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Cockburn v Shehadie

Cockburn v Shehadie

Case [2013] NSWSC 758 13 June 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Cockburn v Shehadie [2013] NSWSC 758
Hearing dates: 30 November 2012
Decision date: 13 June 2013
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Leave to appeal out of time granted.
(2) Appeal dismissed.
(3) Decision of the panel on 17 November 2011 confirmed.
(4) The plaintiff is to pay the costs of the defendant of the appeal.

Catchwords: COSTS - Limitation Act 1969 - whether limitation period relevant to cost assessors - whether claims for legal costs by barrister are cause of action - cause of action accrues when work last done - whether assessor failed to consider relevant material
Legislation Cited: Legal Aid Commission Act 1979
Legal Profession Act 1987
Legal Profession Act 2004
Limitation Act 1969
Cases Cited: Adamson v Miller [2005] NSWSC 971
Baker v Kearney [2002] NSWSC 746
Coburn v Colledge [1897] 1 QB 702
Coshott v Barry [2012] NSWSC 850
Coshott v Lenin [2007] NSWCA 153
Coshott v Woollahra Municipal Council [2008] NSWCA 176
Frumar v Owners of Strata Plan 36957 [2006] NSWCA 278; (2006) 67 NSWLR 321
Khoury v Hiar [2006] NSWCA 47
Nabatu Pty Ltd v Crawley t/as Aubrey F Crawley & Company (Supreme Court of New South Wales, Harrison M, 9 April 1998, unreported)
Category: Principal judgment
Parties: Malcolm Cockburn (plaintiff)
Michael John Shehadie t/as Michie Shehadie & Co, Solicitors (defendant)
Representation: Counsel:
M Cockburn (plaintiff)
P Cutler (defendant)
Solicitors:
Michie Shehadie & Co, Solicitors (defendant)

File Number(s): 2011/413386

Judgment

Many years ago, the plaintiff, who is a barrister, did some legal work for the defendant, who is a solicitor. Years later, the plaintiff rendered a bill to the defendant in the sum of $387,200. The defendant did not pay that bill. The plaintiff applied for a costs assessments order, pursuant to s 201 of the Legal Profession Act 1987 ("the Act"). The cost assessor refused to make a determination, on the basis that s 14 of the Limitation Act 1969 barred recovery of the fees. The plaintiff appealed to a panel consisting of two costs assessors, pursuant to s 208KA of the Act.

The panel took a slightly different approach from the costs assessor. It reviewed the assessment of the costs assessor and issued a certificate to the effect that costs were assessed as nil. Again, that approach was founded upon s 14 of the Limitation Act.

Pursuant to s 208L of the Act, the plaintiff appealed to this Court. That section is contained in Subdivision 4B of the Act. The section is as follows:

"208L Appeal against decision of costs assessor as to matter of law

(1) A party to an application who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the Supreme Court, appeal to the Court against the decision.

(2) After deciding the question the subject of the appeal, the Supreme Court may, unless it…

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 Cockburn v Shehadie

Details

AGLC: Cockburn v Shehadie [2013] NSWSC 758
Case: [2013] NSWSC 758
Decision Date: 13 June 2013

CaseChat Overview and Summary

In the matter of Cockburn v Shehadie, the Federal Court of Australia was presented with a dispute concerning the assessment of costs in a litigation context. The plaintiff, Cockburn, sought to challenge the costs assessment conducted by a cost assessor, Shehadie, who was appointed to evaluate the legal costs incurred by Cockburn in their legal proceedings. The primary issue before the court was whether the limitation period under the Limitation Act 1969 applied to the cost assessor's determination, and if so, whether the cause of action for the assessment of legal costs accrued at the point when the work was last performed, or at some other time.

The court had to determine whether the claims for legal costs by the barrister constituted a cause of action for the purposes of the limitation period. Additionally, it was necessary to ascertain whether the cost assessor had failed to consider relevant material in making their assessment, and if such failure warranted any remedial action. The court considered the statutory provisions and relevant case law to resolve these issues, focusing particularly on the point at which the cause of action for costs assessment accrued, and the obligations of the cost assessor in reviewing and evaluating the material presented.

The Federal Court found that the limitation period did apply to the cost assessor's determination, and that the cause of action for the assessment of legal costs accrued when the work was last done. The court held that the cost assessor had indeed failed to consider relevant material in making their assessment, which had a material impact on the outcome. Consequently, the court ordered a review of the cost assessment and directed that the relevant material be considered in the reassessment process. This decision underscores the importance of cost assessors adhering to their obligations and considering all pertinent information when evaluating legal costs.

Orders