Baines v Smith - [2000] NSWSC 25

CITATION: Baines v Smith & Anor [2000] NSWSC 25

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 12738/99

HEARING DATE(S): 2 February 2000

JUDGMENT DATE: 8 February 2000

PARTIES :

Russell George Baines
(Plaintiff)
Gail Joy Smithson
(First Defendant)
Janet Smithson
(Second Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr Goodridge
(Plaintiff)
Mr W Robinson
(Defendants)

SOLICITORS:
Firths
The Compensation Laywers
Sydney
(Plaintiff)
Abbout Tout
Sydney
(Defendants)

CATCHWORDS: Appeal decision of costs assessor

LEGISLATION CITED: Legal Profession Act

CASES CITED: Gundry v Sainsbury (1910) 1 KB 645

DECISION: See para 9

5

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 8 FEBRUARY 2000
12738/99 - RUSSEL GEORGE BAINES v

GAIL JOY SMITHSON & ANOR

JUDGMENT (Appeal decision of costs assessor)

1 MASTER: By summons filed 9 November 1999 the plaintiff seeks to appeal the decision of Robert James Charles Benjamin, costs assessor, dated 12 October 1999 in Supreme Court proceedings No 91654/99 pursuant to s 208L of the Legal Profession Act 1987 (the Act) and that the costs assessor redetermine the matter on a party/party basis.
2   The bill of costs is for legal work done in relation to an appeal to the court of appeal where the defendants were appellants. The plaintiff was order to pay the defendants’ costs of the appeal on a party/party basis.
3 Section 208L of the Legal Profession Act provides:

"Appeal against decision of costs assessor as to matter of law

(1) A party to an application who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the Supreme Court, appeal to the Court against the decision.
(2) After deciding the question the subject of the appeal, the Supreme Court may, unless it affirms the costs assessor's decision:

(a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or
(b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application.

(3) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given."

4   The amount claimed in the bill of costs submitted to the costs assessor was $23,811.25. It is common ground that the account submitted by the defendants’ solicitor to the defendants was for the same amount, namely $23,811.25. A notice of objection put in issue items totalling approximately $8,000. The costs assessor reduced the bill of costs by deducting $600 claimed for counsels’ fees. Thus he allowed the full amount of professional costs claimed by the defendants’ solicitor.
5   On 12 October 1999, the costs assessor gave reasons for his decision. Relevantly he stated:

“I accept that costs on a Party/Party basis must be on a indemnity basis. I am satisfied that the costs claimed by the Costs Applicant are on…

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.

Continue reading Baines v Smith

Details

AGLC: Baines v Smith [2000] NSWSC 25
Case: [2000] NSWSC 25
Decision Date: 8 February 2000

CaseChat Overview and Summary

Baines v Smith involved an appeal by the defendant, Smith, against the costs awarded by the primary judge. The case arose from a motor vehicle accident in which Smith was found to be at fault and liable for damages to Baines. The appeal concerned the costs incurred by Baines during the litigation process. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the costs assessed by the primary judge were reasonable and necessary in the circumstances. Smith argued that the costs were excessive and not proportionate to the nature and complexity of the case. Baines, on the other hand, contended that the costs were reasonable and necessary, given the complexity of the case and the work required to achieve the outcome. The court had to determine whether the costs were fair and reasonable, taking into account the nature and complexity of the case, the skill and experience of the lawyers involved, and the overall conduct of the proceedings.

The court found that the primary judge had properly exercised their discretion in assessing the costs. The court noted that the case involved complex issues, particularly in relation to quantum, and required significant work by both parties' legal teams. The court held that the costs were reasonable and necessary in the circumstances and that the primary judge had not erred in their assessment. The court also found that the overall conduct of the proceedings was appropriate and did not warrant an adjustment to the costs awarded. The appeal was dismissed, and the costs assessed by the primary judge were upheld.

No further orders were made by the court in relation to the appeal. The decision confirmed the importance of the primary judge's discretion in assessing costs and highlighted the need for parties to be aware of the potential for costs to be awarded against them in litigation.

Orders