Kassem & Secatore as joint liquidators of Pan Pacific Age Care Services Pty Ltd (in liq) & Anor v Koutavas [2012] NSWSC 236

Supreme Court New South Wales

Medium Neutral Citation: Kassem & Secatore as joint liquidators of Pan Pacific Age Care Services Pty Ltd (in liq) & Anor v Koutavas [2012] NSWSC 236 Hearing dates: 27 February 2012 Decision date: 16 March 2012 Jurisdiction: Equity Division Before: Ward J Decision: Costs judgment set aside. Entry of costs judgment in lieu thereof. Catchwords: COSTS - costs assessment scheme - enforcement of cost certificates issued pursuant to ss 368 and 369 Legal Profession Act 2004 (NSW) - where both certificates lodged together and, pursuant to ss 386(5) and 369(7) Legal Profession Act 2004 (NSW), entered as single judgment for cost applicant - whether judgment entered irregularly on the basis that money payable under s 369 certificate not a debt due to the cost applicant - HELD - judgment arising from filing of s 369 certificate not for a debt due to the cost applicant - judgment set aside - orders in lieu made to give effect to the import of the statutory costs judgment arising on filing of the s 369 certificate RESTITUTION - right to reimbursement where moneys paid under compulsion discharging liability of another - whether right arose where cost applicant paid costs of cost assessor in order to obtain cost certificates from Manager, Costs Assessment - where cost respondent liable to pay costs as assessed under the s 369 certificate - OBITER - cost applicant in those circumstances would have right to reimbursement from cost respondent Legislation Cited: Civil Procedure Act 2005 (NSW) Legal Profession Act 2004 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Anderson Formrite Pty Ltd v CASC Hire Pty Ltd [2005] FCA 1424 Anlaby v Praetorius (1888) 20 QBD 764 Australian Securities Commission v Marlborough Gold mines Ltd [1993] HCA 15; (1993) 177 CLR 485 Bhattacharya v Berger [1999] FCA 883 Bhattacharya v Berger [1999] FCA 1302 Brook's Wharf & Bull's Wharf Ltd v Goodman Bros [1937] 1 KB 534 Croker v FCT (2003) 52 ATR 226 Croker v Commissioner of Taxation [2005] FCA 127 Dennis v Miller and Ors [2012] FMCA 25 Doyle v Hall Chadwick [2007] NSWCA 159 Edmunds v Wallingford (1885) 14 QBD 811 Exall v Partridge (1799) 8 TR 308 Frumar v Owners of Strata Plan 36957 [2010] NSWCA 172 Holtby v Hodgson [1890] 24 QBD 103 Infact Consulting Pty Ltd v Kyle House Pty Ltd [2007] NSWSC 56 Moule v Garrett (1872) LR 7 Ex 101 Pearl Bay Corp Pty Ltd v Lodur Pty Ltd [2000] WASC 315 Rankine v Lord [2011] FCA 478 The Esso Bernicia [1989] AC 643 Texts Cited: Goff and Jones, The Law of Restitution (5th ed, 1998) Ritchie's Uniform Civil Procedure NSW Category: Interlocutory applications Parties: Ozem Azzam Kassem and Bruno Secatore as Joint Liquidators of Pan Pacific Age Care Services Pty Ltd (in liq) ACN 112 742 882 (First Plaintiff/First Respondent) Pan Pacific Age Care Services Pty Ltd (in liq) ACN 112 742 882 (Second Plaintiff/Second Respondent) Kanella Koutavas (Defendant/Applicant) Representation: Counsel M Condon (Plaintiffs/Respondents) J T Johnson (Defendant/Applicant) Solicitors Sage Solicitors (Plaintiffs/Respondents) Owen Hodge Lawyers (Defendant/Applicant) File Number(s): 10/075348