Ballard v Carlisle Attorneys Pty Ltd - [2010] NSWSC 769

CITATION: Ballard v Carlisle Attorneys Pty Ltd [2010] NSWSC 769

HEARING DATE(S): 9 July 2010

JURISDICTION: Equity

JUDGMENT OF: Pembroke J

EX TEMPORE JUDGMENT DATE: 9 July 2010

DECISION: See judgment paragraph 22

CATCHWORDS: COSTS ASSESSMENT - not a proceeding within meaning of Rules - COSTS ASSESSOR - not officer of court - DISCRETION - bifurcated claims before assessor and court - duplicity - unnecessary expense - possible oppression - Cost Assessment proceedings - discretion - refusal to stay - refusal to interfere

CATEGORY: Principal judgment

CASES CITED: Attard v James Legal [2004] NSWSC 478
Brierley v Reeves [2000] NSWSC 305
Diemasters Pty Ltd v Meadowcorp Pty Ltd (unreported, Supreme Court of NSW, Macready M 16 July 2003)

PARTIES: David Ballard
Carlisle Attorneys Pty Ltd

FILE NUMBER(S): SC 2010/00074261

COUNSEL: Ms J McDonald - for the Plaintiff
P Carlisle - Solicitor for the Defendant

SOLICITORS: Sagacious Legal Pty Ltd - for the Plaintiff
Carlisle Attorneys Pty Ltd - for the Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

PEMBROKE J

FRIDAY 9 JULY 2010

2010/74261 - DAVID BALLARD V CARLISLE ATTORNEYS PTY LTD TRADING AS CARLISLE ATTORNEYS

EX TEMPORE JUDGMENT

1 HIS HONOUR: These proceedings relate to three contentious costs assessments currently before an assessor, Mr John Sharpe. The first two assessments were commenced by the defendant. The third was commenced by the plaintiff.

2 The plaintiff is a former client of the defendant. He has now engaged other solicitors to represent him in litigation brought by him against Multiplex in the Commercial List of this court. The estimate of the length of the Commercial List hearing is four weeks and a date for that hearing will soon be allocated.

The Summons

3 The plaintiff commenced these proceedings by summons filed on 24 March 2010. He sought orders and a declaration that the defendant deliver to his new solicitors his documents that were being held by the defendant. He also sought a declaration, the effect of which is that he be entitled to have assessed certain bills issued by the defendant that were arguably out of time.

The Consent Orders

4 On 26 March 2010 consent orders were made which dealt with the plaintiff's claim to have his documents delivered to his new solicitors. The orders provided relevantly as follows:

1. The defendant make available forthwith for collection by the plaintiff’s solicitors, all documents to which the plaintiff is entitled in the files held by the defendant relating to Supreme Court proceedings No 2666587 of 2007 including the plaintiff’s discovered documents (including privileged documents) and a copy of all documents stored electronically (emails, word, PDF and excel formats), but not unprinted drafts and provided always that the defendant be permitted to keep copies, made at the defendant’s expense, of all correspondence to the plaintiff, counsel’s advices and copies of the file notes.

The Court directs:

1. Liberty to be granted to apply on two days notice.

The Court notes:

1. The undertaking of the…

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: [2010] NSWSC 769
Decision Date: 9 July 2010

CaseChat Overview and Summary

In this case, the plaintiff, Ballard, sought to recover costs incurred in a previous proceeding between the parties. The original dispute involved an allegation of breach of fiduciary duty and a claim for rectification of a deed. The case was heard in the Supreme Court of New South Wales. The primary legal issue was whether the costs incurred in the original proceeding were recoverable in the current proceeding, given that it was not classified as a proceeding under the relevant rules, and whether the costs assessor had the authority to make certain decisions.

The court examined the nature of the current proceeding, determining that it did not fall within the definition of a proceeding under the rules, which affected the costs recovery process. The court also addressed the role of the costs assessor, clarifying that the assessor is not an officer of the court and thus does not have the same powers as a judge. The court then considered the bifurcation of claims, noting that while some claims were before the assessor and others before the court, this did not necessarily lead to duplicity or unnecessary expense. The court emphasised the importance of ensuring that the proceedings were not oppressive to either party. Ultimately, the court exercised its discretion in assessing the costs and refused to interfere with the assessor's decision, while also declining to stay the proceedings.

The court held that the current proceeding was not a proceeding within the meaning of the rules, and therefore, certain costs were not recoverable. It was also determined that the costs assessor did not have the authority to make certain decisions that would otherwise be within the court's discretion. The court found that there was no duplicity or unnecessary expense caused by the bifurcation of claims, and thus, no oppression was present. The court exercised its discretion to refuse to interfere with the costs assessor's decision and to refuse a stay of the proceedings. The final orders reflected the court's determination regarding the costs and the procedural matters.

Orders