Cachia v Colaco - [2004] NSWSC 1043

CITATION: Cachia v Colaco [2004] NSWSC 1043

HEARING DATE(S): 04/11/2004

JUDGMENT DATE:
12 November 2004

JURISDICTION:
Common Law

JUDGMENT OF: Burchett AJ at 1-18

DECISION: Summons dismissed with costs.

CATCHWORDS: Costs - assessment by a panel under the Legal Profession Act 1987 - appeal on law to Supreme Court - party and party bill of litigant in person not being a legal practitioner - requirement that panel give reasons - distinction under Regulation 68 between reasons relating to costs and to disbursements - requirement of s.208KG as to reasons - meaning of "costs" in the Legal Profession Act - items disallowed as not fair and reasonable - whether that a sufficient reason - taxing officers' expertise and Court's reluctance to interfere with their view on quantum - whether evidence given as expert witness - time preparing his own affidavit not a disbursement allowable to a litigant in person - notes for cross-examination not allowable.

LEGISLATION CITED: Legal Profession Act 1987
Supreme Court Rules 1970 (NSW)

CASES CITED: Cachia v Hanes (1994) 179 CLR 403
Cachia v Hanes (1991) 23 NSWLR 304
Hart v Aga Khan Foundation (U.K.) [1984] 1 WLR 994 at 1006
Cachia v Isaacs (1989) BC 8902724 at 16
Freeman v McNally [2003] NSWSC 780
Lawrence v M D Nikolaidis & Co (2003) 57 NSWLR 355 at 364

PARTIES :
Saviour Laurence CACHIA - Plaintiff
Wilfred Servelo Colaco - First Defendant
Doris Bella Colaco - Second Defendant

FILE NUMBER(S): SC 11001/04

COUNSEL: Did not appear on either side.

SOLICITORS: Mr P J Kelso
Taylor Kelso - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BURCHETT AJ

Friday, 12 November, 2004

11001/04 Saviour Laurence CACHIA v Wilfred Servelo COLACO & Anor
JUDGMENT

1 HIS HONOUR: Mr Cachia, an experienced litigant in person, sued his neighbours, the defendants, alleging that a retaining wall, brick fence and associated works existing on their land unlawfully obstructed a right of way. The matter came before the Land and Environment Court where Mr Cachia appeared in person and the defendants were represented by a solicitor. After hearing evidence and argument for a day, the judge adjourned to have a view on the next day, and then decided the case in Mr Cachia’s favour, ordering the defendants to pay costs. Mr Cachia was dissatisfied with the result of an assessment made by a Costs Assessor, so it was reviewed on his application by a Panel constituted under Subdivision 4A of Part 11 of the Legal Profession Act 1987. Mr Cachia was also dissatisfied with the panel’s determination, and he now brings this proceeding by way of appeal from it.

2 A large number of grounds is set out in the Summons, some of which, such as the first consisting of an assertion that the panel “erred in its assessment of the bill of costs”, are so broad that they specify no intelligible ground, and others of which plainly raise issues of fact, not law. By virtue of the terms of…

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 Cachia v Colaco

Details

AGLC: Cachia v Colaco [2004] NSWSC 1043
Case: [2004] NSWSC 1043
Decision Date: 12 November 2004

CaseChat Overview and Summary

In Cachia v Colaco, the appellant, Cachia, sought to appeal the decision of a taxing master who had assessed the costs incurred during the proceedings. The case involved a dispute between the parties and was ultimately decided by the Supreme Court of Victoria. The central issue was whether the taxing master's decision to disallow certain costs and disbursements, as well as his failure to provide reasons for his assessment, was lawful and reasonable. Specifically, the court needed to determine the extent to which the taxing master was required to provide reasons for his decisions under the Legal Profession Act 1987 and the associated regulations.

The court examined the statutory framework governing the assessment of costs and the responsibilities of the taxing master. It found that under Regulation 68, the taxing master was required to provide reasons for disallowing costs, but not necessarily for disallowing disbursements. The court further clarified that the term "costs" in the Legal Profession Act includes more than just legal fees, encompassing expenses reasonably incurred in the conduct of the proceedings. The taxing master's decision to disallow certain items as not fair and reasonable was upheld, as long as he provided a sufficient reason. The court emphasised the taxing master's expertise in such matters and its reluctance to interfere with their assessment of quantum unless there was a clear error of law. Additionally, the court ruled that time spent preparing one's own affidavit and notes for cross-examination were not allowable disbursements for a litigant in person.

Ultimately, the court found that the taxing master's decision was lawful and reasonable, and the appeal was dismissed with costs. The Supreme Court upheld the taxing master's authority to disallow certain costs and disbursements and affirmed the importance of providing reasons for such decisions, particularly in relation to costs. The final orders confirmed the dismissal of the appeal and directed that the costs of the appeal be paid by the appellant.

Orders