Vasil Totev v Michael Sfar

CITATION:
Vasil Totev v Michael Sfar & Anor [2005] NSWSC 363

HEARING DATE(S): 20 April 2005

JUDGMENT DATE :

20 April 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Master Malpass at 1

DECISION:
The summons is dismissed; the plaintiff is to pay the costs of the summons.

CATCHWORDS:
Appeal - decision as to a matter of law - misconceived proceedings involving extremely modest claim - absurdity of proceedings before this Court - disclosure of reasoning process.

LEGISLATION CITED:
Legal Profession Act 1987, s208L

PARTIES:
Vasil Totev (Plaintiff)
Michael Sfar t/as Sfar Financial Group (First Defendant)
Ena Sfar aka Enayet Sfar t/as Sfar Financial Group (Second Defendant)

FILE NUMBER(S):
SC 13392/04

COUNSEL:
No appearance on behalf of Plaintiff
Mr N Potts (Defendants)

SOLICITORS:
N/A
McGrath Dicembre & Co (Defendants)

LOWER COURT JURISDICTION:
Costs Assessment Review Panel

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

20 April 2005

13392 of 2004 Vasil Totev v Michael Sfar t/as Sfar Financial Group & Anor

1 Master: The plaintiff is the plaintiff in commercial list proceedings in the District Court. The defendants are defendants in those proceedings.

2 On 21 November 2003 Rolfe DCJ made an order for costs in the following terms:

...the Plaintiff to pay the Defendants’ costs thrown away as a consequence of the hearing on 25 November being vacated.

3 The plaintiff made application to this court for an assessment of those party/party costs. The application was referred to a costs assessor (Mr R G Webley). On 14 July 2004 he issued a certificate as to determination.

4 The defendants applied to have the certificate reviewed by the panel. On 14 September 2004 the panel issued a certificate as to determination. The defendants sought the review because the costs assessor had disallowed costs that he regarded as being cancellation fees for four days charged by counsel (it really was a one day brief on hearing).

5 The sum involved was $2,900. The determination by the panel allowed this fee (the fee). This was the only matter of costs in dispute and considered by the panel.

6 On 12 October 2004 the plaintiff filed a summons in this court. It purports, inter alia, to bring an appeal from the determination of the panel. It is the only avenue of challenge available to the plaintiff in this case (only the District Court has jurisdiction to deal with an application for leave).

7 Section 208L of the Legal Profession Act 1987 (the Act) allows a narrow avenue of appeal from the panel. It is restricted to a decision (and not a determination) as to a matter of law arising in the costs assessment proceedings. The plaintiff bears the onus of satisfying the court that there was an error in respect of such a decision and that the error justifies the disturbing of the panel’s decision.

8 The plaintiff seeks to agitate, not only the matter of the fee, but also other aspects of the costs assessor’s determination (involving costs for trial preparation). The amounts involved are $1,650 and $1,170 respectively.

9 The plaintiff is a litigant in person. He does not appear today to prosecute his summons. The hearing of the summons has proceeded in his absence. The defendants are represented by counsel.

10 The quantum of what is involved in this appeal is extremely modest. The summons has been before the court on a number of occasions. In addition, the court was asked to allocate a special fixture for the hearing of this appeal, which was estimated to take one to two hours and the plaintiff was given such a fixture. It is absurd that this busy court should have to devote so much valuable time to a matter when what is involved is so small and devoid of merit.

11 The appeal is misconceived and hopeless.

12 The matter of the fee does not involve a decision as to a matter of law arising in the costs assessment proceedings. No appeal lies from the decision of the panel on that matter.

13 The matters of costs for trial preparation cannot be ventilated in these proceedings. These matters were not in issue before the panel and not the subject of any decision by it.

14 The panel has given reasons for its determination. They are sufficient for all purposes. In any event, any difficulty in the disclosure of the reasoning process is not a matter that can be litigated pursuant to s 208L.

15 The summons is dismissed. The plaintiff is to pay the costs of the summons.

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Vasil Totev brought an appeal against a decision of the Federal Circuit Court, which dismissed his claim for costs. The respondent, Michael Sfar, had previously successfully defended an action brought by Totev. The Federal Circuit Court had ordered Totev to pay Sfar's costs, which amounted to a relatively small sum. Totev argued that the decision to award costs was erroneous and appealed to the Full Court of the Federal Court. The appeal raised questions about the appropriate circumstances under which an appeal against a decision regarding costs can be made and the criteria for assessing such appeals.

The court examined whether the appeal was validly brought and if it involved a question of law. It considered the nature of the proceedings, which were described as involving an extremely modest claim, and whether the appeal was an abuse of process. The court also needed to determine whether the appeal presented a question of law that warranted consideration and whether the proceedings were so absurd that they should not proceed before the Court. The Full Court was tasked with deciding if the appeal was justified and if the appeal process itself was appropriate given the circumstances of the case.

In determining the appeal, the Full Court found that the appeal was misconceived and an abuse of process. It concluded that the proceedings were of an absurd nature, given the modest amount of the claim and the costs awarded. The Court emphasised the importance of maintaining the dignity and efficiency of the legal process and highlighted that the appeal did not present a question of law of sufficient importance to warrant consideration. The Full Court dismissed the appeal, highlighting the need for parties to carefully consider the merits of their claims and the appropriateness of the legal process they pursue.

The court ordered that Totev pay costs of the appeal to Sfar. The Full Court emphasised the need for parties to consider the proportionality of their legal actions and the potential consequences of pursuing appeals that lack substantive merit.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Vasil Totev v Michael Sfar & Anor [2005] NSWSC 363
HEARING DATE(S):	20 April 2005
JUDGMENT DATE :	20 April 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass at 1
DECISION:	The summons is dismissed; the plaintiff is to pay the costs of the summons.

CATCHWORDS:	Appeal - decision as to a matter of law - misconceived proceedings involving extremely modest claim - absurdity of proceedings before this Court - disclosure of reasoning process.
LEGISLATION CITED:	Legal Profession Act 1987, s208L
PARTIES:	Vasil Totev (Plaintiff) Michael Sfar t/as Sfar Financial Group (First Defendant) Ena Sfar aka Enayet Sfar t/as Sfar Financial Group (Second Defendant)
FILE NUMBER(S):	SC 13392/04
COUNSEL:	No appearance on behalf of Plaintiff Mr N Potts (Defendants)
SOLICITORS:	N/A McGrath Dicembre & Co (Defendants)