Legalese Pty Ltd v Gregory - [2018] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
LEGALESE PTY LTD v GREGORY
[2018] SASC 58
Judgment of Judge Dart a Master of the Supreme Court
8 May 2018
PROCEDURE - COSTS - TAXATION - PARTICULAR ITEMS
Provisional costs order made - respondent seeks review of the order - whether GST payable - whether allocatur should be stayed.
Held:
1. Claim for GST disallowed.
2. Allocatur to issue in the amount of $8182.
3. No reason to stay allocatur.
Supreme Court Act 1935 s 114; Supreme Court Civil Rules 2006 r 278(1), referred to.
Coshott v Spencer & Ors [2017] HCA Trans 263; Guss v Veenhuizen [No 2] (1976) 136 CLR 47; London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872; Osborne v Kelly & Klimenko [1999] SASC 486; Umphelby v Grey (1898) 24 VLR 979; Willing v Hollobone (1972) 3 SASR 532, considered.

LEGALESE PTY LTD v GREGORY
[2018] SASC 58
JUDGE DART:

These reasons deal with two issues in respect of a particular Bill of Costs. The adjudication proceeded, at my behest, as a lump sum adjudication. The costs relate to an order made by his Honour Justice Nicholson on 14 December 2016 in respect of an appeal from a Magistrate's Court judgment. The claim for costs was in the amount of $16,155.36.
There is separately a broader costs dispute between the parties in respect of their former relationship as solicitor and client. That issue remains unresolved.
The respondent has sought a review of the adjudication. Rule 278(1) provides that a party may apply for a review of the provisional costs order, which review is conducted by the person who undertook the adjudication. That is the first issue that needs to be dealt with.
The parties provided written submissions, which I have considered. I bear in mind the fact that the matter proceeded as a lump sum adjudication. That necessarily involves a broad-axe approach rather than a specific item-by-item approach. The respondent on the review seeks to deal with a number of specific items. In my opinion, it is not possible to approach the matter in that way. I, save for one issue, would not alter the provisional costs order.
That issue relates to a claim in respect of GST which was allowed by me on the original adjudication. I fixed the costs at $9000. The allowance for GST is therefore $818.
The respondent points to Note B in the Second Schedule of Costs. That provides that GST is not to be added in circumstances where the receiving party is able to recover GST as an input tax credit. That would appear to be the case where, as here, the solicitor was acting on its own account. If there is a dispute as to whether GST is claimable, the party recovering the costs may provide a certificate from a solicitor or an auditor establishing the extent of any input tax credit available. No certificate has been provided.
The applicant is no doubt…

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 Legalese Pty Ltd v Gregory

Details

AGLC: Legalese Pty Ltd v Gregory [2018] SASC 58
Case: [2018] SASC 58
Decision Date: 8 May 2018

CaseChat Overview and Summary

Legalese Pty Ltd, an incorporated legal practice, brought an action against Gregory in the Supreme Court of South Australia seeking a review of a provisional costs order. The respondent sought a review of the order, raising questions about whether GST should be payable on the costs and whether the allocatur should be stayed pending a matter in the High Court. The Supreme Court was tasked with deciding whether interest on the provisional costs order should be calculated from an earlier date than the date of the allocatur and whether the allocatur should be stayed.

The Court considered the Supreme Court Act 1935, which provides that interest on costs payable under a judgment or order shall be computed from the date of the certificate of the adjudicating officer or an earlier date specified by that officer. The Court noted that the power to award interest was discretionary and ordinarily runs from the date the adjudicating officer certifies the amount due. The Court held that the discretion to award interest from an earlier time was not enlivened on the facts of this matter, as the applicant delayed for nearly 12 months in producing the Bill of Costs and the Bill of Costs was adjudicated upon within a few weeks of its lodgement. The Court also found that the respondent, a lay litigant, was not entitled to any allowance for his or her costs. The Court held that a solicitor acting on their own account was entitled to the same costs as if they had engaged legal representation, except for items such as obtaining instructions or attendances which were unnecessary because they were of course the client.

The order of the Court was that an allocatur is to issue in the amount of $8,182. The Court denied the respondent's request to stay execution on the allocatur due to a matter pending in the High Court. The Court held that the respondent, a lay litigant, was not entitled to any allowance for his or her costs, and that a solicitor acting on their own account was entitled to the same costs as if they had engaged legal representation, except for items such as obtaining instructions or attendances which were unnecessary because they were of course the client.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Supreme Court Act 1935 provides as follows:114—Interest on judgment debts(1)All money, including costs, payable under any judgment or order shall bear interest at the rate from time to time prescribed by the rules of court.(2)The interest shall be computed from the following times:(a)in the case of money other than adjudicated costs, from the time specified in the judgment or order, and if no time is so specified from the date of the judgment or order;(b)in the case of adjudicated costs, from the date of the certificate of the adjudicating officer by whom the costs were adjudicated or an earlier date specified by the adjudicating officer in the certificate. The operation of the section was considered by the Full Court in Osborne v Kelly & Klimenko.[1]The Court made clear that the power to award interest was discretionary. His Honour the Chief Justice noted that interest ordinarily runs from the date the adjudicating officer certifies the amount due. The question in Osborne was whether interest could be calculated from an earlier date. [1] [1999] SASC 486. In Osborne the Chief Justice stated that, where a party had paid legal costs or disbursements during the conduct of proceedings there may be a sound basis for the exercise of the discretion to make an award of interest from a date earlier than the date on which the costs are fixed.[2][2] Osborne v Kelly & Klimenko [1999] SASC 486 p 10. In my opinion, the Court’s discretion to award interest from an earlier time is not enlivened on the facts of this matter. The applicant is an incorporated legal practice. The principal of that practice acted in the proceeding before Justice Nicholson. No legal costs have been paid by the applicant to any other party. The applicant delayed for nearly 12 months in producing the Bill of Costs. The Bill of Costs was adjudicated upon within a few weeks of its lodgement. Nothing in the interests of justice requires the Court to award interest from a time earlier than the date the allocatur is sealed. The order of the Court is that an allocatur is to issue in the amount of $8,182. Separately, the respondent requests that I stay execution on the allocatur due to a matter pending in the High Court. In the appeal before Justice Nicholson the applicant was a respondent. It is a firm of solicitors. Its principal is Mr Peter Scragg, who appeared on the subject appeal. A lay litigant who is successful is not entitled to any allowance for his or her costs.[3] The position has long been different in respect of a solicitor acting on his or her own account. The position is of some antiquity. It has been the position since at least the English Court of Appeal decision in London Scottish Benefit Society v Chorley, Crawford and Chester.[4]That case held that a solicitor who successfully acted for himself in litigation was entitled to the same costs as if he had engaged legal representation, except for items such as obtaining instructions or attendances which were unnecessary because he was of course the client. [3] Willing v Hollobone (1972) 3 SASR 532 at 535 per Bray CJ.[4] (1884) 13 QBD 872.

Ratio Decidendi

Legal Principle Established

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