District Court
New South Wales
Medium Neutral Citation: Enterprise Finance Solutions Pty Ltd v Ciszek [2014] NSWDC 314 Hearing dates: 16 October 2014 Decision date: 23 December 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Summons dismissed.
(2) Plaintiff pay defendant’s costs.
(3) Liberty to apply in relation to costs.
(4) Exhibits retained for 28 days.Catchwords: COSTS - s 384 Legal Profession Act 2004 (NSW) appeal from Review Panel costs assessment review - solicitor and barrister charged fees without entering into a costs agreement - whether Review Panel erred in refusing the plaintiff's application to assess the costs at nil - whether indemnity principle invoked where there was no costs agreement and no evidence of payment - whether Review Panel erred in finding there had been no procedural unfairness where the costs assessor had adjourned the proceedings to permit a solicitor/client assessment - whether solicitor/client assessment necessary at all - appeal dismissed Legislation Cited: Legal Profession Act 2004 (NSW), ss 317, 324, 356 and 384 Cases Cited: Ada Evans Chambers Pty Ltd v Santisi [2014] NSWSC 538
Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495
Autore t/as Autore & Associate Solicitors & Barristers v Folino-Gallo [2014] NSWSC 777
Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304
Catto and Ors v Hampton Australia Ltd (In Liq) and Ors [2008] SASC 231
Coshott v Barry [2010] NSWSC 1324
CSR Ltd v Eddy (2008) 70 NSWLR 725
Dyktinski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154
Fordyce v Fordham and Anor (No 1) [2007] NSWSC 1036
Frumar v Owners of Strata Plan 36957 (2006) 67 NSWLR 321
Gorczynski v AWM Dickinson & Sons [2005] NSWSC 277
Halliday v High Performance Personnel Pty Ltd (in liq) [1999] HCA 13
Howard & Ors v Mechtler & Ors [2000] NSWSC 455
Khan v Jenni Mattila & Co Lawyers [2011] NSWSC 71
Kuek v Devflan Pty Ltd (Supreme Court of Victoria, Wood AsJ, 29 August 2011)
O’Connor v Fitti [2000] NSWSC 540
Port Melbourne Authority v Anshun (1981) 147 CLR 589
Sittchichai Laksanabechnarong v F Net Pty Ltd (District Court of New South Wales, McLoughlin DCJ, 16 September 2011)
Steele v Marshan [2012] NSWSC 32
Steele v Marshan [2012] NSWCA 141
Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No. 4) [2013] VSC 669
Telfer v Telfer (No 3) [2014] NSWCA 251
Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd (No 4) [2011] NSWSC 720
Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170
Wentworth v Rogers (2006) 66 NSWLR 474Texts Cited: G E Dal Pont “Law of Costs” (3rd ed., 2013, LexisNexis)
M Wilson, “Costs: Failure to disclose reduces court ordered costs”, Law Society Journal (March 2012)Category: Principal judgment Parties: Plaintiff: Enterprise Finance Solutions Pty Ltd
Defendant: Richard Michael CiszekRepresentation: Counsel:
Solicitors:
Plaintiff: Mr S Bell
Defendant: Ms M Castle / Mr E Yin
Plaintiff: Simons Ravden Lawyers
Defendant: O'Sullivan Saddington
File Number(s): 2014/122142
Judgment
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By Summons Commencing…
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Details
- Case
- [2014] NSWDC 314
- Decision Date
CaseChat Overview and Summary
The plaintiff, Enterprise Finance Solutions Pty Ltd, sought to appeal a Review Panel's assessment of costs following a dispute with the defendant, Ciszek. The Review Panel had assessed the plaintiff's costs at a significant amount, despite the absence of a formal costs agreement between the parties and no evidence of payment to the plaintiff’s legal representatives. The plaintiff's argument was that the Review Panel had erred in not assessing the costs at nil, invoking the indemnity principle, which states that a party must not be charged more than what they would have paid if they had been represented by a solicitor of their own choice. Additionally, the plaintiff contended that the Review Panel erred in finding there had been no procedural unfairness, particularly since the costs assessor had adjourned the proceedings to permit a solicitor/client assessment. The plaintiff argued that such an assessment was not necessary in the circumstances of the case.
The court had to determine whether the Review Panel had erred in its assessment of costs, particularly in the context of the absence of a costs agreement and the indemnity principle. The court also needed to consider whether the Review Panel had erred in finding there had been no procedural unfairness, given the adjournment for the solicitor/client assessment. Furthermore, the court had to address whether such an assessment was necessary at all. In examining these issues, the court noted that the absence of a costs agreement did not automatically result in the plaintiff being entitled to nil costs. The court found that the Review Panel had not erred in its assessment, as the principle of indemnity did not apply in these circumstances. The adjournment for the solicitor/client assessment was deemed appropriate, and no procedural unfairness was found.
The appeal was dismissed by the court. The plaintiff was ordered to pay the defendant's costs. The plaintiff was granted liberty to apply in relation to the costs. The exhibits were retained for 28 days. The court upheld the Review Panel's decision, finding no error in the assessment or process. This decision reinforces the importance of having a formal costs agreement in place to avoid disputes over the recovery of costs in litigation.
The court had to determine whether the Review Panel had erred in its assessment of costs, particularly in the context of the absence of a costs agreement and the indemnity principle. The court also needed to consider whether the Review Panel had erred in finding there had been no procedural unfairness, given the adjournment for the solicitor/client assessment. Furthermore, the court had to address whether such an assessment was necessary at all. In examining these issues, the court noted that the absence of a costs agreement did not automatically result in the plaintiff being entitled to nil costs. The court found that the Review Panel had not erred in its assessment, as the principle of indemnity did not apply in these circumstances. The adjournment for the solicitor/client assessment was deemed appropriate, and no procedural unfairness was found.
The appeal was dismissed by the court. The plaintiff was ordered to pay the defendant's costs. The plaintiff was granted liberty to apply in relation to the costs. The exhibits were retained for 28 days. The court upheld the Review Panel's decision, finding no error in the assessment or process. This decision reinforces the importance of having a formal costs agreement in place to avoid disputes over the recovery of costs in litigation.
Orders
Orders of the court
(1) Summons dismissed.
(2) Plaintiff pay defendant’s costs.
(3) Liberty to apply in relation to costs.
(4) Exhibits retained for 28 days.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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