The plaintiffs’ appeal from the Costs Review Panel
The plaintiffs, by Summons Commencing an Appeal (Part 50) filed on 13 April 2022, appeal two decisions of the Costs Review Panel (2021/295732 and 2021/295746) dated 31 March 2022. The whole of the decisions is challenged in each case on the following grounds:
The Review Panel erred by confirming the costs assessor’s determination that the costs applicant had satisfied its onus of proof that it had satisfied the indemnity principle.
The Review Panel erred by failing to find that there was non-compliance with section 178 of the Legal Profession Uniform Law 2014 (NSW).
The cost assessor and the Review Panel erred in issuing certificates for assessed costs in any amount or sum at all in the circumstances where the solicitor’s client did not have any separate liability…
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.
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Details
AGLC
Cappello v HomeBuilding Pty Ltd [2022] NSWDC 725
Case
[2022] NSWDC 725
Decision Date
CaseChat Overview and Summary
The case of Cappello v HomeBuilding Pty Ltd involves a summons for the costs of an appeal against a costs determination by the Costs Review Panel. The original dispute between the parties was not explicitly detailed, but it is understood that the summons was seeking indemnity costs from HomeBuilding Pty Ltd. The matter was heard in the Supreme Court of New South Wales.
The central legal issue before the court was whether the indemnity principle applied to the circumstances of the case, specifically in relation to the costs ordered by the Costs Review Panel. The court had to determine whether the appeal against the costs determination was successful and, if so, whether the indemnity principle required HomeBuilding Pty Ltd to bear the costs of the appeal.
In delivering the judgment, the court found that the appeal was not successful. The reasoning provided was that the Costs Review Panel had correctly applied the principles of costs assessment in its determination. As a result, the court held that the indemnity principle did not apply, and the appeal was dismissed. The court also struck out the summons and reserved the costs, with liberty to apply, indicating that the parties could still seek costs if they met certain criteria in the future.
The final orders of the court were straightforward: the summons was struck out, the appeal was dismissed, and the costs were reserved with liberty to apply. This means that the parties are not required to pay the costs of the appeal at this stage, but they retain the option to seek costs if they can meet the necessary conditions in a future application.