Bennie v Grace - [2018] NSWDC 229

District Court

New South Wales

Medium Neutral Citation: Bennie v Grace [2018] NSWDC 229
Hearing dates: 2 August 2018
Date of orders: 24 August 2018
Decision date: 24 August 2018
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the plaintiff.
(2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
(3) Leave is granted to the parties to apply within 14 days for an alternative costs order to that set out in (2) above.
(4) The parties are to bring in agreed Short Minutes of Order reflecting the judgment sum and any claimed interest within seven days.
(5) Liberty to apply on three business days’ notice.
(6) Exhibits are to be retained for 28 days.

Catchwords: Costs – proceedings by client to recover overpaid costs – solicitor withdrew moneys from trust account for the payment of costs and disbursements – client subsequently made an application for assessment of the solicitor’s costs and disbursements charged – assessor determined the proper amount – client sues for the difference between the paid amount and the amount determined by the assessor – whether a statutory cause of action established – whether Limitation Act barred claim
Legislation Cited: Legal Profession Act 1987 (NSW)
Legal Profession Act 2004 (NSW)
Limitation Act 1969 (NSW)
Cases Cited: Bennie v State of New South Wales [2009] NSWSC 96
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1977] 52 ALJR 20
Coshott v Barry [2012] NSWSC 850
Fischer v Nemeske Pty Ltd [2014] NSWSC 203
Grace v Bennie (No 2) [2018] NSWSC 831
Griffith v Australian Broadcasting Corporation [2013] NSWSC 750
Preston v Nikolaidis [2017] NSWSC 1527
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Ryan v Hansen (2000) 49 NSWLR 184
State Insurance Regulatory Authority v Abdul-Rahman [2016] NSWCA 210
Category: Principal judgment
Parties: Robert Maurice Bennie (Plaintiff)
William John Grace (Defendant)
Representation:
Counsel:
M Castle and AD Bailey (Plaintiff)
In Person (Defendant)
Solicitors:
DG Thompson (Plaintiff)
In Person (Defendant)

File Number(s): 2017/217099

Judgment

This is an action by the plaintiff, Mr Robert Bennie, under s 208J of the Legal Profession Act 1987 (NSW) (“the Act") to recover an amount paid over to his solicitor in relation to legal costs and disbursements which exceeds the amount specified by an assessor in a Certificate of Determination of Costs issued by the costs assessor under the Act. The defendant, Mr Grace, who is a retired solicitor, disputes that the amount is payable and also claims that the cause of action is statute barred under the Limitation Act 1969 (NSW).
Mr Grace acted for Mr Bennie in legal proceedings extending over about a decade. The background and course of those proceedings is complex and will be considered below.

Pleadings

The plaintiff Mr Bennie relied on an Amended Statement of Claim which was filed in court with leave on 1 August 2018. The plaintiff pleaded his cause of action, in summary, as follows:

Between 1999 and…

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 Bennie v Grace

Details

AGLC: Bennie v Grace [2018] NSWDC 229
Case: [2018] NSWDC 229
Decision Date: 24 August 2018

CaseChat Overview and Summary

The matter of Bennie v Grace came before the court, where the plaintiff, Bennie, sought to recover overpaid costs from the defendant, Grace, who is Bennie’s former solicitor. The dispute arose when Grace withdrew funds from a trust account for the payment of costs and disbursements, which Bennie later found to be excessive. An assessor subsequently determined the proper amount of costs and disbursements, and Bennie initiated proceedings to recover the difference between the amount paid and the amount determined by the assessor.

The primary legal issues the court had to decide were whether Bennie had established a statutory cause of action to recover the overpaid costs and whether the claim was barred by the Limitation Act. The court needed to determine if Bennie could hold Grace liable for the overpayment and if the statutory provisions applied to permit such a claim. Additionally, the court had to consider whether the statutory time limits for bringing the claim had expired, potentially barring Bennie’s right to recover the overpaid costs.

The court found that Bennie had indeed established a statutory cause of action to recover the overpaid costs from Grace. The court concluded that the statutory provisions provided a clear avenue for Bennie to seek the recovery of the excess funds paid to Grace. However, the court also considered the Limitation Act and determined that the statutory time limits did not bar Bennie's claim. The court found that the claim was brought within the permissible period, thereby allowing Bennie to proceed with the action. As a result, the court ruled in favour of Bennie and ordered Grace to pay the difference in costs, along with the plaintiff's costs of the proceedings.

Orders

Orders of the court

(1) Judgment for the plaintiff.

(2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

(3) Leave is granted to the parties to apply within 14 days for an alternative costs order to that set out in (2) above.

(4) The parties are to bring in agreed Short Minutes of Order reflecting the judgment sum and any claimed interest within seven days.

(5) Liberty to apply on three business days’ notice.

(6) Exhibits are to be retained for 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Bennie v Grace [2018] NSWDC 229
Hearing dates:	2 August 2018
Date of orders:	24 August 2018
Decision date:	24 August 2018
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff. (2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed. (3) Leave is granted to the parties to apply within 14 days for an alternative costs order to that set out in (2) above. (4) The parties are to bring in agreed Short Minutes of Order reflecting the judgment sum and any claimed interest within seven days. (5) Liberty to apply on three business days’ notice. (6) Exhibits are to be retained for 28 days.
Catchwords:	Costs – proceedings by client to recover overpaid costs – solicitor withdrew moneys from trust account for the payment of costs and disbursements – client subsequently made an application for assessment of the solicitor’s costs and disbursements charged – assessor determined the proper amount – client sues for the difference between the paid amount and the amount determined by the assessor – whether a statutory cause of action established – whether Limitation Act barred claim
Legislation Cited:	Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW) Limitation Act 1969 (NSW)
Cases Cited:	Bennie v State of New South Wales [2009] NSWSC 96 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1977] 52 ALJR 20 Coshott v Barry [2012] NSWSC 850 Fischer v Nemeske Pty Ltd [2014] NSWSC 203 Grace v Bennie (No 2) [2018] NSWSC 831 Griffith v Australian Broadcasting Corporation [2013] NSWSC 750 Preston v Nikolaidis [2017] NSWSC 1527 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Ryan v Hansen (2000) 49 NSWLR 184 State Insurance Regulatory Authority v Abdul-Rahman [2016] NSWCA 210
Category:	Principal judgment
Parties:	Robert Maurice Bennie (Plaintiff) William John Grace (Defendant)
Representation:	Counsel: M Castle and AD Bailey (Plaintiff) In Person (Defendant) Solicitors: DG Thompson (Plaintiff) In Person (Defendant)
File Number(s):	2017/217099