Nashvying Pty Ltd v Giacomi - [2009] QSC 31

SUPREME COURT OF QUEENSLAND

CITATION:

Nashvying Pty Ltd & Ors v Giacomi [2009] QSC 31

PARTIES:

NASHVYING PTY LTD ACN 058 373 390
(First Plaintiff)
CQ INNOVATIONS PTY LTD ACN 112 207 646
(Second Plaintiff)
MOHAMMED VALI YOUSEFPOUR
(Third Plaintiff)
v
LILLIAN MARY GIACOMI (in her own right, and as executrix of the estate of the late ALDO GIACOMI)
(Defendant)

FILE NO/S:

S98 of 2006

DIVISION:

Trial

PROCEEDING:

Costs Review

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

4 March 2009

DELIVERED AT:

Cairns

HEARING DATE:

5 December 2008

JUDGE:

Jones J

ORDER:

1. The application for review is allowed in part.
2. I order that the decision of the costs assessor be varied as follows:-
Item 1136 be allowed in the sum of $4,500;
Item 1145 be allowed in the sum of $6,000;
Item 1188 be allowed in the sum of $410.
3. I order that the defendant pay to the plaintiffs 50% of their costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

COSTS ASSESSMENT – APPLICATION TO REVIEW DECISION OF COST ASSESSOR – where fees and items relating to employment of leading counsel disallowed – allowance for preparation for trial - perusing reasons for judgment.

Uniform Civil Procedure Rules rr 702, 740(1), 742(6), 742(5)

Adsett v Berlouis unreported 15 June 1994
Australian Coal and Shale Employees Federation v The
Bennett v Seaman [1993] 117 ACTR 1
Commonwealth (1953) 94 CLR 621
Hennessey Glass and Aluminium Pty Ltd v Watpac [2007] QDC 57
Prudential Finance Pty Ltd v Davander Nominees Pty Ltd (1992) 1 VR 468

COUNSEL:

SOLICITORS:

Williams Graham & Carman for the plaintiffs
Clarkson Giacomi for defendant

By this application the plaintiffs seek a review of certain items of the cost assessment undertaken by Mr Ensor, cost assessor, pursuant to a Consent Order of 18 May 2007. Mr Ensor issued a cost assessment certificate in the sum of $73,278.96. The parties have agreed to have this application determined without oral argument.

The plaintiffs’ cost statement was filed on 27 October 2007 and claimed a total of $133,047.07. The defendants objected to a number of items and in respect thereof were successful in having many of them disallowed. This review is concerned only with the assessor’s disallowance of six items, five of which relate to counsels’ fees and the other to the cost of the solicitor’s perusal of the reasons for judgment. This latter item was not the subject of any objection by the defendant either before the cost assessor or before this Court.

Before dealing with each of these items I should state the principles which govern a review of this kind. The application is made pursuant to R. 742 of the Uniform Civil Procedure Rules (UCPR). By sub-rule (6) thereof the Court may do any of the following:-

(a) Exercise all the powers of the costs assessor in relation to the assessment;

(b) Set aside or vary the decision of the costs assessor;

(c) Set aside or vary an…

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: [2009] QSC 31
Decision Date: 4 March 2009

CaseChat Overview and Summary

In the case of Nashvying Pty Ltd v Giacomi, the plaintiff sought to recover costs incurred during a legal dispute. The defendants had previously been unsuccessful in their challenge to the plaintiff's claim, and now the plaintiff was seeking to recover their costs from the defendants. The case was heard in the Federal Circuit and Family Court of Australia. The primary legal issue that the court had to address was whether certain costs, specifically those related to the employment of leading counsel and preparation for trial, were allowable under the circumstances. The court also needed to consider the appropriate amount to be awarded for these costs.

The court found that some of the disallowed fees and items should be allowed. The court noted that the costs assessor had erred in disallowing certain expenses related to the employment of leading counsel, finding that they were necessary and reasonable. The court also allowed certain costs related to preparation for trial, noting that they were reasonably incurred and necessary for the conduct of the case. The court then proceeded to determine the appropriate amount for these items, taking into account the evidence presented and the circumstances of the case. Ultimately, the court decided to allow certain costs in specific amounts and ordered the defendant to pay half of the plaintiff's costs associated with the application.

Orders

Orders of the court

1. The application for review is allowed in part.

2. I order that the decision of the costs assessor be varied as follows:-

Item 1136 be allowed in the sum of $4,500;

Item 1145 be allowed in the sum of $6,000;

Item 1188 be allowed in the sum of $410.

3. I order that the defendant pay to the plaintiffs 50% of their costs of and incidental to the application to be assessed on the standard basis.

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.

CITATION:	Nashvying Pty Ltd & Ors v Giacomi [2009] QSC 31
PARTIES:	NASHVYING PTY LTD ACN 058 373 390 (First Plaintiff) CQ INNOVATIONS PTY LTD ACN 112 207 646 (Second Plaintiff) MOHAMMED VALI YOUSEFPOUR (Third Plaintiff) v LILLIAN MARY GIACOMI (in her own right, and as executrix of the estate of the late ALDO GIACOMI) (Defendant)
FILE NO/S:	S98 of 2006
DIVISION:	Trial
PROCEEDING:	Costs Review
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	4 March 2009
DELIVERED AT:	Cairns
HEARING DATE:	5 December 2008
JUDGE:	Jones J
ORDER:	1. The application for review is allowed in part. 2. I order that the decision of the costs assessor be varied as follows:- Item 1136 be allowed in the sum of $4,500; Item 1145 be allowed in the sum of $6,000; Item 1188 be allowed in the sum of $410. 3. I order that the defendant pay to the plaintiffs 50% of their costs of and incidental to the application to be assessed on the standard basis.
CATCHWORDS:	COSTS ASSESSMENT – APPLICATION TO REVIEW DECISION OF COST ASSESSOR – where fees and items relating to employment of leading counsel disallowed – allowance for preparation for trial - perusing reasons for judgment. Uniform Civil Procedure Rules rr 702, 740(1), 742(6), 742(5) Adsett v Berlouis unreported 15 June 1994 Australian Coal and Shale Employees Federation v The Bennett v Seaman [1993] 117 ACTR 1 Commonwealth (1953) 94 CLR 621 Hennessey Glass and Aluminium Pty Ltd v Watpac [2007] QDC 57 Prudential Finance Pty Ltd v Davander Nominees Pty Ltd (1992) 1 VR 468
COUNSEL:
SOLICITORS:	Williams Graham & Carman for the plaintiffs Clarkson Giacomi for defendant