Bouras v Grandelis - [2004] NSWSC 1117

CITATION: Bouras v Grandelis [2004] NSWSC 1117

HEARING DATE(S): 22 November 2004

JUDGMENT DATE:
25 November 2004

JURISDICTION:
Common Law Division

JUDGMENT OF: Master Malpass at 1

DECISION: The summons is dismissed; the plaintiff is to pay the costs of the summons.

CATCHWORDS: Appeal from panel of costs assessors - order for payment of solicitor/client costs - not indemnity costs - ambit of appeal - not the same as error of law - does not include deficiency in statement of reasons.

LEGISLATION CITED: District Court Rules 1973, Pt 39A r13, r25(4)
Legal Profession Act 1987, ss208A, 208B, 208F(3), s208H(2), 208JAA, 208L, s208M
Supreme Court Rules 1970, r 33

PARTIES :
Lily Bouras (Plaintiff)
Antonia Elizabeth Grandelis (Defendant)

FILE NUMBER(S): SC 13072 of 2004

COUNSEL: Mr P D Gray-Grzeszkiewcz (Plaintiff)
Mr D P O'Dowd (Defendant)

SOLICITORS: Bechara & Company (Plaintiff)
Keddies Solicitors (Defendant)

LOWER COURTJURISDICTION: Costs Assessment Review Panel

LOWER COURT FILE NUMBER(S): 92098 of 2003

LOWER COURT
JUDICIAL OFFICER : Mr J McGuther, Mr I Dwyer

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

25 November 2005

13072 of 2004 Lily Bouras v Antonia Elizabeth Grandelis

JUDGMENT

1 Master: The plaintiff brought a claim in the District Court for damages arising out of personal injury. She obtained judgment against the defendant in a sum in the order of $180,000. The defendant was ordered to pay the costs of the plaintiff on a “solicitor/client” basis.

2 In the making of that order, the court had in mind the provisions of Part 39A rule 25(4) of the District Court Rules (the Rules). The plaintiff obtained a judgment that was more favourable than an offer of compromise made by her. The rule speaks of costs “assessed on a solicitor and client basis”.

3 The plaintiff applied to have the costs assessed pursuant to the Legal Profession Act 1987 (the Act). The application was referred to a costs assessor (Mr Lancken). The defendant filed a notice of objection. The plaintiff filed a response to the notice of objection. The assessment process took place.

4 The costs assessor approached his task on the basis that he was required to consider what costs were reasonable as between solicitor and client that should be paid by the other party.

5 On 10 March 2004, the costs assessor issued a certificate as to determination. The determination saw a reduction in the amount claimed by the plaintiff. Costs were allowed in the sum of $73,015.10.

6 The plaintiff applied to have the determination reviewed by a panel. A review then took place by a panel constituted by Messrs McGuther and Dwyer.

7 The panel approached the task on the basis that Pt 39A r 13 of the Rules had no application. The panel looked to the provisions of ss208A and 208B of the Act. The panel referred to costs “awarded on a solicitor and own client basis”.

8 On 24 August 2004, the panel issued a certificate as to determination.…

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 Bouras v Grandelis

Details

AGLC: Bouras v Grandelis [2004] NSWSC 1117
Case: [2004] NSWSC 1117
Decision Date: 25 November 2004

CaseChat Overview and Summary

In the case of Bouras v Grandelis, the respondents appealed against the decision of the costs assessors to award solicitor/client costs rather than indemnity costs. The respondents had been successful in their proceedings against the appellants and were awarded costs on the solicitor/client basis. The primary judge dismissed the appeal on the grounds that the costs assessors had considered the appropriate factors in making their decision and that the appeal did not involve any error of law.

The main legal issue before the court was whether the appeal was limited to cases where the assessors had made an error of law or whether it also encompassed cases where the statement of reasons was deficient. The respondents argued that the primary judge had erred by not addressing the deficiency in the statement of reasons. The court needed to determine the ambit of the appeal from a panel of costs assessors and whether it extended beyond errors of law to include deficiencies in the statement of reasons.

The court held that the ambit of the appeal was not the same as an error of law and that it did not include a deficiency in the statement of reasons. The court found that the primary judge had correctly considered the appropriate factors in making their decision and that the appeal did not involve any error of law. The court dismissed the appeal and upheld the decision of the costs assessors to award solicitor/client costs rather than indemnity costs. No further orders were made by the court.

Orders