Coshott v Barry

[2016] NSWCA 358

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Coshott v Barry [2016] NSWCA 358

Hearing dates:

14 October 2016

Decision date:

15 December 2016

Before:

Beazley ACJ at [1];
Meagher JA at [54];
Payne JA at [55]

Decision:

Summons dismissed with costs

Catchwords:

COSTS – solicitors acting for themselves in proceedings – costs order made for “costs of representing themselves” – costs assessment – costs assessment on the basis of the solicitors’ professional costs

 

JUDICIAL REVIEW – application for judicial review of a dismissal of an appeal against a decision of a costs review panel – where costs assessment conducted on the basis that the solicitors were entitled their professional costs as part of their costs of representing themselves

 

JUDICIAL REVIEW – jurisdictional error – “Chorley exception” – whether primary judge erred by affirming a position that did not reflect the law in New South Wales

  JUDICIAL REVIEW – jurisdictional error – collateral challenge to a costs order – not available in the costs assessment process

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Legal Profession Act 2004 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Australian Energy Ltd v Lennard Oil NL (No 2) (1988) 2 Qd R 230
Bechara v Bates [2016] NSWCA 294
Cachia v Hanes (1994) 179 CLR 403
eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (2015) 90 NSWLR 451; [2015] NSWCA 284
Guss v Veenhuizen (No 2) (1976) 136 CLR 47; [1976] HCA 57
London Scottish Benefit Society v Chorley (1884) 13 QBD 872
Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558; [2003] FCA 629
Polyaire Pty Ltd v K-aire Pty Ltd (No 4) [2007] SASC 36
State of New South Wales v Kable (No 2) (2013) 252 CLR 118; [2013] HCA 26
Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29
Wilkie v Brown [2016] NSWCA 128

Category:

Principal judgment

Parties:

Ljiljana Coshott (Applicant)
Stephen Michael Barry (First Respondent)
Martin Pearce Board (Second Respondent)

Representation:

Counsel:
R Wilson SC; A Cheshire SC; S Spadijer (Applicant)
M Castle; M Davis (Respondents)

  Solicitors:
Comino Prassas Sydney(Applicant)
CKB Associates Lawyers (Respondents)

File Number(s):

2016/41754

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

17 November 2015

Before:

Balla DCJ

File Number(s):

15/226504; 15/94053

Headnote

[This headnote is not to be read as part of the judgment]

The applicant sought judicial review of a decision of Balla DCJ in which her Honour dismissed the applicant’s appeal under the Legal Profession Act 2004 (NSW) (now repealed) against a decision of a costs review panel. The respondents were solicitors who represented themselves in litigation in the Supreme Court of New South Wales against the applicant. A costs order was made in their favour by Adams J. The terms of that order were that the applicant was to “pay the [respondents’] costs, including costs reserved and their costs of representing themselves”.

The questions that arose for determination were:

(i)…