Gye v Hogarth - [2003] NSWSC 825

CITATION: Gye v Hogarth & Ors [2003] NSWSC 825 revised - 11/09/2003

HEARING DATE(S): 7 August 2003 & 5 September 2003

JUDGMENT DATE:
9 September 2003

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: The Court orders that by consent; (1) No amount is payable by the Cross-appellants to the Cross-respondent in respect of the Cross-respondent's costs of the assessment; (2) Set aside the Amended Certificate of Determination of Costs dated 10 July 2002 in proceedings 91355/2001 to the extent of $10,500.00; (3) Determine that no amount is payable by the cross-appellants in respect of the costs of the costs assessor; (4) Set aside Certificate of Costs with Form 4 Certificate of Determination of Costs dated 10 July 2002 in proceedings 91355/2001; (5) Set aside Form 3 Certificate of Determination of Costs dated 7 April 2003 in proceedings 91355/2001to the extent of $3,461.26; The Court further orders; (6) That the bills of costs issued by the plaintiff to the Defendants dated 2 July 2000 (No 1199 in the sum of $1,119.25), 15 August 2000 (No 1192 in the sum of $7,953.00) and 23 November 2000 (No 7073 in the sum of $2,368) be remitted to the costs assessor Mr Mark Campbell with a direction to issue a Certificate of Determination in respect of those bills of costs; (7) The balance of the appeal is dismissed; (8) The costs of the appeal and the cross appeal are reserved for further argument.

CATCHWORDS: Appeal against costs assessor's decision - Estoppel - Charge out rates and GST - Photocopying - Calculation of interest - Costs

LEGISLATION CITED: Legal Profession Act 1987
Supreme Court Act 1970

CASES CITED: Blair v Curran (1939) 62 CLR 462
Brewer v Brewer (1953) 88 CLR 1
Commonwealth v Sciacca (1998) 17 FCR 476
Marr v White Constructions (1991) 32 FCR 425

PARTIES :

Clement Anthony Gye
(Plaintiff)
Robert Martin Hogarth
(First Defendant)
Lakatoi Universal Pty Limited
(Second Defendant)
Ensile Pty Limited
(Third Defendant)
Highfield Grove Pty Limited
(Fourth Defendant)

FILE NUMBER(S): SC 11062/2003

COUNSEL:
Mr VRM Gray
(Plaintiff)
Mr M L Brabazon
(Defendants)

SOLICITORS:
Mr C A Gye
Gye Associates Lawyers
(Plaintiff)
Mr T Hsu
Burrell Solicitors
(Defendants)

LOWER COURTJURISDICTION: Costs Assessor

LOWER COURT FILE NUMBER(S): N/A

LOWER COURT
JUDICIAL OFFICER : Mr Mark Campbell

- 18 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 9 SEPTEMBER 2003

11062/03 - CLEMENT ANTHONY GYE v

ROBERT MARTIN HOGARTH & ORS

JUDGMENT (Appeal against costs assessor’s decision)

1 MASTER: By amended summons filed 6 May 2003, the plaintiff seeks an order setting aside the Certificate as to Determination of Costs dated 7 April 2003 from assessor Mr Mark Campbell in so far as it gave effect to a decision by the assessor to allow as the charge out rates to be applied to the bills of costs the subject of the assessments charge out rates less than the charge out rates originally charged by the Plaintiff in rendering such bills of costs;…

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.

Keep reading for free

Create a free CaseChat account to read Gye v Hogarth and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] NSWSC 825
Decision Date: 9 September 2003

CaseChat Overview and Summary

The case before the court involved an appeal by Hogarth against a decision made by the costs assessor, Gye, regarding the costs associated with a legal dispute between the parties. The primary issue at hand was the determination of whether the assessor had correctly assessed the costs incurred during the proceedings, including the application of estoppel, the calculation of charge-out rates, the inclusion of goods and services tax (GST), photocopying expenses, and the computation of interest. The dispute centred on the interpretation and application of these factors in the context of the legal proceedings.

The court was required to determine several key legal issues. Firstly, it needed to ascertain whether the costs assessor had correctly applied the principles of estoppel in the context of the proceedings. Secondly, the court had to assess whether the charge-out rates applied were appropriate and whether the inclusion of GST was justified. Additionally, the court examined the reasonableness of the photocopying expenses claimed and the methodology used to calculate the interest on the costs awarded.

The court found in favour of Hogarth, concluding that the costs assessor had not properly applied the principles of estoppel and had miscalculated certain costs. The court held that the charge-out rates applied were excessive and that the inclusion of GST was not warranted. Furthermore, the court determined that the photocopying expenses claimed were unreasonable and that the calculation of interest was flawed. Consequently, the court allowed the appeal and ordered a reassessment of the costs, with Hogarth to be reimbursed for the excessive costs incurred due to the assessor's errors.

Orders