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Hall Chadwick v Doyle

Hall Chadwick v Doyle

Case [2006] NSWSC 1195 14 November 2006

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CITATION: Hall Chadwick v Doyle [2006] NSWSC 1195

HEARING DATE(S): 22 August 2006

JUDGMENT DATE :
14 November 2006

JUDGMENT OF: Rothman J

DECISION: (i) Appeal against the determination of Costs Assessor Salier of 4 July 2006 between the parties hereto is allowed; (ii) The certificate issued by Costs Assessor Salier on 4 July 2006 is set aside; (iii) The judgment dependent upon the said Costs Certificate, purportedly entered on 12 July 2006 and taken out on 27 July 2006, is set aside; (iv) The Court declares that no fees are payable pursuant to the terms of the Conditional Costs Agreement between the parties dated 30 September 2004; (v) The defendant shall pay the plaintiff’s costs, as agreed or assessed, of the Costs Assessment before Costs Assessor Salier; (vi) The defendant shall pay the plaintiff’s costs of and incidental to these proceedings, as agreed or assessed; (vii) An Indemnity Certificate pursuant to the Suitors’ Fund Act 1951 is issued to the defendant for any costs arising out of these orders.

CATCHWORDS: CIVIL LAW - costs - conditional costs agreement - award of money on Arbitration not success because of priorities of payments owing - jurisdictional limitation - jurisdiction to overturn or quash a costs assessment certificate which was taken as a judgment of the Court under statute - wide inherent jurisdiction of Supreme Court of NSW - common law exceptions to finality of judgment

LEGISLATION CITED: Building and Construction Security of Payment Act 1999 (NSW)
Charter of Justice
Civil Liability Act 2002
Constitution of Australia
Legal Profession Act 1987
Legal Profession Act 2004
Legal Profession Reform Act 1993
Supreme Court Act 1970
The Judicature Act 1873 (UK)

CASES CITED: Bailey v Marinoff (1971) 125 CLR 529
Burke v Rooney (1879) 4 C.P.D. 226
C.H. Giles and Co v Morris [1972] 1 All ER 960
DJL v Central Authority (2000) 201 CLR 226
Hutchison v RTA [2000] NSWCA 332
Nixon v Phelan [1960] VR 94
Project Blue Sky v ABA (1998) 194 CLR 355
Ryan v Hansen (2000) 49 NSWLR 184

PARTIES: Hall Chadwick
Dr David Doyle T/A The Builders' Lawyer

FILE NUMBER(S): SC 13740/2006

COUNSEL: P: Mr N Perram/ Mr F Salama
D: Mr P Menandue

SOLICITORS: P: Mr G Spedding (Knowles Lawyers Pty Ltd)
D: Mr D Doyle (The Builders' Lawyer)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ROTHMAN J

Tuesday 14 November 2006

13740/06 HALL CHADWICK PTY LTD v DOYLE
JUDGMENT

1 HIS HONOUR: The plaintiff, Hall Chadwick, seek to appeal a decision of a Costs Assessor on a question of law, being the construction of a cost agreement dated 30 September 2004. This agreement governed the obligation, if any, of the plaintiff to pay for work performed by the defendant. Also before the Court is a Notice of Motion filed on behalf of the defendant seeking an order that the plaintiff’s Summons be struck out as incompetent.

Facts

2 The defendant, Dr David Doyle, is a legal practitioner who…

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 Hall Chadwick v Doyle

Details

AGLC: Hall Chadwick v Doyle [2006] NSWSC 1195
Case: [2006] NSWSC 1195
Decision Date: 14 November 2006

CaseChat Overview and Summary

The case of Hall Chadwick v Doyle was heard in the Supreme Court of New South Wales. The respondents, Doyle and others, sought a review of the costs assessment made by the court in a proceeding which was conducted via arbitration. The assessment was made under section 74 of the Civil Procedure Act 2005 (NSW), and the costs were calculated based on the amount of money awarded in the arbitration. The applicants argued that they were not successful in the arbitration and that, as a result, they were not liable for the costs awarded under the assessment.

The primary issue before the court was whether it had the jurisdiction to review the costs assessment, which had been taken as a judgment of the court under statute. The court had to determine whether it had the inherent jurisdiction to overturn or quash a costs assessment certificate. The applicants contended that the court had no jurisdiction to do so and that the finality of the judgment was a barrier to the court intervening. The respondents, on the other hand, argued that the court had the jurisdiction to review the assessment and that there were common law exceptions to the finality of the judgment.

The court held that it had the inherent jurisdiction to review the costs assessment. It found that the finality of the judgment did not prevent the court from intervening in certain circumstances. The court noted that there were exceptions to the finality of a judgment, such as where there had been a manifest injustice or where there was an error of law. The court found that the assessment had been made on the basis of an error of law, as the applicants had not been successful in the arbitration and were not liable for the costs awarded. The court quashed the costs assessment certificate and ordered that the applicants were not liable for the costs awarded.

The court ordered that the applicants were not liable for the costs awarded in the costs assessment certificate. The court also ordered that the respondents pay the applicants' costs of the application to review the costs assessment.

Orders