Phoenician Holdings Pty Ltd t/as Cadmus Lawyers v Rahme [2015] NSWSC 587

Phoenician Holdings Pty Ltd t/as Cadmus Lawyers v Rahme [2015] NSWSC 587

The Court was not satisfied that the payment of $440,000 from the controlled monies account to the defendants could be ordered without jeopardising the plaintiff's security under the deed of charge. The amount ultimately recoverable by the plaintiff remains uncertain due to pending review proceedings, unresolved enforcement costs, and unresolved interest calculation, and the risk of shortfall would fall unfairly on the plaintiff. The defendants also failed to clearly establish an inability to fund their unrelated defence from other sources. Accordingly, the defendants' notice of motion was dismissed and costs awarded to the plaintiff.

Parties
Plaintiff/respondent: Phoenician Holdings Pty Ltd t/as Cadmus Lawyers; First Defendant/first Applicant: George Maroun Rahme; Second Defendant/second Applicant: Nouha Rahme
Jurisdiction
Australia
Judgment Date
19 May 2015
Procedural Posture
Notice of Motion Interlocutory Application / Interlocutory Ruling on Notice of Motion
Outcome
Defendants' notice of motion dismissed; costs awarded to the plaintiff.
Legal Topics
Mortgages, Solicitor Client Relationship, Security for Costs, Controlled Monies Account, Costs Assessment, Enforcement of Security
Equity Mortgages Solicitor Client Relationship Security for Costs Controlled Monies Account Costs Assessment Enforcement of Security

Case Brief

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Parties

Phoenician Holdings Pty Ltd t/as Cadmus Lawyers

Plaintiff/respondent

George Maroun Rahme

First Defendant/first Applicant

Nouha Rahme

Second Defendant/second Applicant

Procedural Posture

Notice of Motion Interlocutory Application / Interlocutory Ruling on Notice of Motion

Legal Issues

  1. 1 Whether $440,000 should be paid to the defendants from a controlled monies account held as security for payment of plaintiff's legal fees and disbursements; specifically, whether such an order would jeopardise the plaintiff's security under a deed of charge and mortgage and whether the defendants have established they are unable to fund their defence from other sources.

Ratio Decidendi

The Court was not satisfied that the payment of $440,000 from the controlled monies account to the defendants could be ordered without jeopardising the plaintiff's security under the deed of charge. The amount ultimately recoverable by the plaintiff remains uncertain due to pending review proceedings, unresolved enforcement costs, and unresolved interest calculation, and the risk of shortfall would fall unfairly on the plaintiff. The defendants also failed to clearly establish an inability to fund their unrelated defence from other sources. Accordingly, the defendants' notice of motion was dismissed and costs awarded to the plaintiff.

Court Disposition

Defendants' notice of motion dismissed; costs awarded to the plaintiff.

Orders

  • The defendants' notice of motion filed on 7 April 2015 is dismissed.
  • The defendants are to pay the plaintiff's costs of the notice of motion.