Dunn v Jerrard & Stuk Lawyers - [2009] NSWSC 681

CITATION: Dunn v Jerrard & Stuk Lawyers [2009] NSWSC 681
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13 July 2009

JUDGMENT DATE :
23 July 2009

JURISDICTION: Common Law

JUDGMENT OF: Davies J

DECISION: (1) Order that the appeal pursuant to s 208KL of the Legal Profession Act 1987 against the decisions of the Review Panel contained in the Certificate of Determination of Costs and the Certificate of Determination of Costs of Review, both issued 13 March 2008, be allowed. (2)Remit these decisions to the Review Panel.(3) Order that the Review Panel redetermine the application. (4)Order that the application pursuant to s 208M of the Legal Profession Act 1987 for leave to appeal against the decisions of the Review Panel identified in the Certificate of Determination of Costs and the Certificate of Determination of Costs of Review, both issued 13 March 2008, be dismissed.

CATCHWORDS: COSTS – assessment – costs assessor – review panel – adequacy of reasons – basis of assessment of all disputed costs must be explained – statement of reasons must be sufficiently precise to give meaningful content to rights of appeal – sufficient to specify how disputed costs of the same kind were treated – failure to provide sufficient reasons.

LEGISLATION CITED: Legal Practice Act 1996 (Vic)
Legal Profession Act 1987
Legal Profession Act 2004
Legal Profession Amendment (Costs Assessment) Act 1998
Legal Profession Regulation 2002

CASES CITED: Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729
Cassegrain v CTK Engineering [2008] NSWSC 457
Chapman’s Limited v Yandell [1999] NSWCA 361
Frumar v The Owners of Strata Plan 36597 [2006] NSWCA 278
Honest Remark Pty Ltd v Allstate Explorations NL [2008] NSWSC 439
Kennedy Miller Television Pty Ltd v Lancken (Supreme Court, 1 August 1997, unreported)
Law Institute of Victoria Ltd v Nagle [2005] VSC 35
O’Connor v Fitti [2000] NSWSC 540
Randall Pty Ltd v Willoughby City Council [2009] NSWDC 118
Victorian Lawyers RPA Limited v Bailey [2000] VSC 162
Wentworth v Rogers [2006] NSWCA 145

PARTIES:
PLAINTIFFS:
Craig Dunn
Motor Trades Finances Prestige Leasing Pty Ltd
Motor Trade Finances Australia Pty Ltd
Macburg Pty Ltd
DEFENDANT:
Jerrard & Stuk Lawyers

FILE NUMBER(S): SC 08/30078

COUNSEL: R E Steele (Plaintiffs)
M Castle (Defendant)

SOLICITORS: Noble Lawyers (Plaintiffs)
Holman Webb Lawyers (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

THURSDAY 23 JULY 2009

08/30078 DUNN & ORS V JERRARD & STUK LAWYERS

JUDGMENT

1 This is an appeal under s 208L Legal Profession Act 1987 and an application for leave to appeal under s 208M of the same Act from a Certificate of Determination of Costs by Costs Review Panel and a Certificate of Determination of Costs of Review of 13 March 2008.

2 The First Plaintiff, Mr Craig Dunn, is a director of the Second Plaintiff, Motor Trades Finances Prestige Leasing Pty Ltd in Flinders Street,…

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.

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Details

Case: [2009] NSWSC 681
Decision Date: 23 July 2009

CaseChat Overview and Summary

Dunn brought a claim against Jerrard & Stuk Lawyers, seeking a review of a costs assessment made by a costs assessor. The case was heard in the Supreme Court of Queensland. The central issue was whether the costs assessor's reasons were adequate for the purposes of the review. Specifically, the court had to determine whether the assessor's reasons were sufficiently detailed to comply with the requirements of the legal framework governing costs assessments.

The court found that the costs assessor's statement of reasons was inadequate. The reasons did not adequately explain the basis on which the disputed costs were assessed. The court held that the assessor's reasons were not sufficiently precise to provide meaningful content to the rights of appeal. While it was sufficient to specify how costs of the same kind were treated, the reasons failed to provide a clear explanation of how the disputed costs were assessed. This was crucial for enabling a meaningful review of the costs assessment.

Consequently, the court determined that the costs assessor's reasons did not meet the legal requirements. The statement of reasons was not adequate, and the review was therefore flawed. The court remitted the matter back to the costs assessor for a new assessment with adequate reasons. The court also made orders regarding the costs of the review application.

Orders