Shalhoub v Johnson

Case [2023] NSWDC 555


District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Shalhoub v Johnson [2023] NSWDC 555
Hearing dates: 26 October 2023
Date of orders: 13 December 2023
Decision date: 13 December 2023
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1)   Summons dismissed; plaintiff’s grounds of appeal dismissed.

(2)   Costs reserved with liberty to apply, including the bringing of any application for a gross sum costs order.

(3)   Liberty to apply in relation to any claim for interest.

(4)   Exhibits retained until further order.

Catchwords:

COSTS APPEAL – costs of a four-day trial in the Equity Division awarded to the defendants on an indemnity basis – plaintiff appeals from Costs Assessor to Review Panel and from Review Panel to the District Court – nature of a rehearing – whether sufficient consideration given to proportionality issues – whether charges by solicitors overlapped – whether briefing senior counsel (without a junior) excessive for assertedly simple Equity proceedings – no issue of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 60, 98(4), 149

Conveyancing Act 1919 (NSW), s 177

Federal Court of Australia Act 1976 (Cth), s 37M(2)(e)

Legal Profession Uniform Law 2014 (NSW), s 172

Legal Profession Uniform Law Application Act 2014 (NSW), s 89

Cases Cited:

Behnia v Sarraf (No 2) [2019] NSWDC 281

Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98

Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114

Grizonic v Suttor [2008] NSWSC 914

Jones v Sutton (No 2) [2005] NSWCA 203

Laro-Bashford v Miros [2016] VSC 77

Mohareb v State of New South Wales [2023] NSWCA 289

Perth Airport Pty Ltd v Qantas Airways Ltd (No 3) [2022] WASC 51

Price v BW & RD Smart (No 2) [2020] SASCFC 15

Roberts v Rodier [2006] NSWSC 1084

Rock v Henderson [2021] NSWCA 155

Sanderson as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr (2017) 93 NSWLR 459; [2017] NSWCA 38

Skalkos v T & S Recoveries Pty Ltd (2004) 65 NSWLR 151; [2004] NSWCA 281

Stanley v Phillips (1966) 115 CLR 470

Texts Cited:

Roger Gyles AO KC, “A Review of the Senior Counsel Protocol”, Bar News, Winter 2020 at p 9

Category:Principal judgment
Parties: Maria Shalhoub (Plaintiff)
Michael Joseph Johnson (Defendant)
Sheila Pyper Royles (Defendant)
Representation:

Counsel:
Mr M Sahade (Plaintiff)
Mr R O'Gorman-Hughes (Defendants)

Solicitors:
Oliveri Lawyers (Plaintiff)
Shaw Reynolds Lawyers (Defendants)
File Number(s): 2023/00070380
Publication restriction: Nil

Judgment

  1. Pursuant to s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) (LPULAA), the plaintiff, by Amended Summons filed on 14 April 2023, appeals from the determination of the Review Panel in Costs Assessment proceedings 2021/129768 and seeks the following orders:

  1. Appeal allowed.

  2. The Review Panel’s determinations in 2021/00129768 and 2021/00129768-003 be set aside.

  3. In lieu of the determination made by the Review Panel, a determination to the following effect:

  1. That the amount of costs assessed in respect of the costs order of the Supreme Court made 29 September 2020…

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Details
AGLC
Shalhoub v Johnson [2023] NSWDC 555
Case
[2023] NSWDC 555
Decision Date

CaseChat Overview and Summary

The plaintiff, Shalhoub, appealed against the costs of a four-day trial in the Equity Division of the Supreme Court of New South Wales, which were awarded to the defendants on an indemnity basis. The dispute arose from the costs associated with the trial, and the plaintiff sought to challenge the amount awarded. The Review Panel and the District Court were both involved in the appeal process, with the plaintiff appealing from the Costs Assessor to the Review Panel, and then from the Review Panel to the District Court. The plaintiff contended that the court did not sufficiently consider the proportionality of the costs, the potential overlap in charges by solicitors, and the necessity of briefing senior counsel without a junior for what the plaintiff claimed were relatively straightforward equity proceedings.

The central legal issues in this appeal revolved around the proportionality and necessity of the costs awarded. Shalhoub argued that the court did not give sufficient consideration to the principle of proportionality when determining the costs, which is a fundamental aspect of cost awards in litigation. Additionally, the plaintiff questioned whether there was an overlap in the charges by the solicitors, potentially leading to double recovery of costs. Furthermore, the plaintiff contended that briefing senior counsel without a junior was excessive for what Shalhoub perceived to be a simple matter in equity.

In dismissing the plaintiff's appeal, the court found that there was no issue of principle that had been overlooked in the original cost assessment. The court held that the Review Panel and the District Court had properly considered the proportionality and necessity of the costs, and that there was no basis to interfere with the assessment. The court found no merit in the plaintiff's argument regarding the overlap in charges by solicitors, and similarly, the decision to brief senior counsel without a junior was deemed appropriate given the nature and complexity of the equity proceedings. Consequently, the summons was dismissed, and the plaintiff's grounds of appeal were rejected.

Orders

Orders of the court

(1) Summons dismissed; plaintiff’s grounds of appeal dismissed.

(2) Costs reserved with liberty to apply, including the bringing of any application for a gross sum costs order.

(3) Liberty to apply in relation to any claim for interest.

(4) Exhibits retained until further order.

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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