Harvey v Goodman Law Pty Ltd - [2011] NSWSC 340

Supreme Court

New South Wales

Medium Neutral Citation: Harvey v Goodman Law Pty Ltd [2011] NSWSC 340
Hearing dates: 18 March 2011
Decision date: 29 April 2011
Jurisdiction: Common Law
Before: Harrison J
Decision:
The amended summons is dismissed with costs

Catchwords: COSTS - application for assessment of legal costs after 12 months - Legal Profession Act 2004 s 350(5) - whether "just and fair" for the plaintiff's application for assessment of the defendant's legal costs to be dealt with after the 12 month period - application refused
Legislation Cited: Legal Profession Act 2004
Cases Cited: Barecall Pty Limited v Hoban [2009] NSWSC 1104
Barecall Pty Limited v David Hoban [2010] NSWCA 269
Dye v Fisher Cartwright Berriman Pty Ltd [2010] NSWSC 895
The Estate of Rosalind Allwood v Peter Vivian Benjafield [2009] NSWSC 1383
Category: Principal judgment
Parties: Deon Russell Harvey (Plaintiff)
Goodman Law Pty Ltd (Defendant)
Representation: Counsel:
M B Evans (Plaintiff)
M Heath (Defendant)
Solicitors:
Lathams Lawyers (Plaintiff)
Goodman Law (Defendant)

File Number(s): 2010/388924

Judgment

HIS HONOUR : Mr Harvey is a former client of Goodman Law. That firm performed legal work for him and rendered a bill. Mr Harvey failed to apply within 12 months of receiving the bill for an assessment of those costs. He now seeks an order pursuant to s 350(5) of the Legal Profession Act 2004 that it is just and fair that he be able to proceed with an application for assessment of Goodman Law's costs. For the reasons that follow, I consider that it is not just and fair that he be able to do so.

Background

Between about November 2001 and 2004 Mr Harvey was the manager of the Aqualounge Bar at Manly. That was a nightclub business carried on by Aqualounge Manly Pty Ltd at premises leased from Barecall Pty Ltd. Acqualounge was placed into voluntary liquidation on 20 June 2005 and defaulted on its obligations as Barecall's tenant. Barecall subsequently alleged that Mr Harvey, together with David Hoban, Toni Rossi, Radislav Spedina and Jason Lussick, were liable to it as guarantors of the obligations of Acqualounge. On 16 June 2006 Barecall commenced proceedings in this Court against Mr Harvey and the others for recovery of approximately $1.0M. Mr Harvey and the others successfully defended Barecall's allegations in the proceedings before Ward J at first instance (see Barecall Pty Limited v Hoban [2009] NSWSC 1104) and in the Court of Appeal (see Barecall Pty Limited v David Hoban [2010] NSWCA 269 ) .

Mr Harvey was for a time represented in the proceedings by Steven Gavagna of Goodman Law. Mr Gavagna commenced acting for Mr Harvey sometime in 2006, although he was at that time employed by a different firm of solicitors. Goodman Law took over but ultimately ceased to act for Mr Harvey on 14 October 2008. It rendered accounts to Mr Harvey from time to time for the work it performed over the period and Mr Harvey paid them. The last account rendered for work…

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.

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Details

Case: [2011] NSWSC 340
Decision Date: 29 April 2011

CaseChat Overview and Summary

The plaintiff, Harvey, filed an application for the assessment of legal costs against the defendant, Goodman Law Pty Ltd, after the statutory 12-month period following the conclusion of proceedings, pursuant to section 350(5) of the Legal Profession Act 2004. The application was made on the basis that it was just and fair for the costs to be assessed outside the statutory timeframe. The primary focus of the court was to determine whether the plaintiff's application was fair and just in the circumstances and whether it was appropriate to extend the time limit for assessing the defendant's legal costs.

The court examined the criteria set out in section 350(5) of the Act, which permits the assessment of costs outside the 12-month period if it is just and fair to do so. The court considered factors such as the length of the delay, the reason for the delay, and the impact of the delay on the other party. The defendant argued that the delay had prejudiced their ability to assess and challenge the plaintiff's costs claim adequately, while the plaintiff contended that the delay was not significant and that the costs should be assessed as they represented a fair reflection of the work undertaken.

After reviewing the evidence and submissions from both parties, the court found that the delay in the plaintiff's application for costs assessment was unreasonable and had prejudiced the defendant. The court held that it was not just and fair to allow the assessment outside the statutory period. Consequently, the plaintiff's application for the assessment of the defendant's legal costs was refused. The court emphasised the importance of adhering to the statutory time limits for cost assessments to ensure fairness and efficiency in the legal process.

Orders