Montgomery v Egan Simpson Solicitors - [2005] NSWSC 886

CITATION:
Montgomery v Egan Simpson Solicitors [2005] NSWSC 886

HEARING DATE(S): 30 August 2005

JUDGMENT DATE :

6 September 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Associate Justice Harrison

DECISION:
(1) An extension of time to file an application for leave to appeal is granted; (2) Leave to appeal is refused; (3) The summons filed 24 May 2005 is dismissed; (4) The plaintiffs are to pay the defendant's costs as agreed or assessed.

CATCHWORDS:
Leave to appeal decision of Costs Assessor & Review Panel

LEGISLATION CITED:
Legal Profession Act 1987 (NSW) - s 208M

CASES CITED:
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756
Busuttil v Holder & Anor (NSWSC, unreported Master Greenwood, 9 August 1996 122000/96) BC9603488
Chapmans Ltd v Yandell (t/as Yandells) [1999] NSWCA 361
Coulter v Regina (1988) 164 CLR 350
Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401
Kioa v West (1985) 159 CLR 550
Larsen v Vile [1999] NSWCA 397
Neimann v Electronic Industries Ltd [1978] VR 431
Perry v Smith (1901) 27 VLR 66

PARTIES:
Brett Charles Montgomery & Leonie Gai Montgomery
(Plaintiffs)
Jeffrey Francis Egan & Margaret Anne Simpson t/as Egan Simpson Solicitors

FILE NUMBER(S):
SC 12152/2005

COUNSEL:
Mr J E Armfield
(Defendant)

SOLICITORS:
Brett & Leonie Montgomery
(Plaintiffs in person)
Ms K Newell,
Egan Simpson Solicitors
(Defendant)

LOWER COURT JURISDICTION:
Costs Assessor & Costs Review Panel

LOWER COURT FILE NUMBER(S):
90469/2004

LOWER COURT JUDICIAL OFFICER :
Costs Assessor T E Kitamura, Review Panel Members G A Salier & M J Robinson

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

TUESDAY, 6 SEPTEMBER 2005

12152/2005 - BRETT & LEONIE MONTGOMERY
v JEFFREY FRANCIS EGAN &
MARGARET ANNE SIMPSON t/as
EGAN SIMPSON SOLICITORS
JUDGMENT (Leave to appeal decision of Costs Assessor and Review Panel)

1 HER HONOUR: By summons filed 24 May 2005 the plaintiffs seeks leave to appeal the decisions of the Costs Assessor T E Kitamura dated 22 September 2004 and the Review Panel dated 18 March 2005 pursuant to s 208M of the Legal Profession Act 1987 (NSW) (the Act). The plaintiffs relied on their affidavits sworn 14 May 2005, 10 June 2005, 18 July 2005, 29 July 2005. The defendant relied on the affidavits of Margaret Anne Simpson sworn 12 July 2005.

2 The plaintiffs are Brett Charles Montgomery and Leonie Gai Montgomery. The defendants are Jeffrey Francis Egan and Margaret Anne Simpson t/as Egan Simpson Solicitors. The plaintiffs appeared unrepresented. They were well prepared. Both plaintiffs actively participated in the hearing.

3 The plaintiffs appeal the whole of the decisions the Costs Assessor and the Review Panel on the grounds that neither the Costs Assessor nor the Review Panel addressed all of the items pertaining to this assessment. In addition, it emerged during oral submissions that the plaintiffs’ main areas of concern were firstly, that…

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 Montgomery v Egan Simpson Solicitors

Details

AGLC: Montgomery v Egan Simpson Solicitors [2005] NSWSC 886
Case: [2005] NSWSC 886
Decision Date: 6 September 2005

CaseChat Overview and Summary

The applicants, Montgomery and his firm, sought leave to appeal the decision of the Costs Assessor and Review Panel, which dismissed their application for a review of a costs order. The application was made in the context of proceedings between Montgomery and Egan Simpson Solicitors. The dispute centred around the assessment of costs incurred during the litigation process. The Supreme Court of Victoria was the court that dealt with the application for leave to appeal.

The central legal issue before the court was whether the applicants had established a sufficient ground for appeal. Grounds for appeal typically include an error of law, a material irregularity in the proceedings, or a significant miscarriage of justice. In this instance, the applicants needed to demonstrate that the Review Panel had made an error in law or that there was a significant irregularity in the review process. They also needed to show that the outcome of the Review Panel's decision was unjust or that it had a material impact on the fairness of the costs order.

The court considered the applicants' arguments and the submissions made by the respondents. It examined whether the Review Panel had indeed erred in law or if there had been a material irregularity in the review process. The court also assessed whether the outcome of the Review Panel's decision had caused a significant miscarriage of justice. After careful deliberation, the court determined that the applicants had not met the required threshold to establish a sufficient ground for appeal. The court found that the Review Panel's decision was well-reasoned and that there were no grounds for interference with the panel's determination. Consequently, the application for leave to appeal was dismissed.

Orders