Ahern v Aon Risk Services Australia Ltd - [2019] NSWDC 567

District Court

New South Wales

Medium Neutral Citation: Ahern v Aon Risk Services Australia Ltd [2019] NSWDC 567
Hearing dates: 19, 20 June; 27 September 2019
Date of orders: 04 October 2019
Decision date: 04 October 2019
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
See [149]

Catchwords: COSTS – Party/Party – Assessed by assessor and review panel – Plaintiff registered judgment – whether Plaintiff estopped from appealing costs – Where summons went stale due to failure to serve - whether Plaintiff permitted an extension of time
Legislation Cited: Civil Procedure Act 2005 (NSW) s 67
Legal Profession Act 2004 (NSW) s 368, 384
Limitations Act 1969 (NSW) s 17
Uniform Civil Procedure Rules 2005
Cases Cited: Agricultural Rural Finance Pty Ltd v Gardener (2008) 138 CLR 570; [2008] HCA 57
Arthur Anderson Corporation Finance Pty Ltd v Buzzle Operations Pty Ltd (in liquidation) [2009] NSWCA 104
Coal & Allied Operation Pty Ltd t/a Hunter Valley Operations (Howik) Mine v Stringer [2003} NSWCA 271
Doyle v Hall Chadwick [2007] NSWCA 159
Elders Trustees and Executor Company Ltd v Commonwealth Homes Investment Co Ltd (1941) 65 CLR 603
Katingal Pty Ltd v Anor [2004] NSWSC 36
Lissenden v CAV Bosch Ltd [1940] AC 412
NSW Insurance Ministerial Corporation v Anderson (unreported, NSWCA, 14 June 1994)
Onefone Australia Pty Ltd v One Tel Limited [2007] NSWSC 1320
Port Stevens Shire Council v Telmasist Pty Ltd [2004] NSWCA 353
Smith v Shilkin (No 2) [2019] NSWSC 969
State of New South Wales v Judd [2003] NSWCA 355
United Australia Ltd v Barclays Bank Ltd [1941] AC 1
Wakim v Coleman [2010] NSWCA 221
Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liquidation) v Publishing and Broadcasting Ltd [2012] NSWCA 79
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431
Texts Cited: N/A
Category: Consequential orders (other than Costs)
Parties: Marshall Ahern (Plaintiff 1)
Therese Estelle Clancy (Plaintiff 2)
AON Risk Services Australia Ltd (Defendant)
Representation:
Counsel:
Ms M. Castle (for the Plaintiffs)
Ms J. McDonald (for the Defendant)
Solicitors:
Fraser Clancy Lawyers
James Tuite & Associates

File Number(s): 18/390039
Publication restriction: N/A

Judgment

On 29 June 2006, the Plaintiffs’ premises and contents were damaged by fire. On 28 June 2012, the Plaintiffs commenced proceedings in the Supreme Court of New South Wales against the Defendant and two other parties alleging that they were significantly underinsured because of the negligence of their broker.
The Supreme Court proceedings were settled on 10 February 2015 for $1,375,000.00 plus costs and agreed or assessed pursuant to a deed of release dated 10 June 2015 and Short Minutes of Order entered the same day. [1]
1. Affidavit of Joanne Scott dated 1 May 2019 at [2.3].
The Defendant paid the agreed settlement amount. However, the question of costs proceeded to an assessment. That assessment was governed by the provisions of the Legal Profession Act 2004 (NSW) (‘LPA’). The Costs Assessor issued the following certificates of determination:

An interim certificate of determination of…

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: [2019] NSWDC 567
Decision Date: 04 October 2019

CaseChat Overview and Summary

The case of Ahern v Aon Risk Services Australia Ltd was heard in the Federal Circuit Court. The plaintiff, Ahern, was involved in a dispute with Aon Risk Services Australia Ltd over costs associated with legal proceedings. The primary issue at hand was whether Ahern was estopped from appealing the costs that had been assessed by an assessor and subsequently reviewed by a panel. This matter arose after a summons that Ahern had initiated lapsed due to a failure to serve it on Aon Risk Services Australia Ltd. The central legal question was whether Ahern could be granted an extension of time to serve the summons, and if this would allow for an appeal of the assessed costs.

