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Coshott v Parker (No 3)

Coshott v Parker (No 3)

Case [2015] NSWSC 1195 25 August 2015

Restitution

Costs

Gross Sum Costs Order

Civil Litigation & Procedure

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Coshott v Parker (No 3) [2015] NSWSC 1195
Hearing dates: 1 May 2015
Decision date: 25 August 2015
Jurisdiction: Common Law
Before: Hall J
Decision:
(1) The plaintiff is to pay the defendants the sum of $3264.65.

(2) The plaintiff is to pay the defendants $34 335.30 as a gross sum costs order under s 98(4) Civil Procedure Act in relation the proceedings specified in orders 3-4 of the defendants’ Amended Notice of Motion filed 27 March 2015.
(3) The plaintiff is to pay interest on the sums awarded in orders (1) and (2) above. The defendants are to provide to my Associate calculations as to the amount of interest payable in relation to each sum by 4pm Wednesday 2 September 2015. I grant leave to the plaintiff to reply to the calculations if necessary by 4pm Tuesday 8 September 2015. As noted above, orders as to interest are to be made in chambers following receipt of final calculations as to interest made by the parties, or as may be agreed by them.
Catchwords: REMEDIES – Restitution – Issue of Certificates relating to Costs Assessments and Costs Review under Legal Profession Act 2004 – Defendants compelled to pay for release of certificates relating to assessment – Costs of assessment payable by the plaintiff – Defendants entitled to restitution for payments made.
COSTS – Gross sum costs order – s 98 Civil Procedure Act – Likely that referral for costs assessment would lead to further litigation – Desirable to make gross sum costs order in the interests of finality of litigation – Adequate evidence as to amount of costs incurred to make order – Defendants entitled to 70 per cent of the total costs incurred by them
Legislation Cited: Civil Procedure Act 2005, s 100
Legal Profession Act 2004
Cases Cited: Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863
Coshott v Parker [2015] NSWSC 197
Dubow v Fitness First Australia Pty Ltd (No 2) [2012] NSWSC 961
Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738
In the matter of Palladium Consulting Pty Limited [2013] NSWSC 92
Kassem and Secatore as Joint Liquidators of Pan Pacific Age Care Services Pty Ltd. (in liq) and Anor v Koutavas [2012] NSWSC 236
Penson v Titan National (No 2) [2015] NSWCA 120
Simone Starr-Diamond v Talus Diamond (No 4) [2013] NSWSC 811
Weber v Aquaqueen International Pty Ltd [2013] NSWSC 1181
Woolworths Limited v Strong (No 2) [2011] NSWCA 72; 80 NSWLR 445
Texts Cited: Goff and Jones, The Law of Restitution (5th ed, 1998)
Category: Costs
Parties: Ljiljana Coshott (Plaintiff)
Michelle Lena Parker (First Defendant)
Christina Marie Collins (Second Defendant)
Representation:
Counsel:
O Jones (Plaintiff)
M Castle; AD Bailey (Defendants)
Solicitors:
B Hocking (Plaintiff)
Hicksons (Defendants)

File Number(s): 2012/388476

Judgment

In the principal proceedings before me the plaintiff sought a number of orders in respect of a Costs Assessor’s Certificate, by way of Notice of Motion filed on…

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 Parker (No 3)

Details

AGLC: Coshott v Parker (No 3) [2015] NSWSC 1195
Case: [2015] NSWSC 1195
Decision Date: 25 August 2015

CaseChat Overview and Summary

The case of Coshott v Parker (No 3) involved a dispute concerning the issuance of certificates related to costs assessments and reviews under the Legal Profession Act 2004. The defendants were compelled to pay for the release of these certificates, but the plaintiff bore the costs of the assessment. The defendants sought restitution for the payments they had made. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the defendants were entitled to restitution for the payments they had made for the release of the certificates, and if so, what percentage of the total costs incurred by them should be reimbursed. The court had to consider the statutory provisions under the Legal Profession Act and the Civil Procedure Act, as well as the principles of restitutionary justice.

In determining the matter, the court held that the defendants were indeed entitled to restitution for the payments made. The court found that the defendants had a legitimate claim for reimbursement given that the costs of the assessment should have been borne by the plaintiff. The court also considered the likely consequences of a referral for costs assessment, which could lead to further litigation. To promote finality and avoid unnecessary expenditure, the court deemed it appropriate to make a gross sum costs order under section 98 of the Civil Procedure Act. The court found that there was adequate evidence to make such an order, and it determined that the defendants should be reimbursed 70 per cent of the total costs they incurred.

The court's final orders included a gross sum costs order in favour of the defendants, entitling them to 70 per cent of the total costs they incurred in the proceedings. The order was made in the interests of finality and to avoid the potential for further litigation regarding the costs assessment.

Orders