Supreme Court
New South Wales
Medium Neutral Citation: Coshott v Barry & Anor (No 2) [2012] NSWSC 944 Hearing dates: 16 August 2012 Decision date: 17 August 2012 Before: McCallum J Decision: Plaintiff's application for leave to re-open case refused
Catchwords: COURTS - practice and procedure - judgments and orders - power to re-open case after reasons given but before orders entered - where parties failed to draw Court's attention to relevant authority - no operative misapprehension of the law Legislation Cited: Legal Profession Act 1987
Legal Profession Act 2004
Uniform Civil Procedure Rules 2005Cases Cited: Autodesk v Dyason [No 2] (1993) 176 CLR 300
Celemajer Holdings Pty Ltd v Kopas [2011] NSWSC 304
Coshott v Barry [2012] NSWSC 850
De L v Director General, New South Wales Department of Community Services [No 2] (1997) 190 CLR 207
Doyle v Hall Chadwick [2007] NSWCA 159
Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172
New Cap Reinsurance Corporation Ltd v AE Grant & ors, Lloyds Syndicate No 991 [2009] NSWSC 950
Wentworth v Wentworth [1999] NSWSC 638Category: Consequential orders Parties: Ljiljana Coshott (plaintiff)
Stephen Michael Barry (first defendant)
Martin Pearce Board (second defendant)Representation: Counsel:
I Griscti (plaintiff)
S Barry (defendants)
Solicitors:
Martin Place Lawyers (plaintiff)
CKB Partners (defendants)
File Number(s): 2010/234928 Publication restriction: None
Judgment
These proceedings arise out of a dispute over legal costs claimed from the plaintiff by the defendants. The costs in question have been assessed in six separate certificates of assessment. The plaintiff seeks relief in the nature of prerogative writs in respect of those assessments. On 27 July 2012, I gave judgment in respect of part of the relief sought by the plaintiff, which Buddin J had been ordered to be determined separately: Coshott v Barry [2012] NSWSC 850. I found that, as to four of the certificates under challenge, the defendants' right and title to the costs in question was extinguished: at [53].
The remaining two assessments had been filed in the registry of a court in accordance with the procedure contemplated by s 208J(3) of the Legal Profession Act 1987 (now repealed). As to those assessments, I held that the two judgments were properly obtained and were not liable to be set aside: at [44].
The proceedings were re-listed before me yesterday to hear argument as to costs. However, before addressing that issue, the plaintiff sought leave to reopen the hearing to enable me to reconsider my findings concerning the two certificates of assessment that had become "judgments". The basis of the application was the fact that my attention was not drawn by either party to the decision of the Court of Appeal in Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172.
The Court has power in a proper case to re-open proceedings after reasons for judgment have been given but before the entry of orders. The occasion for exercise of the power is more likely to arise in the ultimate Court of…
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- AGLC
- Coshott v Barry (No 2) [2012] NSWSC 944
- Case
- [2012] NSWSC 944
- Decision Date
CaseChat Overview and Summary
The legal issue that the court was required to address was whether the court had the authority to reopen a case after delivering reasons for judgment but before making the orders. The court also needed to determine if the defendant's failure to draw the court's attention to the relevant authorities constituted an operative misapprehension of the law, which would warrant reopening the case.
The court found that the power to reopen a case after delivering reasons for judgment but before making orders was limited and should only be exercised in exceptional circumstances. The court held that the defendant's failure to bring the relevant authorities to the court's attention did not constitute an operative misapprehension of the law, and therefore, the court declined to reopen the case. The court emphasised that parties have a responsibility to ensure that all relevant authorities are brought to the court's attention to avoid any potential errors in the judgment. The court also noted that the defendant's delay in applying to reopen the case further undermined the case for reopening.
The court dismissed the defendant's application to reopen the case and ordered that the default judgment granted to the plaintiff be made absolute.
Orders
Orders of the court
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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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