Najem v Maatouk - [2010] NSWSC 20

CITATION: Najem v Maatouk [2010] NSWSC 20

HEARING DATE(S): 16 & 17 September 2009

JUDGMENT DATE :
10 February 2010

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: (1) The time within which the application for leave to appeal under s 208M of the Legal Profession Act 1987 may be brought is extended up to and including 18 July 2008.
(2) The appeal on grounds 1, 2, 3, 4 and 7 is allowed.
(3) The Certificates as to Determination of the costs assessor dated 7 March 2008 and 14 March 2008 are set aside.
(4) The defendant pay the plaintiff’s costs of the appeal including the application for leave to appeal.
I will hear the parties as to whether a review panel would have power under Subdivision 4A of Division 6 of Part 11 of the Legal Profession Act 1987 to determine the balance of the appeal.

LEGISLATION CITED: Legal Profession Act 1987
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Doyle v Hall Chadwick [2007] NSWCA 159
Sweeney v Australian Securities and Investments Commission [2006] NSWCA 230
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Wentworth v Rogers [2006] NSWCA 145

PARTIES: John Najem (Plaintiff)
Peter Maatouk trading as Maatouks Law Group (Defendant)

FILE NUMBER(S): SC 13621/08

COUNSEL: Mr C Taylor (Plaintiff)
Mr MK Rollinson (Defendant)

SOLICITORS: Sanford Legal (Plaintiff)
Maatouks Law Group (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

10 FEBRUARY 2010

13621/08 JOHN NAJEM v PETER MAATOUK TRADING AS MAATOUKS LAW GROUP

JUDGMENT

1 HER HONOUR: This is an appeal brought by Mr John Najem against a determination of costs in favour of his former solicitor, Mr Peter Maatouk, by a costs assessor under the Legal Profession Act 1987. An appeal lies to this Court against that determination only by leave of the Court under s 208M of the Act. Leave was granted during the hearing, by consent.

2 Mr Najem operates a taxi base at Campsie. The conduct of that business gives rise to many small claims by Mr Najem arising out of motor vehicle accidents involving taxis owned or operated by him. Over the period of several years leading up to the present dispute, Mr Najem had retained Mr Antoine Sandroussi as his solicitor in respect of those claims and some other legal matters.

3 At some point before 2005, Mr Sandroussi had restrictions placed on his practising certificate following disciplinary action taken against him by the New South Wales Law Society. The restrictions included a condition that he practise only as an employed solicitor. In early 2005, Mr Sandroussi obtained employment with Mr Maatouk in Maatouks Law Group. He took some forty-six files on which he was acting for Mr Najem into that practice.

4 The principal issue raised by the present appeal is whether any of those matters was governed by a costs agreement between Mr Najem and Mr Maatouk and, if so, the terms of any…

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 Najem v Maatouk

Details

AGLC: Najem v Maatouk [2010] NSWSC 20
Case: [2010] NSWSC 20
Decision Date: 10 February 2010

CaseChat Overview and Summary

The appeal in Najem v Maatouk was brought by John Najem against a determination of costs in favour of his former solicitor, Peter Maatouk, by a costs assessor under the Legal Profession Act 1987. The central issue was whether any of the matters in question was governed by a costs agreement between Najem and Maatouk, and if so, what the terms of that agreement were. The Court found that an oral agreement existed between Najem and Maatouk's employee, Antoine Sandroussi, which was carried forward when Sandroussi transferred Najem's files to Maatouks Law Group. This agreement stipulated that Najem would be charged a fixed fee based on the amount of the claim, with payment due only upon completion of the matter. The Court determined that there was no written agreement that replaced the oral agreement. Consequently, the Court set aside the costs certificates and ordered Maatouk to pay Najem's costs of the appeal.

Orders