Bouras v Grandelis

Case [2005] NSWCA 463


Reported Decision:

65 NSWLR 214

Court of Appeal


CITATION:

Bouras v Grandelis [2005] NSWCA 463

HEARING DATE(S):

30 August 2005

 
JUDGMENT DATE: 


16 December 2005

JUDGMENT OF:

Giles JA at 1; Santow JA at 43; Basten JA at 136

DECISION:

1. Grant leave to appeal and direct the filing of the notice of appeal within seven days.; 2. Dismiss the appeal with costs.

CATCHWORDS:

COSTS – costs assessment – meaning of “assessed on a solicitor and client basis” in Pt 39A r25(4) District Court Rules 1973 – whether same meaning as costs on an indemnity basis in Pt 39A r13 of the Rules – interaction of Rules with costs assessment regime in Pt 11 Division 6 Legal Profession Act 1987 – assessment of costs on “fair and reasonable” basis under s208F of the Act.

LEGISLATION CITED:

District Court Act s148A; s148B; s161(6)
District Court Rules Pt 19A r9; Pt 39A r25; Pt 39A r13
Legal Profession Act 1987 s208A – s208I
Supreme Court Rules Pt 52 r33

CASES CITED:

Adams v Kennedy [2001] NSWCA 7
Alpine Shire Council v MHSC Transportation Services Pty Ltd (No 2) [2002] VSC 58
Burnie Port Corp Pty Ltd v Bank of Western Australia Ltd [2003] TASSC 132
Clark v Tasmania (No 2) (1999) Tas SC 130
EMI Records Ltd v Ian Cameron Wallace Ltd (1983) 1 Ch 49; [1982] 2 All ER 980
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants & Ors (1988) 81 ALR 397
Gibbs v Gibbs (1952) 1 All ER 942
Giles v Randall (1915) 1 KB 290
Kumagai Australian Finance v Avarton Ltd (Bryson J, 7 June 1991, unreported)
Lee v Kennedy [2001] NSWCA 8
Milosevic v Government Insurance Office of New South Wales (1993) 31 NSWLR 323
Packer v Meagher (1984) 3 NSWLR 486
Penrith City Council v Parks (No 2) [2004] NSWCA 381
Qantas Airways Ltd v Dillingham Corporation Ltd (Rogers J, 14 May 1987, unreported)
re Bond Corporation Holdings Ltd (1989) 1 WAR 465
re Public Trustee Act (2000) 1 Qd R 409
Spencer v Dowling (1997) 2 VR 127
Thomas & Anor v Southcorp Australia Pty Ltd & Anor (No 2) [2004] VSC 50

PARTIES:

Lily BOURAS (Appellant)
Antonia Elizabeth GRANDELIS (Respondent)

FILE NUMBER(S):

CA 41192/04

COUNSEL:

P D GRAY-GRZESZKIEWICZ (Appellant)
D P O’DOWD (Respondent)

SOLICITORS:

Deborah G Marriott, Dundas (Appellant)
Keddies (Respondent)

LOWER COURT JURISDICTION:

Supreme Court

LOWER COURT FILE NUMBER(S):

SC 13072/04

LOWER COURT JUDICIAL OFFICER:

Malpass AsJ



                          CA 41192/04
                          SC 13072/04

                          GILES JA
                          SANTOW JA
                          BASTEN JA

                          16 DECEMBER 2005
Lily BOURAS v Antonia Elizabeth GRANDELIS
Judgment

1 GILES JA: I have had the advantage of reading the reasons of Santow JA in draft. They set out material facts and identify relevant legislation and rules. The essential question for decision is the meaning of “assessed on a solicitor and client basis” in Pt 39A r 25(4) of the District Court Rules (“the Rules”); more particularly, whether the claimant was correct in her contention that it meant costs on…

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AGLC
Bouras v Grandelis [2005] NSWCA 463
Case
[2005] NSWCA 463
Decision Date

CaseChat Overview and Summary

The appeal concerned the interpretation of "assessed on a solicitor and client basis" within the context of the District Court Rules 1973 (NSW), specifically Part 39A, Rule 25(4). The appellant, Bouras, sought to challenge a costs assessment, while the respondent, Grandelis, sought to uphold it. The central dispute revolved around whether this phrase carried the same meaning as "costs on an indemnity basis" as stipulated in Part 39A, Rule 13 of the same Rules, and how these provisions interacted with the broader costs assessment framework established by Part 11, Division 6 of the Legal Profession Act 1987 (NSW).

The primary legal issue before the Court of Appeal was to determine the precise meaning and application of "assessed on a solicitor and client basis" under the District Court Rules, particularly in relation to the concept of indemnity costs. This required the court to consider the interplay between the District Court Rules and the provisions of the Legal Profession Act governing the assessment of costs, including the assessment of costs on a "fair and reasonable" basis under section 208F of the Act.

The Court of Appeal held that "solicitor and client costs" under the District Court Rules did not equate to "indemnity costs." It reasoned that while both involve a broader assessment than party and party costs, solicitor and client costs are generally understood to encompass all costs reasonably incurred and properly incurred, whereas indemnity costs are a more stringent standard, requiring that costs be not only reasonable but also necessarily incurred. The court found that the assessment under the relevant District Court Rule was not intended to reach the level of indemnity costs. Consequently, the appeal was dismissed.

Orders

Orders of the court

1. Grant leave to appeal and direct the filing of the notice of appeal within seven days.; 2. Dismiss the appeal with costs.

Background

Background to the litigation

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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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