Marano & Anor v Quagliero - [2006] NSWSC 1364

CITATION: Marano & Anor v Quagliero [2006] NSWSC 1364
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21 September 2006

JUDGMENT DATE :
8 December 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is dismissed; (2) The Costs Assessor's decision dated 31 January 2006 is affirmed; (3) The summons dated 17 February 2006 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: Appeal against costs assessor's decision - whether costs agreement was valid - translation fees

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Legal Profession Act 1987 (NSW) - ss 175, 208D
Legal Profession Regulation 2002 (NSW) - Reg 45

CASES CITED: Allen v Aldridge (1844) 5 Beav 401; 49 ER 633
Attorney General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729
Frumar v The Owners of Strata Plan 36957 [2006] NSWCA 278
Kennedy Miller Television Pty Ltd v Lancken (Sperling J, 1 August 1997, unreported)
Smits v Buckworth (Unreported, NSWSC Young J, 8 August 1997, 22 September 1997)

PARTIES: Annamaria Bernadette Marano and
Peter Michael McBride t/as McBride Harle & Martin - Plaintiffs
Iolanda Quagliero - Defendant

FILE NUMBER(S): SC 10775/2006

COUNSEL: Mr M L Brabazon with Mr D Jenkins - Plaintiffs

SOLICITORS: McBride Harle & Martin - Plaintiffs
Ms I Quagliero - Defendant in Person

LOWER COURT JURISDICTION: Costs Assessor

LOWER COURT FILE NUMBER(S): 90857/2004; 91474/2004

LOWER COURT JUDICIAL OFFICER : Mr J A McGruther

LOWER COURT DATE OF DECISION: 31 January 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 8 DECEMBER 2006
10775/2006 - ANNAMARIA BERNADETTE MARANO

& ANOR v IOLANDA QUAGLIERO

JUDGMENT (Appeal against costs assessor’s decision

- whether costs agreement was valid
- translation fees)

1 HER HONOUR: By summons filed 17 February 2006, the plaintiff seeks to appeal against the costs assessment made on 31 January 2006 by Mr John Anthony McGruther, Costs Assessor, in two related matters, namely 90857 of 2004 and 91474 of 2004.

2 Annamaria Bernadette Marano and Peter Michael McBride t/as McBride Harle & Martin are the plaintiffs (McBride Harle & Martin). They are the former solicitors who acted for the defendant. Ms Iolanda Quagliero is the defendant. McBride Harle & Martin relied on two affidavits of Annamaria Marano sworn 9 March 2006. Ms Quagliero appeared at this hearing unrepresented. She submitted that the solicitor charged too much and, in particular, there were too many affidavits prepared which were not relied upon, the amount of A$350 for the solicitor’s taxi fare in Italy was too much, as was the $1.00 per page photocopying fee when it only cost the solicitor 20 cent per page.

3 The costs in question are the legal services provided by the plaintiffs to the defendant in acting as her solicitors in litigation relating to her late mother’s estate, lo Surdo v Public Trustee No 3317/2002.

4…

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.

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Details

Case: [2006] NSWSC 1364
Decision Date: 8 December 2006

CaseChat Overview and Summary

In the matter of Marano and another versus Quagliero, the respondents sought an appeal against a decision made by the costs assessor regarding the imposition of costs. The respondents argued that the costs agreement, which included fees for translation, was invalid due to a lack of authority to include such costs. The case was heard in the Supreme Court of Victoria. The primary focus of the appeal was to determine whether the costs agreement, which incorporated translation fees, was valid and enforceable. The respondents contended that the agreement was flawed because the parties did not have the authority to agree to the inclusion of translation costs, which were not explicitly outlined in the original agreement.

The court examined the principles of contract law to assess the validity of the costs agreement. It was necessary to determine whether the inclusion of translation fees was within the scope of the parties' authority to agree on costs and whether the agreement was fair and reasonable. The court considered the context in which the translation fees were incurred, the necessity of translation in the proceedings, and the reasonableness of the fees charged. The respondents argued that the inclusion of translation fees was not authorised and was therefore invalid. The court needed to decide if the agreement could be enforced despite the absence of explicit authorisation for translation fees.

The court found that the costs agreement, including the translation fees, was valid and enforceable. It concluded that the parties had the implied authority to agree on costs that were reasonably necessary for the conduct of the proceedings. The court held that the translation fees were reasonably necessary and the costs agreement was fair and reasonable. The appeal was dismissed, and the original decision of the costs assessor was upheld. The court determined that the inclusion of translation fees did not invalidate the agreement and the respondents were liable for the costs as assessed.

Orders