Boylan Nominees Pty Limited v Williams Refrigeration Australia Pty Limited

[2005] NSWSC 469

CITATION:	Boylan Nominees Pty Limited v Williams Refrigeration Australia Pty Limited [2005] NSWSC 469
HEARING DATE(S):	16 May 2005
JUDGMENT DATE :	20 May 2005
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; the exhibit may be returned.

CATCHWORDS:	Maximum costs in personal injury damages matters - cross-claim for statutory contribution - legal services provided in connection with the cross-claim are not legal services provided in connection with a claim for personal injury damages.
LEGISLATION CITED:	Legal Profession Act 1987 ss198D, 208L
PARTIES:	Boylan Nominees Pty Limited t/as Quirks Refrigeration (Plaintiff) Williams Refrigeration Australia Pty Limited (Defendant)
FILE NUMBER(S):	SC 14270/04
COUNSEL:	Mr N E Chen (Plaintiff) Mr C Carroll (Defendant)
SOLICITORS:	Holman Webb (Plaintiff) Michael Samios (Defendant)

LOWER COURT JURISDICTION:	Costs Assessor
LOWER COURT FILE NUMBER(S):	91160 of 2004
LOWER COURT JUDICIAL OFFICER :	Mr J L Sharpe

- 4 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

20 May 2005

14270/04 Boylan Nominees Pty Limited v Williams Refrigeration Australia Pty Limited

JUDGMENT

1 Master: A plaintiff brought a claim for personal injury damages in the District Court. She recovered a judgment in the sum of $45,000.00 against the party who is now the plaintiff in these proceedings (the plaintiff). The plaintiff brought a cross-claim against the party that is now the defendant in these proceedings (the defendant). The cross-claim propounded a statutory claim for contribution.

2 The cross-claim failed. An order was made that the cross-claimant pay the cross-defendant’s costs of the cross-claim.

3 The assessment of the costs of the cross-claim was referred to a costs assessor (Mr Sharpe). One of the questions that he was required to consider in making his determination was whether or not s198D of the now superseded Legal Profession Act 1987 (the Act) operated so as to provide a maximum for the costs recoverable by the defendant against the plaintiff.

4 Section 198D of the Act provides as follows:-

(1) If the amount recovered on a claim for personal injury damages does not exceed $100,000, the maximum costs for legal services provided to a party in connection with the claim are fixed as follows:
(a) in the case of legal services provided to a plaintiff maximum costs are fixed at 20% of the amount recovered or $10,000, whichever is greater,
(b) in the case of legal services provided to a defendant maximum costs are fixed at 20% of the amount sought to be recovered by the plaintiff or $10,000, whichever is greater.

5 The costs assessor made a determination on 30 November 2004. His written reasons contain the following:-

It is my view that the Legal Profession Act does not apply to the costs orders in the present case.
If the Legal Profession Act were to apply to the present case, then a defendant could simply issue claims against possible cross-defendant with the belief that at worst, each claim would result in $10,000.00 in costs being payable. This must be a logical extension of applying the words “or may be made”, as provided in s198C of the Legal Profession Act.
It seems to me that the Legal Profession Act has been enacted with particular reference to claims brought by plaintiffs and consequential cost orders related to such a claim being made. Regard can be had to the second reading speeches insofar as they may be relevant.
Insofar as it is necessary to decide, I am of the opinion that a claim for contribution is not one that is otherwise caught by a claim for personal injury damages.

6 On 23 December 2004, the plaintiff filed a summons in these proceedings. It purports to bring an appeal pursuant to s208L of the Act. The question as to the application of s198D was the matter in issue in the appeal. The appeal was heard on 16 May 2005.

7 Counsel have prepared written submissions. These submissions were supplemented by oral argument.

8 It seems to me that this appeal can be disposed of without addressing all of the many arguments that were advanced on behalf of the parties. I consider that the question in issue can be resolved by reference to the language used by Parliament. I should add that the Court was not referred to any decided case which had dealt with the relevant provisions.

9 The Court has been taken to a number of authorities which demonstrate that a claim for contribution is of a different character to a personal injury claim. Whilst both are propounded in the same proceedings, the claims in the originating process and in the cross-claim are separate and independent. The parties to the latter are different from those in the former.

10 Section 198D forms part of Division 5B (maximum costs in personal injury damages matters). Division 5B contains definitions for “defendant”, “party”, “personal injury damages” and “plaintiff”.

11 The plaintiff places importance on the definition provided for “defendant”. It is as follows:-

defendant means a person against whom a claim for personal injury damages is or may be made.

12 It contends that the defendant falls within this definition (because a claim could have been made against it in the personal injury claim as joint tortfeasor).

13 The Court has been informed that the reading speeches do not assist in determining the purpose intended to be served by the provision of such wider meaning for “defendant”. Counsel were not able to otherwise assist as to the intended purpose.

14 The plaintiff looks to s198D(1)(b) to fix a maximum on costs recoverable by the defendant in respect of the cross-claim. This was an approach that did not find favour with the costs assessor.

15 It seems to me that s198D was intended to operate to impose maximum costs only in respect of costs for legal services provided to a party in connection with a claim for personal injury damages. The preliminary words contained in subsection (1) makes that clear.

16 Unless the costs fall within that category, (a) and (b) thereof have no application. If they do, the provisions contained in (a) apply in the case of legal services provided to a plaintiff and the provisions contained in (b) apply in the case of legal services provided to a defendant.

17 It seems to me that the appeal must fail because the costs for the relevant legal services were not provided to a party in connection with the claim for personal injury damages. The legal services which were the subject of the costs order and the costs dispute were provided to a party (the defendant) in connection with the cross-claim for contribution. In those circumstances, the question of whether or not the plaintiff falls within the expanded definition of “defendant” does not have to be determined.

18 The summons is dismissed. The plaintiff is to pay the costs of the summons. The exhibit may be returned.

**********