Forgione v Ashurst Australia - [2016] NSWSC 1314

Supreme Court

New South Wales

Medium Neutral Citation: Forgione v Ashurst Australia [2016] NSWSC 1314
Hearing dates: 15 September 2016
Decision date: 16 September 2016
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The plaintiffs are granted leave to proceed with their Costs Assessment Application No 2016/188189 filed 21 June 2016.
(2) Each party must pay its own costs of the proceedings before me.

Catchwords: CIVIL – COSTS – application for costs assessment after expiration of statutory time limit – statutory interpretation of point of commencement of time limit – whether costs assessment would be just and fair
Legislation Cited: Legal Profession Act 2004 (NSW), ss 350, 350(4), 350(5)
Category: Principal judgment
Parties: Francesco Forgione (First Plaintiff)
Pasquale Forgione (Second Plaintiff)
Ashurst Australia – A Partnership ABN 75304286095 (Defendant)
Representation:
Counsel:
B Camilleri (Defendant)
Solicitors:
TDC Lawyers (Plaintiffs)
Davies Moloney (Defendant)

File Number(s): 2016/206222

Judgment

Introduction

By way of a summons filed on 7 July 2016 in this Court, Messrs Franceso Forgione and Pasquale Forgione (the plaintiffs) seek leave to proceed with an application for costs assessment. Ashurst Australia – A Partnership (the defendant to the summons) resisted the making of the orders sought. The matter came before me in the Duty List yesterday, and I indicated to the parties that I would provide my judgment today.
It was agreed between the parties that the Legal Profession Act 2004 (NSW) (the Act) is the applicable statute, despite its recent repeal. It was also agreed that the central provision calling for my consideration is s 350 of the Act, which is relevantly as follows:

350 Application by client or third party payers for costs assessment
(1) A client may apply to the Manager, Costs Assessment for an assessment of the whole or any part of legal costs.
…
(3) An application for a costs assessment may be made even if the legal costs have been wholly or partly paid.
(3A) If any legal costs have been paid without a bill, the client or third party payer may nevertheless apply for a costs assessment.
(4) An application by a client or third party payer for a costs assessment under this section must be made within 12 months after:
(a) the bill was given or the request for payment was made to the client or third party payer, or
(b) the costs were paid if neither a bill was given nor a request was made.
(5) However, an application that is made out of time, otherwise than by:
(a) a sophisticated client, or
(b) a third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned,
may be dealt with by the costs assessor if the Supreme Court, on application by the costs assessor or the client or third party payer who made the application for assessment, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to…

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 Forgione v Ashurst Australia

Details

AGLC: Forgione v Ashurst Australia [2016] NSWSC 1314
Case: [2016] NSWSC 1314
Decision Date: 16 September 2016

CaseChat Overview and Summary

The case of Forgione v Ashurst Australia involved a dispute between two parties, with the primary focus on the assessment of costs after the expiration of the statutory time limit. The matter was heard and determined by the Supreme Court of Victoria. The central issue that the court had to resolve was whether an application for costs assessment could be entertained and determined after the statutory time limit had expired, and if so, under what conditions such an assessment could be deemed just and fair.

In addressing the legal issues, the court considered the statutory framework governing the assessment of costs and the specific point at which the time limit commences. The court also examined the principles of justice and fairness as they apply in the context of costs assessment. The primary question was whether the application could be considered despite the statutory deadline, and if the court could exercise its discretion to assess costs in a manner that was equitable and just.

The court concluded that the application for costs assessment was not barred by the statutory time limit. It reasoned that the point of commencement of the time limit was not as rigidly defined as initially interpreted and that the court retained the discretion to assess costs in circumstances where it was just and fair to do so. The court found that the application for costs assessment could proceed, and it proceeded to make an order for costs that it deemed appropriate under the circumstances. This decision underscores the court's ability to balance the statutory requirements with the overarching principles of justice and fairness in the administration of legal proceedings.

Orders