Ahern v Aon Risk Services Australia Limited - [2020] NSWDC 159

District Court

New South Wales

Medium Neutral Citation: Ahern & Anor v Aon Risk Services Australia Limited [2020] NSWDC 159
Hearing dates: 22-24 April 2020
Date of orders: 01 May 2020
Decision date: 01 May 2020
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraphs 126-129

Catchwords: COSTS – assessment – review by costs review panel – propriety of costs review panel undertaking re-assessment on review – whether failure to give reasons, or adequate reasons amounts to decision on a matter of law to found right to appeal – selection of hourly rate for different members of plaintiffs’ legal team – relevance of conception of ‘proportionality’ – determination of negotiation and assessment costs
Legislation Cited: Legal Profession Act 2004 (NSW), ss 285, 364, 365, 375, 380, 384, 385
Legal Profession Regulation 2005 (NSW) rr 128, 134
Legal Profession Uniform Law Application Regulation 2015 (NSW), cl 59
Supreme Court Act 1970 (NSW), s 75A
Cases Cited: Aesthete No 3 Pty Ltd ACN 127 464 966 v Gilmore Finance Pty Ltd ACN 104 792 627 and Anor [2018] NSWDC 1
Bellevarde Constructions Pty Ltd v CPC Energy (2011) 12 DCLR (NSW) 304
Bobb v Wombat Securities Pty Ltd (No 2) [2014] NSWCA 261
Cassegrain v CTK Engineering [2008] NSWSC 457
Dunn v Jerrard & Stuk Lawyers [2009] NSWSC 681
eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284
Frumar v The Owners of Strata Plan 36957 (2006) 67 NSWLR 321
Khorramdel v RG Macaulay and A Saivanidis trading as Pryor Tzannes & Wallis Solicitors [2016] NSWDC 293
Oshlack v Richmond River Council (1998) 193 CLR 72
Randall v Willoughby City Council [2009] NSWDC 118
Skalkos v T & S Recoveries Pty Ltd [2004] NSWCA 281
Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170
Category: Principal judgment
Parties: Mr M Ahern (First Plaintiff)
Ms E T Clancy (Second Plaintiff)
Aon Risk Services Australia Limited (Defendant)
Representation:
Counsel:
Ms M Castle for the Plaintiffs
Ms J McDonald for the Defendant
Solicitors:
Fraser Clancy Lawyers for the Plaintiffs
James Tuite & Associates for the Defendant

File Number(s): 2018/390039
Publication restriction: Nil

Judgment

INTRODUCTION

The first plaintiff was the owner of a property in Mosman from the early 1990s. The second plaintiff commenced to live with him later that decade. In June 2006, the house burnt down. The plaintiffs received a payout from an insurer, but the home was underinsured. In 2012, the plaintiffs commenced a professional negligence suit against the insurance broker, the defendant. This was hard-fought litigation. It settled on February 2015 after the trial had run for a week. A term of the settlement was that the defendant would (generally) pay the plaintiffs’ costs of the proceeding. It is the assessment of those costs, and the review of that assessment, which gives rise to this proceeding.
By their Amended Summons, the plaintiffs appeal from the whole of a decision of a Costs Review Panel issued on 26 September 2018 (the ‘Panel’s Review Decision’). On that day, the Costs Review…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWDC 159
Decision Date: 01 May 2020

CaseChat Overview and Summary

The case of Ahern v Aon Risk Services Australia Limited involved a dispute between the plaintiff and the defendant regarding the assessment of costs awarded in the plaintiff’s favour. The case was heard in the Federal Court of Australia. The plaintiff sought a review of the costs assessment made by the costs review panel, arguing that the panel’s decision lacked adequate reasoning and did not adequately address the selection of hourly rates for different members of the plaintiff’s legal team. The plaintiff also argued that the panel’s approach to determining negotiation and assessment costs was flawed.

The primary legal issue before the court was whether the costs review panel’s failure to provide adequate reasons for its decisions constituted a decision on a matter of law, thereby founding a right to appeal. Additionally, the court needed to determine the appropriate approach to assessing costs, particularly in relation to the selection of hourly rates for different members of the plaintiff’s legal team and the relevance of the concept of proportionality in this context. The court also had to consider the proper method of determining negotiation and assessment costs.

The court found that the costs review panel’s failure to provide adequate reasons for its decisions did not amount to a decision on a matter of law. The court held that the panel’s decision-making process did not require detailed reasons, as long as the panel had considered the relevant factors and exercised its discretion reasonably. Regarding the selection of hourly rates, the court held that the panel should have considered the concept of proportionality in determining appropriate rates for different members of the plaintiff’s legal team. The court also outlined the correct approach to determining negotiation and assessment costs, emphasising that these costs should be reasonable and proportionate to the work undertaken.

The court ordered that the matter be remitted to the costs review panel for reconsideration in light of the court’s findings. The panel was directed to provide detailed reasons for its decisions, to consider the concept of proportionality in setting hourly rates, and to apply the correct approach in determining negotiation and assessment costs. The parties were to bear their own costs of the appeal.

Orders

Orders of the court

See paragraphs 126-129

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ahern & Anor v Aon Risk Services Australia Limited [2020] NSWDC 159
Hearing dates:	22-24 April 2020
Date of orders:	01 May 2020
Decision date:	01 May 2020
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraphs 126-129
Catchwords:	COSTS – assessment – review by costs review panel – propriety of costs review panel undertaking re-assessment on review – whether failure to give reasons, or adequate reasons amounts to decision on a matter of law to found right to appeal – selection of hourly rate for different members of plaintiffs’ legal team – relevance of conception of ‘proportionality’ – determination of negotiation and assessment costs
Legislation Cited:	Legal Profession Act 2004 (NSW), ss 285, 364, 365, 375, 380, 384, 385 Legal Profession Regulation 2005 (NSW) rr 128, 134 Legal Profession Uniform Law Application Regulation 2015 (NSW), cl 59 Supreme Court Act 1970 (NSW), s 75A
Cases Cited:	Aesthete No 3 Pty Ltd ACN 127 464 966 v Gilmore Finance Pty Ltd ACN 104 792 627 and Anor [2018] NSWDC 1 Bellevarde Constructions Pty Ltd v CPC Energy (2011) 12 DCLR (NSW) 304 Bobb v Wombat Securities Pty Ltd (No 2) [2014] NSWCA 261 Cassegrain v CTK Engineering [2008] NSWSC 457 Dunn v Jerrard & Stuk Lawyers [2009] NSWSC 681 eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284 Frumar v The Owners of Strata Plan 36957 (2006) 67 NSWLR 321 Khorramdel v RG Macaulay and A Saivanidis trading as Pryor Tzannes & Wallis Solicitors [2016] NSWDC 293 Oshlack v Richmond River Council (1998) 193 CLR 72 Randall v Willoughby City Council [2009] NSWDC 118 Skalkos v T & S Recoveries Pty Ltd [2004] NSWCA 281 Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170
Category:	Principal judgment
Parties:	Mr M Ahern (First Plaintiff) Ms E T Clancy (Second Plaintiff) Aon Risk Services Australia Limited (Defendant)
Representation:	Counsel: Ms M Castle for the Plaintiffs Ms J McDonald for the Defendant Solicitors: Fraser Clancy Lawyers for the Plaintiffs James Tuite & Associates for the Defendant
File Number(s):	2018/390039
Publication restriction:	Nil