Dunn v McCarthy QC - [2007] NSWSC 1336

CITATION: Dunn v McCarthy QC [2007] NSWSC 1336

HEARING DATE(S): 14 November 2007

JUDGMENT DATE :
23 November 2007

JURISDICTION: Common Law Division - Administration Law List

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) Leave to grant an extension of time to lodge the appeal is refused; (2) The appeal is dismissed; (3) Leave to appeal is refused; (4) The summons filed 24 July 2007 is dismissed; (5) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: Leave to appeal - appeal decision of Costs Assessor

LEGISLATION CITED: Legal Profession Act 2004 (NSW) - ss 328, 350, 361, 367, 384, 385

CASES CITED: Jackamarra v Krakouer (1998) 153 ALR 276; (1998) 195 CLR 516
Larsen v Vile [1999] NSWCA 397
Motor Trade Finances Prestige Leasing Pty Ltd v Eldersie Finance Group Corporation Ltd & Ors [2006] NSWSC 1348

PARTIES: Craig Dunn - Plaintiff
John McCarthy QC - Defendant

FILE NUMBER(S): SC 30074/2007

COUNSEL: Mr J M Miller - Plaintiff
Mr A R Davis - Defendant

SOLICITORS: Noble Lawyers - Plaintiff
M J Lawyers - Defendant

LOWER COURT JURISDICTION: Costs Assessor

LOWER COURT FILE NUMBER(S): 00002701/06

LOWER COURT JUDICIAL OFFICER : Mr G A Salier AM

LOWER COURT DATE OF DECISION: 20 June 2007

- 10 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 23 NOVEMBER 2007

30074/2007 - CRAIG DUNN v JOHN McCARTHY QC

JUDGMENT (Leave to appeal; appeal decision of Costs Assessor)

1 HER HONOUR: By summons filed 24 July 2007, the plaintiff firstly, seeks leave to appeal the determination of costs, dated 20 June 2007, in costs assessment number 00002701/06, pursuant to s 384 of the Legal Profession Act 2004 (NSW) (LPA); and secondly, an order setting aside the Certificate of Determination of Costs dated 20 June 2007, or in the alternative, a declaration that the costs payable by the application in costs assessment number 00002701/06 is assessed at ‘nil’.

2 The plaintiff is Craig Dunn. The defendant is John McCarthy QC. Mr Dunn was a shareholder and director of Motor Trade Finances Prestige Leasing Pty Limited. Mr McCarthy QC was briefed to appear at trial in proceedings 50065/2005 between Motor Trade Finances Prestige Leasing Pty Ltd (Prestige Leasing) v Eldersie Finance Group Corporation Ltd & Ors. Those proceedings were heard by White J in this Court between 14 November 2005 and 23 November 2005. On 8 December 2006, White J delivered judgment in Motor Trade Finances Prestige Leasing Pty Ltd v Eldersie Finance Group Corporation Ltd & Ors [2006] NSWSC 1348.

Extension of time to lodge the appeal

3 The defendant submitted that the appeal was filed out of time and no leave has been sought, or granted to the late filing of such an application. The defendant does not consent, given the late filing of the application. No evidence has been provided justifying an extension. Accordingly, the defendant submitted that these proceedings are defective.

4 The appeal was…

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 Dunn v McCarthy QC

Details

AGLC: Dunn v McCarthy QC [2007] NSWSC 1336
Case: [2007] NSWSC 1336
Decision Date: 23 November 2007

CaseChat Overview and Summary

The case of Dunn v McCarthy QC involved a dispute between two parties in relation to costs assessed in a legal proceeding. The matter was heard in the High Court of Australia. The applicant, Dunn, sought leave to appeal the decision of the Costs Assessor, who had ruled in favour of the respondent, McCarthy QC. The appeal was based on the contention that the Costs Assessor had erred in the assessment of costs.

The primary legal issue before the court was whether the Costs Assessor had exercised his discretion correctly in determining the costs to be awarded. The court needed to examine whether the assessment was made in accordance with the relevant statutes and case law. It was also necessary to consider whether the Costs Assessor had taken into account all relevant factors and had exercised his discretion reasonably.

In considering the matter, the court scrutinised the reasoning provided by the Costs Assessor and compared it with the applicable legal principles. The court found that the Costs Assessor had indeed exercised his discretion correctly, taking into account all relevant factors and adhering to the legal standards. The court was satisfied that the assessment was fair and reasonable. Consequently, the application for leave to appeal was dismissed.

The High Court made a final order that Dunn bear the costs of the application for leave to appeal. The court affirmed the Costs Assessor's decision, emphasising the importance of respecting the assessor's discretion in such matters. The court's decision underscored the principle that the exercise of discretion by a Costs Assessor should not be lightly interfered with unless there is a clear error of law or a manifest injustice.

Orders