Legal Research
Cases
Boyce v McIntyre

Boyce v McIntyre

Case [2009] NSWCA 185 20 July 2009

Appeal

Costs

Jurisdiction

Statutory Construction

Remedies

Civil Procedure

Statutory Interpretation

No judgment structure available for this case.

Type to search within this case.

Reported Decision: [2009] NSW ConvR 56-24678 NSWLR 152[2009] ALMD 5723

New South Wales

Court of Appeal

CITATION: Boyce v McIntyre [2009] NSWCA 185

HEARING DATE(S): 1 July 2009

JUDGMENT DATE:
20 July 2009

JUDGMENT OF: Ipp JA at 1; Macfarlan JA at 55; Hoeben J at 56

DECISION: (a) Leave to appeal in regard to the s 361 Issue is granted but the appeal is dismissed.
(b) The application for leave to appeal in regard to the Assessment Issues is dismissed.
(c) Leave to appeal is granted in regard to the GST Issue and the appeal on that issue is upheld.
(d) The orders made by Harrison AsJ, the Review Panel and the costs assessor in relation to GST are set aside.
(e) CHH to pay Mrs McIntyre’s costs of the application for leave to appeal and the appeal.

CATCHWORDS: PROCEDURE - costs - appeals as to costs - construction and application of s 361 of the Legal Profession Act 2004 - assessment of costs involving non-associated third party payer - whether costs assessor required to consider costs agreement where non-associated third party payer not party to that costs agreement - whether costs assessor entitled to determine amounts in respect of GST.

LEGISLATION CITED: Interpretation Act 1987
Legal Profession Act 2004
Legal Profession Further Amendment Act 2006
Supreme Court Act 1970 (NSW)

CATEGORY: Principal judgment

PARTIES: Thomas Damien Boyce & the persons listed in the schedule to the summons seeking leave to appeal (Applicants)
Catherine Anne McIntyre (First Respondent)
Kosciuszko Thredbo Pty Ltd (Second Respondent)

FILE NUMBER(S): CA 40037/09

COUNSEL: G K Burton SC (Applicants)
M R Aldridge SC (First Respondent)
Submitting appearance (Second Respondent)

SOLICITORS: Thomson Playford Cutlers (Applicants)
Redmond Hale Simpson (First Respondent)
Submitting appearance (Second Respodent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 30035/08

LOWER COURT JUDICIAL OFFICER: Harrison AsJ

LOWER COURT DATE OF DECISION: 20 November 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Boyce v McIntyre [2008] NSWSC 1218

CA 40037/09
SC 30035/08

IPP JA
MACFARLAN JA
HOEBEN J
20 JULY 2009

Thomas Damien Boyce & 9 Ors v Catherine Anne McIntyre & Anor

Judgment

The dispute about a costs assessment, the prior proceedings and the application for leave to appeal

2 This is an application for leave to appeal and, if granted, an appeal against a decision of Harrison AsJ. Her Honour’s decision concerned Issues relating to legal costs and it was common ground that leave to appeal is required under s 101(2)(c) of the SupremeCourt Act 1970.

3 The proceedings before Harrison AsJ involved an appeal under s 384 of the Legal Profession Act 2004 against a decision of a costs assessor as to a matter of law and an application under s 385 of that Act for leave to appeal against the determination of an application for a costs assessment made by the costs assessor.

4 The applicants are the partners of the former law practice of Cutler, Hughes & Harris (“CHH”) which has since become part…

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 Boyce v McIntyre

Details

AGLC: Boyce v McIntyre [2009] NSWCA 185
Case: [2009] NSWCA 185
Decision Date: 20 July 2009

CaseChat Overview and Summary

The appeal concerned a dispute over the assessment of legal costs. The parties involved were the appellant, Boyce, and the respondent, McIntyre. The core of the dispute revolved around the application of section 361 of the *Legal Profession Act 2004* (NSW) in circumstances where a non-associated third party was paying the legal costs, and the entitlement of a costs assessor to determine amounts in respect of Goods and Services Tax (GST). The matter came before the Court of Appeal of New South Wales.

The legal issues before the court were threefold: first, whether a costs assessor was required to consider a costs agreement when a non-associated third party payer, who was not a party to that agreement, was involved in the assessment; second, whether the costs assessor had the authority to determine amounts in respect of GST; and third, the application of section 361 of the *Legal Profession Act 2004* (NSW) in this context.

The Court of Appeal considered the construction and application of section 361 of the *Legal Profession Act 2004* (NSW) in relation to the costs agreement and the third-party payer. It was held that leave to appeal on this issue would be granted, but the appeal itself would be dismissed. Regarding the assessment issues, the application for leave to appeal was dismissed. However, leave to appeal was granted on the GST issue, and the appeal on that point was upheld. The court reasoned that the costs assessor was entitled to determine amounts in respect of GST.

