Kassem & Secatore as joint liquidators of Pan Pacific Age Care Services Pty Ltd (in liq) & Anor v Koutavas [2012] NSWSC 236

Kassem & Secatore as joint liquidators of Pan Pacific Age Care Services Pty Ltd (in liq) & Anor v Koutavas [2012] NSWSC 236

The judgment arising from the filing of a s 369 certificate constituted a judgment for payment of the costs of the costs assessment to the Manager, Costs Assessment, not the plaintiffs. The inclusion in the judgment of a debt payable to the Manager, Costs Assessment created an irregularity, but as the plaintiffs had already paid those costs under compulsion to obtain the certificates, they were entitled to reimbursement from the defendant under principles of restitution. The judgment was set aside and replaced with orders reflecting (1) the defendant’s liability to the plaintiffs for costs under s 368, and (2) reimbursement to plaintiffs for s 369 costs paid on defendant’s behalf.

Jurisdiction
Australia
Judgment Date
16 March 2012
Procedural Posture
Interlocutory Application / Application to Set Aside Costs Judgment
Outcome
Judgment set aside and new judgment/orders entered.
Legal Topics
['costs Assessment' 'restitution' 'enforcement of Costs Certificates' 'irregular Entry of Judgment']
['civil Procedure' 'costs Law'] ['costs Assessment' 'restitution' 'enforcement of Costs Certificates' 'irregular Entry of Judgment']

Case Brief

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Procedural Posture

Interlocutory Application / Application to Set Aside Costs Judgment

Legal Issues

  1. 1 ['Whether entry of a composite costs judgment (including both s 368 and s 369 certificates under Legal Profession Act 2004 (NSW)) was irregular because money payable under s 369 certificate is not a debt due to the cost applicant but to Manager, Costs Assessment;' 'Whether judgment should be set aside or varied to exclude costs of costs assessment;' 'Whether party who pays costs assessment under compulsion has right to reimbursement from party liable']

Ratio Decidendi

The judgment arising from the filing of a s 369 certificate constituted a judgment for payment of the costs of the costs assessment to the Manager, Costs Assessment, not the plaintiffs. The inclusion in the judgment of a debt payable to the Manager, Costs Assessment created an irregularity, but as the plaintiffs had already paid those costs under compulsion to obtain the certificates, they were entitled to reimbursement from the defendant under principles of restitution. The judgment was set aside and replaced with orders reflecting (1) the defendant’s liability to the plaintiffs for costs under s 368, and (2) reimbursement to plaintiffs for s 369 costs paid on defendant’s behalf.

Court Disposition

Judgment set aside and new judgment/orders entered.

Orders

  • ['Kanella Koutavas is to pay the plaintiffs the sum of $17,131.22 in respect of the costs determined under the s 368 certificate.' 'Kanella Koutavas is to pay to the plaintiffs the sum of $962.14 by way of reimbursement for costs of the costs assessor paid under the s 369 certificate.' 'Order 1 to take effect as of...