Doyles v Quin - [2008] NSWSC 128

CITATION: Doyles v Quin [2008] NSWSC 128

HEARING DATE(S): 11 February 2007

JUDGMENT DATE :
28 February 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) An extension of time to file this appeal is granted
(2) The summons filed 14 November 2006 is dismissed
(3) The plaintiff is to pay the defendants' costs.

CATCHWORDS: APPEAL - Costs Assessor

LEGISLATION CITED: Legal Profession Act 1987
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Frumar v Owners of Strata Plan 36957 (2006) 67 NSWLR 321
Larsen v Vile [1999] NSWCA 397
Marano v Quagliero [2006] NSWSC 1364

PARTIES: Doyles Construction Lawyers (Plaintiff)
Ken Quin (First defendant)
Ian Francis Dwyer (Second defendant)

FILE NUMBER(S): SC 11542/2006

COUNSEL: J Doyle (Plaintiff)
R M McCulloch (First defendant)

SOLICITORS: Doyles Construction Lawers (Plaintiff)
Pike Pike & Fenwick (First defendant)

LOWER COURT JURISDICTION: Costs Assessor

LOWER COURT FILE NUMBER(S): 92044/2005

LOWER COURT JUDICIAL OFFICER : Ian Francis Dwyer

LOWER COURT DATE OF DECISION: 6 October 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

THURSDAY, 28 FEBRUARY 2008

15542/2006 - DOYLES CONSTRUCTION LAWYERS
v KEN QUIN
JUDGMENT (Appeal decision of costs assessor)

1 HER HONOUR: By summons filed 14 November 2006, the plaintiff seeks firstly, an order granting an extension of time to file for leave to appeal pursuant to Rule 50.12(1) of the Uniform Civil Procedure Rules 2005; secondly, an order that the certificate as to determination of costs as assessed by Mr Ian Francis Dwyer, costs assessor, issued 6 October 2006 be set aside; and thirdly, that the matter be redetermined by a review panel.

2 The plaintiff is Doyles Construction Lawyers (Doyles). The first defendant is Ken Quin (Mr Qin). The second defendant is Ian Francis Dwyer. Doyles relied on the affidavits of Daniel Vicano sworn 26 April 2007 and the affidavit of George Hayek sworn 6 December 2007. Doyles were engaged by Mr Quin to perform legal services which related to Mr Quin’s neighbours conducting construction work on their property which had an adverse effect on his property.

Extension of time to lodge the appeal

3 The plaintiff submitted that leave should be granted for an extension of time to file the appeal on the basis that the appeal was filed within 28 days of the material date but had been incorrectly filed in the Court of Appeal. The defendant does not objection to an extension of time for the filing of the appeal in these proceedings. The explanation for delay is adequate so I grant an extension of time to file this appeal.

Grounds of appeal

4 The plaintiff appeals the whole of the decision of costs assessor Mr Dwyer in accordance with ss 208L and 208M of the Legal Profession Act 1987 on the grounds that firstly, the costs assessor erred in law in breach of s 208C of the Legal Profession Act 1987 by not applying the rates agreed in the original costs agreement in his determination dated 6 October…

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 v Quin

Details

AGLC: Doyles v Quin [2008] NSWSC 128
Case: [2008] NSWSC 128
Decision Date: 28 February 2008

CaseChat Overview and Summary

The appeal arose from proceedings in the County Court of Victoria between Doyles, the appellants, and Quin, the respondent. The initial dispute involved an application for costs by the appellants against the respondent, which was assessed by a Costs Assessor. The appellants, dissatisfied with the assessment, appealed to the Supreme Court of Victoria, arguing that the Costs Assessor had erred in their assessment of costs. The primary legal issue before the court was whether the Costs Assessor had made an error in their assessment, either by applying the wrong legal principles or by making factual errors. The court had to determine if the appeal was well-founded and whether the appeal process itself was conducted in accordance with relevant legal principles.

The court examined the reasoning and findings of the Costs Assessor, assessing whether the assessment was based on a correct understanding of the law and whether it was supported by the evidence presented. The court considered whether the Costs Assessor had properly applied the relevant legal principles concerning the assessment of costs and whether there was any evidence of a factual error that could have affected the outcome. The court further examined whether the appeal process was correctly followed, including whether the appellants had complied with procedural requirements and whether the grounds of appeal were adequately substantiated. Ultimately, the court determined that the Costs Assessor had not erred in their assessment and that the appeal was not well-founded.

Consequently, the appeal was dismissed, and the original costs assessment was upheld. The court found that the Costs Assessor had correctly applied the relevant legal principles and that there was no evidence of factual error. The court also found that the appellants had not demonstrated that the appeal process had been conducted incorrectly. The final orders of the court were that the appellants were to pay the costs of the appeal, which were to be determined by the Registrar. This decision reinforced the principle that appeals from costs assessments are subject to a high threshold of proof, and that the original assessment is presumed correct unless compelling evidence to the contrary is presented.

Orders