Coshott v Barry

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.