/

/

Kearney v Amirbeaggi [2025] NSWSC 1223 | Case summary | Zoe

NSWNSWSC

Kearney v Amirbeaggi

[2025] NSWSC 1223

Supreme Court of NSW|2025-10-17|Before: Fagan J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2025-10-17

Before

Fagan J

Catchwords

COSTS – gross sum determination

Source

Original judgment source is linked above.

Catchwords

COSTS – gross sum determination

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Kearney v Amirbeaggi [2025] NSWSC 1223

Hearing dates: On the papers

Date of orders: 17 October 2025

Decision date: 17 October 2025

Jurisdiction: Common Law

Before: Fagan J

Decision: Pursuant to orders 5 and 6 made on 1 May 2025 the part of the defendants’ costs referred to in those two orders is determined in the gross sum of $369,432.

Catchwords: COSTS – gross sum determination

Legislation Cited: Civil Procedure Act 2005 (NSW)

Category: Costs

Parties: Brian Kearney (Plaintiff)
Farshad Amirbeaggi (First Defendant)
Yates Beaggi Lawyers (Second Defendant)

Representation: Counsel:
No appearance (Plaintiff)
FT Roughley SC with Mr BW Smith (Defendants)
Solicitors:
Self-represented (Plaintiff)
YPOL Lawyers (Defendants)

File Number(s): 2019/96321

Publication restriction: Nil

JUDGMENT

On 1 May 2025 I dismissed the plaintiff’s substantive claim under his further amended statement of claim filed on 13 October 2020. Verdict and judgment were then entered for the defendants, in circumstances and for reasons explained in Kearney v Amirbeaggi [2025] NSWSC 455. The following costs orders were made:

4. Order the plaintiff pay the defendants’ costs of the proceedings.

Under s 98(4)(c) of the Civil Procedure Act 2005 (NSW), such of the defendants’ costs as have been incurred in connection with the application for a permanent stay of proceedings heard on 17.2.25 and all costs of the proceedings thereafter are to be assessed as a gross sum, the quantum of which is to be determined on the papers.

Order 5, that the defendants’ costs be determined by the Court as a gross sum, was made on the ground that quantification by an assessor under the usual process provided for in the Legal Profession Uniform Law Application Act 2014 (NSW) would likely result in very extensive and detailed disputation by the plaintiff, Mr Kearney, irrespective of the merits of the defendants’ quantification of their costs. Proceedings before an assessor, and before a panel if a review should be sought, would almost certainly be delayed and prolonged as a result of Mr Kearney not adhering to time limits and making collateral complaints and objections. That prognosis is based upon my observation of Mr Kearney’s entrenched habits of litigious behaviour, as displayed by him during my management of the proceedings since 17 February 2025. Mr Kearney’s tendency to cause unreasonable delays was established well prior to the date when the case became my responsibility, as is apparent from the Court record of his conduct of the case before other judges of the Division at earlier stages.
Order 5 limits the gross sum assessment to costs incurred during the period in which I have case managed the proceedings. I am not sufficiently informed about the extent of legal work carried out by the defendants’ representatives during earlier periods to be able readily to determine an appropriate gross sum. The intent of the orders of 1 May 2025 is that costs incurred by the defendants prior to the stay application that was heard on 17 and 19 February 2025 should be assessed under the usual procedure.
Pursuant to the direction in par 7 of the orders of 1 May 2025, the defendants filed and served an affidavit of their solicitor, Timothy Randolph Price, sworn 9 May 2025. Mr Price deposes to the amounts of costs and disbursements incurred by the defendants within the scope of pars 5 and 6 of the orders. On 22 May 2025 Mr Price swore a supplementary affidavit deposing to the incurrence of a disbursement of $2,000 for the attendance of Dr Grace to give evidence by audiovisual link on 19 February 2025, during the hearing of the defendants’ permanent stay application.
By email on 14 May 2025 my Associate informed Mr Kearney that in addition to any evidence he may wish to rely upon it was open to him to provide to my chambers written submissions concerning the quantum of costs. On 30 May 2025, at the deadline for Mr Kearney to file and serve any evidence under order 8, he sent an email to my Associate representing that he was still a psychiatric inpatient at the Sydney Clinic and that he was not well enough to respond to the defendants’ evidence of quantum. At the same time Mr Kearney forwarded to my chambers a copy of his email correspondence with the Registrar of the Court of Appeal, in which he requested the Registrar not to list his proceedings in that court until after 29 August 2025.
On 1 June 2025 Mr Kearney was notified by email that I was on leave and that there would be a delay in determining the gross sum. He was informed that the parties would be advised when I was in a position to make the determination and that a further brief period would then be allowed for the provision of any further evidence or submissions. On 2 October 2025 Mr Kearney was informed by email that the determination would be made and notified to the parties on 16 October and that anything further he wished to place before the Court should be received by email to my chambers no later than 15 October 2025 in order to be taken into account.
Mr Kearney replied to my Associate by email of 11 October 2025, attaching an 18 page letter of that date in which he recounted many aspects of the interlocutory proceedings but did not address in substance the defendants’ quantification of their cost under my orders of 1 May 2025. Mr Kearney attached to his letter the tendency notice he issued on 29 January 2025 and copies of 11 psychiatric and psychological reports dated between 19 April 2024 and 9 October 2025. The letter and its annexures have no bearing upon the gross sum assessment that I am required to make.

