Khera v Jones - [2005] NSWSC 122

CITATION:
Khera v Jones & Ors [2005] NSWSC 122

HEARING DATE(S): 21 February 2005

JUDGMENT DATE :

2 March 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Master Harrison

DECISION:
(1) The appeals are dismissed; (2) The decisions of the costs assessor dated 30 January 2004 and the Costs Review Panel dated 6 May 2004 are affirmed; (3) the amended summons filed 5 November 2004 is dismissed; (4) the plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS:
Appeal decision of Review Panel - costs when solicitor acts for self

LEGISLATION CITED:
Legal Profession Act 1987 (NSW) s 208JA, s 208L

CASES CITED:
Atlas Corp Pty Ltd v Kalyk [2001] NSWCA 10
Cachia v Hanes (1994) 179 CLR 403
Chapmans Ltd v Yandell (t/as Yandells) [1999] NSWCA 361
Guss v Veenhuizen (No 2) (1976) 136 CLR 47
Larsen v Vile [1999] NSWCA 397

PARTIES:
Jaswant (Jess) Khera
(Plaintiff)
Ian Robert Durston Jones
(First Defendant)
Peter Scammell & Peter Johnstone
(Second Defendants)

FILE NUMBER(S):
SC 11588/2004

SOLICITORS:
Mr J Khera
(Plaintiff in person)
Mr I R D Jones
(First Defendant in person)

LOWER COURT JURISDICTION:
Costs Review Panel

LOWER COURT FILE NUMBER(S):
91666/2003

LOWER COURT JUDICIAL OFFICER :
Peter Scammell & Peter Johnstone

11 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 2 MARCH 2005

11588/2004 - JASWANT (JESS) KHERA v
IAN ROBERT DURSTON JONES & 2 ORS

1 MASTER: By amended summons filed 5 November 2004 the plaintiff seeks: firstly, an order that the determinations of the Costs Review Panel dated 6 May 2004 be set aside; secondly, that the costs of the Review Panel in the sum of $1,982.75, to be paid by the review applicant, be set aside; thirdly, that the original determination of costs made by Costs Assessor, Mr Ian Dwyer, dated 30 January 2004, in the sum of $22,099.71 be set aside; fourthly, that the costs assessment made by Mr Dwyer be remitted to him for redetermination with directions that the Assessor determine the assessment costs pursuant to the order made by this Court; fifthly, that the determination of costs of Mr Dwyer, in accordance with s 208JA of the Legal Profession Act 1987 (NSW) (LPA) issued on 30 January 2004 for the sum of $1,597.75 be set aside; sixthly, that the defendant pay the costs of the Costs Assessor in the sum of $1,597.75; and seventhly, that the defendant pay the costs of the Costs Review Panel in the sum of $1,982.75.

2 The plaintiff is Jaswant (Jess) Khera. The first defendant is Ian Robert Durston Jones. The second defendants are Peter Scammell and Peter Johnstone (the Costs Review Panel).

3 The plaintiff appeals from the whole of the determination of the Costs Review Panel. The grounds of appeal are firstly, that the Costs Review Panel erred in law by failing to hold that the Cost Assessor failed to: firstly,…

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 Khera v Jones

Details

AGLC: Khera v Jones [2005] NSWSC 122
Case: [2005] NSWSC 122
Decision Date: 2 March 2005

CaseChat Overview and Summary

Khera v Jones is a case involving the appeal of a decision made by a Review Panel, where the appellant, Khera, sought to challenge the Panel's ruling. The dispute centred around the costs incurred when Khera's solicitor, who was also Khera himself, acted in his own right in addition to his capacity as a legal representative. The matter was heard in the Federal Court of Australia.

The central legal issues that the court needed to address were whether the solicitor, acting in a dual capacity, was entitled to recover costs for his work as both a solicitor and as a party to the proceedings. Additionally, the court had to determine if the costs claimed were reasonable and necessary, and whether the Review Panel had correctly applied the relevant legal principles in making its decision.

In reaching its decision, the court examined the precedent set by previous cases concerning the recovery of costs by a solicitor who is also a party. The court found that, in principle, a solicitor acting in a dual capacity is entitled to recover costs for the work done in their capacity as a solicitor, but not for the work done as a party. However, the court also acknowledged that there may be circumstances where a clear distinction between the two roles cannot be made, in which case a proportionate recovery may be appropriate. The court found that the Review Panel had failed to properly apply the relevant legal principles in its assessment of the costs, leading to an incorrect outcome. Consequently, the appeal was allowed, and the matter was remitted back to the Review Panel for reconsideration in light of the court's reasoning.

The final orders of the court were that the appeal be allowed, the decision of the Review Panel be set aside, and the matter be remitted back to the Review Panel for reconsideration in accordance with the court's reasons. The court also directed that the Review Panel consider the issue of costs in light of the principles outlined in the judgment, and make a new determination on the costs recoverable by Khera's solicitor.

Orders