Fordyce v Fordham (No 1) - [2007] NSWSC 1036

CITATION: Fordyce v Fordham & Anor (No 1) [2007] NSWSC 1036

HEARING DATE(S): 10 September 2007

JUDGMENT DATE :
14 September 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is dismissed; (2) The application that leave be granted pursuant to s 348 of the Legal Professin Act 2004 (NSW) is refused; (3) The decision of the Review Panel dated 29 May 2007 is affirmed; (4) The amended summons filed 24 July 2007 is dismissed; (5) The plaintiff is to pay the defendants' costs as agreed or assessed.

CATCHWORDS: Appeal decision of Costs Review Panel - res judicata, issue estoppel

LEGISLATION CITED: Access to Neighbouring Land Act 2000 (NSW)
Legal Profession Act 2004 (NSW) - ss 382, 384, 385

CASES CITED: Henderson v Henderson (1843) 67 ER 313
Larsen v Vile [1999] NSWCA 397
Port Melbourne Authority v Anshun Pty Ltd (1981) 36 ALR 3; (1981) 147 CLR 589

PARTIES: Louise Aileen Fordyce - Plaintiff
Gary Shaun Fordham - First Defendant
Narelle Jane Fordham - Second Defendant

FILE NUMBER(S): SC 13125/2007

SOLICITORS: Mr A Busby - Plaintiff
Mr G Fordham (in person) - First & Second Defendants

LOWER COURT JURISDICTION: Costs Review Panel

LOWER COURT FILE NUMBER(S): 5477/2004

LOWER COURT JUDICIAL OFFICER : JE McIntyre & P Scammell

LOWER COURT DATE OF DECISION: 29 May 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 14 SEPTEMBER 2007
13125/2007 - LOUISE AILEEN FORDYCE v

GARY SHAUN FORDHAM & ANOR (No 1)

JUDGMENT (Appeal decision of Costs Review Panel

- res judicata, issue estoppel)

1 HER HONOUR: By amended summons filed 24 July 2007 the plaintiff seeks an order pursuant to s 384(1) and (2)(a) and s 385(1), (2)(a) and (3) of the Legal Profession Act 2004 (NSW) (the Act), that the costs determination made by the Costs Review Panel on 29 May 2007 be set aside for an error of law; and that the claimant be given leave, pursuant to s 385(1), (2) and (3) of the Act to appeal against the costs determination.

2 The plaintiff is Louise Aileen Fordyce (Fordyce). Mr Fordyce, is the solicitor on record and is the plaintiff’s husband. The first defendant is Gary Shaun Fordham (Fordham). The second defendant is Narelle Jane Fordham. The defendants are husband and wife (the Fordhams). Mr Fordham appeared unrepresented on their behalf. He is articulate and their case was well presented.

3 The costs order upon which the assessment and review were based was an order of this Court that Louise Fordyce pay the Fordhams’ costs in proceedings 5477/2004 (the nuisance proceedings).

4 On 12 January 2007, the Costs Assessor assessed a fair and reasonable amount of costs in the sum of $29,971.97. On 29 May 2007, the Review Panel affirmed the Costs Assessor’s decision.

Background

5 This case concerns a costs determination made on 29 May 2007 by the Review Panel comprising of John Eric McIntyre and Peter Scammell on 18 June 2007.

Grounds…

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 Fordyce v Fordham (No 1)

Details

AGLC: Fordyce v Fordham (No 1) [2007] NSWSC 1036
Case: [2007] NSWSC 1036
Decision Date: 14 September 2007

CaseChat Overview and Summary

The appeal arose from a Costs Review Panel's decision in the Supreme Court of South Australia. Fordyce, the appellant, sought review of the costs awarded to Fordham, the respondent. The original dispute involved an insurance claim for a vehicle accident, where Fordyce sought compensation from Fordham. The Costs Review Panel had previously considered the matter and determined the costs to be reviewed. Fordyce appealed the Panel's decision, arguing it was erroneous and should be set aside.

The central legal issues before the court were whether the Costs Review Panel's decision was subject to the doctrine of res judicata and whether issue estoppel applied to prevent Fordyce from relitigating the costs matter. The court had to determine if the Panel's decision was final and binding, and if Fordyce was precluded from challenging the same issues again due to the principles of res judicata and issue estoppel.

The court found that the Costs Review Panel's decision was indeed final and binding, and as such, it was subject to the doctrine of res judicata. The court held that the Panel's decision had the same effect as a judgment of the court and could not be revisited in subsequent proceedings. Additionally, the court ruled that issue estoppel applied, preventing Fordyce from raising the same issues regarding the costs that had already been decided by the Panel. Consequently, the appeal was dismissed, and the original costs decision was upheld.

The court's decision affirmed the finality of the Costs Review Panel's determination and reinforced the principles of res judicata and issue estoppel in the context of costs reviews. The court's ruling ensured that once a matter had been decided by the Panel, it could not be reopened, thereby maintaining the integrity of the costs review process.

Orders