There was not filed with the notice of motion any affidavit or written submission in support of any aspect of it. I decline to make order 5. The proceedings were still before me at the time the notice of motion was filed, to the extent that the gross sum costs determination was reserved. In all other respects the proceedings were disposed of finally by the orders of 1 May 2025. Mr Kearney has given no reason why his notice of motion of 15 October 2025 should be referred to another judge.
With respect to par 1 of the notice of motion, if Mr Kearney intends thereby to seek that I should disqualify myself from finalising this last aspect of the proceedings, such an application could only be advanced by him on the basis of evidence, or at least some particulars, of the grounds relied upon. No such evidence or particulars were provided with the notice of motion. I decline to issue directions for the filing of material in support of the application for order 1, or to entertain that application. It has been made when I have fully considered the last outstanding matter in the proceedings, the quantification of a gross sum of costs, and at a time when I am ready to hand down my decision. Mr Kearney has known for five months that I would proceed with the costs determination and for two weeks he has known that I intended to give my decision on 16 October 2025. It is too late for him to pile an application on the afternoon of 15 October for me to disqualify myself. If there exist any grounds upon which a timely recusal application could have been successfully made, those grounds will have to be raised by way of appeal from the decision that I now make.
I cannot envisage any basis, other than recusal, upon which Mr Kearney may be intending by par 1 of the notice of motion to seek that the gross sum determination be reassigned. It would be difficult and very time-consuming for another judge to undertake the task. I have been able to do so because I had judicial management of the case throughout the period in which the costs to be quantified were incurred by the defendants. The summary quantification procedure for which s 98(4)(c) provides could not readily be carried out by a judge other than the one who presided at the stages of the case with which the gross sum determination is concerned. Assignment to another judge would in practical terms deny to the defendants the benefit of order 5 made on 1 May 2025.
Mr Kearney has sought by par 2 of his notice of motion an extension of time within which to file and serve evidence and submissions in response to the defendants’ case on the appropriate gross sum for their costs. The extension sought is four weeks from the indefinite starting point of when he appoints a tutor. It would be most unjust to inflict upon the defendants such a further delay. Mr Kearney has already had five months from 9 May 2025 within which to take whatever steps he may have seen fit to respond to Mr Price’s affidavits concerning quantum. Mr Kearney has not needed a tutor for the purpose of responding. Order 5 provides that the gross sum is to be determined on the papers. If Mr Kearney desired to have assistance to prepare a written response he has had plenty of time within which to enlist the help of any available person of his choosing. I will not entertain the application in par 2 of the notice of motion. I will proceed to issue the Court’s determination and reasons.
Paragraph 4 of the notice of motion seeks leave to cross-examine psychiatrists and psychologists who provided reports in the substantive proceedings. There could be no justification for allowing such cross-examination in connection with the gross sum costs determination. I will also not grant leave for Mr Kearney to cross examine Mr Price. The order that the gross sum determination is to be made on the papers stands. If Mr Kearney had any basis for contradicting or challenging the affidavit evidence of Mr Price, it has been open to him to do so with affidavits and/or written submissions. If any such material had been filed and if it had raised an issue that should be put to Mr Price in cross-examination, that would have been done. I would certainly not grant leave to Mr Kearney simply to cross-examine Mr Price at large. There is no reason to defer issuing my determination and reasons on the basis of this application to undertake cross-examination.

