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Coshott v Spencer

Coshott v Spencer

Case [2016] NSWDC 43 8 April 2016

Civil Litigation & Procedure

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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 145
Texts 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 Spencer
Representation:
Counsel:
Plaintiff: Mr O Jones
Defendant: Mr R P V Carey
Solicitors:
Plaintiff: Martin Place Lawyers
Defendant: Spencer & Co Legal

File Number(s): 2015/220241
Publication restriction: None

Judgment

Introduction

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.
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.
The application for adjournment was refused. Spencer & Co Legal’s involvement in the substantive proceedings commenced on Friday 21 June 2013 and involved…

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 Spencer

Details

AGLC: Coshott v Spencer [2016] NSWDC 43
Case: [2016] NSWDC 43
Decision Date: 08 April 2016

CaseChat Overview and Summary

The case of Coshott v Spencer involved a dispute over the determination of costs within the context of a legal professional context. The plaintiff sought to appeal a decision made by a costs assessor, who was acting under the Legal Profession Act 2004 (NSW). The core issue was the assessor's authority to decide the identity of the third-party payer and the procedural fairness of the decision-making process. The plaintiff contested whether the costs assessor had the power to determine the third party payer issue, whether a referral by the Manager under section 357 necessitated a determination of the claim's validity, and if the assessor's alteration of the third party payer status was conducted in a manner that constituted a lack of procedural fairness.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Coshott v Spencer [2016] NSWDC 43

Most Recent Citation

Ventura v Higgins (No. 2) [2018] NSWDC 78

Cases citing this decision · 3 of 3 shown

Spencer v Coshott
[2021] NSWCA 235 Para 24

…of Spencer & Co Legal. Mr Coshott appealed to the District Court against that decision. The appeal was dismissed with costs: Coshott v Spencer [2016] NSWDC 43. By summons filed in this Court Mr Coshott sought judicial review of that decision. Two issues were litigated: whether the costs assessor had jurisdiction…
Ventura v Higgins (No. 2)
[2018] NSWDC 78 Para 33

…I drew to the attention of the parties that some part of the Chorley principle is under challenge in the High Court in Coshott v Spencer (2016) 22 DCLR (NSW) 115; Coshott v Spencer [2017] NSWCA 118; Coshott v Spencer [2017] HCATrans 263 (set down for hearing on 8 May 2018). Mr Spencer’s incorporated law firm sought to reco…
Coshott v Spencer
[2017] NSWCA 118 Para 2

…The first decision subject of the application for judicial review is the decision of Gibson DCJ in Coshott v Spencer [2016] NSWDC 43, which was an appeal to the District Court under the Legal Profession Act 2004 (NSW) (repealed) (the 2004 Act), s 384. In that appeal Mr Coshott sought an order that a determination…

View all 3 citing cases →

Cases cited in this decision · 16 of 16 shown

Wende v Horwath (No 2)
[2015] NSWCA 416 Para 14

…ion of a disputed issue of law, as opposed to remitting such an issue to the costs assessor, is often a desirable alternative: Wende v Horwath (No 2) [2015] NSWCA 416.…
Clare v Australian Community Pharmacy Authority
[2015] FCA 653 Para 88

…strative proceedings is not uncommon, and is part of the paper-driven and non-adversarial process. In Clare v Australian Community Pharmacy Authority [2015] FCA 653, an Authority changed its position and withdrew a concession. Reeves J noted at [71] the differing procedures between adversarial and non-adversarial…
Universal 1919 Pty Limited v Barraket Stanton Lawyers Pty Ltd
[2015] NSWSC 540

…ers – Strata Plan No 14403 [2013] NSWSC 1916 (19 December 2013); c) a tenant: Universal 1919 Pty Limited v Barraket Stanton Lawyers Pty Ltd [2015] NSWSC 540 (7 May 2015).…
Colbron v Freeman
[2014] NSWSC 1210 Para 68

…be made to the Costs Assessor under s 350(2), and referring to Griffith v Australian Broadcasting Corporation [2013] NSWSC 750 and Colbron v Freeman [2014] NSWSC 1210.…
SAS Trustee Corporation v Woollard
[2014] NSWCA 75 Para 79

