Saba El-Hanania t/as Saba El-Hanania Lawyers v Vella (No 2)

[2018] NSWDC 207

District Court

New South Wales

Medium Neutral Citation:	Saba El-Hanania t/as Saba El-Hanania Lawyers v Vella (No 2) [2018] NSWDC 207
Hearing dates:	31 May 2018
Date of orders:	31 May 2018
Decision date:	31 May 2018
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I order the appellant to pay the defendant’s costs assessed at $5,000.
Catchwords:	COSTS
Category:	Costs
Parties:	Saba El-Hanania Lawyers (Plaintiff) Alon Joseph Vella (Defendant)
Representation:	Counsel: Mr D Leamey (Plaintiff) Mr P Tierney (Defendant)
File Number(s):	2018/68777
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Having persuaded the parties that a resolution of their disagreement may be appropriate, the parties have reached an accommodation. As the matter stood prior to coming before me, the appellant, the defendant's former solicitor, was indebted to the defendant in the sum of $250,219.24, less a small amount recovered by the issue of a garnishee order. The amount that I have mentioned was the amount contained on what appears to have been an erroneous certificate of a costs assessor issued on 11 September 2017 and sent to the parties on 10 October 2017. The costs assessor made a mistake between the costs actually claimed by the solicitor and the costs actually retained by the solicitor after a lump sum settlement inclusive of costs. The end result is that the indebtedness of the solicitor to its former client has now been reduced to $212,650.37, with credit for the amount recovered under the garnishee order.

2. The remaining issue concerns costs. I have now been observing for 24 years that nothing excites the zeal, the ardour, and the passion of the legal profession more than an argument about costs. The costs argument and the two motions filed following upon the filing of the summons commencing the appeal were complex and difficult, but common sense has prevailed. The solicitor has improved his position somewhat, but could have done so by a much easier mechanism, by moving the Court to set aside the default judgment entered according to the mistake and having judgment entered for the correct amount. That could have been done by way of a notice of motion which could have been dealt with in five or ten minutes by the Registrar, without listing the matter before me today with an estimate of two hours, but which has occupied the whole of the day.

3. Despite its form, compared to the relief sought by the solicitor, his former client has largely been successful in maintaining his position, when the whole exercise was designed to set aside the whole of the assessment of costs process and start again, which would have been a lengthy and costly exercise. In the circumstances, it should be seen that, in essence, de facto, the proceedings have been determined favourably to the former client of the solicitor. In those circumstances, the costs order should be made in favour of the former client. Very valiantly and very properly, if I may say so, learned counsel for Mr Vella has conceded that the costs to be recovered should be limited to a sum of $5,000.

4. For those reasons, I order the appellant to pay the defendant's costs assessed at $5,000.

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Decision last updated: 03 August 2018