Foundas v Wright Lawyers P/L - [2020] NSWSC 354

Supreme Court

New South Wales

Medium Neutral Citation: Foundas v Wright Lawyers P/L [2020] NSWSC 354
Hearing dates: 17 March 2020
Date of orders: 17 March 2020
Decision date: 03 April 2020
Jurisdiction: Common Law
Before: Wilson J
Decision:
Orders made 17 March 2020

1. Grant leave to the plaintiff to apply out of time to the Manager, Costs Assessment for an assessment of the whole of the legal costs invoiced by Wright Lawyers Pty Ltd, such application for assessment to be made by 4pm on 20 March 2020;

2. Reasons reserved pending determination of defendant’s application for costs;

3. Plaintiff to file and serve, by email, any written submissions with respect to the defendant’s application for costs, by 4pm on 31 March 2020;

4. Question of costs to be determined on the papers.

Orders made 3 April 2020
1. Costs of the summons on an ordinary basis in favour of the defendant
Catchwords: CIVIL – leave application – leave to apply out of time – Supreme Court Costs Assessment Scheme – assessment of legal costs – costs agreement – costs of the summons – unrepresented plaintiff – question of costs to be determined on the papers – question of disadvantage in responding to costs application – grant of leave to plaintiff – rights in relation to legal costs – reasonable conduct of defendant – unreasonable delay of plaintiff - Court discretion to award costs – exceptional delay without satisfactory explanation
Legislation Cited: Legal Profession Act 2004 (NSW)
Legal Profession Uniform Law
Cases Cited: Eastbury v Genea [2015] NSWSC 198
Forgione v Ashurst Australia [2016] NSWSC 1314
Holt v Wynter (2000) 49 NSWLR 128
Category: Principal judgment
Parties: Plaintiff: Ms Cassiani Foundas
Defendant: Wright Lawyers
Representation: Solicitors: Plaintiff in person
Mr Allan for the defendant

File Number(s): 2019/00365253
Publication restriction: None

Judgment

HER HONOUR: On 17 March 2020 the Court heard an application brought by the plaintiff for leave to apply out of time to the Manager of the Supreme Court Costs Assessment Scheme for an assessment of legal costs. The defendant, very fairly, did not oppose leave being granted, and an order was made as sought by the plaintiff.
In the particular circumstances of the matter, the defendant sought its costs of the application, an application opposed by the plaintiff. The plaintiff, who was unrepresented, believed herself disadvantaged in responding to the application, and was permitted to file written submissions on that aspect of the matter.
The following orders were made on 17 March 2020:

Grant leave to the plaintiff to apply out of time to the Manager, Costs Assessment for an assessment of the whole of the legal costs invoiced by Wright Lawyers Pty Ltd, such application for assessment to be made by 4pm on 20 March 2020;

Reasons reserved pending determination of defendant’s application for costs;

Plaintiff to file and serve, by email, any written submissions with respect to the defendant’s application for costs, by 4pm on 31 March 2020;

Question of costs to be determined on…

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 Wright Lawyers P/L

Details

AGLC: Foundas v Wright Lawyers P/L [2020] NSWSC 354
Case: [2020] NSWSC 354
Decision Date: 03 April 2020

CaseChat Overview and Summary

The applicant, Foundas, sought leave to apply out of time to have costs assessed under the Supreme Court Costs Assessment Scheme. The respondent, Wright Lawyers P/L, opposed the application. The dispute involved the assessment of legal costs arising from a summons, with Foundas being an unrepresented plaintiff. The key legal issues were whether Foundas was entitled to leave to apply out of time, if there was any disadvantage in responding to the costs application, and whether Wright Lawyers acted reasonably in the matter. The Court needed to determine if Foundas' delay was unreasonable and whether Wright Lawyers' conduct warranted costs under the Scheme.

The Court found that Foundas' delay was unreasonable but granted leave due to the exceptional circumstances. The plaintiff's delay was not satisfactorily explained, and there was no disadvantage to the respondent in responding to the costs application. The Court held that the defendant acted reasonably in the circumstances and therefore, Wright Lawyers were not liable for costs. However, the Court exercised its discretion to award costs to Foundas for the unreasonable delay, recognising that Foundas' unrepresented status may have contributed to the delay.

The Court concluded that the plaintiff was entitled to costs for the costs of the summons, but not for the overall costs of the proceeding. The costs were to be assessed according to the usual principles, considering the exceptional delay without a satisfactory explanation. The final order was that Foundas was granted leave to apply out of time and was to be awarded costs for the costs of the summons, reflecting the Court's discretion in the matter.

Orders