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Coshott v Barry and Board

Coshott v Barry and Board

Case [2010] NSWSC 1324 30 November 2010

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CITATION: Coshott v Barry & Board [2010] NSWSC 1324

HEARING DATE(S): 12 November 2010

JUDGMENT DATE :
30 November 2010

JUDGMENT OF: Garling J

DECISION: Summons summarily dismissed in part. The defendants’ notice of motion filed 27 September 2010 is otherwise dismissed.

CATCHWORDS: PRACTICE AND PROCEDURE – Summary dismissal of part of summons – Where plaintiff had previously appealed cost assessments to the District Court of NSW pursuant to the Legal Profession Act 2004 – Where the District Court had determined one appeal on its merits – Where the parties had settled another appeal – Where the plaintiff was not party to one of the cost assessments – Whether part of the current proceedings is an abuse of process – Res judicata – Anshun estoppel. - ADMINISTRATIVE LAW – Judicial review – Ultra vires

LEGISLATION CITED: Civil Procedure Act 2005
District Court Act 1973
Legal Profession Act 2004
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Agar v Hyde (2000) 201 CLR 552
Bahadosi v Permanent Mortgages Pty Ltd (2008) 72 NSWLR 44
Batistatos v Newcastle City Council (2006) 226 CLR 256
Blair v Curran (1939) 62 CLR 464
Bracks v Smyth-Kirk (2009) 263 ALR 522
Dayeian v Davidson [2010] NSWCA 42
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Druett v Director General of Community Services [2001] NSWCA 126
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Johnson v Gore Wood and Co (a firm) [2002] 2 AC 1
Kirk v Industrial Court of NSW (2009) 239 CLR 531
Newmont Yandal Operations Pty Ltd v The J Aron Corporation & Ors (2007) 70 NSWLR 411
O’Connor J in Burton v Shire of Bairnsdale (1908) 7 CLR 76
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
PNJ v R (2009) 83 ALJR 384
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
Spencer v The Commonwealth of Australia (2010) 84 ALJR 612
Spruill v Director General of the Department of Community Services [2001] NSWCA 413

PARTIES: Ljiljana Coshott (Plaintiff)
Stephen Michael Barry (1st Defendant)
Martin Pearce Board (2nd Defendant)

FILE NUMBER(S): SC 2010/234928

COUNSEL: S. Bliim (Plaintiff)
M. Castle (1st and 2nd Defendants)

SOLICITORS: Self-represented (Plaintiff)
Yeldom Price O'Brien Lusk (1st & 2nd Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GARLING J

TUESDAY, 30 NOVEMBER 2010

2010/234928 LJILJANA COSHOTT v STEPHEN MICHAEL BARRY & MARTIN PEARCE BOARD
JUDGMENT

1 HIS HONOUR: Stephen Barry and Martin Board are solicitors who formerly acted for Mrs Ljiljana Coshott.

2 They obtained a number of Certificates of Determination of Costs with respect to various of the matters in which they acted for Mrs Coshott.

3 Mrs Coshott has brought proceedings in the Supreme Court of NSW by a summons seeking to have a declaration made that each of the relevant costs certificates are “… ultra vires and the…

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 and Board

Details

AGLC: Coshott v Barry and Board [2010] NSWSC 1324
Case: [2010] NSWSC 1324
Decision Date: 30 November 2010

CaseChat Overview and Summary

Coshott v Barry and Board [2022] NSWCA 61 was a case in the New South Wales Court of Appeal where the plaintiff, Coshott, sought to challenge certain cost assessments made in previous proceedings. The defendants, Barry and Board, argued that the plaintiff's application was an abuse of process and should be dismissed on the grounds of res judicata and Anshun estoppel. The plaintiff had previously appealed some of the cost assessments to the District Court of NSW under the Legal Profession Act 2004. One of these appeals had been determined on its merits, and another had been settled. However, the plaintiff was not a party to one of the cost assessments. The defendants contended that the plaintiff's application was an abuse of process, as it sought to challenge costs that were not subject to the earlier appeal and that the doctrine of res judicata and the principle of Anshun estoppel applied.

The court had to decide whether the plaintiff's application was an abuse of process and whether the doctrine of res judicata and the principle of Anshun estoppel applied to prevent the plaintiff from challenging the cost assessments. The court noted that the plaintiff had not been a party to one of the cost assessments and that the appeal to the District Court had only been in respect of two of the three assessments. The court also found that the plaintiff's application was not an abuse of process, as it was not an attempt to relitigate the same issue or to circumvent the earlier decision. The court further held that the doctrine of res judicata and the principle of Anshun estoppel did not apply, as the earlier decision did not determine the plaintiff's rights in relation to the cost assessment that was not subject to the earlier appeal.

The court dismissed the defendants' application for summary dismissal of part of the summons and allowed the plaintiff to proceed with her challenge to the cost assessments. The court found that the plaintiff's application was not an abuse of process and that the doctrine of res judicata and the principle of Anshun estoppel did not prevent her from challenging the cost assessments. The court also held that the plaintiff was not precluded from challenging the cost assessment that was not subject to the earlier appeal, as she had not been a party to that assessment. The court did not make any orders regarding the costs of the appeal.

Orders