Lowe v Tu - [2021] NSWDC 396

District Court

New South Wales

Medium Neutral Citation: Lowe v Tu [2021] NSWDC 396
Hearing dates: 5 August 2021
Written Submissions 11 August 2021
Date of orders: 13 August 2021
Decision date: 13 August 2021
Jurisdiction: Civil
Before: Coleman SC DCJ
Decision:
(1)   Appeal allowed.
(2)   I make Orders 2, 3, 4 and 6 in the summons filed 26 March 2021.
(3)   Each party to file with my Associate submissions as to costs no longer than three pages in length within seven days of the date of these orders. The question of costs will be dealt with on the papers, absent a party requiring an oral hearing.

Catchwords:
JUDICIAL REVIEW – Whether Costs Assessor and Costs Review Panel erred in issuing single Certificate of Determination of Costs for two separate costs orders – Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170 – Error Confirmed – Remitted Back to the Review Panel
COSTS – Costs Assessment under the Legal Profession Act 2004 (NSW) – appeal from Determination of Review Panel to District Court pursuant to s 384

Legislation Cited:
Legal Profession Act 2004 (LPA) s 384

Cases Cited:
eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284
Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304; [2011] NSWDC 55
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [29]-[30]
MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17
Sze Tu v Lowe [2014] NSWCA 462; 89 NSWLR 317
Sze Tu v Lowe (No 2) [2015] NSWCA 91
Voicu v The Owners Strata Plan No 1624 [2020] NSWCA 52
Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170
Wende V Horwath (No 2) [2015] NSWCA 416; (2015) 91 NSWLR 588

Texts Cited:
N/A

Category: Principal judgment
Parties: Mr Geoffrey Lowe (First Appellant)
Mrs Mary Lowe (Second Appellant)
Mrs Shiu Sing Sze Tu (First Respondent)
Mr Shiu Sze Tu (Second Respondent)
Representation:
Counsel:

Ms M Castle (Appellants)
Ms J McDonald (Respondents)

Solicitors:
HWL Ebsworth Lawyers (Appellants)
CLS Legal (Respondents)

File Number(s): 2021/85346
Publication restriction: N/A

Judgment

BACKGROUND

These proceedings concern an appeal from a determination of a Review Panel of a Costs Assessor’s Determination with respect to proceedings between the appellants (whom I will refer to from time to time as Geoffrey and Mary but without meaning any disrespect) and the respondents.
It would perhaps be an understatement to say that the litigation between the parties which has given rise to the costs assessment the subject of this appeal have been hard fought. The proceedings have a lengthy and clearly expensive history. The proceedings were originally commenced in the Supreme Court of New South Wales in 2005. I will not go into detail of the issues of the proceedings as that is unnecessary for the purposes of this appeal.
The proceedings were originally heard before Smart AJ for 25 days in 2009‑2011. Unfortunately, his Honour fell ill and…

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 Lowe v Tu

Details

AGLC: Lowe v Tu [2021] NSWDC 396
Case: [2021] NSWDC 396
Decision Date: 13 August 2021

CaseChat Overview and Summary

Lowe, the appellant, sought judicial review of the decision of the respondent, Tu, the Costs Assessor and Costs Review Panel, who had issued a single Certificate of Determination of Costs for two separate costs orders. The matter was heard in the Supreme Court of New South Wales. The appellant argued that the decision was erroneous and sought to appeal the decision of the Costs Review Panel, which had been determined under the Legal Profession Act 2004 (NSW). The appeal was pursuant to section 384 of the Act.

The legal issues before the court were whether the Costs Assessor and Costs Review Panel erred in issuing a single Certificate of Determination of Costs for two separate costs orders, and whether this error was significant enough to warrant a confirmation of the error and a remittal back to the Review Panel. The appellant relied on Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170 to support their argument that the error was significant enough to warrant a confirmation of the error and a remittal back to the Review Panel.

The court found that the Costs Assessor and Costs Review Panel had indeed erred in issuing a single Certificate of Determination of Costs for two separate costs orders, and that the error was significant enough to warrant a confirmation of the error and a remittal back to the Review Panel. The court found that the error was not a minor or trivial one, but rather a fundamental error that affected the substantive rights of the parties. The court confirmed the error and remitted the matter back to the Review Panel for reconsideration.

The court made Orders 2, 3, 4 and 6 in the summons filed 26 March 2021, and allowed the appeal. Each party was required to file with the court submissions as to costs no longer than three pages in length within seven days of the date of these orders. The question of costs would be dealt with on the papers, absent a party requiring an oral hearing.

Orders

Orders of the court

(1) Appeal allowed.

(2) I make Orders 2, 3, 4 and 6 in the summons filed 26 March 2021.

(3) Each party to file with my Associate submissions as to costs no longer than three pages in length within seven days of the date of these orders. The question of costs will be dealt with on the papers, absent a party requiring an oral hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Lowe v Tu [2021] NSWDC 396
Hearing dates:	5 August 2021 Written Submissions 11 August 2021
Date of orders:	13 August 2021
Decision date:	13 August 2021
Jurisdiction:	Civil
Before:	Coleman SC DCJ
Decision:	(1) Appeal allowed. (2) I make Orders 2, 3, 4 and 6 in the summons filed 26 March 2021. (3) Each party to file with my Associate submissions as to costs no longer than three pages in length within seven days of the date of these orders. The question of costs will be dealt with on the papers, absent a party requiring an oral hearing.
Catchwords:	JUDICIAL REVIEW – Whether Costs Assessor and Costs Review Panel erred in issuing single Certificate of Determination of Costs for two separate costs orders – Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170 – Error Confirmed – Remitted Back to the Review Panel COSTS – Costs Assessment under the Legal Profession Act 2004 (NSW) – appeal from Determination of Review Panel to District Court pursuant to s 384
Legislation Cited:	Legal Profession Act 2004 (LPA) s 384
Cases Cited:	eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284 Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304; [2011] NSWDC 55 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [29]-[30] MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17 Sze Tu v Lowe [2014] NSWCA 462; 89 NSWLR 317 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Voicu v The Owners Strata Plan No 1624 [2020] NSWCA 52 Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170 Wende V Horwath (No 2) [2015] NSWCA 416; (2015) 91 NSWLR 588
Texts Cited:	N/A
Category:	Principal judgment
Parties:	Mr Geoffrey Lowe (First Appellant) Mrs Mary Lowe (Second Appellant) Mrs Shiu Sing Sze Tu (First Respondent) Mr Shiu Sze Tu (Second Respondent)
Representation:	Counsel: Ms M Castle (Appellants) Ms J McDonald (Respondents) Solicitors: HWL Ebsworth Lawyers (Appellants) CLS Legal (Respondents)
File Number(s):	2021/85346
Publication restriction:	N/A