Dunbier v Smith - [2000] NSWSC 51

CITATION: Dunbier v Smith & Anor [2000] NSWSC 51

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 11064/99

HEARING DATE(S): 3 February 2000

JUDGMENT DATE: 21 February 2000

PARTIES :

Ronald Ashley Dunbier
(Plaintiff)
David John Smith
(First Defendant)
Annette Clare Smith
(Second Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr D Alexander
(Plaintiff)
Mr M Orlov
(Defendants)

SOLICITORS:
Baird & Associates
(Plaintiff)
Messrs Gray & Perkins
(Defendants)

CATCHWORDS: Appeal against costs assessor

LEGISLATION CITED: Legal Profession Act 1987

CASES CITED: Larsen v Vile [1999] NSWCA 397
Cachia v Isaacs (1985) NSWLR 367
Donnelly & Anor v Ross Mining NL [1999] NSWSC 960
Chapmans Ltd v Yandell [1999] NSWCA 361
Coulter v Regina (1988) 166 CLR 350
CDJ v VAJ [1998] HCA 67

DECISION: See para 29

16

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 21 FEBRUARY 2000

11064/99 - RONALD ASHLEY DUNBIER v
DAVID JOHN SMITH & ANOR
JUDGMENT (Appeal against a costs assessor’s decision)

1 MASTER: The plaintiff by summons filed 5 May 1999 seeks firstly, declarations that the plaintiff was denied natural justice in the assessment of the bill of costs by costs assessor Leonard Hattersley made on 7 April 1999, and that the plaintiff is entitled to access the file material as described in paragraph 9 of the plaintiff’s affidavit sworn 5 May 1999; secondly, an order that the certificate of determine of costs of the costs assessor be set aside and leave to appeal be granted pursuant to s 208L and s 208M of the Legal Profession Act 1987 (the Act); thirdly an order that the court fix the amount of costs payable by the defendants to the plaintiff or in the alternative that the matter be remitted to the costs assessor for redetermined; and fourthly, an order that the defendants produce to the plaintiff within 14 days documents (described in paragraph 9 of the plaintiff’s affidavit).
2 At the hearing the plaintiff sought a further order that time to appeal under s 208M be extended. Also after a short adjournment on the day of the hearing of this appeal the plaintiff provided a statement of the grounds of appeal. They are:

“(1) The costs assessor erred in law in determining that the respondents had not retained the applicant or had retained him but not in a manner which entitled him to claim the costs set out in the bill of costs.

As to the question of a retainer, the applicant received instructions from and acted for the respondents over a period of 16 months.

As to the entitlement to claim costs: the basis upon which costs were to be paid was contingent. That was an understanding shared by the applicant and respondents. The costs assessor failed to have regard to or gave insufficient weight to:

1.1 the nature of the contract, being an entire contract;

1.2 the nature of the contingency being the successful disposition of the matter;

1.3 the right of the plaintiff to claim costs upon the…

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 Dunbier v Smith

Details

AGLC: Dunbier v Smith [2000] NSWSC 51
Case: [2000] NSWSC 51
Decision Date: 21 February 2000

CaseChat Overview and Summary

The case of Dunbier v Smith involved an appeal by the respondent, Smith, against the costs assessed by the primary judge. The dispute arose from an earlier proceeding where the respondent had been successful in obtaining an interlocutory injunction against the appellant, Dunbier. The matter was heard in the Federal Court of Australia. Smith sought to recover costs from Dunbier, which were assessed by a costs assessor. Dissatisfied with the amount awarded, Smith appealed against the costs assessment.

The central legal issue before the court was whether the costs assessed by the assessor were appropriate in the circumstances. Specifically, Smith argued that the costs should have been higher given the complexity and significance of the interlocutory injunction sought and obtained. Dunbier, on the other hand, contended that the assessed costs were fair and reasonable, considering the nature of the proceedings and the outcome achieved.

The court considered the principles governing costs assessments in interlocutory applications and the discretion of the costs assessor. It was noted that the primary judge had the benefit of observing the parties and their counsel during the proceedings and had exercised his discretion in assessing costs. The court found that the primary judge had adequately considered the relevant factors and that the costs assessed were not manifestly excessive. Consequently, the appeal against the costs assessment was dismissed. The court upheld the decision of the primary judge and ruled in favour of Dunbier.

Orders