Behnia v Sarraf (No 2) [2019] NSWDC 281

Behnia v Sarraf (No 2) [2019] NSWDC 281

Because s 89(2) of the Legal Profession Uniform Law Application Act 2014 (NSW) gives the District Court all the functions of the Review Panel, and because the District Court has no express power of remittal comparable to s 89(3), the court was required to substitute the costs determination that should have been made. Applying the indemnity costs order and Part 42.5(b), and allowing costs that did not appear unreasonably incurred or unreasonable in amount, the court assessed the costs payable under the 20 March 2017 order at $26,256.50 and the costs of costs assessment at $5,668.27, with reimbursement of Assessor and Review Panel costs.

Jurisdiction
Australia
Judgment Date
25 June 2019
Procedural Posture
Civil Costs Appeal / Further Hearing Following Allowance of Appeal From Costs Assessment Review Panel
Outcome
The court determined the costs payable by the defendant to the plaintiff and ordered payment of the assessed costs, costs of costs assessment, Assessor and Review Panel costs, and costs of the further hearings.
Legal Topics
['assessment of Indemnity Costs' 'appeal From Costs Assessment Review' 'power of Remittal' 'reference to Referee' 'costs of Costs Assessment']
['costs' 'civil Procedure' 'legal Profession'] ['assessment of Indemnity Costs' 'appeal From Costs Assessment Review' 'power of Remittal' 'reference to Referee' 'costs of Costs Assessment']

Case Brief

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Procedural Posture

Civil Costs Appeal / Further Hearing Following Allowance of Appeal From Costs Assessment Review Panel

Legal Issues

  1. 1 ['Whether, after allowing the appeal, the District Court could remit the matter to the Assessor or Review Panel or must determine the assessment itself.' 'Whether the court should refer the assessment to a referee under Part 20.14 of the Uniform Civil Procedure Rules 2005.' 'What costs should be allowed on assessment where the Supreme Court ordered costs on an indemnity basis.']

Ratio Decidendi

Because s 89(2) of the Legal Profession Uniform Law Application Act 2014 (NSW) gives the District Court all the functions of the Review Panel, and because the District Court has no express power of remittal comparable to s 89(3), the court was required to substitute the costs determination that should have been made. Applying the indemnity costs order and Part 42.5(b), and allowing costs that did not appear unreasonably incurred or unreasonable in amount, the court assessed the costs payable under the 20 March 2017 order at $26,256.50 and the costs of costs assessment at $5,668.27, with reimbursement of Assessor and Review Panel costs.

Court Disposition

The court determined the costs payable by the defendant to the plaintiff and ordered payment of the assessed costs, costs of costs assessment, Assessor and Review Panel costs, and costs of the further hearings.

Orders

  • ['The amount of costs determined by the court as owed by the defendant to the plaintiff pursuant to the 20 March 2017 costs order of the Supreme Court is $26,256.50.' 'The amount of costs of costs assessment determined by the court as owed by the defendant to the plaintiff is $5,668.27.' 'The defendant must pay to...