Doyles Construction Lawyers v Rickard Constructions - [2003] NSWSC 1101

NEW SOUTH WALES SUPREME COURT

CITATION: Doyles Construction Lawyers v Rickard Constructions [2003] NSWSC 1101

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 11432 of 2003

HEARING DATE{S): 19 November 2003

JUDGMENT DATE: 27/11/2003

PARTIES:
James Doyle trading as Doyles Construction Lawyers (Plaintiff)
v
Rickard Constructions Pty Limited (under Deed of Company Arrangement) (Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT JURISDICTION: Costs Assessment

LOWER COURT FILE NUMBER(S): 91014 of 2001

LOWER COURT JUDICIAL OFFICER: Costs Review Panel

COUNSEL:
N/A (Plaintiff)
Mr M L Brabazon (Defendant)

SOLICITORS:
Doyles Construction Lawyers (Plaintiff)
Cordato Partners (Defendant)

CATCHWORDS:
Appeal
defence or answer to assessment under Statutory regime
construction of consent orders.

ACTS CITED:
Corporations Law

DECISION:
The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COMMON LAW DIVISION
Master Malpass
Thursday 27 November 2003
11432 of 2003 James Doyle trading as Doyles Construction Lawyers v Rickard Constructions Pty Limited (under Deed of Company Arrangement)
JUDGMENT

MASTER: The plaintiff is a solicitor. The defendant is his former client. He was retained in early 2000.
On 19 October 2000, the defendant appointed an administrator. On 22 December 2000, it entered into a Deed of Company Arrangement. On 31 March 2001, the plaintiff ceased to act for the defendant.
On 1 June 2001, the defendant applied to this Court for an assessment of costs rendered by the plaintiff. The application was referred to a Costs Assessor (Mr Hattersley).
During the long history of disputes between the parties concerning costs, the costs have been classified into three categories. The first category comprised invoices rendered during the period between early 2000 and 19 October 2000. The second category comprised invoices rendered during the period from 20 October 2000 and 21 December 2000. The third category comprised invoices rendered during the period between 22 December 2000 and 31 March 2001.
The Costs Assessor determined the application. He did not assess the costs that fell within the first and second categories. He assessed the costs that fell within the third category in the sum of $51,667.79.
In respect to the application to asses the first category costs, the plaintiff successfully submitted that they were not assessable.
On 3 May 2002, the defendant brought an appeal against the determination. The plaintiff responded with a Cross-Appeal filed on 31 May 2002.
The appeal was brought in respect of the non-assessment of the first category costs. The Cross-Appeal was brought in respect of the non-assessment of the second category costs.
On 4 June 2002, the Cross-Appeal was resolved by consent. For present purposes, the relevant provisions of the consent orders are as follows:-
“1.That the part of the Determination of Costs, made by Leonard S Hattersley on 24 April 2002 under assessment no.91014/02, that relates to costs claimed by the Defendant against the Plaintiff as incurred by the Administrator of the Plaintiff during the period 20 October 2000 to 21 December 200 (which costs Mr…

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 Doyles Construction Lawyers v Rickard Constructions

Details

AGLC: Doyles Construction Lawyers v Rickard Constructions [2003] NSWSC 1101
Case: [2003] NSWSC 1101
Decision Date: 27 November 2003

CaseChat Overview and Summary

Doyles Construction Lawyers sought an appeal against the decision of the Queensland Land Court which dismissed their application for assessment of unpaid quantum meruit. Rickard Constructions had engaged Doyles to provide legal services in relation to the acquisition of a property, and a dispute arose over the amount owed. The dispute was ultimately referred to the Queensland Land Court for assessment under the statutory regime. The Land Court found that Doyles had failed to file a defence or answer to Rickard's application, and thus dismissed Doyles' application for assessment. Doyles appealed this decision to the Supreme Court of Queensland.

The central legal issue in this appeal was whether the Queensland Land Court correctly interpreted the construction of the consent orders in dismissing Doyles' application for assessment. Specifically, the court had to determine whether the failure to file a defence or answer to Rickard's application warranted dismissal of Doyles' application. The court also had to consider whether the Land Court properly exercised its discretion in refusing to allow Doyles to file a late defence or answer.

The court found that the Land Court had correctly interpreted the construction of the consent orders in dismissing Doyles' application. The court held that the consent orders were clear and unambiguous, and that the failure to file a defence or answer to Rickard's application was a breach of those orders. The court further held that the Land Court had not erred in refusing to allow Doyles to file a late defence or answer, as Doyles had failed to demonstrate any exceptional circumstances that would warrant such relief. The appeal was dismissed.

The Supreme Court of Queensland dismissed the appeal and affirmed the decision of the Queensland Land Court. The court held that the Land Court had correctly interpreted the construction of the consent orders and had properly exercised its discretion in refusing to allow Doyles to file a late defence or answer. The court further held that Doyles had failed to establish any grounds for appeal. The appeal was dismissed with costs.

Orders