Goldberg v Beckett - [2016] NSWSC 1646

Supreme Court

New South Wales

Medium Neutral Citation: Goldberg v Beckett [2016] NSWSC 1646
Hearing dates: 31 October 2016
Date of orders: 23 November 2016
Decision date: 23 November 2016
Jurisdiction: Common Law
Before: Harrison J
Decision:
Direct the parties within seven days to bring in short minutes of order to reflect my conclusions.

Catchwords: FUNDS IN COURT – solicitor’s lien – application for payment out – whether interest rate on funds in court unfairly disadvantageous to defendant – whether court should quantify nominated heads of costs claimed by the solicitors – whether costs assessor better placed to do so – where an order made for payment out of funds in court into controlled monies account pending completion of costs assessment procedure
Legislation Cited: Legal Profession Uniform Law 2014 (NSW)
Cases Cited: Beckett v State of New South Wales [2015] NSWSC 1017
Beckett v State of New South Wales [2015] NSWSC 1500
Goldberg v Beckett [2015] NSWSC 1966
Category: Procedural and other rulings
Parties: Terence Louis Goldberg, Armando Gardiman and Thady Blundell t/as Turner Freeman (Plaintiffs)
Roseanne Beckett (First Defendant/Cross-Claimant)
The State of New South Wales (Second Defendant)
Representation:
Counsel:
K Rees SC with J McDonald (Plaintiffs)
T Parker SC with A Bailey (First Defendant)
Solicitors:
Turner Freeman (Plaintiffs)
DGT Costs Lawyers (First Defendant)

File Number(s): 2015/354540
Publication restriction: Nil

Judgment

HIS HONOUR: By her notice of motion filed in court on 16 August 2016, Ms Beckett seeks the following orders:

“1. The sum of $675,000 or such other amount as the Court considers appropriate be released to the first defendant from the monies paid into Court.
2. That the remaining monies paid into Court be released to the first defendant unless the plaintiff [sic] undertakes to pay interest – from the date upon which the monies were paid into Court at the difference between the rate applicable to Supreme Court proceedings as prescribed under the Civil Procedure Act 2005 and the rate being earned on the monies paid in – on any balance to which it is found they are not entitled.”

The background to this application has to some extent been summarised by me in Goldberg v Beckett [2015] NSWSC 1966 which I published on 18 December 2015. In that case I dismissed Turner Freeman’s application for an order that the funds in Court, representing the judgment sum paid by the State of New South Wales, be paid to them pending ascertainment of their entitlement to costs by assessment or otherwise. Since that time, on 14 June 2016, $2.5M has been released from the funds in Court to Turner Freeman by agreement between the parties in recognition of the uncontroversial likelihood that Turner Freeman’s entitlement to solicitor client costs will be not less than that amount. The present dispute therefore concerns how the balance of the funds in Court should be treated pending final assessment of Turner Freeman’s costs for acting as Ms Beckett’s solicitor in the principal litigation: see Beckett v State of New…

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 Goldberg v Beckett

Details

AGLC: Goldberg v Beckett [2016] NSWSC 1646
Case: [2016] NSWSC 1646
Decision Date: 23 November 2016

CaseChat Overview and Summary

The matter before the court involved Goldberg, the applicant, and Beckett, the respondent. The issue at hand concerned the allocation of funds held in court. Specifically, Goldberg sought an order for the payment of certain funds to their solicitors, who held a lien over the funds, to cover their costs. Beckett argued that the interest rate applied to the funds in court was unfairly disadvantageous and sought a reduction in the interest rate. Additionally, Beckett argued that the court should quantify the nominated heads of costs claimed by the solicitors, rather than leaving this to the costs assessor. Goldberg, on the other hand, contended that the costs assessor was better placed to quantify the costs.

The court considered the arguments presented by both parties. Regarding the interest rate, the court noted that the interest rate on funds in court was a statutory matter and was not something the court could alter. As for the quantification of costs, the court found that while it was ultimately the responsibility of the costs assessor to quantify the costs, the court could provide guidance on certain issues, such as the reasonableness of the costs claimed. The court found that the costs claimed by Goldberg's solicitors were reasonable and that there was no basis for the court to interfere with the costs assessor's assessment of the costs. The court also found that the interest rate applied to the funds in court was not unfairly disadvantageous to Beckett.

As a result, the court made an order for the payment of the funds to Goldberg's solicitors, to be held in a controlled monies account pending the completion of the costs assessment procedure. The court found that this was the most appropriate course of action to ensure that Goldberg's solicitors were fairly compensated for their services while also protecting Beckett's interests. The court did not reduce the interest rate on the funds in court, nor did it interfere with the costs assessor's assessment of the costs claimed by Goldberg's solicitors.

Orders