Kisimul Holdings Pty Ltd v Simms [2018] NSWSC 688

Kisimul Holdings Pty Ltd v Simms [2018] NSWSC 688

The Court refused the plaintiff's applications because the costs assessment affirmed by the Review Panel had been entered as a judgment, making suspension under s 386 of the Legal Profession Act 2004 (NSW) inappropriate, and because the interests of justice did not justify staying the judgment. The proposed appeal grounds were not strong: the omission complaint was barely arguable, and the misstatement of applicable legislation was not shown to produce any material difference in result. The limited amount in dispute was disproportionate to the time and costs likely to be incurred, and the asserted recovery risk concerning the defendants did not persuade the Court to grant relief.

Jurisdiction
Australia
Judgment Date
15 May 2018
Procedural Posture
Costs Application Concerning Suspension or Stay of Costs Assessment and Review Panel Determination / Application for Suspension of Costs Certificates and Implied Stay of Judgment; Leave to Appeal Summons Stood Over for Directions
Outcome
Applications for suspension of the certificates or Review Panel determination and the implied application for a stay of judgment were dismissed; costs were ordered for the defendants in a gross sum; the leave to appeal summons was stood over with directions.
Legal Topics
['costs Assessment' 'review Panel Determination' 'stay of Judgment' 'leave to Appeal' 'gross Sum Costs Order']
['civil Procedure' 'costs' 'legal Profession'] ['costs Assessment' 'review Panel Determination' 'stay of Judgment' 'leave to Appeal' 'gross Sum Costs Order']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Application Concerning Suspension or Stay of Costs Assessment and Review Panel Determination / Application for Suspension of Costs Certificates and Implied Stay of Judgment; Leave to Appeal Summons Stood Over for Directions

Legal Issues

  1. 1 ['Whether the Court should suspend the operation of certificates of determination of costs and the Review Panel determination under s 386(1) of the Legal Profession Act 2004 (NSW).' "Whether the Court should stay the judgment entered for the assessed costs pending the plaintiff's proposed appeal or application for leave to appeal." "Whether the plaintiff's proposed grounds of appeal supported interim relief." 'Whether the defendants should receive costs of the application as a gross sum.']

Ratio Decidendi

The Court refused the plaintiff's applications because the costs assessment affirmed by the Review Panel had been entered as a judgment, making suspension under s 386 of the Legal Profession Act 2004 (NSW) inappropriate, and because the interests of justice did not justify staying the judgment. The proposed appeal grounds were not strong: the omission complaint was barely arguable, and the misstatement of applicable legislation was not shown to produce any material difference in result. The limited amount in dispute was disproportionate to the time and costs likely to be incurred, and the asserted recovery risk concerning the defendants did not persuade the Court to grant relief.

Court Disposition

Applications for suspension of the certificates or Review Panel determination and the implied application for a stay of judgment were dismissed; costs were ordered for the defendants in a gross sum; the leave to appeal summons was stood over with directions.

Orders

  • ['Refuse a stay of the judgment entered in favour of the defendants in this Court in matter number 2018/120068.' "Dismiss the plaintiff's claims for relief in prayers 1, 2 and 3 of the summons." "Order the plaintiff to pay the defendants' costs of the application on 15 May 2018 in the gross sum of $2,000, inclusive...