine whether to grant a stay of the District Court's costs orders. Specifically, it had to consider whether a stay of the costs assessment process itself was warranted, and separately, whether a stay of any future award from that assessment should be granted.

Regarding the stay of the costs assessment process, the Court refused the application. It reasoned that a stay would halt an already well-advanced process, and that restitution would be available for any costs incurred during the assessment should the appeal be successful. However, the Court granted a stay of any anticipated award from the costs assessment. This was because enforcement of such an award was likely to cause considerable inconvenience and financial stress, and any risk of non-recoverability could be resolved by an undertaking, with no evidence of hardship presented by the respondent.

Consequently, the Court ordered that the enforcement of any award made by a costs assessor or review panel be stayed until the hearing of the application for leave to appeal. The costs of this application were made costs in the application for leave to appeal.

Orders

Orders of the court

(1) Enforcement of any award made by a costs assessor or a review panel on the application for costs assessment currently pending under the orders of Wass DCJ made on 24 July 2020 be stayed until the hearing of the application for leave to appeal; and

(2) Costs of the application be costs in the application for leave to appeal.

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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Medium Neutral Citation:	Muriniti v Kalil [2021] NSWCA 81
Hearing dates:	1 March 2021
Date of orders:	1 March 2021
Decision date:	01 March 2021
Before:	Brereton JA
Decision:	(1) Enforcement of any award made by a costs assessor or a review panel on the application for costs assessment currently pending under the orders of Wass DCJ made on 24 July 2020 be stayed until the hearing of the application for leave to appeal; and (2) Costs of the application be costs in the application for leave to appeal.
Catchwords:	JUDGMENTS AND ORDERS – Court of Appeal – Stay of District Court costs orders – Where stay would halt costs assessment process – Where restitution available for costs incurred during assessment process – Where process well-advanced – Stay refused JUDGMENTS AND ORDERS – Court of Appeal – Stay of anticipated costs assessment award – Where enforcement likely to cause considerable inconvenience and financial stress – Where risk of non-recoverability resolved by undertaking – Where no evidence of hardship – Stay granted
Legislation Cited:	(NSW) Civil Procedure Act 2005, s 99 (NSW) Uniform Civil Procedure Rules 2005, r 51.54
Category:	Procedural rulings
Parties:	Leonardo Carlo Muriniti (First Applicant) Robert Duane Newell (Second Applicant) Mahmoud Kalil (First Respondent) Kylie Eather (Second Respondent)
Representation:	Counsel: R Newell (Solicitor) (Applicants) K P Smark SC (Respondents) Solicitors: L C Muriniti & Associates (Applicants) Goldsmith Lawyers (Respondents)
File Number(s):	2020/234084