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.
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 COURTJUDICIAL 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…
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
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.