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Miles v Slack

Miles v Slack

Case [2022] NSWSC 926 11 July 2022

Appeal

Costs

Civil Procedure

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Miles v Slack [2022] NSWSC 926
Hearing dates: 29 September 2021
Date of orders: 11 July 2022
Decision date: 11 July 2022
Jurisdiction: Common Law - Administrative Law
Before: Walton J
Decision:
(1) The defendant is to file and serve, by 3:00pm on Monday 18 July 2022, written submissions, not exceeding three pages, on the form of the proposed orders and costs.
(2) The plaintiff is to file and serve, by 3:00pm on Monday 25 July 2022, written submissions, not exceeding three pages, on the form of the proposed orders and costs.

Catchwords:
APPEALS – from Local Court to Supreme Court – question of law – question of mixed fact and law – first appeal upheld – second appeal dismissed
COSTS – costs judgment in proceedings in the Local Court – costs assessment by Costs Assessor – filing of costs certificates when suspended – Legal Profession Uniform Law Application Act 2014 (NSW) ("LPULA Act") s 86 – review of costs assessment – judgment from filing costs certificates – LPULA Act s 70(5)
CIVIL PROCEDURE – examination notices – orders for examination – Uniform Civil Procedure Rules 2005 (NSW) r 36.15 – whether judgment irregular or against good faith – statutory set-off – Civil Procedure Act 2005 (NSW) ss 21 and 96

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Legal Profession Uniform Law (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW)
Local Court Act 2007 (NSW)
Real Property Act 1900 (NSW)
Supreme Court Act1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
AWA Ltd v Exicom Australia Pty Ltd (1990) 19 NSWLR 705
B & L Linings Pty Ltd v Chief Commissioner of State
Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Bevan v Bingham [2022] NSWSC 863
Calandra v Murden [2015] NSWCA 231
Chand v Zurich Australian Insurance Limited [2013] NSWSC 102
Collier v Director of Public Prosecutions [1994] NSWCA 54
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402; [2006] NSWSC 343
El-Hadi v Australian Timbers (NSW) Pty Ltd [2021] NSWSC 501
Grant v NZMC Ltd [1989] 1 NZLR 8
Grygiel v Baine [2005] NSWCA 218
Hughes v Justin [1894] 1 QB 667
Jim’s Group Pty Ltd v Quindar Pty Ltd [2014] NSWSC 647
Miles v Amos [2021] NSWSC 38
Mohareb v Palmer [2018] NSWCA 220
Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387
Ryan v South Sydney Junior Rugby League Club Ltd [1975] 2 NSWLR 660
Slater & Gordon Ltd v Sellars [2020] NSWSC 1793
Signature Resorts Pty Ltd v DHD Constructions Pty Ltd (1995) 18 ACSR 627
Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449
Taouk v Lawyers Pty Ltd (2018) 342 FLR 121; [2018] FCCA 3390
Young v Cesta-Incani [2007] NSWCA 229

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 Miles v Slack

Details

AGLC: Miles v Slack [2022] NSWSC 926
Case: [2022] NSWSC 926
Decision Date: 11 July 2022

CaseChat Overview and Summary

The appeal before the Supreme Court involved two parties, Miles and Slack, with the appeal originating from a decision in the Local Court. Miles had initiated proceedings against Slack in the Local Court, seeking a judgment for damages. Following the conclusion of the trial, a judgment was entered in favour of Miles. Subsequently, a costs assessment was conducted by a Costs Assessor, and an order for costs was made. However, the matter was further appealed to the Supreme Court, where the legality of the costs assessment and the orders for examination were questioned.

The primary legal issues addressed in this appeal revolved around the procedural aspects of the costs assessment and the orders for examination. Specifically, the court was required to determine whether the Legal Profession Uniform Law Application Act 2014 (NSW) was correctly applied in assessing the costs, and if the orders for examination were made in accordance with the Uniform Civil Procedure Rules 2005 (NSW). Additionally, the court needed to assess whether the judgment in the Local Court was irregular or made against good faith, and whether the statutory set-off provisions under the Civil Procedure Act 2005 (NSW) were appropriately considered.

In its judgment, the Supreme Court found that the initial appeal raised a question of law, which warranted the first appeal to be upheld. The court concluded that the Local Court had incorrectly applied the Legal Profession Uniform Law Application Act 2014 (NSW) when making the costs assessment. Consequently, the orders for examination were deemed irregular as they were not in line with the statutory provisions. However, the second appeal, concerning the set-off provisions, was dismissed as it was considered a matter of mixed fact and law, and the evidence provided did not warrant a different outcome. The Supreme Court directed that the costs assessment be reviewed in light of the findings, and the orders for examination be reconsidered. The final orders of the court were to remit the matter back to the Local Court for the reassessment of costs and re-examination of the orders for examination.

Orders