District Court
New South Wales
Medium Neutral Citation: Coshott v Spencer [2016] NSWDC 43 Hearing dates: 28 January 2016 Date of orders: 08 April 2016 Decision date: 08 April 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Summons dismissed.
(2) Plaintiff pay defendant’s costs.
(3) Liberty to apply in relation to costs, such liberty to be exercised in 28 days.
(4) Exhibits retained for 28 days.Catchwords: COSTS – appeal under s 384 Legal Profession Act 2004 (NSW) – third party payer – whether costs assessor had power to determine third party payer issue – whether referral by Manager under s 357 requires a determination by the Manager that the claim is “valid” – whether costs assessor’s change in determination of third party payer status occurred in circumstances amounting to absence of procedural fairness Legislation Cited: Legal Profession Act 2004 (NSW), ss 302A, 350, 356, 357, 358, 359, 361, 367 and 384 Cases Cited: Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2011] 12 DCLR (NSW) 304
Boyce v McIntyre [2009] NSWCA 185
Clare v Australian Community Pharmacy Authority [2015] FCA 653
Colbron v Freeman [2014] NSWSC 1210
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699
Griffith v Australian Broadcasting Corporation [2013] NSWSC 750
Legal Services Commissioner v Wright [2012] 2 Qd R 360
Meads v Meads [2012] ABQB 571
SAS Trustee Corporation v Woollard [2014] NSWCA 75
Thurai Rajah Lawyers v Villanueva & Anor [2001] NSWSC 596
Wende v Horwath (No 2) [2015] NSWCA 416
Wentworth v Rogers [2006] NSWCA 145Texts Cited: M Brabazon SC, “Legal Costs: Solicitors’ Relations with Counsel and Clients” (NSW Bar Association, 2010)
G E Dal Pont, “Law of Costs”(3rd ed., 2013, LexisNexis)Category: Principal judgment Parties: Plaintiff: Ronald Coshott
Defendant: Keith Robert SpencerRepresentation: Counsel:
Solicitors:
Plaintiff: Mr O Jones
Defendant: Mr R P V Carey
Plaintiff: Martin Place Lawyers
Defendant: Spencer & Co Legal
File Number(s): 2015/220241 Publication restriction: None
Judgment
Introduction
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This is an appeal from the dismissal of the plaintiff’s application for costs assessment by Costs Assessor Ms K M Dulhunty on 29 June 2015.
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The circumstances in which the costs and disbursements (totalling $57,585.00) were incurred were as follows. A firm of solicitors, Kejus Pty Ltd trading as Spencer & Co Legal (referred to in place of the defendant, Keith Robert Spencer, who was erroneously named in the Summons), received urgent instructions from Mr and Mrs Coshott and a corporation with which they were associated on 20 June 2013 to seek an adjournment of a hearing listed to commence on the following Monday (24 June 2013). Mr Ronald Coshott, the plaintiff, was not a party to those proceedings, but he was a witness, and a company with which he was associated, Fewin Pty Ltd, provided funding for the litigation by a series of transfers to Spencer & Co Legal.
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The application for adjournment was refused. Spencer & Co Legal’s involvement in the substantive proceedings commenced on Friday 21 June 2013 and involved…
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- AGLC
- Coshott v Spencer [2016] NSWDC 43
- Case
- [2016] NSWDC 43
- Decision Date
CaseChat Overview and Summary
The court examined the statutory framework and the specific roles and powers of the costs assessor and the Manager under the Legal Profession Act 2004 (NSW). It was determined that the costs assessor did indeed possess the authority to address the third party payer issue. The court also clarified that a referral by the Manager under section 357 did not require a prior determination of the claim's validity. Furthermore, the court found that the assessor's modification of the third party payer status did not occur under circumstances that breached procedural fairness. The plaintiff's appeal was dismissed, and the defendant was awarded costs. The plaintiff was granted leave to apply for costs within 28 days, and the exhibits were retained for the same period.
Orders
Orders of the court
(1) Summons dismissed.
(2) Plaintiff pay defendant’s costs.
(3) Liberty to apply in relation to costs, such liberty to be exercised in 28 days.
(4) Exhibits retained for 28 days.
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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