Lloyd v Hill - [2004] NSWSC 652

CITATION: Lloyd v Hill [2004] NSWSC 652

HEARING DATE(S): 19 July 2004

JUDGMENT DATE:
22 July 2004

JURISDICTION:
Common Law Division

JUDGMENT OF: Studdert J

DECISION: (1) I make the orders sought in paragraphs 1 and 2 of the further amended summons filed on 9 July 2004. (2) Costs are reserved. (3) I direct that the defendant deliver to my associate and forward to counsel for the plaintiff submissions as to costs of the proceedings in this court within a period of seven days from today; I direct that the plaintiff deliver to my associate and to counsel for the defendant his written submissions within a period of fourteen days from today; and I direct any submissions in reply be delivered to my associate and served upon counsel for the plaintiff within twenty-one days from today.

LEGISLATION CITED: Legal Profession Act 1987, ss 3, 25, 48B, 48C, 48E, 208G, 208L
Legal Profession Regulations, reg 56
Local Court Rules, Pt 9, r 1
Supreme Court Rules, Pt 65, r 8

CASES CITED: Cachia v Haynes (1993-94) 179 CLR 403
Freeman v McNally [2003] NSWSC 780
Guss v Veenhuizen (1976) 136 CLR 47
Kekatos v The Council of the Law Society of New South Wales [1999] NSWCA 288
Kenna v Connolly (1943) 17 ALJ 32
Kiwi Munchies Pty Limited v Thai Airways International Public Limited [2004] NSWSC 89
London Scottish Benefit Society v Chorley & Ors (1883-84) 13 QBD 872
Re Sanderson; Ex parte The Law Institute of Victoria (1927) VLR 394
Tolputt & Co. Limited v Mole (1911) 1 KB 87

PARTIES :
Anthony Lloyd (Plaintiff)
Clive Hill (Defendant)

FILE NUMBER(S): SC 12653/03

COUNSEL: A.P. Spencer/F. Rogers (Plaintiff)
M.W. Robinson (Defendant)

SOLICITORS: Forbes Dowling (Plaintiff)
Longman Hill Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Thursday 22 July 2004

12653/03 ANTHONY LLOYD v CLIVE HILL
JUDGMENT

1 HIS HONOUR: Anthony Lloyd has applied by way of further amended summons seeking the following orders:

Legal Profession Act

3. Costs.”

2 The respondent to the summons is Clive Hill, who was previously the defendant in proceedings brought by this same plaintiff in the Local Court at Cowra. Those proceedings arose out of a motor vehicle accident. The plaintiff in the Local Court was unsuccessful and judgment was entered in favour of the defendant. The plaintiff was ordered to pay the defendant’s costs of the Local Court proceedings.

3 Since the parties to those Local Court proceedings were unable to agree on the quantum of costs, that issue was referred to a costs assessor in July 2003. On 11 September 2003 the costs assessor issued a determination in relation to the matter…

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 Lloyd v Hill

Details

AGLC: Lloyd v Hill [2004] NSWSC 652
Case: [2004] NSWSC 652
Decision Date: 22 July 2004

CaseChat Overview and Summary

In the case of Lloyd v Hill, Anthony Lloyd, the plaintiff, sought to set aside the certificates issued by a costs assessor in relation to costs awarded to Clive Hill, the defendant, following a motor vehicle accident case in the Local Court at Cowra. The plaintiff contended that the costs assessor had erred in law by permitting the defendant to claim profit costs for services rendered by Mr. Longman, a former solicitor of the court who no longer held a practising certificate from 1 July 2001. The plaintiff argued that such services could not be charged to him as they were performed by someone who was not a practising solicitor.

The legal issues before the court were whether the costs assessor had indeed erred in law by permitting the defendant to claim profit costs for services rendered by Mr. Longman, and if so, whether the court should remit the matter to the costs assessor for re-determination or make a determination itself. The court needed to consider the relevant provisions of the Legal Profession Act 1987 and whether the costs assessor had given due regard to these provisions in his assessment of the costs.

Studdert J found that the costs assessor had indeed erred in law by not taking into account the relevant provisions of the Legal Profession Act. The court held that Mr. Longman was not a practising solicitor from 1 July 2001, and therefore, could not legally claim costs for services rendered after that date. The court also found that the defendant had not sufficiently supervised the conduct of Mr. Longman in the matter and that the reasons expressed by the costs assessor did not show that due regard was had to the relevant provisions of the Legal Profession Act. Consequently, the court set aside the certificates issued on 11 September 2003 and remitted the matter to the costs assessor for re-determination.

Formal orders were made in line with the plaintiff's sought orders, with costs reserved and directions given for the parties to submit written costs submissions within specified timeframes.

Orders