Naboulsi v Khalil (No 2)

[2024] NSWSC 945

Supreme Court

New South Wales

Medium Neutral Citation:

Naboulsi v Khalil (No 2) [2024] NSWSC 945

Hearing dates:

11 July 2024

Date of orders:

12 August 2024

Decision date:

12 August 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) I order the plaintiff to pay the defendant’s costs in the sum of $15,000.

Catchwords:

COSTS – party/party – gross sum costs order – successful defendant on an appeal from the Local Court – where plaintiff unrepresented – where plaintiff had not paid the judgment sum – where the amounts involved did not justify a costs assessment

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 36.16

Cases Cited:

Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (No 2) [2023] NSWCA 311

Bob v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863

Hamod v State of New South Wales [2011] NSWCA 375

Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 203

Naboulsi v Khalil [2024] NSWSC 177

Qasim v Bird & Ors (No 3) [2022] NSWSC 418

Texts Cited:

Nil

Category:

Costs

Parties:

Wassim Naboulsi (Plaintiff)
Bass Khalil (Defendant)

Representation:

Counsel:
In person (Plaintiff)
L James (Defendant)

Solicitors:
Self-represented (Plaintiff)
Abbas and Co Lawyers (Defendant)

File Number(s):

2023/172383

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Common Law

Citation:

Nil

Date of Decision:

14 April 2023

Before:

Magistrate Walsh

File Number(s):

2023/172383

Judgment

1. The defendant, Bass Khalil, commenced proceedings in the Local Court on 10 November 2020 claiming $30,000 which he alleged was a loan he had made to Wassim Naboulsi, the plaintiff. In his defence to the claim, Mr Naboulsi denied that Mr Khalil had ever loaned money to him.

2. The proceedings were heard by Magistrate Walsh in the Local Court on 21 October 2022 and 7 November 2022. The learned magistrate gave judgment on 14 April 2023 in favour of Mr Khalil for $43,518.65, being the loan sum, interest of $13,216.65 and fees of $302. Mr Khalil was also awarded costs.

3. Mr Naboulsi appealed against that judgment to this Court. On 21 March 2024, I dismissed Mr Naboulsi’s appeal and ordered him to pay Mr Khalil’s costs: Naboulsi v Khalil [2024] NSWSC 177.

4. Mr Liam James of counsel for Mr Khalil subsequently sought leave to file a notice of motion seeking a lump sum costs order. Leave was granted and the time for filing the motion was later extended.

5. On 28 May 2024, Mr Khalil filed the notice of motion seeking an order that the costs be determined as a gross sum and that they be ordered to be payable to Mr Khalil fixed in an amount of $10,395 or such other amount as the Court thought fit.

6. I fixed the motion for hearing before me on 11 June 2024. On that day a solicitor appeared for Mr Naboulsi, but he informed me that his instructions had been withdrawn because Mr Naboulsi wished to instruct another solicitor. Accordingly, the matter was stood over to 11 July 2024 for hearing. Directions were made for the filing of evidence and submissions.

7. On 11 July 2024 Mr Naboulsi appeared for himself. He sought extra time because he said he was intending to engage a Legal Aid solicitor. In the circumstances, I decided to hear the application including hearing submissions from Mr James on behalf of the defendant. I then ordered that any evidence and submissions from Mr Naboulsi were to be filed and served by 9 August 2024. I said that I would decide the matter on the papers after 9 August 2024. No evidence or submissions were received from Mr Naboulsi. What follows are my reasons for acceding to the defendant’s application for a lump sum costs order.

8. In support of his notice of motion Mr Khalil mainly relies on an affidavit of his solicitor, Ihab Jamal, sworn 3 May 2024. That affidavit discloses that Mr Jamal’s firm sent an invoice to Mr Khalil on 21 March 2024 in an amount of $7,920 for work up to the time of judgment in this Court. The affidavit went on to say that subsequently his work in relation to the present notice of motion was costed at about $13,020 inclusive of GST and he estimated that future work would be about the same amount.

9. The hourly rate charged by Mr Jamal was $400 plus GST. Mr Jamal was admitted to practice in October 2011 and has been a solicitor for over 12 years. I can take judicial notice of the fact that a rate of $400 per hour plus GST is a reasonable rate for a solicitor of that seniority. Further, the breakdown of the amounts charged overall may be considered as modest.

10. Mr Jamal briefed Mr James who appeared for Mr Khalil both before the magistrate and on the appeal in this Court. Mr James has rendered three invoices in the proceedings up to the conclusion of the hearing of the appeal totalling $5,940 charged at a rate of $300 per hour plus GST. One of the invoices includes a discount of a substantial sum. Mr Jamal says that counsel advised him that he had incurred further fees of about $1650 inclusive of GST for work done to date in respect of the notice of motion, and counsel estimated that the cost of future work including at the hearing of the notice of motion would be about $2541.

11. I consider Mr James’ hourly rate to be reasonable for counsel of his seniority.

12. The total of the solicitor’s fees (including estimates) is $10,560 and the total of counsel’s fees (including estimates) is $10,131. The total of the legal fees is therefore $20,691.

13. Although the notice of motion seeking the lump sum costs order was filed two months after judgment was given, rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) does not apply to limit any such application to a 14-day period after the original costs order is given. This is because an application for a lump sum costs order is an application for a further order and not an application to vary the original order: Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (No 2) [2023] NSWCA 311 at [21].

14. The principles for ordering a lump sum costs order are well known and are found in such cases as Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 203 at [21]-[22], Hamod v State of New South Wales [2011] NSWCA 375 at [813]-[820] and Bob v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863 at [6]-[8]. I reviewed the authorities in Qasim v Bird & Ors (No 3) [2022] NSWSC 418.

15. In the present case, the following matters are significant in persuading me that it is appropriate to make a lump sum costs order. First, Mr Naboulsi was unrepresented before the magistrate and since the date of judgment has effectively been unrepresented. I say “effectively” because he did not appear at the time judgment was delivered and he has subsequently appeared in person on two occasions. As mentioned earlier, he had engaged a solicitor for a brief period prior to the date fixed for hearing the motion on 11 June 2024. That solicitor appeared briefly on that occasion.

16. Secondly, the amount of the judgment involved is a relatively small amount of money, as are the costs claimed. Thirdly, the amount of the judgment has not been paid by Mr Naboulsi. He informed me that he does not have the money to pay the judgment. Finally, the delay and costs in conducting a formal costs assessment are not justified when regard is had to the judgment sum.

17. The authorities make clear that a broad-brush approach ought to be adopted, and that ordinarily a discount should be given of about 25-30%, particularly if an indemnity costs order is not involved.

18. In all the circumstances, I consider that a lump sum costs order should be made in the amount of $15,000.

19. Accordingly, I make the following order:

1. I order the plaintiff to pay the defendant’s costs in the sum of $15,000.

**********

Decision last updated: 12 August 2024