Supreme Court New South Wales Medium Neutral Citation: Gadelrabb v Liristis [2012] NSWSC 756 Hearing dates: 29/06/2012 Decision date: 29 June 2012 Jurisdiction: Common Law Before: Garling J Decision: Stood over to Registrar's List at 9am on 04/07/2012. Question of costs of today reserved. Catchwords: PROCEDURE - Defendant filed notice of motion - usual orders not made to prepare parties for hearing - process interrupted by plaintiff's application to be referred to Duty Judge to be heard in full on the day with no application to do so - Plaintiff's reason is urgency for determination - Defendant not had opportunity to respond - refer matter back to Registrar to make necessary orders Category: Procedural and other rulings Parties: Julia Gadelrabb (P) Tony Liristis (D) Representation: Mr Webb (P) Mr Liristis (D) File Number(s): 2011/339443 EX TEMPORE Judgment 1This is an application made in the course of the duty list by the respondent to a motion filed 15 May 2012. 2There has for many years been proceedings between Ms Julia Gadelrabb and Mr Tony Liristis with respect to various rights said to exist over a property at Penshurst. 3Proceedings were commenced in 2006 by Mr Liristis against Ms Gadelrabb for a variety of orders with respect to a property at Penshurst. 4In June 2011, after the proceedings were heard in the Equity Division, Ward J made orders, the effect of which was that Mr Liristis' proceedings were dismissed and relief sought on a cross-claim by Ms Gadelrabb was granted. Precise terms of the order do not need to be discussed at length. The effect of the orders were, however, that Ms Gadelrabb obtained a monetary judgment and Mr Liristis was ordered to vacate the Penshurst premises and give possession of them to Ms Gadelrabb. 5Mr Liristis has lodged an appeal against those orders. I am informed that on 20 July 2011 Basten JA granted a stay of execution of those orders subject to a variety of conditions. That stay presently subsists. The appeal has not yet been heard. 6In the course of those proceedings, on 24 September 2010 Ward J made a number of orders including an order that Mr Liristis pay Ms Gadelrabb's costs of particular wasted applications which were heard in the course of the longer proceedings in the Equity Division. No appeal has been filed with respect to those orders nor has any application for leave to appeal been filed with respect to those orders. Time has long expired for the lodging of any application for leave to appeal against those orders. 7Mr Liristis accepts before this Court that the costs orders were properly made and that he is obliged to pay Ms Gadelrabb's fair and reasonable costs, which are the subject of those orders. 8Consequent upon the usual costs assessment process, on 22 August 2011, Ms Workman, a costs assessor, issued a Certificate of Determination of the costs in the sum of $19,874.24. Accompanying that Certificate was a statement of Ms Workman's reasons. 9In that statement of reasons, Ms Workman notes that there were a number of complexities, the details of which do not need to presently trouble this Court, about the participation by Mr Liristis in the course of those proceedings. Ms Workman noted that she was satisfied that Mr Liristis was aware of the assessment process and that the various attempts to delay or defer the costs assessment process, which she listed, were carried out with the object of avoiding the proper assessment of the order for costs. 10With respect to the claim for costs, Ms Workman allowed all disbursements in full and allowed what she regarded as the sum of costs which were fair and reasonable. As it happens, except for the costs incurred in the preparation of the costs assessment, Ms Workman did not feel persuaded that any reduction in the hourly rates, or the costs claimed, ought be made. 11The Costs Certificate was filed in this Court and on 25 October 2011 became a judgment of this Court. Bankruptcy proceedings were taken in reliance of this judgment and initially a sequestration order was made in the Federal Magistrates Court. 12On 11 April 2012, Raphael FM, having heard a dispute about the adequacy of service of the creditor's petition, set aside the sequestration order. However, he noted in paragraph 19 of his decision that he would not exercise his discretion to dismiss the petition and he said: "If that petition is served properly with all the requisite documentation, then it can be heard in the proper manner. If at that time Mr Liristis has anything to say as to why the petition should not be granted he can be heard." 13Five weeks later, Mr Liristis filed a Notice of Motion in this Court on 15 May by which he sought the following orders: "(a)leave to file out of time; (b)judgment/order made on 25 October 2011 to be set aside; (c) costs." 14That Notice of Motion was made returnable before this Court on 19 June 2012. 15Although there has been an affidavit of Mr Liristis filed on 15 May 2012 when the notice of motion was filed, it is fair to say that that affidavit has not addressed adequately any of the factual material necessary to support the making of the orders in the Notice of Motion. On 19 June 2012, the matter came, as it does in the ordinary course of this Court's practice, before the Registrar who, at the request of Ms Gadelrabb's lawyers, referred the matter to the Duty Judge. 16As best I can understand what has then occurred between that time, namely 21 June 2012 before the Duty Judge, and today, is that Ms Gadelrabb's counsel has submitted that the Court should proceed to hear and determine that Notice of Motion on a final basis. Counsel does so on the basis of an affidavit which was sworn on 18 June 2012, that is the day the matter was returned before the Court, which affidavit of his solicitor has annexed to it 20 exhibits, some of which are of many pages. That application was not notified to Mr Liristis at any time before 19 June 2012. 17When the matter was before the List Judge on 19 June 2012, so far as the transcript of that occasion reveals, it is clear that counsel for Ms Gadelrabb sought to proceed with an orally made application that the proceedings be heard and determined forthwith. 