Melo v Coulter
[1999] NSWSC 666
•5 July 1999
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 1999PARTIES :
JOHN PAUL MELO
v
AILEEN COULTERJUDGMENT 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 McGRATHSOLICITORS: PLAINTIFF: G H HEALEY & CO - BONDI
DEFENDANT: J M CRESTANICATCHWORDS: 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 DIVISIONMASTER 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 reasons for the determination. Reasons were subsequently supplied by him (see Exhibit KM 8).
7 Section 208L provides a narrow avenue of appeal (as to a matter of law arising in proceedings to determine the application). The plaintiff bears the onus of satisfying the Court of an entitlement to the relief provided by this provision.
8 The plaintiff contends that there were two errors of law. Firstly, it is said that the Costs Assessor misdirected himself and applied the wrong test in assessing the costs which were ordered to be payable on an indemnity basis. Secondly, it is said that he erred in failing to include in his determination a component for interest in accordance with the order made by his Honour.
9 It is convenient to firstly look at the second of the two matters argued. In my view, the contention sought to be advanced by the plaintiff is hopeless.
10 The order for interest was the subject of an express proviso. The proviso was not met by the plaintiff. He failed to provide the defendant with an assessment of costs within 28 days (by 13 April 1998) and so lost the benefit of that order.
11 Counsel for the plaintiff was unable to identify any source of power which would enable the Costs Assessor to include a component for interest in his determination. I am not satisfied that the Costs Assessor had any such power.
12 The Act enables the filing of the certificate (s 208JA). On filing of the certificate it is taken to be a judgment of the Court in which it is filed for the amount of unpaid costs. Under the relevant statutory provisions, interest then runs on the amount of unpaid costs.
13 The parties define the issues for determination. The Bill of Costs did not contain any claim for interest. No claim for interest was made in the Application for Assessment. The question of interest was not raised in either the Statement of Objection or the Reply (if anything, this material could have led the Costs Assessor to the belief that the question of interest had been dealt with by the Judge). It was simply not agitated before the Costs Assessor at all. In the circumstances of this case, if there had been any substance in this argument, I would not have been satisfied that the plaintiff should be permitted to agitate it in the appeal.
14 I now turn to the first of the two contentions.
15 The Act stipulates that a Costs Assessor must consider the matters set forth in s 208A (1) and s 208F (1). It may be observed that whilst the respective considerations have similarity, they are not identical. He must comply with the requirements of the other subsections contained in s 208F (inter alia he must assess the costs on an indemnity basis where an order for indemnity costs has been made and he must have regard to any relevant rules of the Court that made the order for costs). These provisions do not stand in apparent harmony. Any internal conflict presents the Costs Assessor with significant challenge.
16 The District Court does have relevant rules. In substance, the provisions require that all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred. Doubts as to these matters are to be resolved in favour of the receiving party.
17 Whilst there was an abundance of material before him which made it clear that a part of costs payable had been ordered on an indemnity basis, it appears that neither party drew the matter of the content of these provisions to the attention of the Costs Assessor. It was up to the plaintiff to draw his attention to any relevant rule of Court.
18 On behalf of the defendant, it is argued that the relevant rules merely change the onus from the recipient to the person subject to the order. There may be considerable force in that submission (the terminological differences may not throw up any or any substantial differences in meaning). It was not fully argued and it is not necessary to pursue it further for the purposes of determining this proceeding.
19 The reasons provided by the Costs Assessor contain a Schedule. It identifies items which were the subject of deduction and the amount deducted from each of the items. It also identifies the categories of reasons relied on by the Costs Assessor. The categories identify provisions contained in sections 208A and 208F. Largely, categories 2, 4 and 6 have been relied on by the Costs Assessor. Category 2 is expressed in terms of “Not a fair and reasonable amount”. Category 4 is expressed in terms of “Not reasonable to carry out the work or all the work”. Category 6 is expressed in terms of “Work not carried out in a reasonable manner”. There is material in the language of these categories which is consistent with the Costs Assessor having directed himself to the relevant principles. In these circumstances, any lack of specific reference to a relevant rule to which he is required to have regard loses significance. In any event, I do not consider that the plaintiff should now be permitted to complain about any such failure.
20 In presenting the case for the plaintiff, counsel has largely rested on the magnitude of the amount disallowed. This magnitude is inter alia consistent with an inflated bill of costs. It has not been sought to identify error in respect of any particular amount that has been disallowed. In any event, questions of what is “reasonable” or “unreasonable” are questions of fact.
21 As I have earlier said, the onus of demonstrating an error of law rests with the plaintiff. In this case, I am not satisfied that the onus has been discharged.
22 I dismiss the Summons. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned.
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