Benjamin & Khoury Pty Ltd v Rahme [2022] NSWSC 766

Benjamin & Khoury Pty Ltd v Rahme [2022] NSWSC 766

There are serious questions to be tried about the indemnity principle and common costs apportionment. Balance of convenience favors the plaintiff, especially due to potential winding up from statutory demands and risks regarding solicitor's lien and respondent's capacity to repay. Supreme Court has the power under s 135 Civil Procedure Act to stay enforcement of judgment pending appeal. Stay should be granted on condition plaintiff pays 50% of judgment sums into court.

Jurisdiction
Australia
Judgment Date
14 June 2022
Procedural Posture
Appeal Against Costs Assessment, Interlocutory Stay Application / Stay Pending Appeal; Orders Made; Post Amendment
Outcome
Stay of enforcement of judgments granted in both proceedings, conditional on plaintiff paying sums into court; costs in appeal.
Legal Topics
['stay of Execution' 'costs Assessments' "solicitors' Lien" 'indemnity Principle']
['civil Procedure' 'legal Practice'] ['stay of Execution' 'costs Assessments' "solicitors' Lien" 'indemnity Principle']

Case Brief

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Procedural Posture

Appeal Against Costs Assessment, Interlocutory Stay Application / Stay Pending Appeal; Orders Made; Post Amendment

Legal Issues

  1. 1 ['Does the Supreme Court have jurisdiction to stay costs assessment judgments pending appeal?' 'Should a stay be granted pending appeal given potential statutory demands?' 'Does the indemnity principle limit recoverable costs to the amount payable by Ms Rahme to her solicitors?' 'Should costs be apportioned between parties (Ms Rahme and her husband)?' 'Is there a risk of irreparable harm to the plaintiff if enforcement is not stayed?' "What is the impact of a solicitor's fruits of action lien?"]

Ratio Decidendi

There are serious questions to be tried about the indemnity principle and common costs apportionment. Balance of convenience favors the plaintiff, especially due to potential winding up from statutory demands and risks regarding solicitor's lien and respondent's capacity to repay. Supreme Court has the power under s 135 Civil Procedure Act to stay enforcement of judgment pending appeal. Stay should be granted on condition plaintiff pays 50% of judgment sums into court.

Court Disposition

Stay of enforcement of judgments granted in both proceedings, conditional on plaintiff paying sums into court; costs in appeal.

Orders

  • ['In proceedings 2021/330107: On condition plaintiff pays $196,554 into court by 12 July 2022, stay enforcement of judgment until determination of appeal; costs in appeal.' 'In proceedings 2021/330110: On condition plaintiff pays $93,170 into court by 12 July 2022, stay enforcement of judgment until determination of...