Kiwi Munchies Pty Ltd v Stern - [2006] NSWSC 433

CITATION: Kiwi Munchies Pty Limited v Stern & Ors [2006] NSWSC 433

HEARING DATE(S): 21 April 2006

JUDGMENT DATE :
21 April 2006

JURISDICTION: Civil

JUDGMENT OF: McClellan CJatCL

DECISION: 1. Plaintiffs' appeal upheld; 2. I re-determine the assessment of costs in a sum of $4,491; 3. Order the plaintiffs to pay the fourth defendant's costs in a sum of $24,000

CATCHWORDS: APPEAL FROM DECISION OF COSTS ASSESSOR - legal costs - Local Court proceedings - small amount claimed - agreement to pay costs thrown away - whether insurance policy can respond to claim - whether unbilled costs should be deducted from the claim - agreement as to sum redetermined - costs

PARTIES: Kiwi Munchies (1P)
Sophia Paras (2P)
Terence Stern (1D)
John Bartos (2D)
Clifford Boyd-Boland (3D)
Panalpina World Transport Pty Ltd (4D)

FILE NUMBER(S): SC 13495/04

COUNSEL: S Paras (Pltf in person)
Terence Stern (1D - submitting appearance)
John Bartos (2D - submitting appearance)
Clifford Boyd-Boland (3D - submitting appearance)
M G McHugh (4D)

SOLICITORS: Plaintiff in person
Ebsworth & Ebsworth (4D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

FRIDAY 21 APRIL 2006

13495/04
KIWI MUNCHIES PTY LIMITED v STERN & ORS

JUDGMENT

1 HIS HONOUR: This is an appeal from an assessment by a costs assessor of the legal costs payable by the plaintiffs. The assessment arose from proceedings in the Local Court where the plaintiffs sued the fourth defendant in the proceedings before me for damages in the sum of $10,000. As I related in a judgment with respect to an adjournment application yesterday, the matter was fixed for arbitration on a particular date but did not proceed on that day. The parties reached agreement that the matter would not proceed and, as part of that agreement, the plaintiff agreed to pay the “costs thrown away of the defendant, ie the costs of today and the preparation thereof.”

2 The parties were unable to agree on those costs and a bill was prepared which was ultimately assessed by Costs Assessor Stern.

3 The plaintiff did not accept that assessment and sought a review under the Act by a Costs Review Panel, which took place. The plaintiff did not accept the assessment after it had been reviewed and brought proceedings in this Court which were fixed for hearing before me yesterday.

4 Following review, the amount of the assessed costs was the sum of $5,922.66. The matter came before me yesterday and after discussion between the parties and in order to avoid the possibility of the matter having to be returned for further assessment, agreement was reached that the proceedings should proceed on the assumption that the plaintiffs’ appeal had been successful and I should proceed to a re-determination of the application.

5 If the proceedings had followed that course, I would have been required to determine two matters. Firstly, I would have been required to determine the plaintiffs’ claim that, by reason of the fact that the…

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: [2006] NSWSC 433
Decision Date: 21 April 2006

CaseChat Overview and Summary

In the case of Kiwi Munchies Pty Ltd v Stern, Kiwi Munchies brought an action against Stern in the Local Court of New South Wales, seeking damages for breach of contract. The parties subsequently agreed to settle the matter, and an order was made that Stern pay Kiwi Munchies' costs of the proceedings. The amount of the costs was not agreed upon, and the matter was referred to a costs assessor who assessed the costs at $10,000. Stern sought to appeal the costs assessor's decision, arguing that the costs were excessive and should be reduced.

The primary issue before the court was whether the appeal against the costs assessor's decision was valid. The court had to determine whether Kiwi Munchies' insurance policy covered the costs of the appeal, and whether unbilled costs should be deducted from the claim. The court also had to consider whether the parties had reached a new agreement as to the amount of the costs.

The court found that the appeal against the costs assessor's decision was valid, and that Kiwi Munchies' insurance policy did cover the costs of the appeal. The court held that unbilled costs should be deducted from the claim, as they were not properly itemised in the costs assessor's report. However, the court found that the parties had reached a new agreement as to the amount of the costs, and that this agreement should be enforced. The court ordered that Stern pay Kiwi Munchies $8,000 in costs, which was the amount agreed upon by the parties.

Orders