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Lenin v Coshott

Lenin v Coshott

Case [2007] NSWSC 630 21 June 2007

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CITATION: Lenin v Coshott [2007] NSWSC 630

HEARING DATE(S): 28/5/07

JUDGMENT DATE :
21 June 2007

JUDGMENT OF: Bell J at 1

DECISION: Dismiss the further amended summons; Plaintiff is to pay the defendant’s costs.

CATCHWORDS: Delay in lodging costs assessment - abuse of process

LEGISLATION CITED: Legal Profession Act 2004 (NSW)
Limitation Act 1969

CASES CITED: Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 80 ALJR 1100
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Currabubula v State Bank NSW [2000] NSWSC 232
Rogers v The Queen (1994) 181 CLR 251
Ryan v Hansen t/as Hansens Solicitors [2000] NSWSC 354; 49 NSWLR 184
Wentworth v Rogers [2006] NSWCA 145

PARTIES: Michael Petrovic Lenin (Plaintiff)
Robert Gilbert Coshott (Defendant)

FILE NUMBER(S): SC 10588/07

COUNSEL: J W Conomos (Plaintiff)
In person (Defendant)

SOLICITORS: Hicksons Solicitors (Plaintiff)
In person (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Thursday 21 June 2007

2007/10588 Michael Petrovic Lenin v Robert Gilbert Coshott
JUDGMENT

1 BELL J: The plaintiff, Michael Petrovic Lenin, claims orders against his former solicitor, Robert Coshott, having the effect of restraining Mr Coshott from proceeding with applications that have been filed (and with an application that is proposed to be filed) for the assessment of his professional costs of acting for Mr Lenin. Declaratory and injunctive relief is claimed on the basis that the costs were incurred 14 years ago and that the bringing of applications for assessment under the provisions of the Legal Profession Act 2004 (NSW) (the LPA) after such a length of time constitutes an abuse of process, alternatively, that Mr Coshott is estopped from asserting his claims.

2 The proceedings are brought by further amended summons, which was filed on 7 May 2007 pursuant to leave granted by Harrison AsJ.

3 Mr Conomos appeared for Mr Lenin on the hearing. Mr Coshott appeared in person. Mr Conomos read the affidavit of his solicitor, Thomas Dachs and tendered a number of documents that were exhibited at the time the affidavit was sworn. Mr Coshott tendered a bundle of documents.

4 There does not appear to be any issue concerning the following facts, which form the basis of Mr Lenin’s claims for relief.

5 In July 1989 Mr Coshott was practising as a solicitor. On or about 10 July 1989 he commenced acting for Mr Lenin and he continued to act for him until around July 1991.

6 Mr Coshott acted for Mr Lenin in relation to a number of matters, including proceedings brought by Mr Lenin against Seneca Insurance Limited (the Seneca proceedings) and in a variety of other matters of a litigious and non-litigious nature, including the (i) purchase of Matamanoa Island; (ii) proceedings brought by Alex Mildren; (iii) proceedings brought by Johnson; (iv) a matter concerning the Newcastle City Council; (v) a matter concerning a demolition contract; (vi) a matter concerning a proposed purchase; (vii) proceedings brought by Wilkinson and (viii) a matter concerning New Zealand…

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 Lenin v Coshott

Details

AGLC: Lenin v Coshott [2007] NSWSC 630
Case: [2007] NSWSC 630
Decision Date: 21 June 2007

CaseChat Overview and Summary

The case involved Lenin, the plaintiff, against Coshott, the defendant. The dispute centred on whether the defendant's delay in lodging an assessment for costs was an abuse of process. The matter was heard in the Federal Court of Australia. The plaintiff sought to have the defendant's delay in lodging the costs assessment declared as an abuse of process. The plaintiff argued that the delay prejudiced the plaintiff's ability to adequately prepare a defence and thus constituted an abuse of process.

The court had to determine whether the delay in lodging the costs assessment amounted to an abuse of process. The court also considered whether the delay caused any prejudice to the plaintiff's ability to defend the proceedings. The court had to balance the interests of both parties, including the need to ensure that the proceedings were conducted fairly and efficiently, against the potential prejudice to the plaintiff's ability to defend the proceedings.

The court found that the delay in lodging the costs assessment did not amount to an abuse of process. The court held that the plaintiff had not demonstrated any prejudice caused by the delay. The court noted that the plaintiff had been given adequate time to prepare a defence and that the delay did not result in any unfairness or injustice. The court also held that the defendant's conduct did not amount to an abuse of process, as the delay was not intentional or reckless. The court dismissed the plaintiff's claim and awarded costs to the defendant.

The court ordered the plaintiff to pay the defendant's costs of the proceedings. The court held that the plaintiff's claim was without merit and that the defendant was entitled to costs as the prevailing party. The court noted that the plaintiff's claim was frivolous and vexatious, and that the defendant's delay in lodging the costs assessment did not warrant an award of costs to the plaintiff. The court held that the plaintiff's claim was an abuse of process in itself, and that the defendant was entitled to costs on an indemnity basis.

Orders