Coshott v Barry (No 2) - [2012] NSWSC 944

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 2005
Cases 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 638
Category: 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registry of a court in accordance with the procedure contemplated by s 208J(3) of the Legal Profession Act 1987 (now repealed).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…

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 (No 2)

Details

AGLC: Coshott v Barry (No 2) [2012] NSWSC 944
Case: [2012] NSWSC 944
Decision Date: 17 August 2012

CaseChat Overview and Summary

The matter before the court involved an application by the defendant, Barry, to reopen the case after the plaintiff, Coshott, had been granted judgment in default. The case was heard in the Supreme Court of New South Wales. The dispute centred around the defendant's request to set aside the default judgment and to allow the case to proceed to a full hearing on the merits, on the grounds that the court had overlooked certain relevant authorities that might have influenced the outcome of the case.

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