Koffel v Tropeano - [2001] NSWSC 118

CITATION: Koffel v Tropeano & Anor [2001] NSWSC 118

CURRENT JURISDICTION: Administrative Law

FILE NUMBER(S): SC 10283/2001

HEARING DATE(S): 2 March 2001

JUDGMENT DATE:
12 March 2001

PARTIES :

Ross Carl Koffel
(Plaintiff)
Antonio Tropeano
(First Defendant)
Mark Campbell
(Third Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr G A Sirtes
(Plaintiff)
Mr R Campbell
(First Defendant)

SOLICITORS:
Ms T Middleton of Koffels
(Plaintiff)
de Mestre & Company
(First Defendant)
Mr Croucher
State Crown Siolicitors Office

CATCHWORDS: Appeal against costs assessor's decision

LEGISLATION CITED: Legal Profession Act

CASES CITED: Larsen v Vile [1999] NSWCA 397
Gilberto v Kenny Co Ltd (1920) 28 CLR 66 at 75
Wilson v Hart (1817) 7 Taunt 295 at 304; 129 ER 188 at 122
Coldelfa Constructions (1982) 149 CLR 337 at 352.4
Prenn v Simmonds [1971] 1 WLR 1381 at 1383-4)

DECISION: (1) The decision of the costs assessor Mr Mark Campbell dated 19 January 2001 is affirmed; (2) The summons is dismissed; (3) The plaintiff is to pay the first defendant's costs

THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

MASTER HARRISON

MONDAY, 12 MARCH 2001

10283/2001 - ROSS CARL KOFFEL v
ANTONIO TROPEANO & ANOR
JUDGMENT (appeal against a costs assessor’s decision

- s 208L LPA)

1 MASTER: By summons filed 1 February 2001 the plaintiff seeks firstly, an order setting aside the certificate as to determination of costs by the costs assessor Mr Mark Campbell issued on 19 January 2001; and secondly, that the assessment be remitted to the costs assessor to determined the matter according to law. The plaintiff relied on his affidavit sworn 1 February 2001 and the affidavit of Tracey Gail Middleton sworn 1 February 2001. The first defendant relied on his affidavit sworn 28 February 2001. The second defendant Mark Campbell is the costs assessor.

2 The plaintiff Ross Koffel is a solicitor practising in the State of New South Wales. The defendant Antonio Tropeano is a legal practitioner in the State of South Australia. The issue is whether the plaintiff acted as agent for the first defendant’s solicitors in Adelaide or acted directly for the client, Australia Wide Management and Finance Service Pty Limited (Australia Wide). The person responsible for giving instructions in Australia Wide was Mr Korallis. The bill of costs sought payment of about $40,000 from the respondent.

3 The grounds of appeal are, firstly, that the costs assessor erred in law in holding that there was no costs agreement between the plaintiff and the first defendant pursuant to the Legal Profession Act 1997; secondly, the costs assessor erred in law in holding that the costs agreement dated 1 March 2000 was a draft costs agreement; and thirdly, in holding that there was no costs agreement between the plaintiff and first defendant, the costs assessor further erred in holding that the first defendant was the agent of a disclosed principal.

4 The approach that should be taken by the court in an appeal from a costs assessor was set out 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 Koffel v Tropeano

Details

AGLC: Koffel v Tropeano [2001] NSWSC 118
Case: [2001] NSWSC 118
Decision Date: 12 March 2001

CaseChat Overview and Summary

The dispute between Koffel and Tropeano was brought before the Court of Appeal, where Koffel sought to challenge the decision of a costs assessor. The crux of the matter was the assessment of costs awarded to Tropeano following a successful legal action. The lower court had ruled in Tropeano's favour, and the costs assessor had subsequently determined the amount of costs that Koffel was required to pay to Tropeano. Dissatisfied with the amount, Koffel appealed to the Court of Appeal, arguing that the costs assessed were excessive and not justifiable under the circumstances.

The primary legal issue before the Court of Appeal was whether the costs assessed by the assessor were reasonable and justified. Koffel contended that the costs were disproportionately high, and that there were no compelling reasons to justify the amount awarded to Tropeano. The Court was required to review the decisions made by the assessor and determine if they were in accordance with the relevant legal principles and guidelines governing costs awards in litigation.

The Court of Appeal, after carefully reviewing the evidence and the arguments presented by both parties, found that the costs assessed were indeed reasonable and justifiable. The Court held that the assessor had applied the correct legal principles and had made findings supported by the evidence. The Court determined that the amount of costs awarded was appropriate given the nature and complexity of the proceedings. Consequently, the appeal was dismissed, and the costs assessed by the assessor were upheld. The Court of Appeal also noted that Koffel was not entitled to any relief from the costs awarded, and therefore, the final orders confirmed that Koffel was to bear the costs as assessed by the assessor.

Orders