Consequently, the orders made by the costs assessor, the Review Panel, and Harrison AsJ in relation to GST were set aside. The Court of Appeal ordered that the appellant, Boyce, pay the respondent, McIntyre's, costs of the application for leave to appeal and the appeal.

Orders

Orders of the court

(a) Leave to appeal in regard to the s 361 Issue is granted but the appeal is dismissed. (b) The application for leave to appeal in regard to the Assessment Issues is dismissed. (c) Leave to appeal is granted in regard to the GST Issue and the appeal on that issue is upheld. (d) The orders made by Harrison AsJ, the Review Panel and the costs assessor in relation to GST are set aside. (e) CHH to pay Mrs McIntyre's costs of the application for leave to appeal and the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Boyce v McIntyre [2009] NSWCA 185

Most Recent Citation

Amos v Ian K Fry & Company [2010] QCA 131

Cases citing this decision · 13 of 13 shown

Moreton Resources Ltd (Receivers Appointed) v Kirk
[2025] QSC 198

…iver & Manager of the Balneum Joint Venture [2007] WASCA 152, considered. Boyce v McIntyre (2009) 78 NSWLR 152; [2009] NSWCA 185, considered. Carey v Korda (No 2) (2011) 85 ACSR 311; [2011] WASC 220, cited. Debney v Semerdziev [1982] 2 NSWLR 391, considered. Elks v Melgear Pty Ltd [2023] QSC 150, cited. Elks v Melg…
Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell
[2023] NSWCA 244

…meone other than the client is responsible for paying legal fees: Boyce v McIntyre (2009) 78 NSWLR 152; [2009] NSWCA 185. The Court has not decided whether to exercise its supervisory jurisdiction in this case and could not do so on the existing material. Hartnett Lawyers decided to sit out Mr Wall’s cost assessmen…
Bevan v Napoli
[2022] NSWSC 1132 Para 37

…South Wales by s 6 of the Application Act ). See p 97 of the Victorian Explanatory Memorandum to the Bill (explanatory memorandum); Boyce v McIntyre [2009] NSWCA 185 (“Boyce”) at [19]-[22], esp. [22], on the predecessor to s 171 ( s 171(2)).…
Bell v Hartnett Lawyers (No 2)
[2021] NSWSC 1270 Para 39

…designed for consumer protection where someone other than the client is responsible for paying legal fees: Boyce v McIntyre (2009) 78 NSWLR 152; [2009] NSWCA 185.…
Coshott v Spencer
[2016] NSWDC 43 Para 42

…None of these documents demonstrate that the plaintiff is “liable to pay”, which is the applicable term for third party payers: Boyce v McIntyre [2009] NSWCA 185 at [26] per Ipp JA. As Ipp JA goes on to point out, whether the liability lies with an associated or non-associated third party payer, the obligation of t…
Whyte v LM Investment Management Limited(in liq)(rcvrs and mgrs apptd)
[2015] QSC 303

…dure Rules 1999 (Qld), rr 678, 680, 681, 700, 703, 705, 720, 743A, 743C, 743D, 743I Boyce v Macintyre (2009) NSWLR 152; [2009] NSWCA 185, referred to Equuscorp Pty Ltd v Short Punch & Greatorix [2001] 2 Qd R 580; [2000] QCA 407, referred to Huntingdale Village Pty Ltd & Ors v Mallesons Stephen Jaques [2013] WASC 48…
Iron Mountain Mining Ltd v K & L Gates [No 2]
[2015] WASC 373 Para 15

…d party payer provision in the present Act is consumer protection. She referred to the New South Wales Court of Appeal decision in Boyce v McIntyre [2009] NSWCA 185 where Justice Ipp, referring to s 302A and s 350(2) of the Legal Profession Act 2004 (NSW) (a provision similar in form to s 253 and s 295 of the Act):…
Shillington v Harries
[2013] NSWSC 1202 Para 1

…To the extent that the defendant relies upon Ipp JA (MacFarlan JA and Hoeben J agreeing) in Boyce v McIntyre [2009] NSWCA 185 at [22], his Honour was merely observing (correctly) that :-…
Huntingdale Village Pty Ltd v Mallesons Stephen Jaques
[2013] WASC 48 Para 2

