Coshott v Barry

Case [2015] NSWCA 257

Court of Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Coshott v Barry [2015] NSWCA 257
Hearing dates:11 December 2014
Date of orders: 28 August 2015
Decision date: 28 August 2015
Before: McColl JA, Emmett JA, Brereton J
Decision:

In proceedings 2014/00217301; 2014/00109540:
(1)   Grant leave to appeal from the decision of Bradd LCM of 20 March 2014.
(2)   Order Mrs Coshott to file the draft amended notice of appeal at White Book page 266 within 7 days of delivery of this judgment.
(3)   Appeal allowed in part.
(4)   Set aside the judgment entered by Bradd LCM on 20 March 2014 against Mrs Coshott in the sum of $41,099.84.
(5)   No order as to the costs of the Local Court proceedings, to the intent that each party bear its own costs.
(6) Order Stephen Michael Barry and Martin Pearce Board to pay 50 per cent of Mrs Coshott’s costs in this Court and to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise qualified.
Summons seeking judicial review – 2014/00217333
(7)   Extend the time for commencing the proceedings seeking judicial review of the District Court decisions to 23 July 2014.
(8)   Set aside the orders of Taylor DCJ made on 2 April 2014.
(9)   Dismiss the Judicial Review Summons insofar as it sought to challenge the judgment and orders of Bradd LCM made on 20 March 2014.
(10)   No order as to the costs of the District Court proceedings, to the intent that each party bear its own costs.
(11) Order Stephen Michael Barry and Martin Pearce Board to pay 50 per cent of Mrs Coshott’s costs of the Judicial Review Summons and to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise qualified.

Catchwords: BANKRUPTCY – where solicitors sent bill of costs to former clients – joint debtors – where solicitors applied for assessment of costs – where costs assessor issued certificate of determination of costs – where solicitors filed in court copy of certificate to effect entry for purposes of s 208J(3), Legal Profession Act 1987 (NSW) and s 133(3), Civil Procedure Act 2005 (NSW) – where one former client bankrupted between date certificate issued but before certificate filed – where court entered judgment against former clients for amount of costs determined on certificate – whether filing certificate commenced any legal proceeding or was a fresh step in such a proceeding and not competent except with leave – s 58(3)(b), Bankruptcy Act 1966 (Cth) – whether certificate enforceable against joint debtor not bankrupt
ESTOPPEL – Issue estoppel – Anshun estoppel – Res judicata – estoppel in the face of a statute
LEGAL PRACTITIONERS – Costs – assessment – bill of costs – interest – legal practitioner’s entitlement to interest on bills of costs – whether costs assessor has power to determine legal practitioner’s claim for interest on bill of costs – s 208E, Legal Profession Act 1987 (NSW)
JUDGMENTS – enforcement – where costs assessor issued…

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Coshott v Barry [2015] NSWCA 257
Case
[2015] NSWCA 257
Decision Date

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the appeal concerned a dispute between a former client, Mrs Coshott, and her former solicitors, Stephen Michael Barry and Martin Pearce Board. The core of the dispute involved the enforcement of a certificate of determination of costs issued by a costs assessor. The solicitors had sought to enter judgment based on this certificate, but Mrs Coshott had been declared bankrupt between the issuance of the certificate and its filing in court. The proceedings also involved a claim for interest on the costs awarded.

The Court of Appeal was required to determine several legal issues. These included whether the filing of the costs assessor's certificate in court, after Mrs Coshott's bankruptcy, constituted a fresh step in a legal proceeding that was incompetent without leave under s 58(3)(b) of the *Bankruptcy Act 1966* (Cth). The court also had to consider whether the certificate was enforceable against Mrs Coshott as a joint debtor, given her bankruptcy. Furthermore, the court examined whether a costs assessor had the power to determine a legal practitioner's claim for interest on a bill of costs under the *Legal Profession Act 1987* (NSW), and if the subsequent judgment, which excluded interest, could be amended to include it. The court also considered whether seeking judicial review was an abuse of process when an appeal was available.

The Court of Appeal reasoned that the filing of the certificate of determination of costs was not the commencement of a fresh legal proceeding, nor was it a step in a proceeding that required leave under s 58(3)(b) of the *Bankruptcy Act*. The court found that the certificate, once filed, had the effect of a judgment, and the subsequent judgment entered by the Local Court reflected the amount determined by the costs assessor. However, the court held that the costs assessor did not have the power to award interest on the bill of costs under the relevant legislation. Consequently, the judgment entered by the Local Court, which did not include interest, was valid in that regard. The court also determined that the appeal from the Local Court should have been commenced in the Common Law Division, but it could be continued and disposed of by the Court of Appeal.

The Court of Appeal allowed the appeal in part. It set aside the judgment entered by the Local Court against Mrs Coshott for the sum of $41,099.84, as this amount included interest which the costs assessor had no power to award. The court made no order as to the costs of the Local Court proceedings, with each party to bear their own costs. The solicitors were ordered to pay 50 per cent of Mrs Coshott’s costs in the Court of Appeal. In relation to the judicial review proceedings, the court extended the time for commencing those proceedings and set aside the orders of the District Court judge. However, the judicial review summons was dismissed insofar as it sought to challenge the judgment and orders of the Local Court. No order was made as to the costs of the District Court proceedings, and the solicitors were ordered to pay 50 per cent of Mrs Coshott’s costs of the judicial review summons.

Orders

Orders of the court

In proceedings 2014/00217301; 2014/00109540:

(1) Grant leave to appeal from the decision of Bradd LCM of 20 March 2014.

(2) Order Mrs Coshott to file the draft amended notice of appeal at White Book page 266 within 7 days of delivery of this judgment.

(3) Appeal allowed in part.

(4) Set aside the judgment entered by Bradd LCM on 20 March 2014 against Mrs Coshott in the sum of $41,099.84.

(5) No order as to the costs of the Local Court proceedings, to the intent that each party bear its own costs.

(6) Order Stephen Michael Barry and Martin Pearce Board to pay 50 per cent of Mrs Coshott’s costs in this Court and to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise qualified.

Summons seeking judicial review – 2014/00217333

(7) Extend the time for commencing the proceedings seeking judicial review of the District Court decisions to 23 July 2014.

(8) Set aside the orders of Taylor DCJ made on 2 April 2014.

(9) Dismiss the Judicial Review Summons insofar as it sought to challenge the judgment and orders of Bradd LCM made on 20 March 2014.

(10) No order as to the costs of the District Court proceedings, to the intent that each party bear its own costs.

(11) Order Stephen Michael Barry and Martin Pearce Board to pay 50 per cent of Mrs Coshott’s costs of the Judicial Review Summons and to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise qualified.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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