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Lewis v Doran

Lewis v Doran

Case [2008] NSWSC 186 13 February 2008

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CITATION: Alan Edward Lewis v Paul Adrian Doran [2008] NSWSC 186

HEARING DATE(S): 12 & 13 February 2008

JUDGMENT OF: Hammerschlag J

EX TEMPORE JUDGMENT DATE: 13 February 2008

DECISION: Declaration refused. Orders for the payment of interest on costs

CATCHWORDS: COSTS – Costs order – Time and effort expended by party locating, inspecting, collating and analysing documents for the purpose of preparing affidavits and giving evidence – Whether such costs are “legal costs” within the meaning of s 4(1) of the Legal Profession Act 2004 (NSW) (the Act) and susceptible to assessment pursuant to s 364 of the Act – If not, whether they are “costs” within the meaning of s 302 and 367A of the Act – Such costs not “legal costs” because not “disbursements” because not charged or potentially charged for or subject of a liability to a law practice – Time spent by litigant preparing and conducting his own case not “costs” unless witness expenses – Whether declaratory relief appropriate where assessment not yet commenced and where statutory appeal available

LEGISLATION CITED: Corporations Act 2001 (Cth)
Legal Profession Act 2004 (NSW)
Supreme Court Act 1970 (NSW)
Civil Procedure Act 2005 (NSW)
Supreme Court Rules 1970 (NSW)

CASES CITED: Lewis v Doran (2004) 50 ACSR 175
Lewis (as liquidator of Doran Constructions Pty Ltd (in liq)) v Doran (2005) 54 ACSR 410
Ricky Gardner v R [2003] NSWCCA 199
Re Felton (1942) 60 WN(NSW) 16; Ly v Jenkins (2001) 114 FCR 237
Damberg v Damberg (2001) 52 NSWLR 492
Cachia v Hanes (1994) 179 CLR 403
Re Remnant (1849) 50 ER 949
Barwick v Barwick & Hinks (1937) 33 Tas LR 1
Kerridge v Foley (unreported SCNSW 19.08.70)
Lawrence v MD Nikolaidis & Co (2003) 57 NSWLR 355
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522
Maronis Holdings Ltd v Nippon Credit Australia Pty Limited [2002] NSWSC 838
Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333
Currabubula v State Bank of New South Wales [2000] NSWSC 23
Lahoud v Lahoud [2006] NSWSC 126

PARTIES: Alan Edward Lewis (As liquidator of Doran Constructions Pty Limited (in Liquidation) ACN 001 439 185
Doran Constructions Pty Limited (in Liquidation) ACN 001 439 185
Paul Adrian Doran
Peter Joseph Doran
Michael John Doran
John Cerriti Doran
Doran Holdings Pty Limited ACN 000 383 782
Doran Constructions (Australia) Pty Limited (in Liquidation) ACN 005 438 728

FILE NUMBER(S): SC 4406/2000

COUNSEL: C.D. Freeman (First Plaintiff)
A.S. Martin SC with S.A. Wells (First to Fifth Defendants)

SOLICITORS: Walker Insolvency Lawyers (First Plaintiff)
Christopher C Freeman & Co (First to Fifth Defendants)

- 19 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

HAMMERSCHLAG J

13 FEBRUARY 2008

4406/2000 ALAN EDWARD LEWIS –V- PAUL ADRIAN DORAN

EX TEMPORE JUDGMENT

Factual background

1 HIS HONOUR: The first plaintiff liquidator and the second plaintiff building…

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 Lewis v Doran

Details

AGLC: Lewis v Doran [2008] NSWSC 186
Case: [2008] NSWSC 186
Decision Date: 13 February 2008

CaseChat Overview and Summary

In the case of Lewis v Doran, the appellant, Lewis, sought to challenge a costs order made in favour of the respondent, Doran. The primary dispute centred around whether the time and effort expended by Lewis in locating, inspecting, collating, and analysing documents for the purpose of preparing affidavits and giving evidence could be considered as "legal costs" within the meaning of section 4(1) of the Legal Profession Act 2004 (NSW). Additionally, the case examined whether these costs were susceptible to assessment pursuant to section 364 of the Act, or if they constituted "costs" under sections 302 and 367A of the Act.

The court was required to determine the scope of "legal costs" as defined by the Act and whether the costs incurred by Lewis during the litigation process qualified as such. Specifically, the court needed to decide if the time spent by Lewis in managing his own case, including the preparation of affidavits and the analysis of documents, could be categorised as "disbursements" or if they fell under the broader term of "costs" that could be awarded in the proceedings. The central issue was whether these costs, which did not involve charges or potential charges to a law practice, were legally recoverable.

The court concluded that the time and effort expended by Lewis were not "legal costs" as they did not constitute "disbursements" since they were not charged or potentially charged to a law practice. Furthermore, the court held that the time spent by a litigant in preparing and conducting their own case did not qualify as "costs" unless it involved witness expenses. The court found that declaratory relief was not appropriate in this instance as the assessment of costs had not yet commenced, and a statutory appeal was available to the parties. Therefore, the court's decision did not result in any final orders being made in the case.

Orders