Court File and Parties

COURT FILE NO.: CV-16-557035 DATE: 20160921 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nermeen Hamdy and Judith Nicoll, Applicants AND: Leon Wickham and Magdy Sherif Hamdy, Respondents

BEFORE: S. F. Dunphy, J.

COUNSEL: C. Donovan, for the Applicants M. Osborne for the Respondent Magdy Hamdy L. Wickham in person

HEARD: 30 August 2016

Costs Endorsement

[1] On August 30, 2016 I declined to grant an adjournment of this application for an interpleader order as requested by the respondent Mr. Wickham, heard the application and dismissed it subject to certain directions. Submissions were made by all parties regarding costs and I reserved my decision on the matter. This is my decision and my reasons therefor.

[2] Among the hierarchy of obligations, court orders occupy the top level. Unless and until the order is varied, reversed or subjected to a stay, it must be complied with and the obligation it represents is beyond dispute. The Sheriff may be sent to enforce it by seizing accounts or property. By contrast, other creditors must prove their claims in court proceedings to require payment in the event of dispute unless they have valid security over property of their debtor. Even then, the debt or the security may be subject to dispute.

[3] The respondent Mr. Hamdy was in possession of a court order entitling him to payment. Wildman J. made an order dated May 22, 2015 requiring Mr. Hamdy’s former spouse to make a number of equalization payments to him totaling $607,569.66. The second instalment of this order was due on July 1, 2016 in the amount of $50,000. The order of Wildman J. has not been stayed, varied or set aside. Mr. Hamdy’s spouse did not dispute her liability to make the payment in any way. She provided the funds to her matrimonial lawyer Ms. Nichol for the purpose of making the payment on June 29, 2016. However, the payment was not made.

[4] On June 20, 2016 Ms. Nichol received an emailed letter from the respondent Mr. Wickham, the former matrimonial lawyer of Mr. Hamdy. In his letter, Mr. Wickham indicated that he wished to see “all future equalization payments to Mr. Hamdy held in trust until the matter of the assessment of my accounts is concluded”. Mr. Hamdy, through his counsel, did not agree.

[5] The parties had been through a prior interpleader motion before Matheson J. dealing with the first equalization instalment due of $307,596.66 on February 5, 2016. Mr. Wickham was in a dispute with his former client Mr. Hamdy regarding the amount of his fees. Mr. Hamdy wished to have Mr. Wickham’s accounts assessed; Mr. Wickham wanted to have them paid.

[6] Mr. Wickham claimed the benefit of a written direction from Mr. Hamdy dated November 8, 2015 specifically directed to this very payment. Mr. Hamdy’s new lawyers disputed the validity of that direction and the existence and validity of the solicitor’s accounts to which it purportedly relates. Matheson J. directed the first payment of $307,596.66 to be paid into court in light of the conflicting directions concerning it. In making her order, Matheson J. noted that Mr. Wickham was free to bring a court proceeding to address the issues as was Mr. Hamdy.

[7] The evidence before me indicates that Mr. Wickham had sought to extend the original interpleader order of Matheson J. to apply to future payments due pursuant to the order of Wildman J. in addition to the first payment of $307,596.66. If granted, such an order would have attached to the payment that is the subject of this application. However, no such order was granted by Matheson J. nor did Mr. Wickham take any steps to obtain a charging or other order in respect of his allegedly unpaid accounts prior to the next instalment falling due on July 1, 2016.

[8] The only step taken to establish Mr. Wickham’s proprietary claim if any after February 5, 2016 on the record before me was his email of June 20, 2016 seeking that the money be paid into court.

[9] This interpleader application followed on July 20, 2016 and was heard by me on August 30, 2016.

[10] Although the payment was due on July 1, 2016, the Notice of Application herein was not issued until July 20, 2016. The record indicates that efforts were made to have the application scheduled earlier but Mr. Wickham took the position that there was no urgency and would not agree to make himself available until mid-September at the earliest, although he would try to free up time on August 30. Mr. Wickham’s email correspondence on the matter of scheduling in July 2016 suggested that he would be attending the hearing of the application in person (as he had done before Matheson J.).

[11] When the matter came before me on August 30, 2016, Mr. Wickham sought an adjournment to permit counsel to appear on his behalf. No notice of appearance by counsel had been filed nor had Mr. Wickham filed any responding material whatsoever. By contrast, Mr. Hamdy had filed extensive responding materials.

[12] I declined the requested adjournment and dismissed the application for an interpleader on the basis that the record did not establish that there was a competing proprietary claim to the $50,000 payable on July 1, 2016 pursuant to Wildman J.’s order. However, I directed the funds were to be held in trust by Mr. Hamdy’s solicitors until September 15, 2016 in order to give Mr. Wickham an opportunity to bring a proceeding to claim a proprietary interest in the funds if he was so advised. No such application was brought.

[13] I reserved on the matter of costs after hearing submissions from the applicant and both respondents.

[14] Matheson J. ordered costs of the February 5, 2016 interpleader motion payable by Mr. Wickham to Mr. Hamdy in the cause (fixed at $9,0000) and ordered each of the respondents to pay 50% of the applicants’ costs (fixed at $3,500 in total).

[15] Before me, the applicants sought to have their costs paid, which they estimated at $3,253.74 on a partial indemnity basis, payable by one the other or both of the respondents.

[16] The amount claimed by the applicants is fair and reasonable in the circumstances. It is also well within the reasonable expectations of Mr. Wickham having regard to the prior order of Matheson J.

[17] This application was necessitated solely by Mr. Wickham’s late demand (on June 20) that a payment ordered to be paid to Mr. Hamdy on July 1, 2016 be paid into court instead. He had earlier sought and been denied such an order before Matheson J. on February 5, 2016 and had taken no steps prior to June 20, 2016 to obtain a charging order (or any similar relief) that would have obviated the necessity of the applicants seeking interpleader relief nor did he provide any responding materials to this application once brought.

[18] Mr. Wickham effectively sought what he had been unable to obtain directly from Matheson J. through inaction, a last-minute email and unilateral refusal to address this application in a timely way. In so doing, he put both the applicants and the respondent Mr. Hamdy to considerable expense while expending no reasonable or timely efforts to advance his own claims if any.

[19] Mr. Wickham is therefore ordered to pay the entirety of the applicants’ costs that I fix at $3,253.74 payable forthwith.

[20] Mr. Hamdy’s solicitors submitted a bill of costs claiming full indemnity costs of $17,443.25 and partial indemnity costs of $10,465.95, in both cases inclusive of HST.

[21] While Mr. Wickham’s behaviour has been cavalier towards his former client and the serious issues raised before Matheson J. have yet to be addressed in any formal proceeding, I cannot (yet) conclude that costs beyond the partial indemnity scale of costs are called for.

[22] In my view, the amount claimed is reasonable having regard to the effort required to respond to this application and is quite in keeping with the prior order of Matheson J. and thus within the range of Mr. Wickham’s reasonable expectations. I am not prepared in these circumstances to extend my discretion to ordering costs to be payable in the cause as was the case in February. I am therefore ordering Mr. Wickham to pay Mr. Hamdy’s costs that I fix in the amount of $10,465.95 forthwith.

[23] Order to go requiring Mr. Wickham to pay the applicants’ costs of this application in the amount of $3,253.74 and to pay the respondent Mr. Hamdy’s costs of this application in the amount of $10,465.95, in both cases forthwith.

S. F. Dunphy, J. Date: September 21, 2016