Khera v Jones

Case [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

      JUDGMENT (Appeal decision of Review Panel
      - costs when solicitors acts for self)

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).


      Grounds of appeal

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,…

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Khera v Jones [2005] NSWSC 122
Case
[2005] NSWSC 122
Decision Date

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.

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Ratio Decidendi

Legal Principle Established

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