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Foundas v Wengel

Foundas v Wengel

Case [2024] NSWSC 128 20 February 2024

Costs

Limitation Periods

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Foundas v Wengel [2024] NSWSC 128
Hearing dates: 28 November 2023
Date of orders: 20 February 2024
Decision date: 20 February 2024
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The decision of the Manager, Costs Assessment be set aside.
(2) The application to review the costs assessor’s decision dated 24 May 2022 be referred to a Review Panel.
(3) The defendants are to pay the plaintiff’s costs.

Catchwords:
CIVIL PROCEDURE – Manager, Costs Assessment – Registrar’s decision – Application filed in time.

Legislation Cited:
Legal Profession Uniform Law Application Act 2014 (NSW) ss 83 and 93B
Legal Profession Uniform Law Application Regulation 2015 (NSW) cl 45
Supreme Court Act 1970 (NSW) s 69
Uniform Civil Procedure Rules 2005 (NSW) r 49.19

Cases Cited:
Adam PBrown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Alhalek v Kellsthe Lawyers [2021] NSWSC 205
Arambatzis v Foundas; Foundas v Wengel [2021] NSWCA 78
Boesnsch v Bingham [2022] NSWSC 1432
Re the Will of FB Gilbert (1946) 46 SR (NSW) 318
UTSG Pty Ltd v Gwynvill Properties Pty Ltd [2017] NSWSC 558
Voicu v The Owners – Strata Plan No 1624 [2020] NSWSC 296

Category: Procedural rulings
Parties: Bill Foundas (Plaintiff)
Sean Wengel (First Defendant)
Robert Witton (Second Defendant)
Manager, Costs Assessment (Third Defendant)
Representation:
Counsel:
B. Foundas (Self-represented)
S. Chen (Defendants)
Solicitors:
William Roberts Lawyers (First and Second Defendants)
Crown Solicitors Office (Third Defendant)

File Number(s): 2023/184338

JUDGMENT

The judgment involves a review of a decision of a Manager, Costs Assessment. The plaintiff’s amended summons dated 27 July 2023 seeks to have the out of time reversed and allow the review of a cost assessment to proceed.
The plaintiff is Bill Foundas. The first defendant is Sean Wengel. The second defendant is Robert Witton. The third defendant is the Manager of Costs Assessment. The plaintiff is self-represented. The first and second defendants were represented by S. Chen. The third defendant filed a submitting appearance. The parties relied on a Court Book (‘Ex 1’). In addition, the plaintiff relied on various affidavits and exhibits A, B and C at the hearing. The defendant’s relied on Ex 2, being a Costs Assessment Rules Committee Guideline dated 24 October 2023 (this document came into existence after the cost assessor had made his determination).
At the hearing, I ordered a stay of the execution on the examination order filed 19 September 2022 in the Local Court until further order of this Court.
On 30 December 2021, the first and second defendants, Sean Magnus Wengel and Robert William Whitton, filed an application for assessment of ordered costs in the Supreme Court of New South Wales. This application was given assessment number 2022/00003527.

Background

On 17 April 2022, the costs assessor allocated to the matter to Patrick Gerard Ferguson (‘the costs assessor’), who determined the application for assessment of ordered costs.
On 29 April 2022, the costs assessor emailed the certificates of determination together with…

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 Foundas v Wengel

Details

AGLC: Foundas v Wengel [2024] NSWSC 128
Case: [2024] NSWSC 128
Decision Date: 20 February 2024

CaseChat Overview and Summary

The case of Foundas v Wengel involved a dispute between the plaintiff, Foundas, and the defendant, Wengel. The nature of the conflict centred around the assessment of costs incurred during the litigation process. The matter was heard in the Supreme Court of Victoria. The plaintiff sought a review of a Registrar’s decision concerning the costs assessment, arguing that the application for review was filed within the prescribed timeframe.

The primary legal issue before the court was whether the plaintiff's application to review the Registrar's decision was timely filed. This required an examination of the relevant procedural rules governing the timeliness of such applications and the discretion of the court to extend time where an application is technically out of time. The court needed to consider whether any exceptional circumstances justified an extension of the time limit for filing the application.

In its decision, the court found that the plaintiff's application was indeed filed within the prescribed time limit, thus upholding the plaintiff's position. The court acknowledged the strict procedural rules but also recognised the importance of ensuring that justice is served in a timely manner. The Registrar's decision was reviewed, and the court determined that the application was appropriately filed, thereby dismissing the defendant's contention regarding the timeliness of the application.

No further orders were made beyond the confirmation of the timeliness of the application. The court's decision provided clarity on the procedural requirements and the importance of adhering to the rules while also allowing for some judicial discretion in exceptional circumstances.

Orders