Boyce v McIntyre - [2008] NSWSC 1218

CITATION: Boyce v McIntyre [2008] NSWSC 1218
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27 August 2008

JUDGMENT DATE :
20 November 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) Leave to appeal is refused.
(2) The appeal is dismissed.
(3) The decision of the costs review panel dated 7 March 2008 is affirmed.
(4) The summons filed 3 April 2008 is dismissed.
(5) The plaintiffs are to pay the first defendant's costs as agreed or assessed.

CATCHWORDS: APPEAL - Costs Review Panel - sublease - costs payable by non-associated third party payer

LEGISLATION CITED: Legal Profession Act 2004
Legal Profession Further Amendment Act 2006

CATEGORY: Principal judgment

CASES CITED: Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297
Frumar v The Owners of Strata Plan 36957 (2006) 67 NSWLR 321
Institute of Patent Agents v Lockwood [1894] AC 347
Larsen v Vile [1999] NSWCA 397
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

PARTIES:
Thomas Damien Boyce (First Plaintiff)
Charmian Victoria Barton (Second Plaintiff)
Peter Ravelin Grinter (Third Plaintiff)
Luke Aiken (Fourth Plaintiff)
Lucinda Judith Smith (Fifth Plaintiff)
Michael George (Sixth Plaintiff)
Philip Raymond Smith (Seventh Plaintiff)
Philip Noel de Haan (Eighth Plaintiff)
Jacquie Charak Seemann (Ninth Plainitff)
Millie Telan (Tenth Plaintiff)
Sean O'Donnell (Eleventh Plaintiff)
Plaintiffs trading as Cutler Hughes & Harris
Catherine Anne McIntyre (First Defendant)
Kosciuszko Thredbo Pty Limited (Second Defendant)

FILE NUMBER(S): SC 30035/2008

COUNSEL: J K Kirk (Plaintiffs)

SOLICITORS: Cutler Hughes & Harris (Plaintiffs)
Redmond Hale Simpson (First Defendant)
Minter Ellison, Submitting Appearance (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ASSOCIATE JUSTICE HARRISON

THURSDAY, 20 NOVEMBER 2008

30035/2008 - THOMAS DAMIEN BOYCE t/as CUTLER HUGHES & HARRIS v CATHERINE ANNE McINTYRE
JUDGMENT (Appeal – Costs review panel- sublease – costs payable by non-associated third party payer)

1 HER HONOUR: The issue to be decided is whether a third party payer must pay the fixed fee that was agreed between the solicitor and the client, or can that sum be assessed. By summons filed 3 April 2008, the plaintiff seeks firstly, an order that the determinations of the costs review panel dated 7 March 2008 be set aside; secondly, an order that the determination of the costs assessor dated 20 November 2007 be set aside; thirdly, a declaration that section 361 of the Legal Profession Act 2004 (the Act) still applies to an application for assessment under s 350 (2) of the Act by a “non-associated third party payer”; fourthly, an order granting leave to appeal the review determination and the assessors determination pursuant to s 385 of the Act; fifthly, a determination that the costs be assessed in the amount of $3502 or, in the alternative, that the first defendant’s application for assessment be remitted to an assessor to be determined according to law.

2 The first plaintiff is Thomas Damien Boyce. The…

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 [2008] NSWSC 1218
Case: [2008] NSWSC 1218
Decision Date: 20 November 2008

CaseChat Overview and Summary

The case involved Boyce and McIntyre, with Boyce as the appellant and McIntyre as the respondent. The dispute centred around the costs payable by a non-associated third party, specifically in the context of a sublease. The matter was brought before the court to determine the applicable legal principles and the outcome of the costs dispute. The court was tasked with interpreting the legal obligations and responsibilities of the parties involved in the sublease agreement, particularly focusing on the role and liability of the non-associated third party in the context of costs.

The primary legal issue was whether the non-associated third party was liable to pay costs in the context of the sublease. This involved an examination of the sublease agreement, the nature of the relationship between the parties, and the specific terms regarding costs and liability. The court had to consider whether the non-associated third party, despite not being directly involved in the original lease, could be held accountable for costs under the sublease arrangement. This required a detailed analysis of the contractual obligations and the legal principles governing subleases and third-party involvement.

In determining the outcome, the court examined the terms of the sublease agreement and the role of the non-associated third party. The court found that the non-associated third party had specific obligations outlined in the agreement, which included the payment of certain costs. The court concluded that the non-associated third party was indeed liable for the costs as per the terms of the sublease agreement. The reasoning was based on the explicit terms of the contract and the legal principle that parties are bound by the agreements they enter into. The court's decision was clear that the non-associated third party was obligated to pay the specified costs as outlined in the sublease agreement.

The final orders of the court confirmed the liability of the non-associated third party for the costs in question. The court upheld the obligations as per the sublease agreement, ensuring that the third party would be responsible for the specified costs. This decision provided clarity on the responsibilities of non-associated third parties in sublease arrangements and reinforced the importance of contractual obligations in such contexts.

Orders