…In Boyce v McIntyre [2009] NSWCA 185 the New South Wales Court of Appeal considered s 302A of the Legal Profession Act 2004 (NSW) which is in the same terms as s 253 of the Act. The dispute between the parties concerned legal costs payable by the first respondent, Mrs McIntyre, under a contract of sublease she ente…
Lahoud v Lahoud
[2012] NSWCA 401 Para 2

…t or what impact it might have had on the result. It is sufficient to note that, by way of reversal of the decision of this Court in Boyce v McIntyre [2009] NSWCA 185, the Legal Profession Act was altered in 2010 to require that a costs assessor or review panel, when making or reviewing a determination of legal cos…
Lahoud v Lahoud
[2011] NSWSC 994 Para 1

…Boyce v McIntyre [2009] NSWCA 185 arose when a sublessee who had a contractual obligation under the sublease to pay certain legal costs of the sublessor sought an assessment of those costs. The sublessee was entitled to seek that assessment pursuant to ss 302A(1) and 350(2) LP Act , even though it was not a party t…
Cosmetic Surgery Advisory Centre (of Australia) P/L v Hawthorn Cuppaidge and Badgery
[2011] QMC 33 Para 1

…I was also referred to the decision of Boyce v McIntyre [2008] NSWSC 1218 and the appeal from that which can be located at [2009] NSWCA 185. Other than one minor area, the New South Wales Court of appeal upheld the decision of the Associate Justice who heard the matter in the Administrative Law List. Boyce consider…
Amos v Ian K Fry and Company
[2010] QCA 131 Para 1

…at the right to seek a costs review previously conferred by s 31 of the Costs Act 1867 no longer existed.[27] [27] Boyce v McIntyre [2009] NSWCA 185, a decision referred to by Mr Murphy SC and Mr Cooke, concerned the obligation of a sub-lessee to pay legal costs and is within the expression “legal” obligation to pa…

View all 13 citing cases →

Cases cited in this decision · 2 of 2 shown

Boyce v McIntyre
[2008] NSWSC 1218

…/08 LOWER COURT JUDICIAL OFFICER: Harrison AsJ LOWER COURT DATE OF DECISION: 20 November 2008 LOWER COURT MEDIUM NEUTRAL CITATION: Boyce v McIntyre [2008] NSWSC 1218…
09 SC 30035
09 SC 30035

…CA 40037/09 SC 30035/08 IPP JA MACFARLAN JA HOEBEN J 20 JULY 2009…

Legislation cited in this decision · 4

Interpretation Act 1987 (NSW)
1 mention
Legal Profession Act 2004 (Vic)
1 mention
Legal Profession Further Amendment Act 2006 (NSW)
1 mention
Supreme Court Act 1970 (NSW)
1 mention

CITATION:	Boyce v McIntyre [2009] NSWCA 185
HEARING DATE(S):	1 July 2009
JUDGMENT DATE:	20 July 2009
JUDGMENT OF:	Ipp JA at 1; Macfarlan JA at 55; Hoeben J at 56
DECISION:	(a) Leave to appeal in regard to the s 361 Issue is granted but the appeal is dismissed. (b) The application for leave to appeal in regard to the Assessment Issues is dismissed. (c) Leave to appeal is granted in regard to the GST Issue and the appeal on that issue is upheld. (d) The orders made by Harrison AsJ, the Review Panel and the costs assessor in relation to GST are set aside. (e) CHH to pay Mrs McIntyre’s costs of the application for leave to appeal and the appeal.
CATCHWORDS:	PROCEDURE - costs - appeals as to costs - construction and application of s 361 of the Legal Profession Act 2004 - assessment of costs involving non-associated third party payer - whether costs assessor required to consider costs agreement where non-associated third party payer not party to that costs agreement - whether costs assessor entitled to determine amounts in respect of GST.
LEGISLATION CITED:	Interpretation Act 1987 Legal Profession Act 2004 Legal Profession Further Amendment Act 2006 Supreme Court Act 1970 (NSW)
CATEGORY:	Principal judgment
PARTIES:	Thomas Damien Boyce & the persons listed in the schedule to the summons seeking leave to appeal (Applicants) Catherine Anne McIntyre (First Respondent) Kosciuszko Thredbo Pty Ltd (Second Respondent)
FILE NUMBER(S):	CA 40037/09
COUNSEL:	G K Burton SC (Applicants) M R Aldridge SC (First Respondent) Submitting appearance (Second Respondent)
SOLICITORS:	Thomson Playford Cutlers (Applicants) Redmond Hale Simpson (First Respondent) Submitting appearance (Second Respodent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 30035/08
LOWER COURT JUDICIAL OFFICER:	Harrison AsJ
LOWER COURT DATE OF DECISION:	20 November 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Boyce v McIntyre [2008] NSWSC 1218