Costs; cost dispute between solicitors' firm and former client; appeal from Master's decision refusing leave to appeal pursuant to s208M of the Legal Profession Act 1987; purpose of the requirement of leave to appeal.
DECISION:
Appeal dismissed with costs
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40398/98
CLD11194/96
MASON P FITZGERALD JA DAVIES AJA
Wednesday, 29 September 1999
CHAPMANS LIMITED (ACN 000 012 386) v Robert Walter YANDELL (PRACTISING AS "YANDELLS") & 2 ORS
JUDGMENT
1 FITZGERALD JA: This appeal by leave of a differently constituted Court concerns a costs dispute between solicitors and a former client. That dispute materially involves less than $20,000 which no doubt has been considerably increased by this litigation.
2 The appellant was dissatisfied with the decision of a costs assessor and appealed to a master under s208L of the Legal Profession Act 1987. Such an appeal is restricted to a matter of law arising in the proceeding before the costs assessor. The master dismissed that appeal and that decision is not in issue before this Court. The appellant also applied to the master for leave to appeal under s208M of the Act. The master also dismissed the application for leave to appeal on 18 May 1998.
3 During the course of the proceeding in this Court, there was some question raised as to whether or not the master had granted leave under s208M and dismissed the appeal under that section. I am satisfied from a perusal of the terms of the appellant’s summons which came before the master and the master’s order that he refused leave to appeal under s208M.
4 The orders which the appellant seeks from this Court according to the notice of appeal are that the costs assessor’s certificate of determination be set aside and the matter be remitted to another costs assessor for assessment according to law. Alternatively, the Court is asked to remit the proceedings to a master for determination according to law.
5 When the Court granted the appellant leave to appeal on 8 February this year, that is from the master’s decision refusing leave to appeal under s208M of the Act, it limited the appellant to the following ground of appeal, which is the only ground of appeal set out in the notice of appeal:
“The master erred in not granting leave to the appellant pursuant to s208M of the Legal Profession Act 1987 to allow fresh evidence in addition to or substitution for that evidence previously received.”
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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AGLC
Chapmans Ltd v Yandell [1999] NSWCA 361
Case
[1999] NSWCA 361
Decision Date
CaseChat Overview and Summary
Chapmans Ltd, a firm of solicitors, appealed to the Court of Appeal of New South Wales against a Master's decision refusing them leave to appeal a costs dispute with their former client, Yandell. The dispute concerned the amount of costs owed by Yandell to Chapmans Ltd.
The central legal issue before the Court of Appeal was the interpretation and application of section 208M of the *Legal Profession Act 1987* (NSW), which governs the requirement for leave to appeal in certain costs disputes. The court was asked to determine the purpose of this leave requirement and whether the Master had erred in refusing leave to appeal.
The Court of Appeal held that section 208M was intended to prevent frivolous or unmeritorious appeals in costs disputes from proceeding to a full appeal. The court found that the Master had correctly applied this test and that there was no error in the Master's refusal to grant leave to appeal. Accordingly, the appeal was dismissed.