David Brady v Bale Boshev Solicitors

Case [2009] NSWDC 387
CITATION: David Brady v Bale Boshev Solicitors [2009] NSWDC 387
HEARING DATE(S): 19 November 2009 - 20 November 2009
EX TEMPORE JUDGMENT DATE: 20 November 2009
JURISDICTION: Civil Jurisdiction
JUDGMENT OF: Neilson DCJ at 1
DECISION: Held:
1. Leave to appeal ought be allowed as both Cost Assessor and Review Panel erred in law and therefore the Plaintiff/Appellant had in any event an unfettered right of appeal.
2. The proper consideration of the term "no win, no fee" is that "the client will not have to pay the solicitor other than from the proceeds of the claim".
3. Accordingly, Defendant’s fees limited to $100,000 plus interest.
CATCHWORDS: COSTS. Costs between solicitor and client. COSTS on NO WIN, NO FEE basis. - Plaintiff retained Defendant to act for him in a claim for damages for personal injury suffered in a motor vehicle accident. The retainer was oral and was on a "no win, no fee" basis. Plaintiff settled his action for $100,000 inclusive of costs. - Defendant initially delivered a bill for $171,179.23 on a without prejudice basis. A bill lodged for assessment claimed $281,649.23. - A Costs Assessor allowed $222,359. - A Review Panel affirmed the Costs Assessor’s decision. - Plaintiff sought leave to appeal.
CASES CITED: Cassegrain v CTK Engineering; Cassegrain v Cassegrain [2008] NSWSC 457
Adamson v Williams [2001] QCA 38
Baker Johnson v Jorgensen [2002] QDC 205
Baker v Legal Services Commissioner [2006] QCA 145
TEXTS CITED: Dal Pont and Walker, Law of Costs (2003) LexisNexis Butterworths
PARTIES: David Brady (Plaintiff/Appellant)
Bale Boshev Solicitors (Defendant)
FILE NUMBER(S): 139/09 (Newcastle)
COUNSEL: F. Kalyk for the Plaintiff
T. Edwards for the Defendant

JUDGMENT

RELIEF SOUGHT

1 HIS HONOUR: The plaintiff seeks an order pursuant to the Legal Profession Act 2004 s 385 for leave to appeal from a determination of a Costs Review Panel made on 6 February 2009. The Costs Review Panel affirmed the decision of a Costs Assessor made on 22 September 2008. Essentially, the plaintiff asks that the determinations of both the Costs Assessor and the Review Panel be set aside and replaced with an order assessing the fair and reasonable costs payable by the plaintiff to the defendant for work done by the defendant in the plaintiff’s personal injury action as being $100,000. The plaintiff settled his personal injury action for $100,000 inclusive of costs. Ancillary relief is also sought which I need not recite at this time. An order has already been made by her Honour Judge Sidis, extending time to file the summons to appeal out of time, to the date of the filing of an amended summons on 6 May 2009. That order was made by her Honour on 8 May 2009.

FACTS

2 The plaintiff alleged that he sustained personal injury in a motor vehicle accident on 24 May 2001. As I understand it, the major allegation was of a cervical injury. On 29 October 2002 the plaintiff retained the defendant’s firm to act for him in a claim under the

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AGLC
David Brady v Bale Boshev Solicitors [2009] NSWDC 387
Case
[2009] NSWDC 387
Decision Date

CaseChat Overview and Summary

In the matter of David Brady versus Bale Boshev Solicitors, the dispute revolves around the costs incurred by the plaintiff in a personal injury claim that was settled for $100,000. The plaintiff had retained the defendant on a "no win, no fee" basis. Following the settlement, the defendant submitted a bill for $171,179.23, which was later adjusted to $281,649.23. After assessments and reviews, the costs were reduced to $222,359, a decision which the plaintiff sought to appeal.

The central legal issue before the court was the interpretation and application of the term "no win, no fee" in the context of the plaintiff's retainer agreement with the defendant. Specifically, the court had to determine whether the term meant that the plaintiff would not be liable for any costs unless the claim was successful and, if so, whether the defendant's fees should be capped at the proceeds of the claim. Additionally, the court needed to assess whether the costs awarded by the Costs Assessor and affirmed by the Review Panel were in accordance with this understanding of the retainer agreement.

The court found that both the Costs Assessor and the Review Panel had erred in their interpretation of the "no win, no fee" term. The court clarified that this term implies that the client will not have to pay the solicitor unless the claim is successful and the solicitor is compensated from the proceeds of the claim. Given this interpretation, the court held that the defendant's fees should be limited to the $100,000 settlement amount plus interest. Consequently, the court granted the plaintiff leave to appeal, confirming that both the Cost Assessor and the Review Panel had erred in law, thereby affirming the plaintiff's right to appeal. The court's decision effectively capped the defendant's allowable fees at the settlement amount of $100,000 plus interest.

Orders

Orders of the court

Held:

1. Leave to appeal ought be allowed as both Cost Assessor and Review Panel erred in law and therefore the Plaintiff/Appellant had in any event an unfettered right of appeal.

2. The proper consideration of the term "no win, no fee" is that "the client will not have to pay the solicitor other than from the proceeds of the claim".

3. Accordingly, Defendant’s fees limited to $100,000 plus interest.

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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