Practice (N.S.W)—Costs—Taxation—Litigant in person—Compensation for time spent in preparation and conduct of case—Whether entitlement—Supreme Court Act 1970 (N.S.W), ss. 19(1), 76(1) Supreme Court Rules 1970 (N.S.W), Pt 52, r. 23(2).

Orders

Appeal dismissed.

Decisions

MASON CJ, BRENNAN, DEANE, DAWSON AND McHUGH JJ The respondents failed in proceedings against the appellant in the Supreme Court of New South Wales. They unsuccessfully sought orders requiring the appellant to restore structural support to their land at Castle Hill. The respondents were legally represented but the appellant was not. On 7 October 1987 costs were awarded in favour of the appellant against the respondents. On taxation, a Master disallowed many items claimed by the appellant in his bill of costs.

2. This appeal is from a judgment of the Court of Appeal of New South Wales dismissing by a majority (Clarke and Handley JJA.; Kirby P dissenting) an appeal from the order of the Master on the review of the taxation of the appellant's costs ((1) Cachia v. Hanes (1991) 23 NSWLR 304.). The grant of special leave, pursuant to which this appeal is brought, was confined to the disallowance of the appellant's
claim for compensation for the loss of his time spent in the preparation and conduct of his case and for out of pocket expenses, being travelling expenses, associated with the preparation and conduct of his case.

3. The claims for loss of time were quantified in the bill of costs at $85.00 per hour. This figure was based on the fees charged by the appellant as a self-employed consulting engineer. However, the taxing officer found that there was insufficient evidence to show that the appellant had lost money from his consulting practice in defending the case.

4. Section 76(1) of the Supreme Court Act 1970 (N.S.W.) ("the Act")
provides:

"Subject to this Act and the rules and subject to any other Act:

(a) costs shall be in the discretion of the Court; (b) the Court shall have full power to determine by whom and to what extent costs are to be paid; and

(c) the Court may order costs to be taxed or otherwise ascertained on a party and party basis or on any other basis."

So far as is relevant, s.76(2) defines "costs" to include "costs of or incidental to proceedings in the Court", although a definition of "costs" as including "fees, charges, disbursements, expenses and remuneration" is provided by s.19(1).

5. Under s.122 of the Act, the rules in the Fourth Schedule to the Act came into operation on the commencement of the Act, subject to and together with rules made by the Rule Committee. Section 123 provides that rules may be made by a Rule Committee consisting of the Chief Justice, certain other judges and representatives of the legal profession. Section 124 provides that any of the rules…

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 Hanes

Details

AGLC: Cachia v Hanes [1994] HCA 14
Case: [1994] HCA 14
Decision Date: 13 April 1994

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Cachia v Hanes*. The dispute concerned the interpretation of a clause in a contract for the sale of land, specifically whether the vendor was entitled to retain the deposit paid by the purchaser. The purchaser had failed to complete the sale by the stipulated date, and the vendor subsequently terminated the contract and sought to retain the deposit.

The central legal issue before the High Court was whether the vendor's right to terminate the contract and retain the deposit was conditional upon the vendor first serving a notice to complete on the purchaser, even though the contract did not expressly stipulate such a requirement. The court also had to consider the principles governing the forfeiture of deposits in contracts for the sale of land, particularly in circumstances where time was not of the essence.

The High Court held that, in the absence of express contractual provisions to the contrary, a party seeking to terminate a contract for the sale of land due to the other party's breach of an essential term (such as a failure to complete by the due date when time is of the essence) is generally entitled to do so without first serving a notice to complete. However, where time is not of the essence, a notice to complete is usually required to make time of the essence and thus create a right to terminate. In this instance, the contract was interpreted as making time of the essence for completion, meaning the vendor was entitled to terminate and retain the deposit without serving a notice to complete. The court applied established principles of contract law regarding essential terms and the consequences of breach.

The High Court dismissed the appeal, upholding the decision of the lower court.

Orders