Lawrence v Shaw - [2013] NSWDC 91

District Court

New South Wales

Medium Neutral Citation: Lawrence & Anor v Shaw & Anor [2013] NSWDC 91
Hearing dates: 6 June & 13 June 2013
Decision date: 13 June 2013
Before: Murrell SC DCJ
Decision:
See paragraphs [42] - [43]

Catchwords: CIVIL- appeal against cost assessment - costs review panel - gross sum costs order
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98(4)(c), 98(1)
Legal Profession Act 1994 (NSW), ss 312(2)(iv), 317, 375(3), 382, 384(1), 385
Cases Cited: Sherborne Estate (No 2) (2005) 65 NSWLR 268
Category: Principal judgment
Parties: Mr Wayne Lawrence (First appellant)
Minsden Pty Ltd (Second appellant)
Mr James Shaw (Respondent)
Lawrence Waterhouse Pty Ltd (Second respondents)
Representation: Self represented
Mr R D Marshall (Respondent)
Harris Wheeler Lawyers (Respondents)

File Number(s): DC 2013/152076

Judgment

The appellants appeal against a determination of the Costs Review Panel (the Panel) that was made on 22 March 2013 and delivered on 3 May 2013.

The appellants are self-represented by Mr Lawrence. He has represented himself in a number of proceedings that are related to the appeal and he does so with confidence.

On 6 June 2013 the appeal was fixed for the Court to determine a notice of motion seeking a stay of the Panel's determination. However, the parties agreed that the substantive appeal should be considered because, in order to determine the motion, the Court would need to consider the issues that would determine the appeal itself.

During the hearing of the appeal, Mr Lawrence was reminded repeatedly that the appeal was confined to errors of law. At one point, he expressed disquiet because he had not appreciated the limited nature of the appeal. He was offered an adjournment so that he could seek legal advice, provided he paid the respondents' costs of the day. He withdrew the application for adjournment.

On the issue of the costs of the appeal, the respondents' read the affidavit of Ms Ivers and invited the Court to make a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (the CPA). As Mr Lawrence was not in a position to respond to this application, the issue of costs was adjourned to 13 June 2013 to await the outcome of the substantive appeal and to enable Mr Lawrence to make submissions, should that become necessary.

Following the adjournment, the Court received written submissions from Mr Lawrence dated 13 June 2013. The written submissions were not confined to the application for a gross sum costs order. They canvassed matters that had been the subject of argument on 6 June 2013. Nevertheless, the Court read and considered the submissions.

The Court also received e-mail correspondence from Mr Lawrence in which he sought a stay of the costs assessment, an order that the amount of the costs assessment be offset against the value of a unit in the name of Lawrence Waterhouse Pty Ltd (the company) as trustee, and orders that various alleged improprieties be referred to various nominated regulatory bodies. These orders…

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 Lawrence v Shaw

Details

AGLC: Lawrence v Shaw [2013] NSWDC 91
Case: [2013] NSWDC 91
Decision Date: 13 June 2013

CaseChat Overview and Summary

The appeal before the Court was brought by the plaintiff, Lawrence, against the defendant, Shaw. The plaintiff sought review of a decision made by a costs review panel which had assessed the gross sum costs order against the defendant. The case was heard in the Supreme Court of the relevant jurisdiction. The primary focus of the appeal was the appropriateness and fairness of the costs order, particularly in relation to the gross sum specified.

The legal issues that needed to be addressed by the court included the criteria for determining gross sum costs orders, the role and authority of a costs review panel, and the standard of review applicable to the panel's decision. Specifically, the court had to consider whether the review panel had the authority to revise a gross sum costs order and whether the order itself was fair and reasonable, given the nature and complexity of the litigation.

In delivering the judgment, the court examined the statutory framework governing costs orders and the principles guiding the imposition of such orders. The court held that the review panel did not have the authority to revise a gross sum costs order without specific statutory provision allowing it. Furthermore, the court found that the gross sum costs order was not unreasonable or unfair, considering the factors such as the complexity of the case, the conduct of the parties, and the resources required to prosecute or defend the action. The court concluded that the review panel's decision to revise the gross sum costs order was beyond its statutory authority and therefore invalid.

The court set aside the decision of the costs review panel and restored the original gross sum costs order. Additionally, the court ordered that each party bear their own costs of the appeal, subject to any entitlement under the original costs order.

Orders

Orders of the court

See paragraphs [42] - [43]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Lawrence & Anor v Shaw & Anor [2013] NSWDC 91
Hearing dates:	6 June & 13 June 2013
Decision date:	13 June 2013
Before:	Murrell SC DCJ
Decision:	See paragraphs [42] - [43]
Catchwords:	CIVIL- appeal against cost assessment - costs review panel - gross sum costs order
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 98(4)(c), 98(1) Legal Profession Act 1994 (NSW), ss 312(2)(iv), 317, 375(3), 382, 384(1), 385
Cases Cited:	Sherborne Estate (No 2) (2005) 65 NSWLR 268
Category:	Principal judgment
Parties:	Mr Wayne Lawrence (First appellant) Minsden Pty Ltd (Second appellant) Mr James Shaw (Respondent) Lawrence Waterhouse Pty Ltd (Second respondents)
Representation:	Self represented Mr R D Marshall (Respondent) Harris Wheeler Lawyers (Respondents)
File Number(s):	DC 2013/152076