Karam v. Good Luck Holdings Pty Ltd & Ors [2006] QDC 325 (28 August 2006)

Last Updated: 13 September 2006

[2006] QDC 325

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC


No D380 of 2004

THAMIR KARAM	Plaintiff/Respondent
and
GOOD LUCK HOLDINGS PTY LTD (ACN 100 061 425) and DAYAL HASSARAM MANSUKHANI and POOJA DAYAL MANSUKHANI	First defendant/Applicant Second Defendant/Applicant Third Defendant/Applicant

SOUTHPORT

..DATE 28/08/2006

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r.489 - application for setting aside of costs orders on basis that applicants were not informed of the date for assessment and that the Registrar had previously given assurance that no assessment would occur for matters proposed to be determined without an oral hearing - respondents required an oral hearing - applicants did not appear - potentially important documents unavailable as file had been transmitted to the Court of Appeal - application refused.

HIS HONOUR: There is an application before the Court, filed under rule 489 of the Uniform Civil Procedure Rules, by the second and third defendants. It seeks that two costs orders made by the Deputy Registrar, one on the 15th of December 2005 for $5,115.70 and another on the same day for $19,132 plus $71, be set aside and a new hearing date fixed.

The application states that there will be reliance on an affidavit of "the applicant" dated 22nd of June 2006. I think the reference has to be to an affidavit of Mr Mansukhani dated 21st of June 2006, a notarised original of which appears to have been filed on the 1st of August 2006, following the filing on the 28th of June 2006 of another version which appears to have been signed by the deponent in Mumbai, but contains no attestation at all.

This affidavit says that the second and third defendants had no knowledge of the orders until a bankruptcy notice was served on the third defendant. They say that on the 27th of October 2005, the Deputy Registrar, in the presence of the plaintiff's solicitor, and presumably, of Mr Mansukhani, perused the last mentioned's application filed on the 20th of October 2005 and "clearly informed me that he's not passing any order on costs, and that any further application on costs will be heard not by a Registrar but by a Judge, and he also confirmed that, acceding to my request, no hearing would be held for three to four months".

The affidavit says that by reason of illness, Mr Mansukhani returned to India on the 8th of November 2005. The very same paragraph says that the second defendant, being Mr Mansukhani, had left Australia in September 2005. Perhaps that is intended as a reference to the third defendant.

It is complained that there was no service of the two applications for costs assessment filed on the 28th of October 2005. According to the file index, the file appears to lack many documents, including those applications and the judgments which created the entitlement to costs. The explanation may be that the Court of Appeal holds all relevant documents pursuant to the request of the Court of Appeal contained in a letter of the 5th of June 2006 to the Registry in Southport, advising institution of an appeal and requesting the Court file and the documentary exhibits.

Mr El-Asswad has appeared today, representing the interests of the plaintiff, in circumstances of unavailability of his principal who has more familiarity with matters. There has been no appearance by the defendants when they were called. The corporate defendant is in liquidation. The others are, it seems, out of the country. The stakes are high for the plaintiff who faces loss of substantial orders for costs. There is an affidavit from Mr El-Asswad, which it should be said does not really get into matters of concern, such as whether the Mansukhanis had any notice of the assessment occurring which resulted in the costs orders.

I decline to make any order upon the present application.

Another of the missing documents is 74, which is noted in the file index kept by the Registrar. It shows that there was a notice requiring an oral hearing filed by the plaintiff. In my opinion, the matter is too confused to proceed with today. Determination without an oral hearing is inappropriate. The Court ought to have regard to the presumption of regularity in accordance with which the costs assessments complained of should be taken - unless the contrary is made to appear - as made after proper notice to those concerned, which principally means those who might have to meet the costs order.

There are no documents available to the Court today in the circumstances that I have mentioned already which lend the slightest support to the assertions in Mr Mansukhani's affidavit which, on the face of them, are astounding. No doubt, in accordance with the usual principles, if the refusal of relief today occasions some real injustice to the applicants, they can apply to the Court on the basis that they have had no oral hearing in which they could participate, for a review of the matter.

I am not persuaded by Mr El-Asswad's assertion that this is a matter for the Court of Appeal, and that the application should be given short shift on the basis that it is amply demonstrated that the Mansukhanis are alert to that being the appropriate avenue for redress.


The challenge that is made in this application is not to their liability to judgment for costs, but to their having supposedly not been given the opportunity to be heard when those costs came to be assessed. That would seem to me likely to be an internal matter capable of resolution at District Court level.

It is concerning to note that there is a further application by Mr Mansukhani for an order without any oral hearing. That one was filed on the 14th of August 2006, and seeks leave to appeal under section 118(3) of the District Court of Queensland Act against an order of Judge Rackemann on the 1st of June 2006 awarding costs against the defendants on an indemnity basis. The existence of that application caused some confusion earlier in the day. It would seem to me misconceived as the leave sought in section 118 subsection (3), in my opinion is leave of the Court of Appeal, not of the District Court. But this particular application is returnable on the 13th of November 2006, so the Court does not get involved in it all.

The application which is before the Court, filed on the 28th of June 2006 is refused for the reasons indicated. I think the costs ought to be reserved.

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