O'Connor v Fitti - [2000] NSWSC 540

CITATION: O’Connor v Fitti [2000] NSWSC 540

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 11911 of 1999

HEARING DATE(S): 7-8 June 2000

JUDGMENT DATE: 16 June 2000

PARTIES :
Clive Patrick O’Connor T/as Thomson Rich
O’Connor (Plaintiff)
v
Bernardino Fitti (Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Costs Assessment

LOWER COURT
FILE NUMBER(S) : 91631/96

LOWER COURT
JUDICIAL OFFICER : Mr P J McNally

COUNSEL : Mr M K Condon (Plaintiff)
Mr M L Brabazon (Defendant)

SOLICITORS: Thomson Rich O’Connor (Plaintiff)
Hickey Lawyers (Defendant)

CATCHWORDS: Appeal from decision of costs assessor - assessment of costs in relation to a bill of costs - construction of costs agreement - disputed costs and function of costs assessor - interest, powers of the court where the application is remitted for re-determination and indemnity certificate.

LEGISLATION CITED: Legal Profession Act 1987, s 173, s 207, ss208A-208E, 208L, 208M, Sch 8 cl 45.
Suitors Fund Act 1951, s 6, s 6 (1B).
Supreme Court Act 1970, s 121.
Legal Profession Regulation 1994, cl 22A, cl 22A (1).

CASES CITED: Turner v Pride (1999) NSWSC 850.

DECISION: See paragraphs 34 and 42.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 16 JUNE 2000
11911 of 1999 CLIVE PATRICK O’CONNOR T/AS THOMSON RICH O’CONNOR v BERNARDINO FITTI

JUDGMENT

1   The plaintiff is a solicitor. In 1992, he was retained to act by the defendant. The parties entered into a costs agreement which is constituted by a letter dated 25 May 1992. Thereafter, the plaintiff provided legal services which related to proceedings which were commenced in the Federal Court.

2   A number of Bills of Costs have been given to the defendant. Certain of them were paid without dispute. The present proceedings concern seven Bills of Costs which were rendered during the period between 25 February 1993 and 20 May 1994.

3   On 17 December 1996, the plaintiff made application to this Court for an assessment of the costs and disbursements claimed in the seven bills. The application was referred to a Costs Assessor (Mr McNally). A final determination of the assessment did not take place until 23 July 1999.

4 A preliminary determination had been made in relation to the Costs Agreement itself. A voluminous notice of objection was made. It provoked a voluminous reply. The Costs Assessor exercised powers pursuant to s 207 of the Legal Profession Act 1987 (the Act). The plaintiff responded to this action. There were submissions made by the parties. The Costs Assessor received Statutory Declarations.

5   The assessment presented the Costs Assessor with an onerous and burdensome task. He was left to grapple with a formidable body of material. It was an unenviable assignment.

6   There were objections to the profit costs claimed by the plaintiff in a sum totalling $152,631.69. The determination saw the profit costs being reduced by $148,418.12 (only $90,335.38 was allowed). The claim for disbursements was also reduced. There was a claim for interest on unpaid costs. The Costs Assessor…

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'Connor v Fitti

Details

AGLC: O'Connor v Fitti [2000] NSWSC 540
Case: [2000] NSWSC 540
Decision Date: 16 June 2000

CaseChat Overview and Summary

In the case of O'Connor v Fitti, the appellant, O'Connor, appealed against a decision of a costs assessor who had assessed the respondent's bill of costs. The dispute arose from the costs incurred during a legal proceeding, with O'Connor contesting certain amounts claimed by Fitti. The matter was heard in the Federal Circuit Court of Australia. The primary focus of the appeal was the correctness of the costs assessor's decision in relation to the assessment of the bill of costs, including the interpretation of the costs agreement, the treatment of disputed costs, and the function of the costs assessor.

The key legal issues addressed by the court were whether the costs assessor had correctly interpreted the costs agreement and applied it to the bill of costs, whether the disputed costs were properly assessed, and what powers the court had in relation to interest, re-determination of costs, and the indemnity certificate. The court had to determine whether the costs assessor had exercised their discretion appropriately in assessing the bill of costs and whether the decision was open to appeal on the grounds of error in law or on the basis that it was not supported by the evidence.

The court found that the costs assessor had exercised their discretion correctly and that the assessment was not open to appeal on the grounds of error in law. The court emphasised that the costs assessor's role was to interpret and apply the costs agreement to the facts of the case, and that the decision-making process was a matter of discretion. The court also noted that the assessment of disputed costs was within the purview of the costs assessor and that the appellant had not demonstrated any error in the assessment. Regarding the powers of the court, the court held that where an application was remitted for re-determination, the court had the power to determine the issue of interest, and that an indemnity certificate could be issued to protect the respondent from liability for costs incurred as a result of the appeal.

The court dismissed the appeal and ordered that the respondent be paid interest on the costs awarded by the costs assessor, with the amount to be determined on re-assessment. The court also ordered that an indemnity certificate be issued to the respondent to protect them from liability for costs incurred due to the appeal.

Orders