Khoury & Anor v Hiar & Anor [2006] NSWCA 47

Khoury & Anor v Hiar & Anor [2006] NSWCA 47

Section 47 of the Legal Aid Commission Act 1979 meant that Ms Khoury was not personally liable for costs incurred while she was legally assisted unless an exception applied. The Commission had not declined payment under s 47(4A), so that exception did not make her liable. Section 47(3) did make her liable for costs incurred before 30 August 2002. Filing the assessor's certificate under s 208J(3) of the Legal Profession Act 1987 produced a judgment, but that judgment was subject to the statutory non-liability under s 47 and could be enforced only to the extent of the pre-legal-aid costs agreed at $7,343.

Jurisdiction
Australia
Judgment Date
15 March 2006
Procedural Posture
Summons Seeking Orders in the Nature of Certiorari, Declarations and an Injunction Concerning Enforcement of a District Court Costs Judgment Against a Legally Assisted Person / Court of Appeal Hearing of Summons Assigned Pursuant to S 48(2) of the Supreme Court Act 1970
Outcome
Summons otherwise dismissed, but injunctive relief granted restraining enforcement of the District Court judgment except to the extent of $7,343; Mr Hiar ordered to pay two-thirds of the claimants' costs in the Court of Appeal.
Legal Topics
['costs Orders Against Legally Assisted Persons' 'costs Assessment Certificates' 'enforcement of Judgment' 'offer of Compromise' 'certiorari' 'injunctive Relief']
['costs' 'legal Aid' 'civil Procedure'] ['costs Orders Against Legally Assisted Persons' 'costs Assessment Certificates' 'enforcement of Judgment' 'offer of Compromise' 'certiorari' 'injunctive Relief']

Case Brief

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Procedural Posture

Summons Seeking Orders in the Nature of Certiorari, Declarations and an Injunction Concerning Enforcement of a District Court Costs Judgment Against a Legally Assisted Person / Court of Appeal Hearing of Summons Assigned Pursuant to S 48(2) of the Supreme Court Act 1970

Legal Issues

  1. 1 ['Whether s 47 of the Legal Aid Commission Act 1979 prevented Mr Hiar from recovering costs from Ms Khoury beyond the amount payable by the Legal Aid Commission.' 'Whether the exception in s 47(3) applied to costs incurred before Ms Khoury became a legally assisted person.' 'Whether the exception in s 47(4A) applied where the costs order followed an offer of compromise.' "Whether filing a costs assessor's certificate under s 208J(3) of the Legal Profession Act 1987 created an enforceable judgment notwithstanding s 47 of the Legal Aid Commission Act 1979." 'Whether relief in the nature of certiorari, declarations or an injunction should be granted.']

Ratio Decidendi

Section 47 of the Legal Aid Commission Act 1979 meant that Ms Khoury was not personally liable for costs incurred while she was legally assisted unless an exception applied. The Commission had not declined payment under s 47(4A), so that exception did not make her liable. Section 47(3) did make her liable for costs incurred before 30 August 2002. Filing the assessor's certificate under s 208J(3) of the Legal Profession Act 1987 produced a judgment, but that judgment was subject to the statutory non-liability under s 47 and could be enforced only to the extent of the pre-legal-aid costs agreed at $7,343.

Court Disposition

Summons otherwise dismissed, but injunctive relief granted restraining enforcement of the District Court judgment except to the extent of $7,343; Mr Hiar ordered to pay two-thirds of the claimants' costs in the Court of Appeal.

Orders

  • ['Mr Hiar be restrained from enforcing the judgment entered in the District Court on 24 February 2005 save to the extent of $7,343.' 'The summons be otherwise dismissed.' "Mr Hiar pay two-thirds of the claimants' costs in this Court."]