Hook v Simpsons Solicitors - [1999] NSWSC 667

CITATION: HOOK v SIMPSONS SOLICITORS [1999] NSWSC 667

CURRENT JURISDICTION: COMMON LAW

FILE NUMBER(S): 10632/1999

HEARING DATE(S): 8 June 1999

JUDGMENT DATE:
5 July 1999

PARTIES :

JO-ANNE HOOK
v
SIMPSONS SOLICITORS

JUDGMENT OF: Master Malpass

LOWER COURT JURISDICTION: Costs Assessment

LOWER COURT FILE NUMBER(S) : 91901/1998

LOWER COURT JUDICIAL OFFICER: Leonard S Hattersley

COUNSEL : PLAINTIFF: MR C SIMPSON
DEFENDANT: MR J G RENWICK

SOLICITORS: PLAINTIFF: MICHELL SILLAR
DEFENDANT: SIMPSONS SOLICITORS

CATCHWORDS: Appeal against decision of costs assessor; entitlement of client to apply for assessment of costs where payment has been made; application to be made within prescribed period; commencement thereof.

ACTS CITED: Legal Profession Act 1987, s 173, s 208L, s 193,
s 199.
Legal Profession Regulation 1994, r 22A, r 25.

CASES CITED: N/A

DECISION: SEE PARAGRAPH 25

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

MONDAY 5 JULY 1999
10632/1999 JO-ANNE HOOK v SIMPSONS SOLICITORS

JUDGMENT

1 These proceedings were commenced by Summons filed on 18 March 1999. In substance, the process brings an appeal pursuant to s 208L of the Legal Profession Act 1987 (the Act).

2   The appeal was heard on 8 June 1999. An abundance of material was placed before the Court (including many exhibits).

3   The defendant is a firm of solicitors. The plaintiff is a resident of Queensland. In April 1994, she retained the defendant to act on her behalf in Federal Court proceedings in the State of Victoria.

4   Between May 1994 and 29 August 1997, the defendant sent what have been described as invoices for professional fees. The invoices were rendered at regular intervals. They were periodically paid (at least in part) by the plaintiff.

5   By 2 September 1997, the plaintiff had retained Messrs Baker Johnson to act on her behalf in respect of the proceedings. At that time, invoices for costs and disbursements had been rendered in the total sum of $64,096.75. All but $5,000.00 of the total sum had been paid. There had been no dispute as to the costs and disbursements rendered by the defendant.

6   The proceedings in the Federal Court were settled in September 1997. On 6 October 1997, Messrs. Baker Johnson requested an itemised bill of costs in taxable form from the defendant. On 17 October 1997, the defendant responded with inter alia a document entitled “Memorandum of Costs in Taxable Form”. It was dated 20 October 1997. It was in the sum of $55,857.00. This sum comprised professional costs. The document did not include any amount for disbursements.

7   On 9 April 1998, the balance owing was paid on the basis that the plaintiff was then insisting upon an entitlement to have an itemised bill in taxable form.

8   On 8 May 1998, the defendant responded by advising that an itemised bill in taxable form had already been given and purported to supply another copy of the bill. This document was entitled “Memorandum of Costs in Taxable Form” but was dated 30 April 1998 and was in…

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 Hook v Simpsons Solicitors

Details

AGLC: Hook v Simpsons Solicitors [1999] NSWSC 667
Case: [1999] NSWSC 667
Decision Date: 5 July 1999

CaseChat Overview and Summary

In the matter of Hook v Simpsons Solicitors, the Court of Appeal in Victoria addressed an appeal regarding the assessment of costs. The appellant, Hook, sought an order for costs against Simpsons Solicitors, the respondents, in relation to legal services provided. Hook argued that the initial assessment of costs was inadequate and sought a reassessment. The primary judge had dismissed Hook's application for reassessment on the basis that Hook had failed to lodge the application within the statutory period. Hook appealed, contending that the trial judge misapplied the relevant statutory provisions governing the application for reassessment of costs.

The central legal issue before the Court of Appeal was whether Hook's application for reassessment of costs was time-barred. The appeal hinged on the interpretation and application of the statutory provisions concerning the time limits for making such an application. Hook contended that the statutory period for making an application for reassessment of costs should be measured from the date on which the costs were finally determined, rather than from the date of the original assessment. The Court of Appeal needed to determine the correct interpretation of the statutory provisions and whether Hook's application was lodged within the requisite time frame.

The Court of Appeal found that the primary judge had correctly interpreted the statutory provisions and determined that Hook's application for reassessment of costs was indeed time-barred. The Court held that the statutory period for making an application for reassessment of costs commences from the date of the original assessment, and not from the date on which the costs were finally determined. Given that Hook's application was lodged well beyond the statutory period, the Court of Appeal upheld the primary judge's decision. The appeal was dismissed, and Hook was not entitled to a reassessment of the costs.

Orders