Kulevska v Coshott - [2006] NSWSC 963

CITATION: Kulevska v Coshott [2006] NSWSC 963

HEARING DATE(S): 6 September 2006

JUDGMENT DATE :
18 September 2006

JURISDICTION: EQUITY DIVISION

JUDGMENT OF: Lloyd AJ

DECISION: Summons dismissed.

CATCHWORDS: COSTS: - costs assessment – taxation out of time – particulars to be included in an bill of costs – assessment made without jurisdiction – costs assessor’s determination binding – resubmitted bills of costs – costs assessment administrative not judicial – procedural fairness – discretionary relief

LEGISLATION CITED: Interpretation Act 1987 s 30(b)(c)
Legal Profession Act 1987 (NSW) ss 192, 193, 207, 208(2) 208K, 208L, 208M, 208KA – 208KL
Legal Profession Act 2004 (NSW) s 373(5)
Legal Profession Amendment Act 1993
Legal Profession Regulation 1994 reg 22A
Legal Profession Regulation 2002 reg 45

CASES CITED: Conder v Silkbard [1999] NSWCA 459
Minerals Corporation Ltd v Abbot [2004] NSWSC 246
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
R v Hickman; Ex parte Fox (1945) 70 CLR 598

PARTIES:
Milica Kulevska - Plaintiff
Robert Gilbert Coshott - Defendant

FILE NUMBER(S): SC 2658/06

COUNSEL:
Mr M N Thompson - Plaintiff
Mr R G Coshott in person - Defendant

SOLICITORS: Stanefska & Associates - Plaintiff
N/A - Defendant

- 8 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Lloyd AJ

Monday, 18 September 2006

2658/06 Kulevska v Coshott

JUDGMENT

1 HIS HONOUR: This is a dispute about an assessment of costs. The plaintiff, Mrs Milica Kulevska, seeks to set aside a determination of a costs assessor in two cases in which the defendant, Mr Robert Gilbert Coshott, had been the plaintiff’s solicitor.

2 The relevant facts may be briefly described. From 16 September 1985 until a date in 1989 Mr Coshott acted for the plaintiff in two separate claims for damages for personal injury. In 1989 the plaintiff transferred her instructions to another solicitor. In December 1989 Mr Coshott served bills of costs in the two matters on the plaintiff. In December 1990 the plaintiff sought and was granted leave by the Court to refer the two bills for taxation out of time, but for some unknown reason the taxation did not occur.

3 Mr Coshott revived the matter in September 2005. On 20 September 2005 Registrar Walton decided that Mr Coshott needed no further order and that he could apply for the two bills to be assessed under the procedure provided by the Legal Profession Act 1987. On 27 September 2005 Mr Coshott made an application for assessment of the two bills of costs.

4 Mr Michael Eagle was appointed as costs assessor. Written submissions by the plaintiff were made to the costs assessor on 11 October 2005, by Mr Coshott on 13 October 2005, and further submissions by the plaintiff on 19 October 2005. In particular, the plaintiff submitted that the bills did not conform with reg 45 of the Legal Profession Regulation 2002 (required by s 193 of the Legal Profession Act 1987) and accordingly were not bills of costs which could…

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 Kulevska v Coshott

Details

AGLC: Kulevska v Coshott [2006] NSWSC 963
Case: [2006] NSWSC 963
Decision Date: 18 September 2006

CaseChat Overview and Summary

In the Federal Court of Australia, Kulevska v Coshott involved a dispute concerning the assessment and taxation of costs following a legal proceeding. The plaintiff, Kulevska, sought to challenge the defendant, Coshott's, costs, which were deemed to be assessed and taxed out of time. The central issue before the court was whether the costs assessor had jurisdiction to make an assessment without proper particulars and whether the costs assessor's determination was binding, especially given the procedural issues surrounding the resubmitted bills of costs.

The court addressed whether the costs assessor had the authority to make an assessment without the requisite particulars, and whether the costs assessment was an administrative or judicial function. The court also considered whether procedural fairness was observed in the handling of the resubmitted bills of costs and whether discretionary relief was warranted. The court found that the costs assessment was an administrative function and not judicial, thus the procedural fairness did not apply. The court further held that the costs assessor's determination was binding and that any jurisdictional errors did not vitiate the determination. The court determined that resubmitted bills of costs could be considered, but the court had to be satisfied that there was no unfairness.

The court ultimately ruled in favour of Coshott, concluding that the costs assessor had jurisdiction to make the assessment and that the determination was binding. The court held that the procedural issues did not provide grounds for discretionary relief and that the resubmitted bills of costs could be considered provided there was no unfairness. The plaintiff's application to challenge the costs was dismissed.

Orders