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Clayton Utz v Ceccon Transport Pty Ltd (No 2)

Clayton Utz v Ceccon Transport Pty Ltd (No 2)

Case [2023] NTSC 102 13 December 2023

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CITATION:Clayton Utz v Ceccon Transport Pty Ltd & Ors (No 2) [2023] NTSC 102
PARTIES:CLAYTON UTZ
(ABN 35 740 217 343)
v

CECCON TRANSPORT PTY LTD
(ACN 009 595 911)

And

CECCON, Suzanne Yoko

And

PERRY, Robert

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2021-02436-SC
DELIVERED:  13 December 2023
HEARING DATE:  Written submissions filed:
5, 12 October and 3 November 2023

JUDGMENT OF: Brownhill J
CATCHWORDS:

COSTS – Costs assessment – Section 362(2)(b) Legal Profession Act 2006 (NT) – Where appeal against decision of costs assessor as to matter of law allowed – Where no power or jurisdiction of the Court to determine costs assessment application – Where reasonable apprehension of bias on the part of the costs assessor – Whether Court has power to remit costs assessment application to different costs assessor – Implied power – Court’s decision on the appeal remitted to different costs assessor
COSTS – Taxation of costs – Part 6 of Order 63 Supreme Court Rules 1987 (NT) – Solicitor and own client taxation – Where appeal against decision of costs assessor as to matter of law allowed – Whether costs permitted to be taxed in Court – Where statutory scheme renders inherent jurisdiction of Court a residual jurisdiction – Where statutory costs assessment application remains on foot – No proper basis upon which to exercise the residual inherent jurisdiction to order a taxation under Part 6 of Order 63
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Clayton Utz v Ceccon Transport Pty Ltd & Ors [2023] NTSC 76; Comcare v Broadhurst (2011) 192 FCR 497; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Harrison v Tew [1990] 2 AC 523; Lissenden v Dellios [2021] VSC 520; Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; Pryles & Defteros (a firm) v Green (1999) 20 WAR 541; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; Re Johnson and Weatherall (1888) 37 Ch D 433; Storer & Co v Johnson (1890) 15 App Cas 203; Sutton v Sears [1960] 2 QB 97; Symbol Park Lane Ltd v Steggles Palmer (a firm) [1985] 2 All ER 167; University of New South Wales v Moorhouse (1975) 133 CLR 1; Woolf v Snipe (1933) 48 CLR 677, referred to

Legal Profession Act 2006 (NT) ss 332, 339, 362, 366

Supreme Court Rules 1987 (NT) rr 63.01, 63.27, 63.40, 63.56, 63.63

DC Pearce & S Argument, Delegated Legislation in Australia (Lexis Nexis, 5^th ed, 2017)
GE Dal Pont, Law of Costs (LexisNexis, 5^th ed, 2021)
REPRESENTATION:
Counsel:
Appellant:M Castle & M Spain
First & Second Respondents:      P Maher
Third Respondent:  No appearance
Solicitors:
Appellant:Clayton Utz
First & Second Respondents:      Maher Raumteen Solicitors
Third Respondent:  No appearance
Judgment category classification:…

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 Clayton Utz v Ceccon Transport Pty Ltd (No 2)

Details

AGLC: Clayton Utz v Ceccon Transport Pty Ltd (No 2) [2023] NTSC 102
Case: [2023] NTSC 102
Decision Date: 13 December 2023

CaseChat Overview and Summary

Clayton Utz, acting as solicitors for a client, filed a costs assessment application against Ceccon Transport Pty Ltd after a successful legal matter. The dispute involved the assessment of costs incurred during the proceedings and was heard in the Supreme Court of the Northern Territory. The key issues were whether the court had the authority to remit a costs assessment application to a different costs assessor and whether the court could tax the costs under the statutory scheme.

The court considered the legal framework provided by the Legal Profession Act 2006 (NT) and the Supreme Court Rules 1987 (NT). It concluded that while the appeal against the costs assessor's decision on a matter of law was allowed, the court had no power or jurisdiction to determine the costs assessment application directly. Furthermore, there was a reasonable apprehension of bias on the part of the original costs assessor, which warranted a different assessor. The court found that it had an implied power to remit the costs assessment application to a different costs assessor.

Consequently, the court decided to remit the decision on the appeal back to a different costs assessor, ensuring a fair and unbiased assessment. This decision highlighted the limitations of the court's jurisdiction in directly assessing costs when a statutory costs assessment application was still pending. The inherent jurisdiction of the court was deemed residual, and the statutory scheme took precedence. As such, the court refrained from ordering a taxation of costs under Part 6 of Order 63 of the Supreme Court Rules.

Orders