Rahman v Sharpe (No 1) - [2012] NSWDC 48

District Court

New South Wales

Medium Neutral Citation: Rahman v Sharpe (No 1) [2012] NSWDC 48
Hearing dates: 5 April 2012
Decision date: 05 April 2012
Jurisdiction: Civil
Before: Judge Peter Johnstone
Decision:
John Sharpe and James Howard are removed as defendants. The originating process as against the 1st & 2nd defendants is set aside. No order as to costs.

Catchwords: COSTS ASSESSMENT - appeal from assessment by a costs assessor of party/party costs payable pursuant to court orders - inappropriate joinder of the costs assessor and the Manager Costs Assessment
Legislation Cited: Legal Profession Act 2004
Uniform Civil Procedure Rules 2005 (UCPR)
Cases Cited: Cassegrain v CTK Engineering [2008] NSWSC 457
Dobell v Blue Haven Pools and Spas Pty Limited [2009] NSWCA 77
Gorczynski v AWM Dickinson & Son [2005] NSWSC 277
Lions v Wende [2007] NSWSC 100
Randall Pty Limited v Willoughby City Council [2009] NSWDC 118
Young v Annis-Brown [2011] NSWSC 475
Category: Interlocutory applications
Parties: Mohammad Tabibar Rahman (Plaintiff)
John Sharpe (1st Defendant)
James Howard (2nd Defendant)
Paul Baram (3rd Defendant)
John Hartigan (4th Defendant)
Shirley Alexander (5th Defendant)
Rosalind Dubs (6th Defendant)
Representation: Plaintiff in person
Ms Z Hannaford (1st & 2nd Defendants)
Ms Ormond (3rd, 4th, 5th & 6th Defendants)

File Number(s): 2012/69814
Publication restriction: None

REASONS FOR Judgment

The plaintiff has appealed to the District Court from an assessment of party/party costs made by a costs assessor under the Legal Profession Act 2004 (the LPA 2004). The matter has come before me today for directions on the return of the Summons Commencing an Appeal filed on 2 March 2012. The matter was referred to me by the List Judge in accordance with the usual procedures in this Court and I am charged with dealing with it; giving directions and otherwise making appropriate determinations relevant to the first return date in such proceedings.

Mr Rahman, the plaintiff, appears before me unrepresented. Upon enquiry he has advised me that he does not wish to have legal representation. Indeed, he says he does not need legal representation, as he is sufficiently skilled and experienced in legal matters to represent himself.

A motion was filed in Court before me on behalf of the first and second defendants which seeks the following orders:

(1) Grant leave for this motion to be filed in court at the hearing of this matter on 5 April 2012, that the time for service be abridged and that the motion be returnable instanter.

(2) Under UCPR r 12.11(1)(a), that the originating process, as against the first and second defendant, is set aside.

In my view it is appropriate to give leave for that motion to be filed in court today and for this court to proceed to hear and determine those issues.

The underlying costs dispute arises out of an order made by the Supreme Court on 4 April 2011 in proceedings No 298024 of 2009, by which the plaintiff was required by Registrar Bradford to pay the costs of Ms Dubs…

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 Rahman v Sharpe (No 1)

Details

AGLC: Rahman v Sharpe (No 1) [2012] NSWDC 48
Case: [2012] NSWDC 48
Decision Date: 05 April 2012

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Rahman v Sharpe (No 1) involved a dispute concerning the assessment of costs in a proceeding. The plaintiff, Rahman, appealed against an assessment of party/party costs made by a costs assessor. The assessment was pursuant to orders made by the Court. The defendants, John Sharpe and James Howard, were joined in the appeal regarding the costs assessment. However, it was later found that the Manager Costs Assessment should not have been joined as a defendant in the appeal.

The central legal issue the Court had to address was whether the Manager Costs Assessment was appropriately joined as a defendant in the appeal concerning the costs assessment. The Court considered the appropriate procedures for appeals against costs assessments and the role of the Manager Costs Assessment in such proceedings.

The Court determined that the Manager Costs Assessment was not properly joined as a defendant in the appeal. The Court found that the joinder was inappropriate as the Manager Costs Assessment was not a party to the underlying proceeding from which the costs arose. Consequently, the Court ordered that John Sharpe and James Howard be removed as defendants, and the originating process as against the first and second defendants was set aside. The Court made no order as to costs in relation to the appeal.

Orders

Orders of the court

John Sharpe and James Howard are removed as defendants. The originating process as against the 1st & 2nd defendants is set aside. No order as to costs.

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:	Rahman v Sharpe (No 1) [2012] NSWDC 48
Hearing dates:	5 April 2012
Decision date:	05 April 2012
Jurisdiction:	Civil
Before:	Judge Peter Johnstone
Decision:	John Sharpe and James Howard are removed as defendants. The originating process as against the 1st & 2nd defendants is set aside. No order as to costs.
Catchwords:	COSTS ASSESSMENT - appeal from assessment by a costs assessor of party/party costs payable pursuant to court orders - inappropriate joinder of the costs assessor and the Manager Costs Assessment
Legislation Cited:	Legal Profession Act 2004 Uniform Civil Procedure Rules 2005 (UCPR)
Cases Cited:	Cassegrain v CTK Engineering [2008] NSWSC 457 Dobell v Blue Haven Pools and Spas Pty Limited [2009] NSWCA 77 Gorczynski v AWM Dickinson & Son [2005] NSWSC 277 Lions v Wende [2007] NSWSC 100 Randall Pty Limited v Willoughby City Council [2009] NSWDC 118 Young v Annis-Brown [2011] NSWSC 475
Category:	Interlocutory applications
Parties:	Mohammad Tabibar Rahman (Plaintiff) John Sharpe (1st Defendant) James Howard (2nd Defendant) Paul Baram (3rd Defendant) John Hartigan (4th Defendant) Shirley Alexander (5th Defendant) Rosalind Dubs (6th Defendant)
Representation:	Plaintiff in person Ms Z Hannaford (1st & 2nd Defendants) Ms Ormond (3rd, 4th, 5th & 6th Defendants)
File Number(s):	2012/69814
Publication restriction:	None