Abed v State of New South Wales & Ors [2013] NSWDC 179

Abed v State of New South Wales & Ors [2013] NSWDC 179

Because the funds held by the Registrar remained the second and third defendants' money until judgment and the freezing order was not quasi-security for the plaintiff, the Court disregarded the plaintiff's prospects and any possible inability to satisfy a judgment. The second and third defendants were entitled to release of reasonable further legal costs, but the claimed outstanding amount was reduced by $11,000 because, absent evidence of an agreed and authorised variation to counsel's written costs agreement, that overpayment could not be treated as reasonable.

Jurisdiction
Australia
Judgment Date
08 August 2013
Procedural Posture
Notice of Motion Concerning Costs in Proceedings Alleging Wrongful Arrest, False Imprisonment and Malicious Prosecution / Interlocutory Application After Hearing of the Substantive Proceedings and Before Reserved Judgment
Outcome
Notice of motion granted in part; $31,072.86 released for the second and third defendants' further costs, with each party to pay own costs of the motion.
Legal Topics
['release of Funds Held by Registrar' 'freezing Order' 'reasonable Legal Costs' 'mareva Injunction Principles']
['civil Procedure' 'costs'] ['release of Funds Held by Registrar' 'freezing Order' 'reasonable Legal Costs' 'mareva Injunction Principles']

Case Brief

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Procedural Posture

Notice of Motion Concerning Costs in Proceedings Alleging Wrongful Arrest, False Imprisonment and Malicious Prosecution / Interlocutory Application After Hearing of the Substantive Proceedings and Before Reserved Judgment

Legal Issues

  1. 1 ['Whether the second and third defendants should be permitted to access funds held by the Registrar and subject to a freezing order to pay further legal costs and disbursements of defending the proceedings.' "Whether the plaintiff's prospects of success and possible inability of the second and third defendants to satisfy any judgment should affect release of the funds." 'Whether the further costs claimed by the second and third defendants were reasonable.']

Ratio Decidendi

Because the funds held by the Registrar remained the second and third defendants' money until judgment and the freezing order was not quasi-security for the plaintiff, the Court disregarded the plaintiff's prospects and any possible inability to satisfy a judgment. The second and third defendants were entitled to release of reasonable further legal costs, but the claimed outstanding amount was reduced by $11,000 because, absent evidence of an agreed and authorised variation to counsel's written costs agreement, that overpayment could not be treated as reasonable.

Court Disposition

Notice of motion granted in part; $31,072.86 released for the second and third defendants' further costs, with each party to pay own costs of the motion.

Orders

  • ["I order that the sum of $31,072.86, being part of the funds held in an interest bearing account by the Registrar, be paid forthwith to the trust account of Stojanovic Solicitors on account of the second and third defendants' further costs of the substantive proceedings." 'I order that the funds paid to the said...