Furber v Gray - [2002] NSWSC 1144

CITATION: Furber v Gray [2002] NSWSC 1144

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 13150 of 2001

HEARING DATE(S): 27 November 2002

JUDGMENT DATE: 29 November 2002

PARTIES :

Helen Munro Furber (Plaintiff)
v
Pauline Henrietta Gray (Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Costs Assessment

LOWER COURT
FILE NUMBER(S) : 90760 of 2001; 90761 of 2001; 90762 of 2001

LOWER COURT
JUDICIAL OFFICER : M W Robinson

COUNSEL : N/A (Plaintiff)
Mr V R Gray (Defendant)

SOLICITORS: William Purdon (Plaintiff)
Gye Associates Lawyers (Defendant)

CATCHWORDS: appeal from assessment of costs payable pursuant to orders of the court - alleged expiry of limitation period and application of Barristers' Rules to disentitle recovery of counsel's fees - nature of the assessment process - an application is not a proceeding in this Court.

LEGISLATION CITED: Dividing Fences Act 1991.
Legal Profession Act 1987, s 202 s 208L,
s 208M.
Limitation Act 1969, s 14, s 17.
Suitors' Fund Act 1951.
New South Wales Barristers Rules r 87, r 87 (f).

CASES CITED: Brierley v Anthony Charles Reeves T/as Kaplan Reeves & Co & Ors [2000] NSWSC 305.
O'Connor v Fitti [2000] NSWSC 540.

DECISION: See Paragraph 24.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Friday 29 November 2002

13150 of 2001 Helen Munro Furber v Pauline Henrietta Gray
JUDGMENT

1 MASTER: There were proceedings in the Local Court between the late Dr James Furber and the defendant. The proceedings concerned a matter under the Dividing Fences Act 1991. The defendant was the unsuccessful party in those proceedings.

2 An appeal was brought against the decision of the Local Court. The defendant was the successful party on the appeal. Three costs orders were made by this Court during the course of the proceedings. The first one was made on the 31 October 1994. The second one was made on 17 February 1995. The third one was made on 23 May 1995. All of these orders were made in favour of the defendant. On 23 May 1995, the court also ordered that the defendant in the appeal be granted a certificate under the Suitors’ Fund Act 1951.

3 The late Dr Furber died on 1 August 2000. A Grant of Probate was made to his wife (Mrs Furber) on 4 December 2000. She is the plaintiff in these proceedings.

4 Subsequently, application was made for assessment of the costs payable under the orders. This took place during 2001. The matter of the assessment was referred to a Costs Assessor (Mr Robinson). He made a determination of the costs payable under each of the orders. He delivered written reasons.

5 On 5 October 2001, Mrs Furber filed the Summons that commenced these proceedings. It purports to challenge the determinations made by the Costs Assessor. Primarily, the claim for relief was made under s 208L of the Legal Profession Act 1987 (the Act). The Summons also contains reference to the seeking of relief under s…

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 Furber v Gray

Details

AGLC: Furber v Gray [2002] NSWSC 1144
Case: [2002] NSWSC 1144
Decision Date: 29 November 2002

CaseChat Overview and Summary

Furber v Gray involved a dispute between the plaintiff, Furber, and the defendant, Gray, regarding the assessment of costs payable under court orders. The matter came before the court for the determination of whether Gray could recover counsel's fees from Furber, considering the alleged expiry of the limitation period and the application of the Barristers' Rules. The primary focus was on the nature of the assessment process and whether an application for costs constituted a proceeding in the court.

The court was required to decide whether the limitation period for recovering costs had expired and if the application of the relevant rules disentitled Gray from recovering the counsel's fees. Furthermore, the court had to determine the nature of the assessment process and whether an application for costs constituted a formal proceeding within the court.

In its reasoning, the court concluded that the limitation period for recovering costs had indeed expired, barring Gray from recovering the counsel's fees. Additionally, the court found that the application of the relevant rules did not alter this outcome. The court also clarified that an application for costs was not considered a formal proceeding within the court, which had implications for the procedural aspects of the case. Consequently, the court dismissed Gray's application for the recovery of counsel's fees.

The final orders of the court were that Gray was not entitled to recover the counsel's fees from Furber due to the expiry of the limitation period and the nature of the assessment process. The application was dismissed with no orders as to costs.

Orders