McDougall bnf Williams v Gomm - [2020] NSWDC 428

District Court

New South Wales

Amendment notes

Medium Neutral Citation: McDougall bnf Williams v Gomm [2020] NSWDC 428
Hearing dates: 29 May 2020 and 7 August 2020
Date of orders: 7 August 2020
Decision date: 07 August 2020
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Orders:
(1) Pursuant to UCPR r 20.14, I refer the determination of the reasonable legal costs (including disbursements) to a costs assessor, to be nominated by Mr B Bellach, the Manager, Costs Assessment, Supreme Court of NSW), for assessment (if possible), inquiry and report by the costs assessor on the costs questions arising from these proceedings and from the issues adverted to in this judgment,
(2) Gorman Law is directed to provide a copy of the following documents to the plaintiff’s current solicitor, Mr Kheir, within 7 days:
(a) Letter to Mr Mok dated 17/7/20.
(b) Tax Invoice dated 17/7/20
(c) Costs Agreement dated 2/5/16.
(d) Letter to claimant’s tutor dated 13/9/19.
(e) Tax Invoice of Andrew Hourigan dated 19/5/20
(3) Liberty to the parties, including the costs assessor, to apply to Gibson DCJ in relation to costs and other issues arising from this appointment including provision of documents.
(4) These proceedings listed for directions on Friday 30 October 2020 before Gibson DCJ at 10am for further directions and orders..

Catchwords:
COSTS – Application for approval of settlement of proceedings for a person subject to a disability - solicitors with conduct of these proceedings seek orders for assessment for the costs claimed by the solicitors who previously acted – failure of solicitors previously acting to provide a bill in assessable form to their former client - court’s obligations to disabled persons on applications for approval - referral pursuant to UCPR r 20.14 I to a costs assessor agreed upon by the parties (or, in default of agreement, by Mr B Bellach, the Manager, Costs Assessment, Supreme Court of NSW) for assessment of costs and disbursements in accordance with the orders made in these proceedings

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 75 – 77
Uniform Civil Procedure Rules, r 14.20

Cases Cited:
Attard v James Legal Pty Ltd [2010] NSWCA 311
CPB Contractors Pty Limited v Celsus Pty Limited (formerly known as SA Health Partnership Nominees Pty Ltd) (No 2) [2018] FCA 2112
Newell; Muriniti v De Costi [2018] NSWCA 49
Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2012] FCA 558
Permanent Trustee v Mills [2007] NSWSC 336
Stockland (Constructors) Pty Ltd v Darryl I Coombs Pty Ltd [2004] NSWSC 333

Category: Procedural and other rulings
Parties: Plaintiff: Robert McDougall bnf Catherine Williams
Defendant: Ryshia Gomm
Representation: Solicitors:
Plaintiff: Mr M Kheir (Premier Law)
Defendant: Sparke Helmore Lawyers

File Number(s): 2020/095778
Publication restriction: None

Judgment

Background

The plaintiff, by summons filed on 27 March 2020, brought an application for approval of settlement of proceedings for damages arising from a collision between his trail bike and a motor vehicle on 22 January 2016, in which he suffered a traumatic brain injury. This summons was…

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: [2020] NSWDC 428
Decision Date: 07 August 2020

CaseChat Overview and Summary

The case of McDougall bnf Williams v Gomm involved a dispute over the approval of a settlement of proceedings for a person subject to a disability. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the solicitors who previously acted for the plaintiff should be allowed to seek orders for assessment of the costs they claimed from their former client. This arose from the solicitors' failure to provide a bill in an assessable form to their former client.

The court considered its obligations to disabled persons on applications for approval of costs. The court concluded that it was appropriate to refer the determination of the reasonable legal costs, including disbursements, to a costs assessor for assessment, inquiry, and report on the costs questions arising from these proceedings. The court also directed the solicitors to provide a copy of specific documents to the plaintiff's current solicitor within a specified timeframe. The court granted liberty to the parties, including the costs assessor, to apply to the Deputy Chief Justice in relation to costs and other issues arising from this appointment. The proceedings were listed for further directions and orders.

