Doyle v Hall Chadwick

Case [2007] NSWCA 159


Appeal Outcome: 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.
LEGISLATION CITED: Legal Profession Act 1987 (NSW) ss.201, 208, 208C, 208D, 208H, 208J, 208K, 208KA(1), 208KC, 208KE, 208KF, 208KI, 208L and 208M
CASES CITED: Bailey v. Marinoff (1971) 125 CLR 529
Bell v. Bell (1954) 73 WN(NSW) 7
Butt v. McDonald (1896) 7 QLJ 68
Croker v. Commissioner of Taxation [2005] FCA 127, (2005) 145 FCR 150
Graham v. Aluma-Lite Pty. Limited (NSWCA, unreported, 25/3/97)
Katingal Pty. Limited v. Amor [2004] NSWSC 36
Khoury v. Hiar [2006] NSWCA 47
Logwon Pty.Limited v. Warringah Shire Council (1993) 33 NSWLR 13
Muriniti v. Lyons [2000] NSWSC 680
Muriniti v. Lyons [2004] NSWSC 135
Remilton v. City Mutual Life Assurance Society Limited (1907) 24 WN(NSW) 177
Rosser v. Marine Ministerial Holding Corporation (No.2) [1999] NSWCA 214
Smith v. Trowsdale (1854) 3 E & b 83, 118 ER 1072
Timms v. Commonwealth Bank of Australia (No.3) [2004] NSWCA 25
Toll (FGCT) Pty. Ltd. v. Alphapharm Pty. Ltd. (2004) 219 CLR 165
Wentworth v. Rogers [1999] NSWCA 403
Wentworth v. Rogers [2006] NSWCA 145
Yevad Products Pty. Limited v Brookfield [2005] FCAFC 263
PARTIES: 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 COURT JUDICIAL 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…

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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.

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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