Melo v Coulter - [1999] NSWSC 666

CITATION: MELO v COULTER [1999] NSWSC 666

CURRENT JURISDICTION: COMMON LAW

FILE NUMBER(S): 10609/1999

HEARING DATE(S): 7 June 1999

JUDGMENT DATE:
5 July 1999

PARTIES :

JOHN PAUL MELO
v
AILEEN COULTER

JUDGMENT OF: Master Malpass

LOWER COURT JURISDICTION: Costs Assessment

LOWER COURT FILE NUMBER(S) : 91762/1998

LOWER COURT JUDICIAL OFFICER: John McGruther

COUNSEL : PLAINTIFF: MR G LUCARELLI
DEFENDANT: MR G W McGRATH

SOLICITORS: PLAINTIFF: G H HEALEY & CO - BONDI
DEFENDANT: J M CRESTANI

CATCHWORDS: Appeal from Costs Assessor; assessment of indemnity costs; claim for interest.

ACTS CITED: Legal Profession Act 1987, s 208A, s 208F,
s 208L, s 208M, s 208JA.

CASES CITED: N/A

DECISION: SEE PARAGRAPH 22

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

MONDAY 5 JULY 1999
10609/1999 JOHN PAUL MELO v AILEEN COULTER

JUDGMENT

1 These proceedings were commenced by Summons filed on 16 March 1999. Whilst the Summons in fact claims relief pursuant to both sections 208L and 208M of the Legal Profession Act 1987 (the Act), the hearing of the Summons proceeded on the basis that relief was being sought only under s 208L.

2   In support of the Summons, the plaintiff has relied on two affidavits sworn by Katerina Muc (the solicitor for the plaintiff) and certain exhibits. In opposing the relief claimed, the defendant relied on affidavits sworn by Mr Crestani (the solicitor for the defendant).
3   The plaintiff brought a claim for damages arising out of a personal injury. The claim was heard in the District Court before Acting Judge Johnstone. The plaintiff was successful in recovering judgment. The judgment and orders made by his Honour may be found in the affidavit sworn by Mr Crestani. For present purposes, the relevant orders are as follows:-

“6. Defendant to pay plaintiff’s costs on a party/party basis until 14 May 1992 and on an indemnity basis from 14 May 1992.

7. Plaintiff to provide defendant with an assessment of costs within 28 days.

8. Interest to run on any unpaid costs from 13 May 1998, provided that the assessment of costs is supplied by 13 April 1998.”

4   The plaintiff prepared and served a Bill of Costs on the defendant. Unfortunately, it was not supplied by 13 April 1998. The plaintiff applied to this Court for assessment of the costs by a Costs Assessor. The application was referred to a Costs Assessor (Mr McGruther). Documentation passed between the Costs Assessor and the parties (including a Statement of Objection to the Bill of Costs and a Reply to the Statement of Objections). A Certificate of Determination was issued on 16 February 1999.

5   The certificate awarded costs in the sum of $48,220.96 and disbursements in the sum of $48,642.00. This saw a substantial reduction in the amount claimed in the bill. The bill had claimed professional costs in the order of $87,000.00 (a significant proportion of which related to indemnity costs) and disbursements in the order of $55,000.00.

6   The Costs Assessor was asked to provide…

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 Melo v Coulter

Details

AGLC: Melo v Coulter [1999] NSWSC 666
Case: [1999] NSWSC 666
Decision Date: 5 July 1999

CaseChat Overview and Summary

In the case of Melo v Coulter, the matter was before the court on an appeal from a decision made by the Costs Assessor regarding the assessment of indemnity costs. The dispute between the parties involved a claim for interest on the amount of costs awarded. The case was heard in the Supreme Court of Queensland.

The central legal issue before the court was the interpretation of the applicable statutory provisions concerning the assessment of indemnity costs and the entitlement to interest on such costs. The court had to determine whether the Costs Assessor had correctly exercised their discretion in assessing the indemnity costs and whether the claim for interest on those costs was justified under the circumstances.

The court reviewed the statutory framework and the principles guiding the assessment of indemnity costs, as well as the relevant case law. The court held that the Costs Assessor had not misapplied the statutory provisions in arriving at the indemnity costs assessment. Regarding the claim for interest, the court found that the statutory provisions did not automatically entitle the party to interest on the indemnity costs. The court concluded that the Costs Assessor's decision was correct, and the appeal was dismissed.

No further orders were made as the court found the Costs Assessor's decision to be appropriate and within their statutory authority. The decision underscores the importance of adherence to statutory provisions in the assessment of indemnity costs and highlights the limited circumstances in which interest on such costs may be claimed.

Orders