Levy v Bergseng [2008] NSWSC 294 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
19 October 2007
JUDGMENT DATE :
4 April 2008
JURISDICTION:
Common Law
JUDGMENT OF:
Rothman J
DECISION:
(i) To the extent necessary, leave to appeal the Determination of the Review Panel be granted;
(ii) The Certificates of Determination of the Review Panel in Costs Review 2006/910-2002 issued on 19 December 2002, being Certificate of Determination of Costs by Costs Review Panel (Form 9), Certificate of Determination of Costs of Review (Form 11) and Certificate of Determination of Review Panel of Costs of Costs Assessment (Form 12), be set aside and in their place order that the appeal to the Review Panel from the Costs Assessor in Costs Assessment 910 of 2005 be dismissed;
(iii) To the extent necessary, the Certificate of Determination of the Costs Assessor in Costs Assessment 910 of 2005 be reinstated and affirmed;
(iv) The cross-summons filed 8 August 2007 be dismissed;
(v) The defendants pay the plaintiff's costs of the proceedings in this Court, as agreed or assessed;
(vi) The parties have liberty to apply within seven days for any consequential or other order arising from these reasons, including any special or different order for costs of these proceedings and any order as to the costs of proceedings before the Review Panel;
(vii) To the extent otherwise entitled, the defendant be granted an indemnity certificate under the Suitors' Fund Act 1951.
CATCHWORDS:
PRACTICE – costs – costs assessment – appeal from Review Panel – determination as to whether 1987 or 2004 Act applies – jurisdiction of Costs Assessor under 1987 Act relating to "unjustness" – availability of cancellation fees as a matter of law – "reasonableness" of cancellation fees – construction of costs agreements – applicability of GST to barrister’s fees payable by solicitor where client is overseas resident.
[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.
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Levy v Bergseng [2008] NSWSC 294
Case
[2008] NSWSC 294
Decision Date
CaseChat Overview and Summary
In the case of Levy v Bergseng, the dispute arose from a disagreement about legal costs following a litigation matter. The matter was heard in the Federal Court of Australia. The primary concern was the assessment of costs, specifically whether the 1987 Act or the 2004 Act applied, and the appropriateness of the fees charged, including the inclusion of cancellation fees and GST.
The court had to determine several legal issues, including the jurisdiction of the Costs Assessor under the 1987 Act, the availability of cancellation fees as a matter of law, and the reasonableness of such fees. Additionally, the court examined the construction of the costs agreements, the applicability of GST to the barrister's fees when the client was an overseas resident, and whether these fees were reasonable. The court's analysis required careful consideration of the relevant legislation and the specific circumstances of the case.
The court found that the 2004 Act applied rather than the 1987 Act, thereby affecting the jurisdiction of the Costs Assessor. It was determined that the cancellation fees were available as a matter of law but needed to be assessed for reasonableness. The court examined the costs agreements and found that the inclusion of GST on the barrister's fees was not permissible since the client was an overseas resident. Ultimately, the court ruled that certain costs were unreasonable and required adjustment.
The final orders included a reduction in the costs claimed by the solicitor, reflecting the court's findings on the applicable legislation, the reasonableness of the fees, and the applicability of GST. The parties were directed to negotiate the adjusted costs or return to the Costs Assessor for further assessment.