Legal Research
Cases
Gorczynski v Beilby

Gorczynski v Beilby

Case [2005] NSWSC 884 5 September 2005

No judgment structure available for this case.

Type to search within this case.

CITATION:
Gorczynski v Beilby [2005] NSWSC 884
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17/08/05
18/08/05
26/08/05

JUDGMENT DATE :

5 September 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Kirby J

DECISION:
(1) In the action by Mr Peter Gorczynski against Beilbys (2004/13454) the amended summons is dismissed with costs; (2) In the action by Scope Data Systems against Beilbys (2004/13455) the amended summons is dismissed with costs.

CATCHWORDS:
Costs - dispute with solicitor - right of solicitor to withdraw bill of costs and substitute a new bill - the rule and the exceptions - whether bill in taxable form - right to amend application for assessment - whether costs assessor obliged to give reasons for ruling - whether error of law.

LEGISLATION CITED:
Legal Practitioners Act 1987
Legal Profession Regulations 1994
Legal Profession Regulations 2002

CASES CITED:
Scope Data Systems P/L v Horowitz (unreported, 30.7.97, Master Harrison)
Florence Investments P/L v H G Slater & Co (1975) 2 NSWLR 398
Bowen & Ors v Campbell & Ors (unreported, Master Malpass, 2.12.97)
Re Macnamara's Costs (1884) 1 WN 23
Ex Parte Steel (1898) 15 WN (NSW) 96
Re Sullivan Bros; Ex Parte Morris (1915) 32 WN (NSW) 127
Ex Parte Cameron; Re a Bill of Costs (1956) 73 WN (NSW) 393
Loveridge v Botham (1797) 1 Bos & Pul 49; 126 ER 772
Re Edwin Sutherland & Co's Bill of Costs (1971) Qd R 318
Re Thompson (1885) 30 Ch D 441
Re Grant, Bulcraig & Co [1906] 1 Ch Div 124
Redfern v Mineral Engineers P/L [1987] VR 518
Re Lippiatt & Co's Bill of Costs (1998) 1 Qd R 69
Re Holroyde & Smith (1881) 43 LT 722
Brierley v Reeves (2001) 51 NSWLR 689
Soulemezis v Dudley (Holdings) P/L (1987) 10 NSWLR 247
Pettitt v Dunkley (1971) 1 NSWLR 376
Stoker v Adecco Gemvale Constructions P/L & Anor [2004] NSWCA 449
Public Service Board v Osmond (1986) 159 CLR 656

PARTIES:
Peter Gorczynski (Pl/Appl)
William Beilby partner of Beilby Poulden Costello (Def/Resp)
Scope Data Systems Pty Limited (Pl/Appl)
William Beilby partner of Beilby Poulden Costello (Def/Resp)

FILE NUMBER(S):
SC 2004/13454; 2004/13455

COUNSEL:
P I Lakatos (Pl/Appl)
C P Taylor (Def/Resp)

SOLICITORS:
Brian Muir & Company (Pl/Appl)
Beilby Poulden Costello (Def/Resp)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID KIRBY

Monday 5 September 2005
2004/13454 GORCZYNSKI v WILLIAM BEILBY

partner of BEILBY POULDEN COSTELLO

JUDGMENT

1 KIRBY J: Mr Peter Gorczynski and Scope Data Systems Pty Limited ("Scope Data Systems") have appealed against determinations made by a costs assessor. A right of appeal to the Supreme Court is given under s208L(1) of the Legal Practitioners Act 1987 ("the Act") where the assessor has made an error of law. Here, the error said to have been made by the assessor concerns the right of a solicitor, whose accounts remain unpaid, to withdraw those accounts and present fresh…

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 Gorczynski v Beilby

Details

AGLC: Gorczynski v Beilby [2005] NSWSC 884
Case: [2005] NSWSC 884
Decision Date: 5 September 2005

CaseChat Overview and Summary

The case of Gorczynski v Beilby arose in the Supreme Court of New South Wales, involving a dispute between a client and their former solicitor over the costs incurred in a legal proceeding. The client, Gorczynski, sought to challenge the solicitor's bill of costs, arguing that it was unjust and excessive. The solicitor, Beilby, maintained that the costs were fair and reasonable. The primary issue before the court was whether the solicitor had the right to withdraw an initial bill of costs and substitute it with a new one, and if so, under what circumstances. The court also had to consider whether the new bill was in a taxable form and whether the costs assessor was obliged to provide reasons for their ruling on the matter.

The court examined the principles governing the right of a solicitor to withdraw and substitute a bill of costs, recognising that there are exceptions to the general rule. It was necessary to determine if the new bill complied with the requirements to be in a taxable form. Furthermore, the court addressed the issue of whether the costs assessor was obligated to give reasons for their decision regarding the ruling on the bill of costs. The court also considered whether the costs assessor's decision constituted an error of law, which would require the assessor to provide reasons.

In reaching its decision, the court found that the solicitor had the right to withdraw and substitute a new bill of costs under specific circumstances. The new bill was held to be in a taxable form. The court ruled that the costs assessor was not obliged to provide reasons for their ruling unless it was an error of law. The court concluded that the costs assessor's decision did not amount to an error of law, and therefore, the assessor was not required to provide reasons. The court dismissed Gorczynski's application for costs, finding that the solicitor had acted within his rights and that the costs were reasonable.

The final orders of the court were that Gorczynski's application for costs be dismissed and that Gorczynski was to pay Beilby's costs of the proceeding. The court's decision provides clarity on the circumstances under which a solicitor may withdraw and substitute a bill of costs, the requirements for a bill to be in a taxable form, and the obligations of a costs assessor in ruling on such matters.

Orders