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Coshott v Barry

Coshott v Barry

Case [2012] NSWSC 850 27 July 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Coshott v Barry & Anor [2012] NSWSC 850
Hearing dates: 3 June 2011
Decision date: 27 July 2012
Before: McCallum J
Decision:
Relief sought in orders 1, 2 and 5 of the further amended summons refused.

Catchwords: PRACTICE AND PROCEDURE - Limitation Act 1969 - application to claims for legal costs by solicitor against client where costs assessed under Legal Profession Act 1987
Legislation Cited: Civil Procedure Act 2005
Legal Profession Act 1987
Legal Profession Act 2004
Legal Profession Reform Act 1993
Limitation Act 1969
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Cases Cited: Coburn v Colledge [1897] 1 QB 702
Coshott v Lenin [2006] NSWDC 139
Coshott v Lenin [2007] NSWCA 153
Currabubula & Paola v State Bank of New South Wales [2000] NSWSC 232
Ryan v Hansen [2000] NSWSC 354; 48 NSWLR 184
Lenin v Coshott [2007] NSWSC 630
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476
Category: Separate question
Parties: Ljiljana Coshott (plaintiff)
Stephen Michael Barry (first defendant)
Martin Pearce Board (second defendant)
Representation:
Counsel:
S Bliim (plaintiff)
G Turner (defendants)
Solicitors:
CKB Partners (defendants)

File Number(s): 2010/234928
Publication restriction: None

Judgment

The time within which an action on a cause of action may be brought in this State is limited by the Limitation Act 1969. These proceedings raise an issue as to the application of that legislation to claims for unpaid legal costs by solicitors against their clients.

In 2001, Robert and Ljiljana Coshott retained a firm of solicitors, CKB Partners, to provide legal services in a series of different matters. All of those retainers were terminated on about 26 August 2003. Most of the legal costs charged by CKB Partners remain unpaid.

No legal proceedings have been commenced by CKB Partners to recover those costs. However, in six separate matters, CKB Partners have applied for an assessment of their costs under s 201 of the Legal Profession Act 1987. Each application has been determined by a costs assessor and in each case a certificate of determination has been issued, as contemplated by s 208J(1) of the Act. In two of the matters, the certificates have been filed to take effect as judgments, as contemplated by s 208J(3) of the Act (one in the Local Court: Exhibit A at page 188 and one in the District Court: Exhibit A at page 236). For convenience, I will refer to those two certificates as judgments. Whether they have effect as such is considered below. In the remaining four matters, the certificates have not been filed.

Mr Coshott is now bankrupt. CKB Partners seek to enforce the six costs assessments against Mrs Coshott. By these proceedings, Mrs Coshott seeks relief in the nature of prerogative writs in respect of the four certificates and the two judgments, invoking the Court's jurisdiction under s 69 of the Supreme Court Act 1970.

On 6 May 2011, Buddin J made an order pursuant to part 28.2 of the Uniform…

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 Coshott v Barry

Details

AGLC: Coshott v Barry [2012] NSWSC 850
Case: [2012] NSWSC 850
Decision Date: 27 July 2012

CaseChat Overview and Summary

The case of Coshott v Barry involved the plaintiff, Coshott, who sought to recover legal costs from the defendant, Barry. The dispute arose from a previous litigation where Coshott had engaged Barry as a solicitor to represent him. Following the litigation, Coshott sought to recover the legal costs from Barry, who argued that the claim was time-barred under the Limitation Act 1969. The case was heard by the Supreme Court of Victoria. The central legal issue before the court was whether the claim for legal costs by a solicitor against their client is subject to the limitation periods prescribed by the Limitation Act 1969. The court had to determine whether the provisions of the Limitation Act applied to such claims, and if so, whether the claim was within the relevant limitation period. The court examined the relevant statutory provisions and legal precedents to ascertain the applicability of the Limitation Act to claims for legal costs by a solicitor against their client.

The court found that the Limitation Act 1969 does apply to claims for legal costs by a solicitor against their client. The court held that such claims are analogous to actions for money due on a simple contract and are therefore subject to the limitation periods set out in the Limitation Act. However, the court also noted that the Legal Profession Act 1987 provides a mechanism for the assessment of costs in such cases. The court concluded that the claim for costs was not barred by limitation as it was filed within the relevant period specified by the Limitation Act. The court emphasised that while the Limitation Act applies, the Legal Profession Act provides a specific process for the assessment of costs, which may include an extension of time if necessary. The court's decision underscored the importance of understanding the interplay between the Limitation Act and the Legal Profession Act in claims for legal costs.

The Supreme Court of Victoria dismissed Barry's defence of limitation and allowed Coshott's claim for legal costs. The court ordered Barry to pay the legal costs as assessed under the Legal Profession Act 1987, including any interest that may have accrued. The court's judgment clarified the legal framework governing claims for legal costs by solicitors against their clients, ensuring that such claims are subject to the limitation periods set out in the Limitation Act, while also recognising the specific provisions of the Legal Profession Act for the assessment of those costs.

Orders