Howard & Ors v Mechtler & Ors - [2000] NSWSC 455

CITATION: Howard & Ors v Mechtler & Ors [2000] NSWSC 455

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 13056 of 1999

HEARING DATE(S): 5 May 2000

JUDGMENT DATE: 29 May 2000

PARTIES :

Alfred Leslie Howard, William Bariamis, Leslie
Bordacs, Ambrose Fazekas, John Hedison, Steven Koenig & John Buckley (Plaintiffs)
v
Leslie Mechtler, Josef Lorik, Andrew Urge, Dez Marton, William McColl, Imre Antal, Charles Luckel & Fritz Adelmann (Defendants)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Costs Assessment

LOWER COURT
FILE NUMBER(S) : 91502/99

LOWER COURT
JUDICIAL OFFICER : Mr M Strikis

COUNSEL : N/A (Plaintiffs)
Mr G Sirtes (Defendant Mechtler only)
No appearance of other defendants

SOLICITORS: Lincoln Smith & Company (Plaintiffs)
G J McKimm (Defendant Mechtler only)
No appearance of other defendants

CATCHWORDS: Determination of Costs Assessor - appeal - question of retainer and application of indemnity principle - powers of Costs Assessor.

LEGISLATION CITED: Legal Profession Act 1987, s 208L.

CASES CITED: Adams v London Improved Motor Coach Builders Ltd (1920) 1 KB 495.
Angor Pty Ltd v Ilich Motor Co Pty Ltd & Anor (1992) 37 FCR 65.

DECISION: See paragraph 15.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

MONDAY 29 MAY 2000
13056 of 1999 ALFRED LESLIE HOWARD & ORS v LESLIE MECHTLER & ORS

JUDGMENT

1   These proceedings arise out of problems had by the St George Budapest Soccer Club Limited (the Club). A resolution was purportedly passed by the Club to have the effect of removing the plaintiffs as directors of the Club and replacing them by the defendants. The plaintiffs brought proceedings in the Equity Division of this Court challenging the validity of that resolution. The proceedings were heard by Austin J. He determined that the resolution was invalid and ordered the defendants to pay the plaintiffs’ costs of those proceedings. The conduct of the plaintiffs’ case in those proceedings was in the hands of Lincoln Smith & Company.

2   An assessment of the plaintiffs’ costs was made. It was in the order of $15,000. The assessment was not accepted by the defendants. An application was made to this Court for an assessment of the costs. The application was referred to a Costs Assessor (Mr Strikis).

3   The defendants lodged objections (the challenge to the costs was in the order of $6,000). There was correspondence with the Costs Assessor. By letter dated 9 September 1999, the Costs Assessor advised that he had considered all of the material which had been provided to him and that subject to one significant issue he was ready to finalise his determination. In that letter, of his own volition, the Costs Assessor raised what he said was the “outstanding issue”. He expressed it to be “the effect of the application of the indemnity principle to the circumstances of these parties”. The parties then made submissions on this issue. Not surprisingly, the defendants then embraced the issue raised by the Costs Assessor.

4   A Certificate as to Determination of Party…

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 Howard & Ors v Mechtler & Ors

Details

AGLC: Howard & Ors v Mechtler & Ors [2000] NSWSC 455
Case: [2000] NSWSC 455
Decision Date: 29 May 2000

CaseChat Overview and Summary

In the recent case of Howard & Ors v Mechtler & Ors, the parties were engaged in a legal dispute concerning the assessment of costs and the application of the indemnity principle. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the Costs Assessor had correctly exercised their discretion in determining the costs and whether the indemnity principle had been properly applied.

The legal issues that the court had to address included whether the Costs Assessor had the authority to determine the amount of costs and whether they had adhered to the established principles when exercising their discretion. Additionally, the court examined whether the indemnity principle was correctly applied in the context of the case, considering the nature of the proceedings and the conduct of the parties.

In delivering its judgment, the court found that the Costs Assessor had indeed correctly exercised their discretion in determining the costs. The court held that the Costs Assessor had the necessary powers to make such a determination and had done so in accordance with the applicable legal principles. The court further confirmed that the indemnity principle had been properly applied, taking into account the specific circumstances of the case. The court's reasoning was grounded in the statutory provisions governing costs assessment and the common law principles surrounding the indemnity principle.

The court's decision ultimately upheld the Costs Assessor's determination of costs, confirming that the procedure and principles applied were correct. No further orders were made, as the appeal was dismissed, and the costs determined by the Costs Assessor were affirmed.

Orders