Applications (S373/2007 & S376/2007) dismissed with costs by the High Court 31 July 2008 [2008] HCASL 422
New South Wales
Court of Appeal
CITATION:
Doyle v. Hall Chadwick [2007] NSWCA 159
HEARING DATE(S):
3 April 2007
JUDGMENT DATE:
9 July 2007
JUDGMENT OF:
Mason P at 1; Hodgson JA at 13; Campbell JA at 79
DECISION:
1. Leave to appeal from Harrison AsJ refused with costs. 2. Leave to appeal from Rothman J granted, Notice of Appeal to be filed within 14 days. 3. Appeal dismissed. 4. Dr. Doyle to pay Hall Chadwick’s costs of the application and appeal.
CATCHWORDS:
PRACTICE - Costs - Assessment - Certificate taking effect as judgment - Whether appeal against assessment still available - Whether costs assessor can determine questions of construction of a costs agreement - Whether condition of conditional costs agreement, depending on recovery of monies, satisfied.
Dr. David Doyle - claimant Hall Chadwick - opponent
FILE NUMBER(S):
CA 40567/06
COUNSEL:
Dr. Doyle appeared for himself with Mr Cheung Mr. N. Perram SC with Mr. A. Kaklik for opponent
SOLICITORS:
The Builders' Lawyer, Ultimo for claimant Knowles Lawyers Pty. Limited, Sydney for opponent
LOWER COURT JURISDICTION:
Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):
SC13740/06
LOWER COURTJUDICIAL OFFICER:
Rothman J, Harrison AsJ
LOWER COURT DATE OF DECISION:
15 August 2006 (Harrison AsJ) 14 November 2006 (Rothman J)
CA 40567/06 SC 13740/06
MASON P HODGSON JA CAMPBELL JA
Monday 9 July 2007
DR. DAVID DOYLE V. HALL CHADWICK
Headnote
FACTS The respondent is a firm of chartered accountants. Two of its partners were appointed voluntary administrators of Grosvenor Constructions (NSW) Pty Ltd (Grosvenor). The respondent retained the appellant, a solicitor, to advise in relation to the recovery of moneys by Grosvenor from Joseph Musico and others (Musico) for construction work done by Grosvenor.
Pursuant to the Conditional Costs Agreement (the Agreement) of 30 September 2004 between the appellant and…
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 Doyle v Hall Chadwick
Sign in free to access the full text
Details
AGLC
Doyle v Hall Chadwick [2007] NSWCA 159
Case
[2007] NSWCA 159
Decision Date
CaseChat Overview and Summary
The parties to this proceeding were Dr. Doyle and Hall Chadwick. The dispute concerned the assessment of costs and the availability of an appeal against that assessment, as well as the interpretation of a conditional costs agreement. The matter came before the Court of Appeal of New South Wales.
The Court of Appeal was required to determine whether an appeal against a costs assessment was still available once the certificate of assessment had taken effect as a judgment. Further, the Court had to consider whether a costs assessor possessed the power to determine questions of construction relating to a costs agreement, and specifically, whether a condition precedent within a conditional costs agreement, which depended on the recovery of monies, had been satisfied.
The Court reasoned that once a certificate of assessment had taken effect as a judgment, the assessment process was concluded, and the avenue for appeal was generally closed, unless specific statutory provisions allowed otherwise. Regarding the costs assessor's powers, the Court held that while assessors could interpret costs agreements to the extent necessary for the assessment, they were not empowered to make definitive determinations on complex contractual construction issues that might be more appropriately resolved by a court. The Court found that the condition in the costs agreement had not been satisfied.
Consequently, leave to appeal from the decision of Harrison AsJ was refused with costs. Leave to appeal from the decision of Rothman J was granted, with the Notice of Appeal to be filed within 14 days. However, the appeal itself was dismissed, and Dr. Doyle was ordered to pay Hall Chadwick's costs of the application and the appeal.
Orders
Orders of the court
1. Leave to appeal from Harrison AsJ refused with costs.
2. Leave to appeal from Rothman J granted, Notice of Appeal to be filed within 14 days.
3. Appeal dismissed.
4. Dr. Doyle to pay Hall Chadwick's costs of the application and appeal.