Rahman v Al-Maharmeh (No 2)

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Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Rahman v Al-Maharmeh (No 2) [2021] NSWCA 151
Hearing dates: On the papers
Date of orders: 21 July 2021
Decision date: 21 July 2021
Before: Meagher JA at [1];
Leeming JA at [2];
Brereton JA at [3].
Decision:

(1) As between the appellant and the respondent, make no order as to costs of the proceedings in the District Court on the appellant’s motion filed 3 October 2019 and the respondent’s motion filed 28 August 2019, or of the proceedings in this Court, to the intent that each party bear its own costs; and

(2) Pursuant to (NSW) Civil Procedure Act 2005, s 99, order that all costs and disbursements (including counsel’s fees) of the proceedings referred to in order (1) be disallowed as between Prominent Lawyers and the appellant, to the intent that the disbursements (including counsel’s fees) are to be borne by Prominent Lawyers.

Catchwords:

COSTS – Party/Party – Appeals – Appeal against refusal of leave to commence proceedings out of time – Delay attributable to appellant’s solicitors – Unsatisfactory explanation for delay – Respondent opposed application and led court below into error – Costs not sought by respondent against appellant – No order as to costs between parties

COSTS – Appeals – Orders against non-parties – Personal costs orders against lawyers – As between respondent and appellant’s solicitors – Solicitors acted negligently – Respondent increased costs considerably by opposing application – Orders not made

COSTS – Appeals – Orders against non-parties – Personal costs orders against lawyers – As between appellant and appellant’s solicitors – Costs incurred without reasonable cause – Relevance of undertaking by solicitors to not seek costs against appellant – Orders made

Legislation Cited:

(NSW) Civil Procedure Act 2005, ss 98, 99

(NSW) Motor Accidents Compensation Act 1999, s 109

Cases Cited:

Felicity, Re; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19

Kelly v Jowett (2009) 76 NSWLR 405; [2009] NSWCA 278

Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300;[2005] NSWCA 153

Rahman v Al-Maharmeh (2021) 95 MVR 394; [2021] NSWCA 31

Ridehalgh v Horsefield [1994] Ch 205; 3 All ER 848

Category:Costs
Parties: Samar Abdul Rahman (Appellant)
Sarah Al-Maharmeh (Respondent)
Representation:

Counsel:
J Morris SC, G Schipp (Appellant)
J Turnbull SC (Respondent)
L Williams, solicitor (Prominent Lawyers)

Solicitors:
Prominent Lawyers (Appellant)
Moray & Agnew (Respondent)
K&L Gates (Prominent Lawyers)
File Number(s): 2020/147838
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Citation:

[2020] NSWDC 129

Date of Decision:
20 April 2020
Before:
Wilson SC DCJ
File Number(s):
2019/190375

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 15 March 2021, the Court granted leave to appeal and allowed an appeal by the appellant from a refusal of her application for leave to commence proceedings after the expiration of the limitation period fixed by Motor…

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Details
Case
[2021] NSWCA 151
Decision Date

CaseChat Overview and Summary

In *Rahman v Al-Maharmeh (No 2)*, the New South Wales Court of Appeal considered an appeal concerning the refusal of leave to commence proceedings out of time. The primary dispute revolved around the delay in commencing these proceedings, which was attributed to the appellant's solicitors. The respondent had opposed the application in the court below, arguing that the court had erred in its decision.

The Court of Appeal was required to determine whether to grant leave to commence proceedings out of time, and importantly, the appropriate orders for costs. This included considering whether personal costs orders should be made against the appellant's solicitors, both as between the respondent and the solicitors, and as between the appellant and the solicitors.

The Court found that the delay in commencing proceedings was unsatisfactory and not adequately explained. While the respondent had opposed the application, thereby increasing costs, the Court declined to make a personal costs order against the respondent. However, the Court determined that the appellant's solicitors had acted negligently and incurred costs without reasonable cause. Despite an undertaking by the solicitors not to seek costs against the appellant, the Court made orders for costs as between the appellant and their solicitors.

Orders

Orders of the court

27.

The following orders should be made:

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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