(1) Paragraphs [5] to [7] of the amended summons filed 13 July 2011 are dismissed.
(2) The first defendant is to pay the plaintiff's costs up to and including the 14 April 2011 on a party/party basis, including his costs incurred on 25 February 2011.
(3) The plaintiff is to pay the first defendant's costs after 14 April 2011, including the hearing in relation to paragraphs [5] to [7] of the amended summons on a party/party basis.
(4) The second and third defendants are to pay their own costs of these proceedings.
(5) Dr Doyle is to pay the Attorney General's costs from 14 April 2011 to date. These costs are assessed at $5000.
Catchwords:
PROCEDURE - civil - application to have District Court judgment entered in relation to a costs assessment set aside - consideration of indemnity costs- whether a costs order should be made against costs review panel and Attorney General.
David Doyle - Plaintiff Hall Chadwick - First Defendant Robbert Fox - Second Defendant Ian Dwyer - Third Defendant Attorney General for the State of New South Wales - Fourth Defendant
Representation:
D Doyle - Plaintiff M Castle - First Defendant C Mantziaris - Second, Third & Fourth Defendants The Builders' Lawyer Pty Ltd - Plaintiff HWL Ebsworth Lawyers - First Defendant IV Knight, Crown Solicitor - Second, Third & Fourth Defendants
File Number(s):
2010/237932
Judgment
HER HONOUR: The plaintiff is Dr David Doyle ("Dr Doyle"). The first defendant is Hall Chadwick. The second defendant is Robbert Fox. The third defendant is Ian Dwyer. The second and third defendants constituted the costs review…
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.
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Details
AGLC
David Doyle v Hall Chadwick [2011] NSWSC 895
Case
[2011] NSWSC 895
Decision Date
CaseChat Overview and Summary
The case involved David Doyle who made an application to have a District Court judgment set aside in relation to a costs assessment. The application was heard in the Supreme Court. The dispute centred on whether the District Court had correctly assessed the costs and whether the indemnity costs provisions were appropriately applied. The applicant sought to have the costs order set aside and, if not, for the costs review panel and the Attorney General to be held liable for costs. The court was tasked with determining the validity of the District Court's costs assessment and whether indemnity costs should be awarded to the applicant.
The legal issues included whether the District Court had erred in its assessment of costs and whether the indemnity costs provisions under the relevant legislation were correctly applied. The applicant argued that the District Court had misapplied the law in assessing costs, leading to an unjust outcome. Additionally, the applicant contended that the costs review panel and the Attorney General should be held responsible for the costs incurred due to the alleged errors in the costs assessment. The court had to examine the District Court's decision-making process and the application of indemnity costs provisions to determine if there was a basis for setting aside the costs order or imposing costs on the costs review panel and the Attorney General.
The court found that the District Court had not erred in its assessment of costs, and the indemnity costs provisions were correctly applied. The applicant's arguments regarding the misapplication of law and the unjust outcome were not substantiated. Consequently, the application to set aside the District Court judgment was dismissed. The court also ruled that there was no basis to impose costs on the costs review panel and the Attorney General. The reasoning was that the District Court's decision was legally sound, and there was no evidence of misconduct or abuse of process that would warrant a costs order against the costs review panel and the Attorney General.
No further orders were made by the court. The District Court's costs assessment was upheld, and the costs review panel and the Attorney General were not held liable for any costs. The applicant's application was dismissed in its entirety.