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Bevan v Napoli

Bevan v Napoli

Case [2022] NSWSC 1132 25 August 2022

Costs

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Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Bevan v Napoli [2022] NSWSC 1132
Hearing dates: 30 June 2022
Date of orders: 25 August 2022
Decision date: 25 August 2022
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The plaintiff’s amended summons filed 24 November 2021 is dismissed.
(2) Costs are reserved.

Catchwords:
COSTS — Costs assessment — Application for assessment – Legal Profession Uniform Law 2014 (NSW) – Whether the plaintiff is a non-associated third-party payer – whether Shillington v Harries [2013] NSWSC 2013 is authoritative – application dismissed

Legislation Cited:
Legal Profession Uniform Law 2014 (NSW) ss 171, 198, 199, 200
Legal Profession Uniform Law Application Act 2014 (NSW) ss 93B
Legal Profession Uniform Law Application Regulation 2014 (NSW) reg 34

Cases Cited:
Boyce v McIntyre [2009] NSWCA 185
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390
Polsen v Harrison [2020] NSWSC 1167
Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355
Shillington v Harries [2013] NSWSC 2013
Voicu v The Owners-Strata Plan No 1624 [2020] NSWSC 296

Category: Costs
Parties: Christopher Bevan (Plaintiff)
Joan Napoli (First Defendant)
The Manager, Costs Assessment (Second Defendant)
Representation:
Counsel:
C Carroll (Plaintiff)
M Castle (First Defendant)
Solicitors:
WM Lawyers (Plaintiff)
DGT Costs Lawyers (First Defendant)
Crown Solicitors (Second Defendant)

File Number(s): 2021/334739
Publication restriction: Nil

Judgment

HER HONOUR: This matter involves an application for review of a costs assessment that was refused. As I understand it, the amount in dispute is less than $37,000.
The plaintiff is Christopher Bevan. The first defendant is Joan Napoli as executor of the estate of the late Johanna Margaret Bevan, the plaintiff’s mother. The second defendant is the Costs Assessment Manager ("the Manager”).
By way of summons filed 24 November 2021 the plaintiff relevantly seeks:

A declaration that the plaintiff is a non-associated third-party payer of costs payable by the plaintiff to the estate of the late Margaret Johanna Bevan (“Mrs Bevan”), in accordance with cl 3 and 4 of the Will of Mrs Bevan dated 8 March 2018 (“the Will”), or alternatively, payable to the other beneficiaries named in the Will in accordance with cl 3 and 4 of the Will, upon the proper interpretation of, firstly, cl 3 and 4 of the Will and, secondly, ss 171(1)(a)(i) and 171(2) of the Legal Profession Uniform Law 2014 (NSW) (“LPUL”).

A declaration that the fair and reasonable costs payable by the plaintiff to the estate of Mrs Bevan (“the estate”), or alternatively, to the other beneficiaries named in the Will, in accordance with cl 3 and 4 of the Will, as quantified by an assessor pursuant to ss 199 and 200 of the LPUL, are the costs of representing Mrs Bevan in NCAT proceeding No. 2017/234141 (“the NCAT proceedings”), in terms of subparagraph 1(d) of the first defendant’s costs agreement with Mrs Bevan dated 5 July 2017, by the first defendant and counsel named in cl 4 of the Will.

An order that the decision of the second defendant,…

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 Bevan v Napoli

Details

AGLC: Bevan v Napoli [2022] NSWSC 1132
Case: [2022] NSWSC 1132
Decision Date: 25 August 2022

CaseChat Overview and Summary

The case of Bevan v Napoli involved a dispute over costs assessment, specifically an application for such assessment. The plaintiff, Bevan, sought to be reimbursed for costs incurred in legal proceedings against the defendant, Napoli. The nature of the dispute centred on whether Bevan qualified as a non-associated third-party payer under the Legal Profession Uniform Law 2014 (NSW), which would entitle him to a costs order. The case was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether Bevan, who had not directly engaged in the proceedings but had funded them, qualified as a non-associated third-party payer. This required the court to interpret the relevant provisions of the Legal Profession Uniform Law 2014 (NSW) and consider the case law, particularly Shillington v Harries [2013] NSWSC 2013. The court had to determine if the precedent set in Shillington v Harries was applicable and whether it should be followed.

The court found that the precedent in Shillington v Harries was not authoritative in the context of the current case. It held that Bevan did not meet the criteria to be considered a non-associated third-party payer. Consequently, the application for costs assessment was dismissed. The court's reasoning was grounded in a detailed analysis of the statutory provisions and the specific circumstances of the case, leading to the conclusion that Bevan's funding did not make him a non-associated third party.

The final orders of the court were that the application for costs assessment was dismissed, and no orders were made in relation to costs.

Orders