Boylan Nominees Pty Ltd v Williams Refrigeration Australia Pty Ltd

Boylan Nominees Pty Ltd (the claimant) appealed to the Court of Appeal of New South Wales against a decision concerning the application of a costs cap under the *Legal Profession Act 1987* (NSW). The dispute arose from a cross-claim brought by Williams Refrigeration Australia Pty Ltd (the defendant) against a third party, which the claimant sought to join as a cross-defendant. The claimant argued that the costs incurred by the cross-defendant in defending the cross-claim should be subject to the costs cap provisions of the *Legal Profession Act 1987*, specifically sections 198C and 198D.

The central legal issues before the Court of Appeal were whether a cross-defendant qualified as a "defendant" for the purposes of section 198C of the *Legal Profession Act 1987*, whether legal services provided to a cross-defendant were rendered "in connection with" a claim for personal injury damages under section 198D, and whether a verdict in favour of a defendant constituted an "award" of damages for the purposes of section 198D. These questions were critical to determining whether the costs cap applied to the legal costs incurred by the cross-defendant.

The Court of Appeal, comprising Beazley, Tobias, and Basten JJA, reasoned that the term "defendant" in section 198C did not extend to a cross-defendant. Furthermore, the court held that legal services provided to a cross-defendant were not "in connection with" a claim for personal injury damages as contemplated by section 198D, particularly when the primary claim had been dismissed. The court also determined that a verdict for a defendant, in the absence of an award of damages, did not trigger the application of the costs cap under section 198D.

Consequently, the Court of Appeal dismissed the claimant's appeal. Leave to appeal was granted on the condition that the claimant file its notice of appeal within seven days. The claimant was ordered to pay the opponent's costs of the summons for leave to appeal and of the appeal.