18Mr Liristis sought an adjournment on the basis that he was not in a position to proceed to meet that application. In answer to a question from Hidden J who was the Duty Judge, namely "Are you in a position to proceed with this application today?", he said this: "I am not, for a number of reasons. Firstly, the respondent had 5 weeks to put on any evidence and they gave me an affidavit that's 2 inches thick this morning." 19He was asked if he had a lawyer and asked whether he wanted to try and get a lawyer. He responded: "Yes, I made an application to Legal Aid." 20It is clear that, although the statement that he made an application for Legal Aid was put in issue, Hidden J took steps to ensure that there had been an application made and that it was being processed promptly by the Legal Aid Commission. 21The matter was returned before his Honour the Duty Judge on 21 June 2012 when it was adjourned until the following Tuesday, 26 June 12, before the Registrar. On that day it seems to have been adjourned again until today. 22The short position as I see it is, is this: Mr Liristis has brought a proceeding in this Court in which, in the ordinary course of events, on the first return date, orders would be made for the filing of evidence, the obtaining of documents on subpoena, or such other steps as are necessary or appropriate for all parties to be ready for a hearing, and then the application would be fixed for hearing, with perhaps orders being made for the filing of submissions. And then the application would be heard and determined in due course. 23No such orders have been made in this case because the ordinary processes were interrupted by the submission to the Registrar by counsel for Ms Gadelrabb that the matter ought be referred to the Duty Judge and be heard in full on that day, although no written notice of such application had been made. 24It was said that there is some urgency in the determination of this application because there are proceedings before the Federal Magistrates Court, the adjournment of which will incur expense for Ms Gadelrabb. 25I am wholly unpersuaded that there is any urgency in the hearing of these proceedings. I am wholly unpersuaded that Mr Liristis had any let alone adequate notice of what was, in effect, an application for the Court to expedite the hearing of the matter, and to hear and determine it on 19 June and I am wholly unpersuaded that Mr Liristis has had an adequate opportunity to respond to the matters set out in the affidavit 18 June 2012 upon which Ms Gadelrabb relies. 26In those circumstances, I am not prepared to make orders dismissing the Notice of Motion. I am prepared to make orders for the orderly conduct of it; but the better course would be to refer the matter back to the Registrar so that the Registrar, as one would expect he would, would make those orders. 27I need, however, to note a couple of facts which are of importance. 28As I have said, Mr Liristis accepts that the orders of Ward J with respect to the payment of costs were properly made. He accepts that he is indebted to Ms Gadelrabb with respect to the reasonable legal costs of the wasted proceedings as a consequence of his failed applications. He accepts that at some point he will have to pay a sum of money to Ms Gadelrabb for those costs. There is simply no material at all to suggest that he will not be liable to Ms Gadelrabb for a sum of money and what, in my estimation, may be a significant sum of money. 29As it is, the order made by Ms Workman, consequent upon her assessment, accepted that the wasted applications that gave rise to the order for costs had occupied a number of days in the Supreme Court. Ms Workman noted that the hearing of the wasted applications had occurred on 20 and 21 September 2010 and perhaps longer. Ms Workman noted the finding of Ward J that, from a practical point of view, three and a half of the five hearing days set down had been lost by the making of the unsuccessful applications. 30The Bill of Costs includes work carried out by solicitors and counsel. The Memorandum of Fees rendered by counsel, which noted three and a half days' fees, itself comes to a little over $11,500. 31Nothing has been put before me which would suggest that this disbursement was in any way unreasonable. Nothing has been put before me to suggest that counsel did not spend about three and a half days engaged in dealing with the wasted applications. 32It is entirely possible that if Mr Liristis is given leave to challenge the assessment of Ms Workman, that the sum may be reduced by some amount. I do not find that it will be but, of course, it is possible. 33However, it does not seem to me to be likely that the sum ultimately found to be owing by Mr Liristis to Ms Gadelrabb will be anything less than $11,500 for counsel's fees and, in addition, some allowance for solicitors' fees. 34Whilst I do not purport to be a costs assessor, it seems to me to be highly unlikely, even if Mr Liristis is successful, that there will be a sum any less than $11,500 or $12,000 that he will be obliged to pay. No doubt this is a fact to which the Federal Magistrate can have regard when considering whether or not to proceed upon the application with which the Federal Magistrate will be confronted on next Monday morning. 35Whatever success Mr Liristis has in this Court, even assuming his Notice of Motion after hearing is upheld, he does not contend and nor is there any likelihood that he would succeed in persuading anybody that the sum that he owed was anything less than 50 per cent of the sum for which judgment has already been entered. 36In those circumstances, whether or not the Federal Magistrate who hears this matter chooses to further adjourn the proceedings, I make plain, is entirely a matter for the Federal Magistrate because the Federal Magistrate will need to determine the extent of the real sum of money in dispute between the parties. 37I do not propose to proceed to hear this matter forthwith. In my view it is in the interests of justice that Mr Liristis has an opportunity to put on evidence. It may be that that is assisted by the obtaining of a grant of Legal Aid, but frankly, I am not certain why that would be so, but that is a matter for others. 38In all of the circumstances, all I propose to do is to stand this matter over to the Registrar's List at 9am on Wednesday 4 July 2012 and I reserve the question of costs of today. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2012