In conclusion, the court referred the assessment of costs to a costs assessor and directed the solicitors to provide specific documents to the plaintiff's current solicitor. The court also granted liberty to the parties to apply to the Deputy Chief Justice in relation to costs and other issues arising from this appointment. The proceedings were listed for further directions and orders.

Orders

Orders of the court

Orders:

(1) Pursuant to UCPR r 20.14, I refer the determination of the reasonable legal costs (including disbursements) to a costs assessor, to be nominated by Mr B Bellach, the Manager, Costs Assessment, Supreme Court of NSW), for assessment (if possible), inquiry and report by the costs assessor on the costs questions arising from these proceedings and from the issues adverted to in this judgment,

(2) Gorman Law is directed to provide a copy of the following documents to the plaintiff’s current solicitor, Mr Kheir, within 7 days:

(a) Letter to Mr Mok dated 17/7/20.

(b) Tax Invoice dated 17/7/20

(d) Letter to claimant’s tutor dated 13/9/19.

(e) Tax Invoice of Andrew Hourigan dated 19/5/20

(3) Liberty to the parties, including the costs assessor, to apply to Gibson DCJ in relation to costs and other issues arising from this appointment including provision of documents.

(4) These proceedings listed for directions on Friday 30 October 2020 before Gibson DCJ at 10am for further directions and orders..

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	McDougall bnf Williams v Gomm [2020] NSWDC 428
Hearing dates:	29 May 2020 and 7 August 2020
Date of orders:	7 August 2020
Decision date:	07 August 2020
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Orders: (1) Pursuant to UCPR r 20.14, I refer the determination of the reasonable legal costs (including disbursements) to a costs assessor, to be nominated by Mr B Bellach, the Manager, Costs Assessment, Supreme Court of NSW), for assessment (if possible), inquiry and report by the costs assessor on the costs questions arising from these proceedings and from the issues adverted to in this judgment, (2) Gorman Law is directed to provide a copy of the following documents to the plaintiff’s current solicitor, Mr Kheir, within 7 days: (a) Letter to Mr Mok dated 17/7/20. (b) Tax Invoice dated 17/7/20 (c) Costs Agreement dated 2/5/16. (d) Letter to claimant’s tutor dated 13/9/19. (e) Tax Invoice of Andrew Hourigan dated 19/5/20 (3) Liberty to the parties, including the costs assessor, to apply to Gibson DCJ in relation to costs and other issues arising from this appointment including provision of documents. (4) These proceedings listed for directions on Friday 30 October 2020 before Gibson DCJ at 10am for further directions and orders..
Catchwords:	COSTS – Application for approval of settlement of proceedings for a person subject to a disability - solicitors with conduct of these proceedings seek orders for assessment for the costs claimed by the solicitors who previously acted – failure of solicitors previously acting to provide a bill in assessable form to their former client - court’s obligations to disabled persons on applications for approval - referral pursuant to UCPR r 20.14 I to a costs assessor agreed upon by the parties (or, in default of agreement, by Mr B Bellach, the Manager, Costs Assessment, Supreme Court of NSW) for assessment of costs and disbursements in accordance with the orders made in these proceedings
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 75 – 77 Uniform Civil Procedure Rules, r 14.20
Cases Cited:	Attard v James Legal Pty Ltd [2010] NSWCA 311 CPB Contractors Pty Limited v Celsus Pty Limited (formerly known as SA Health Partnership Nominees Pty Ltd) (No 2) [2018] FCA 2112 Newell; Muriniti v De Costi [2018] NSWCA 49 Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2012] FCA 558 Permanent Trustee v Mills [2007] NSWSC 336 Stockland (Constructors) Pty Ltd v Darryl I Coombs Pty Ltd [2004] NSWSC 333
Category:	Procedural and other rulings
Parties:	Plaintiff: Robert McDougall bnf Catherine Williams Defendant: Ryshia Gomm
Representation:	Solicitors: Plaintiff: Mr M Kheir (Premier Law) Defendant: Sparke Helmore Lawyers
File Number(s):	2020/095778
Publication restriction:	None