The first component of the gross sum determination that must now be made concerns the defendants’ notice of motion filed on 12 September 2024 claiming an order for a permanent stay of the plaintiff’s proceedings. That application was part heard on 17 and 19 February 2025. The procedural history to that point is recorded in Kearney v Amirbeaggi [2025] NSWSC 147 at [5]-[41]. By the date of filing of the notice of motion there had accumulated a great deal of evidence to support the defendants’ contention that Mr Kearney’s conduct of the proceedings was an abuse of process.
Although the stay application was not heard to finality, the Court considered closely the very detailed supporting evidence filed by the defendants and reached the conclusion, over Mr Kearney’s objection, that the action should be set down for final hearing on 28 April 2025. When Mr Kearney failed to appear on that date, the Court’s understanding of the course of proceedings, gained from the defendants’ detailed affidavits, tender bundle and chronology prepared in connection with the stay application, was critical to deciding how the proceeding should be finally disposed of.
Mr Price has deposed that the solicitors’ work in preparation for the stay application included preparation of the notice of motion and supporting affidavit, compiling a very long and detailed chronology, assembling a court book (comprising earlier affidavits, transcripts of interlocutory proceedings and extensive documentary evidence), corresponding with three witnesses and issuing subpoenas to two of them and reviewing voluminous material served by the plaintiff both in connection with the notice of motion and from earlier stages in the case. The total hours devoted by solicitors and staff to this preparation and to the hearing over two days are recorded by Mr Price as follows: Mr Price (director) 22.4 hours, Senior Associate 117 hours and paralegals 10.4 hours.
From my own knowledge of the volume and detail of the evidence that was required for the notice of motion I am satisfied that it has been reasonable for the defendants to incur fees for those hours of work by the solicitors firm. At the reasonable rates that the solicitors’ work has been charged, the total incurred by the defendants was $36,457.
Senior counsel who appeared for the defendants on the notice of motion rendered fees at the rate of $7,000 per day and $700 per hour. Junior counsel’s fees were $2,800 per day and $280 per hour. Senior counsel’s total fees for the application were $54,775, representing approximately 7.8 days (including the two days of hearing). Junior counsel’s total fees were $11,060, representing approximately four days. The total time spent is reasonably proportionate to the work that would have been required for the preparation and conduct of the application. In view of the intricacy of the procedural history it is understandable that senior counsel who appeared on the hearing would have had to dedicate a significant amount of preparation time to master the sequence of events in order to argue for the inference of abuse of process. This was not a case in which prehearing preparation could have been delegated to junior counsel, at reduced expense to the client.
The total fees for both counsel relating to the permanent stay application amounted to $65,835. Sundry disbursements, including a very substantial volume of photocopying, were $7,165. The disbursement of $2,000 for the attendance of Dr Grace to give evidence, as referred to earlier, was also reasonably incurred.
As the gross sum for this component of the defendants’ costs is to be determined on a party party basis, I take into account that upon assessment the solicitors’ profit costs would commonly be reduced to approximately 75-85% of the amount charged to the client. Mr Price has deposed to that range and it accords with the Court’s experience in other cases. In view of the global and imprecise methodology that must be adopted for a gross assessment under s 98(4)(c) of the Civil Procedure Act 2005 (NSW), for the present purpose a factor of 65% is more appropriate. Accordingly, this component of the gross sum assessment is as follows:

Notwithstanding that the final hearing did not proceed substantively because Mr Kearney failed to appear, a very significant amount of preparation for it was required on the part of the defendants’ legal representatives. Four days of hearing were taken up with an extensive review of the past course of the proceedings and with receiving written and oral evidence from Mr Kearney’s treating psychiatrist, Dr Grace. The issue to be determined was whether Mr Kearney was absent without fault on his part so that the hearing should be vacated, or, alternatively, whether his failure to attend should be treated as unsupported by any excuse or reasonable justification with the consequence that the hearing should proceed and the claim be dismissed in circumstances where Mr Kearney would not be present to tender any evidence or otherwise support his claim.
The hours billed by the solicitors in respect of preparation for the final hearing on the limited conduct of it over four days are deposed to by Mr Price as follows: Mr Price (director) 32.6 hours, Senior Associate 131 hours and three paralegals 131.5 hours. I accept those figures. They represent approximately one week of preparation for the Senior Associate and for each of the three paralegals, plus the four days in court for Mr Price and the Senior Associate. Allowing for the enormous volume of material that had been served by Mr Kearney during interlocutory stages and the discursive nature of his allegations in the further amended statement of claim, trial preparation of the extent indicated is to be expected. The total amount billed to the client in this respect was $63,206, for which Mr Price claims $60,045, incorporating a 5% discount to allow for amounts that might be disallowed even on the indemnity basis. I accept the discounted amount as reasonable.
Counsel’s fees are claimed in the total amount of $120,010, representing 4 ½ days preparation and four hearing days for senior counsel, approximately 10 days in total for one junior and 8½ days in total for a second junior. Those are reasonable allowances, again noting the very wide-ranging issues agitated by Mr Kearney for final determination, the discursive character of his affidavits and the great volume of annexures and other documentary evidence that he proposed tender. The case required preparation for protracted cross-examination of Mr Kearney on a very large body of material. At final hearing the defendants proposed to call their own expert in psychiatry to challenge Mr Kearney’s claim that professional negligence of the defendants in their conduct of earlier litigation had caused him mental harm. They proposed to adduce evidence from a lay witness to establish that he had not lost functional ability and that his earning capacity was not impaired. On any view, upon the assumption that the case would proceed to judgment, the final hearing with an estimate of 10 days was going to be complex and required very time-consuming preparation.
Mr Price has deposed that disbursements on filing fees and photocopying for the final hearing amounted to $6,312.
The global sum that I will allow for this component of the defendant’s costs is $186,367 made up as follows: