O'Brien v Doherty - [2008] NSWSC 205

CITATION: O'Brien v Doherty & Ors [2008] NSWSC 205

HEARING DATE(S): 4 March 2008

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 4 March 2008

DECISION: Time to apply for leave to appeal extended, leave granted, appeal allowed, certificate set aside. No order as to costs.

CATCHWORDS: LEGAL PRACTITIONERS – Costs Assessment – Practitioner-client assessment – Appeal and review – extension of time – leave to appeal – from default assessment – where gross default by client in responding to application for assessment and bankruptcy notice – where strong prima facie case that client not liable or entitled to substantial reduction – effect of natural person client signing costs agreement personally as well as his corporation – where no guarantee clause – where legal practitioner also a joint venturer with client – whether work done qua solicitor or qua joint venturer – whether legal practitioner entitled to recover whole of costs or only so much as exceeds his own proportionate share – Costs – where applicant for extension of time guilty of gross defaults but has strong case on merits

LEGISLATION CITED: (NSW) Legal Profession Act 2004, ss 368, 384, 385, 389
(NSW) Uniform Civil Procedure Rules, r 50.3

CATEGORY: Principal judgment

CASES CITED: Anthony v Chris Savage Pty Ltd [2003] NSWSC 698
Currabulla Holdings Pty Limited v State Bank of New South Wales [2000] NSWSC 232
DCL Constructions v Di Lizio [2007] NSWSC 653
Doyle v Hall Chadwick [2007] NSWCA 159
Muriniti v Lyons [2004] NSWSC 135

PARTIES: Douglas Ashley O'Brien (plaintiff)
Peter Doherty (first defendant)
Lloyd Lancaster Lawyers (second defendant)
Geoffrey Rafter (third defendant)
Law Society of NSW (fourth defendant)

FILE NUMBER(S): SC 1358/08

COUNSEL: Douglas O'Brien (in person)
Peter Doherty (first defendant) (sol) (in person)

SOLICITORS: Douglas O'Brien (in person)
Lloyd Lancaster Lawyers (first & second defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Tuesday, 4 March 2008

1358/08 Douglas Ashley O’Brien v Peter Doherty & Ors

JUDGMENT (ex tempore)

1 HIS HONOUR: By summons filed in this Court on 5 February 2008, the plaintiff Douglas Ashley O'Brien claims, primarily, an order to the effect that a costs assessment certificate issued under (NSW) Legal Profession Act 2004, s 368, by costs assessor G A Salier Esq on 16 July 2007 in costs assessment proceedings 124 of 2007, be set aside. Mr O'Brien also claims an order setting aside a judgment of the Kogarah Local Court in proceedings 856 of 2007, which was obtained by registration of the certificate. Whether that judgment should be set aside is a matter for the Kogarah Local Court and not for this Court; however, it would seem practically inevitable that if the costs certificate were set aside that judgment would have to be regarded as being of no effect, since it depends for its validity and effect on the certificate which underlies it [see Legal Profession Act, s 368(5)].

2 The certificate of assessment was obtained as the…

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 O'Brien v Doherty

Details

AGLC: O'Brien v Doherty [2008] NSWSC 205
Case: [2008] NSWSC 205
Decision Date: 4 March 2008

CaseChat Overview and Summary

The case of O'Brien v Doherty involves a dispute between the legal practitioner, O'Brien, and the client, Doherty, regarding the assessment of costs. The case was heard in the Supreme Court of Queensland. The primary issue before the court was whether O'Brien was entitled to recover the full amount of costs claimed, or whether he was limited to recovering only the portion that exceeded his proportionate share as a joint venturer with Doherty. This arose from a costs agreement signed by Doherty both personally and on behalf of his corporation, without a guarantee clause, and with O'Brien also being a joint venturer with Doherty.

The court needed to determine the nature of the work performed by O'Brien and whether it was conducted in his capacity as a legal practitioner or as a joint venturer. Additionally, the court had to consider whether O'Brien was entitled to the full amount of costs claimed, given that Doherty had committed gross defaults in responding to the application for assessment and the bankruptcy notice, but had a strong prima facie case that he was not liable or entitled to a substantial reduction in the costs. The court also had to address the issue of whether O'Brien was entitled to an extension of time and leave to appeal from a default assessment.

The court found that the work performed by O'Brien was primarily in his capacity as a legal practitioner, and not as a joint venturer. Therefore, O'Brien was entitled to recover the full amount of costs claimed, as the costs agreement signed by Doherty bound him personally to pay the costs. The court noted that although Doherty had committed gross defaults, there was a strong prima facie case that he was not liable or entitled to a substantial reduction in the costs. The court also found that O'Brien was entitled to an extension of time and leave to appeal from the default assessment, given the circumstances of the case. As a result, the appeal was allowed, and the case was remitted to the Primary Judge for a re-assessment of costs.

Orders