Reported Decision: 76 NSWLR 148
New South Wales
Court of Appeal
CITATION: Yakmor v Hamdoush (No 2) [2009] NSWCA 284 HEARING DATE(S): (On written submissions)
JUDGMENT DATE:
7 October 2009JUDGMENT OF: Giles JA at 1; Ipp JA at 48; Tobias JA at 49 DECISION: 1. The appellant pay the respondent's costs of the appeal.
2. The appellant's tutor pay to the respondent the costs the appellant is ordered to pay.CATCHWORDS: COSTS - party under disability appealing by tutor - tutor's liability for costs - whether costs order direction against tutor - whether tutor a "party" within UCP Rules r 42.3. LEGISLATION CITED: Civil Procedure Act 2005, s 3, s 22, s 98Crimes (Criminal Trials) Act 1999 (Vic), s 25Legal Profession Act 2004, Pt 3.2, Div 11Supreme Court Rules 1970, Pt 52Uniform Civil Procedure Rules 2005, Pt 7 Div 4, r 42.3, r 42.27 CASES CITED: ACP Magazines Pty Ltd v Motion [2000] NSWSC 1169;
in the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 879;
Buckly v Buckeridge(1767) 1 Dick 395; 21 ER 323
ex parte Brocklebank (1877) 6 Ch D 358;
Caley v Caley (1877) 25 WR 528;
Catt v Wood (1908) 2 KB 458;
Darke v Eltherington (1963) QdR 375;
ex parte Davis (1901) 1 SR (NSW) 187;
Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200;
Dey v Victorian Railways Commissioners (1949) 78 CLR 62;
Dissidomino v Butcher Paull & Calder [2005] WASCA 210;
Farrell v Royal Kings Park Tennis Club (Inc) [2007] WASCA 173;
Fisher v Marin [2008] NSWSC 1357;
Jackson v Roberts (1941) ALR 365;
Law Society of New South Wales v Jackson (1981) 1 NSWLR 730;
Nadine v Protective Commissioner (Young J, 6 October 1993, unreported);
NSW Insurance Ministerial Corporation v Abualfoul [1999] FCA 433;
Masling v Motor Hiring Company (Manchester) Ltd (1919) 2 KB 535;
O'Brien v O'Brien (1995) 35 NSWLR 664;
O'Brien v The Herald and Weekly Times Ltd (1937) VLR 135;
Pink v J A Sharwood & Co Ltd (1913) 2 Ch 286;
Radford v Cavanagh (1899) 15 WN 226;
Rhodes v Swithenbank (1889) 22 QBD 577;
Spina v Permanent Custodians Ltd [2008] NSWSC 561;
Spina v Permanent Custodians Ltd [2009] NSWCA 206;
State Rail Authority of New South Wales v Hammond (1988) 15 NSWLR 395;
Steeden v Walden (1910) 2 Ch 393;
Victoria Legal Aid v The County Court of Victoria [2004] VSCA 113;
Woolf v Woolf (1899) 1 Ch 343;
Yakmor v Hamdoush [2009] NSWCA 137.TEXTS CITED: Daniell’s Chancery Practice, 8th ed, vol 1 PARTIES: Shady Yakmor (by his tutor Nadine Yakmor) - Appellant
Mohamad Hamdoush - RespondentFILE NUMBER(S): CA 40151/08 COUNSEL: Appellant: Unrepresented
Respondent: V M HeathSOLICITORS: Appellant/tutor: Unrepresented
Respondent: Moray & Agnew SolicitorsLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 1577/06 LOWER COURT JUDICIAL OFFICER: A Balla DCJ LOWER COURT DATE OF DECISION: 1 May 2008
CA 40151/08
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- AGLC
- Yakmor v Hamdoush (No 2) [2009] NSWCA 284
- Case
- [2009] NSWCA 284
- Decision Date
CaseChat Overview and Summary
The appeal concerned the liability of a tutor for the costs of an appeal brought by a party under a disability. The appellant, who was under a disability, appealed a decision of the primary judge. The respondent sought an order that the appellant's tutor pay the respondent's costs of the appeal.
The central legal issue before the Court of Appeal was whether the tutor, who had conducted the appeal on behalf of the appellant, was personally liable for the costs of the appeal. This required the court to consider the meaning of "party" within the Uniform Civil Procedure Rules 2005 (NSW) (UCP Rules) and, specifically, rule 42.3, which deals with the liability of a tutor for costs.
The Court of Appeal held that a tutor appointed to conduct proceedings for a party under a disability is not a "party" to the proceedings in their own right for the purposes of rule 42.3 of the UCP Rules. The court reasoned that the tutor acts as an officer of the court to facilitate the litigation for the benefit of the person under disability, and their role does not extend to assuming personal liability for costs. The court noted that while a tutor might be liable for costs in exceptional circumstances, such as misconduct, this was not such a case.
Consequently, the Court of Appeal ordered that the appellant pay the respondent's costs of the appeal, and further ordered that the appellant's tutor pay to the respondent the costs the appellant was ordered to pay.
The central legal issue before the Court of Appeal was whether the tutor, who had conducted the appeal on behalf of the appellant, was personally liable for the costs of the appeal. This required the court to consider the meaning of "party" within the Uniform Civil Procedure Rules 2005 (NSW) (UCP Rules) and, specifically, rule 42.3, which deals with the liability of a tutor for costs.
The Court of Appeal held that a tutor appointed to conduct proceedings for a party under a disability is not a "party" to the proceedings in their own right for the purposes of rule 42.3 of the UCP Rules. The court reasoned that the tutor acts as an officer of the court to facilitate the litigation for the benefit of the person under disability, and their role does not extend to assuming personal liability for costs. The court noted that while a tutor might be liable for costs in exceptional circumstances, such as misconduct, this was not such a case.
Consequently, the Court of Appeal ordered that the appellant pay the respondent's costs of the appeal, and further ordered that the appellant's tutor pay to the respondent the costs the appellant was ordered to pay.
Orders
Orders of the court
1. The appellant pay the respondent's costs of the appeal.
2. The appellant's tutor pay to the respondent the costs the appellant is ordered to pay.
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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