O'Connell v Crouch & Lyndon (No2) - [2014] QDC 259

DISTRICT COURT OF QUEENSLAND

CITATION:

O’Connell v Crouch & Lyndon (No2) [2014] QDC 259

PARTIES:

Cathy Maree O’CONNELL

(Respondent/Appellant)

-and-

CROUCH & LYNDON PTY LTD

(Applicant/First Respondent)

FILE NO:

BD 2008/14

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

20 November 2014

DELIVERED AT:

Townsville

HEARING DATE:

Hearing on the papers

JUDGE:

Durward SC DCJ

ORDERS:

The appellant is to pay to the respondent the sum of 1.

$13,365.40

2.The appellant is to pay to the respondent its costs of the

appeal and the applications, as assessed in the sum of

$6,994.90.

CATCHWORDS:

PRACTICE & PROCEDURE – COSTS – CERTIFICATE OF COST ASSESSOR – FINALITY OF CERTIFICATE – whether in circumstances where no specific statutory review sought within time an order adjusting the costs assessed by Cost Assessor can be made – where magistrate reduced the Costs Assessment by a sum relating to an issue about costs thrown away by an adjourned hearing caused by incompetence of affected party’s lawyer.

PRACTICE & PROCEDURE – COSTS – SUCCESSFUL PARTY – basis upon which assessed – application of the general rule where unsuccessful appellants appeal refused and respondents associated applications considered but not fully determined on their merits, because of refusal of appeal, and dismissed.

LEGISLATION:

Sections 322, 335, 340 and 341 Legal Profession Act 2007; Chapter 7 Part 4 of the Uniform Civil Procedure Rules 1999.

CASES:

La Spina v MacDonnells Law [2014] QSC 44; Nashvying Pty Ltd & Ors v Giacomi [2009] QSC 31; Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621; Radich v Kenway & Anor [2014] QDC 60; Southwell v Jackson [2012] QDC 65.

COUNSEL:

No appearances required

SOICITORS:

Alexander Law for the Appellant

Crouch & Lyndon Lawyers for the First Respondent

I delivered judgment in this appeal on 24 September 2014. I reserved two issues for further submissions, namely:

1. The quantum of the judgment sum; and

2. Costs of the appeal.

The first respondent has sought directions and a decision on the assessment pursuant to rule 743H UCPR. However, the orders sought reflected the Cost Assessor’s Certificate namely:

Costs as assessed $19,010.24

Less payment by appellant in May 2013 $ 3,144.84

Balance due $15,865.40

1. The judgment sum

The Cost Assessor’s Certificate was issued for the sum of $15,865.40, payable by the appellant Ms O’Connell to the first respondent, Crouch and Lyndon Pty Ltd.

His Honour Magistrate Nunan adjusted that sum, when deciding the matter was before him, by making a reduction of $2,500.00.

The issue is whether it was open for his Honour so to do where there was no application for statutory review of the Cost Assessor’s Certificate within the time permitted in the Uniform Civil Procedure Rules 1999 (“UCPR”).

His Honour relied on what he referred to as a “wide ranging discretion” under the Legal Profession Act 2007 (“LPA”) and the UPCR, in making the reduction.

Hence there is a real question as to…

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'Connell v Crouch & Lyndon (No2)

Details

AGLC: O'Connell v Crouch and Lyndon (No2) [2014] QDC 259
Case: [2014] QDC 259
Decision Date: 20 November 2014

CaseChat Overview and Summary

In O'Connell v Crouch & Lyndon (No2), the parties were involved in a legal dispute that was brought before the court for resolution. The primary issue at hand was the assessment of costs, particularly in relation to a certificate issued by a cost assessor and the subsequent adjustment of those costs by a magistrate. The case proceeded through various stages, including appeals and associated applications, which were ultimately dismissed.

The court was tasked with determining whether, in the absence of a specific statutory review, an order could be made to adjust the costs assessed by a cost assessor. This question arose from a situation where the magistrate reduced the costs assessment by an amount related to costs that were effectively wasted due to an adjourned hearing caused by the incompetence of one of the parties' lawyers. Additionally, the court had to decide the basis upon which the costs of the successful party should be assessed, particularly given that the unsuccessful appellants' appeal was refused and the associated applications were considered but not fully determined on their merits due to the refusal of the appeal.

In its reasoning, the court held that an order adjusting the costs assessed by a cost assessor could not be made unless a specific statutory review was sought within the prescribed time. The court found that the magistrate had acted within their discretion in reducing the costs assessment by the sum relating to the wasted costs, given the circumstances of the adjourned hearing. Regarding the basis for assessing the successful party's costs, the court applied the general rule, considering the unsuccessful appellants' appeal and the associated applications that were dismissed.

The final orders of the court required the appellant to pay the respondent a sum of $13,365.40 and to pay the respondent's costs of the appeal and the applications, as assessed in the sum of $6,994.90.

Orders

Orders of the court

The appellant is to pay to the respondent the sum of 1.

$13,365.40

2.The appellant is to pay to the respondent its costs of the

appeal and the applications, as assessed in the sum of

$6,994.90.

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:	O’Connell v Crouch & Lyndon (No2) [2014] QDC 259
PARTIES:	Cathy Maree O’CONNELL (Respondent/Appellant) -and- CROUCH & LYNDON PTY LTD (Applicant/First Respondent)
FILE NO:	BD 2008/14
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Brisbane
DELIVERED ON:	20 November 2014
DELIVERED AT:	Townsville
HEARING DATE:	Hearing on the papers
JUDGE:	Durward SC DCJ
ORDERS:	The appellant is to pay to the respondent the sum of 1. $13,365.40 2.The appellant is to pay to the respondent its costs of the appeal and the applications, as assessed in the sum of $6,994.90.
CATCHWORDS:	PRACTICE & PROCEDURE – COSTS – CERTIFICATE OF COST ASSESSOR – FINALITY OF CERTIFICATE – whether in circumstances where no specific statutory review sought within time an order adjusting the costs assessed by Cost Assessor can be made – where magistrate reduced the Costs Assessment by a sum relating to an issue about costs thrown away by an adjourned hearing caused by incompetence of affected party’s lawyer. PRACTICE & PROCEDURE – COSTS – SUCCESSFUL PARTY – basis upon which assessed – application of the general rule where unsuccessful appellants appeal refused and respondents associated applications considered but not fully determined on their merits, because of refusal of appeal, and dismissed.
LEGISLATION:	Sections 322, 335, 340 and 341 Legal Profession Act 2007; Chapter 7 Part 4 of the Uniform Civil Procedure Rules 1999.
CASES:	La Spina v MacDonnells Law [2014] QSC 44; Nashvying Pty Ltd & Ors v Giacomi [2009] QSC 31; Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621; Radich v Kenway & Anor [2014] QDC 60; Southwell v Jackson [2012] QDC 65.
COUNSEL:	No appearances required
SOICITORS:	Alexander Law for the Appellant Crouch & Lyndon Lawyers for the First Respondent