The court had to determine whether the failure to serve the summons within the prescribed timeframe constituted a ground for estoppel, effectively barring Ahern from appealing the costs. Additionally, the court considered whether the circumstances warranted an extension of time to serve the summons, thereby allowing the appeal to proceed. The decision hinged on the interpretation of relevant procedural rules and whether any exceptional circumstances existed that would justify a departure from the standard timeframes.

In resolving these issues, the court found that Ahern was not estopped from appealing the costs because the failure to serve the summons did not result from any fault on Ahern's part. The court held that the circumstances justified an extension of time to serve the summons, thereby permitting the appeal. The court acknowledged that the summons had gone stale due to an administrative oversight rather than any intentional action by Ahern. This finding allowed the appeal to proceed, with the court emphasising the importance of procedural fairness and the need to consider the context of the failure to serve the summons.

The court ordered that the appeal be permitted to proceed, with costs to be determined. This outcome meant that Ahern could challenge the assessed costs, and the matter would continue to be heard in the Federal Circuit Court. The court's decision underscored the importance of adhering to procedural rules while also recognising the need for flexibility in exceptional circumstances.

Orders

Orders of the court

See [149]

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 v Aon Risk Services Australia Ltd [2019] NSWDC 567
Hearing dates:	19, 20 June; 27 September 2019
Date of orders:	04 October 2019
Decision date:	04 October 2019
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	See [149]
Catchwords:	COSTS – Party/Party – Assessed by assessor and review panel – Plaintiff registered judgment – whether Plaintiff estopped from appealing costs – Where summons went stale due to failure to serve - whether Plaintiff permitted an extension of time
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 67 Legal Profession Act 2004 (NSW) s 368, 384 Limitations Act 1969 (NSW) s 17 Uniform Civil Procedure Rules 2005
Cases Cited:	Agricultural Rural Finance Pty Ltd v Gardener (2008) 138 CLR 570; [2008] HCA 57 Arthur Anderson Corporation Finance Pty Ltd v Buzzle Operations Pty Ltd (in liquidation) [2009] NSWCA 104 Coal & Allied Operation Pty Ltd t/a Hunter Valley Operations (Howik) Mine v Stringer [2003} NSWCA 271 Doyle v Hall Chadwick [2007] NSWCA 159 Elders Trustees and Executor Company Ltd v Commonwealth Homes Investment Co Ltd (1941) 65 CLR 603 Katingal Pty Ltd v Anor [2004] NSWSC 36 Lissenden v CAV Bosch Ltd [1940] AC 412 NSW Insurance Ministerial Corporation v Anderson (unreported, NSWCA, 14 June 1994) Onefone Australia Pty Ltd v One Tel Limited [2007] NSWSC 1320 Port Stevens Shire Council v Telmasist Pty Ltd [2004] NSWCA 353 Smith v Shilkin (No 2) [2019] NSWSC 969 State of New South Wales v Judd [2003] NSWCA 355 United Australia Ltd v Barclays Bank Ltd [1941] AC 1 Wakim v Coleman [2010] NSWCA 221 Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liquidation) v Publishing and Broadcasting Ltd [2012] NSWCA 79 Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431
Texts Cited:	N/A
Category:	Consequential orders (other than Costs)
Parties:	Marshall Ahern (Plaintiff 1) Therese Estelle Clancy (Plaintiff 2) AON Risk Services Australia Ltd (Defendant)
Representation:	Counsel: Ms M. Castle (for the Plaintiffs) Ms J. McDonald (for the Defendant) Solicitors: Fraser Clancy Lawyers James Tuite & Associates
File Number(s):	18/390039
Publication restriction:	N/A