…s, I note generally the comprehensive analysis of the relevant principles in Meads v Meads [2012] ABQB 571 and SAS Trustee Corporation v Woollard [2014] NSWCA 75 at [58]-[60].…
Gannon v The Owners - Strata Plan No 14403
[2013] NSWSC 1916

…wner in a strata plan facing a claim for recovery of expenses incurred by an owners corporation: Gannon v The Owners – Strata Plan No 14403 [2013] NSWSC 1916 (19 December 2013); c) a tenant: Universal 1919 Pty Limited v Barraket Stanton Lawyers Pty Ltd [2015] NSWSC 540 (7 May 2015).…
Griffith v Australian Broadcasting Corporation
[2013] NSWSC 750 Para 68

…ions, noting that the application is to be made to the Costs Assessor under s 350(2), and referring to Griffith v Australian Broadcasting Corporation [2013] NSWSC 750 and Colbron v Freeman [2014] NSWSC 1210.…
Boyce v McIntyre
[2009] NSWCA 185 Para 42

…None of these documents demonstrate that the plaintiff is “liable to pay”, which is the applicable term for third party payers: Boyce v McIntyre [2009] NSWCA 185 at [26] per Ipp JA. As Ipp JA goes on to point out, whether the liability lies with an associated or non-associated third party payer, the obligation of t…
Honest Remark Pty Ltd v Allstate Explorations NL
[2008] NSWSC 439 Para 24

…ine the application but also to demonstrate that any such error is material to the determination": Honest Remark Pty Ltd v Allstate Explorations NL [2008] NSWSC 439 at [24]. … [whilst there has been an attack on the expression of the reasoning process, it has not been shown that the determination itself was erroneo…
Wentworth v Rogers
[2006] NSWCA 145 Para 66

…The plaintiff’s principal submission (relying upon Wentworth v Rogers [2006] NSWCA 145) is that the powers of the assessor do not extend to the question of third party payer, which is asserted to be Ground (a). The Manager’s power under s 357 is to refer only a “valid” application for assessment, which is asserted…
Gorczynski v AWM Dickinson & Son
[2005] NSWSC 277 Para 22

…tablish an error of law, that party must also demonstrate that the error made justifies disturbing the assessment: Gorczynski v AWM Dickinson & Son [2005] NSWSC 277 at [22]. Thus it has been said by Associate Justice Malpass: The onus borne by the plaintiff is not merely to demonstrate error as to a matter of law a…
Skalkos v Assaf
[2002] NSWSC 1221 Para 17

…t the determination itself was erroneous and should be disturbed … The onus borne by [the plaintiffs] has not been discharged": Skalkos v Assaf [2002] NSWSC 1221 at [17]–[18].”…
Savcor Pty Ltd v State of New South Wales
[2001] NSWSC 596 Para 103

…the amendment of the name did not involve the addition of a new party, she had the power to make such a correction: Thurai Rajah Lawyers v Villanueva [2001] NSWSC 596. I assume that she makes these observations because the parties did not attend to this step after she raised it.…
Grant v Repatriation Commission
[1999] FCA 1629

…is not bound to determine the substantive issues raised for determination according to the way in which they are “pleaded” by the parties: see Grant v Repatriation Commission (1999) 57 ALD 1; [1999] FCA 1629 ( Grant ) at [17]–[18] per Merkel, Goldberg and Weinberg JJ. Ultimately, the Tribunal is required to make the decision it conside…
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd
[1994] FCA 1074 Para 86

…What is the test? Counsel for the plaintiff referred me to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699 at 715:…
Bushell v Repatriation Commission
[1992] HCA 47

…appropriate in all the circumstances; its function is to arrive at the correct or preferable decision: see Bushell v Repatriation Commission (1992) 175 CLR 408at 424–5 per Brennan J.”…

Legislation cited in this decision · 1

Legal Profession Act 2004 (Vic)
302A, 350, 356, 357, 358, 359, 361, 367,... 10 mentions (from Para 1)

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 145
Texts 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 Spencer
Representation:	Counsel: Plaintiff: Mr O Jones Defendant: Mr R P V Carey Solicitors: Plaintiff: Martin Place Lawyers Defendant: Spencer & Co Legal
File Number(s):	2015/220241
Publication restriction:	None