Dean v Bryant

[2016] NSWSC 1660

Supreme Court

New South Wales

Medium Neutral Citation:	Dean v Bryant [2016] NSWSC 1660
Hearing dates:	21 November 2016
Decision date:	24 November 2016
Jurisdiction:	Equity
Before:	Stevenson J
Decision:	Proceedings dismissed with costs
Catchwords:	PRACTICE AND PROCEDURE – parties – standing - plaintiff’s standing to bring proceedings – where plaintiff seeks to challenge costs assessments – where plaintiff not a party to underlying proceedings or costs orders – where company that was such a party has itself instituted proceedings to challenge those costs assessments
Legislation Cited:	Civil Procedure Act 2005 (NSW) Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Insurance Exchange of Australasia v Dooley [2000] NSWCA 159 Simic v New South Wales Land and Housing Corporation [2015] NSWCA 413
Category:	Procedural and other rulings
Parties:	Robert William Dean (Plaintiff) (In Person) Richard Michael Joseph Bryant (First Defendant/Applicant) Joseph Richard Bryant (Second Defendant/Applicant) Executor of the Estate of the late Elizabeth Charlotte Bryant (Third Defendant/Applicant)
Representation:	Counsel: M Castle (Defendants/Applicants)   Solicitors: John Samuel Sheehy (Defendants/Applicants)
File Number(s):	SC 2016/67290

Judgment

1. On 30 October 2015, a Costs Review Panel constituted by costs assessors, Mr Christopher Wall and Mr John Bartos, issued eight Certificates of Determination pursuant to ss 375 and 378 of the Legal Profession Act 2004 (NSW) (“the 2004 Act”) in relation to costs payable by Fatimi Pty Limited in three sets of proceedings involving the executors of the estate of the late Elizabeth Charlotte Bryant, Mr Richard Bryant and Mr Joseph Bryant (together “the Bryants”).

2. The effect of those Certificates of Determination is that Fatimi must pay a total of $272,746 in respect of costs orders made against Fatimi and in favour of the Bryants in proceedings 4703 of 1992 (which the parties have called “the Contempt Proceedings”), 1444 of 1998 (which the parties have called “the Conspiracy Proceedings”) and 40924 of 2002 (which the parties have called “the Appeal Proceedings”). The costs orders were made in those proceedings on 1 September 2000, 20 September 2002 and 6 May 2004 respectively.

3. It is common ground that by reason of reg 18 Pt 1 of Sch 9 of the 2004 Act, the parties’ rights concerning those costs orders are governed by the Legal Profession Act 1987 (NSW) (“the 1987 Act”).

4. The effect of ss 208L and 208M of the 1987 Act is that an appeal lies from the decision of the Costs Review Panel to this Court on a question of law or, with leave, generally.

5. On 29 December 2015, Fatimi filed a summons in the Common Law Division (“the Common Law Proceedings”) seeking to challenge the decision of the Costs Review Panel by reason of alleged errors of law and seeking leave otherwise to challenge the Panel’s decision.

6. By notice of motion filed on 12 September 2016 in the Common Law Proceedings, the Bryants seek an order that the appeal be dismissed as incompetent so far as it relates to the costs order made by the Court of Appeal and otherwise seek an order that the proceedings be dismissed as vexatious and an abuse of the process of the Court.

7. The Common Law Proceedings are currently listed for directions before me on 14 February 2017, pending provision by Fatimi of a revised form of summons and consideration by the parties of whether the appeal is incompetent so far as it relates to a costs order made by the Court of Appeal, bearing in mind the provisions of ss 25 and 38 of the Supreme Court Act 1970 (NSW).

8. By summons filed in these proceedings on 2 March 2016, Mr Robert Dean, the sole director of Fatimi, himself seeks orders in relation to the Certificates of Determination, including orders that they be set aside.

9. By notice of motion filed on 12 September 2016 in these proceedings, the Bryants seek “an order that [Mr Dean] has no standing and/or that the proceeding is an abuse of process”. Other orders are sought in the alternative.

10. Mr Dean was not a party to any of the proceedings in which the costs orders were made. No costs order was made against Mr Dean. He was not a party before the Costs Review Panel, or the costs assessor, whose assessment the Costs Review Panel reviewed.

11. In those circumstances, I fail to see what standing Mr Dean has to bring these proceedings: see for example Insurance Exchange of Australasia v Dooley [2000] NSWCA 159 at [42] per Handley JA (with whom Giles and Fitzgerald JJA agreed).

12. In the Contempt Proceedings and the Conspiracy Proceedings Mr Dean gave to the Court certain undertakings.

13. Those undertakings were noted by Hodgson CJ in Eq (as his Honour then was) on 11 October 2000 in the following terms:

“I note that [Fatimi], through its director Mr Dean, undertakes to the Court that until further order it will not deal with its assets in such a way that its net assets fall below the value of $30,000.

I note that Mr Dean, who is present in Court, undertakes that until further order, he will not dispose of, or encumber [certain art works], and will make available to [Fatimi] such assets if and to the extent that [Fatimi] is unable to meet any costs order made against it after the conclusion of these proceedings.”

14. Mr Dean has not withdrawn that undertaking and informed me on 21 November 2016 that he stands by it.

15. If Fatimi’s challenge in the Common Law Proceedings to the Certificates of Determination fails and if Fatimi is not able to pay the amounts referred to in the Certificates of Determination, Mr Dean may be called upon to honour his undertaking.

16. I do not see how that gives Mr Dean standing himself to challenge the Certificates of Determination.

17. In any event, there is no point in him doing so; Fatimi is doing just that in the Common Law Proceedings.

18. In argument, Mr Dean referred to the observations of Emmett AJA (with whom Bathurst CJ and Ward JA agreed) in Simic v New South Wales Land and Housing Corporation [2015] NSWCA 413 at [62]. However, those observations relate to the entitlement of guarantors to challenge findings made by the trial judge, in circumstances where the guarantors were cross-defendants in the proceedings, were affected by the findings and where there was no challenge to their standing to appeal. The observations cast no light on the question of Mr Dean’s standing in these proceedings.

19. These proceedings are incompetent.

20. I order that the summons of 2 March 2016 be dismissed with costs.

21. I will now invite submissions from the parties as to why I should not specify those costs at a gross sum pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW).

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Decision last updated: 24 November 2016