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Ramsay v Gatland

Ramsay v Gatland

Case [2022] NSWSC 1514 7 November 2022

Costs

Limitation Periods

Appeal

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Ramsay v Gatland [2022] NSWSC 1514
Hearing dates: 1 November 2022
Date of orders: 7 November 2022
Decision date: 07 November 2022
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
1. The appeal is dismissed.
2. The usual costs order under the Uniform Civil Procedure Rules 2005 (NSW) is that they follow the event. In this case that is an order that Ms Ramsay and Mr Conolly pay Ms Gatland’s costs, as agreed or assessed.
3. I understand that Ms Gatland may wish to be heard on the costs order. If she does not, I will make the usual order. If she does, she should approach within seven days to file and serve the orders which she seeks, together with short submissions. Within a further seven days Ms Ramsay and Mr Conolly should file and serve their short submissions and the parties should then indicate whether they wish further to be heard.

Catchwords:
COSTS — appeal from Local Court — barrister/solicitor — recovery — where barrister applied for costs assessment of unpaid invoices, some of which were brought out of time — Legal Profession Uniform Law 2014 (NSW), ss 194 and 198 — whether contractual claim for recovery of unpaid costs not assessed could still be pursued — Legal Profession Uniform Law 2014 (NSW), s 184 — whether legislative scheme precluded barrister’s application to Local Court — not found — such recovery of unpaid costs permissible
COSTS — Costs assessment — Determination — whether rejection of out of time application for costs assessment by the Manager, Costs Assessment and by a review panel resulted in a “costs determination” — Legal Profession Uniform Law Application Act 2014 (NSW), s 73 — operation of statutory regime — functions of the Manager, Costs Assessment — functions of costs assessors and review panels — decision that application is out of time does not involve a “costs determination”
CIVIL PROCEDURE — whether an abuse of process occurred in barrister bringing proceedings in Local Court for recovery of unpaid costs not assessed — whether risk of re-litigation exists — not found
ESTOPPEL — where species of estoppel is unspecified — whether barrister estopped from bringing proceedings in Local Court for recovery of unpaid invoices not assessed because costs assessment application made out of time — not found

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Legal Profession Act 1987 (NSW), s 192
Legal Profession Act2004 (NSW), ss 331, 355
Legal Profession Uniform General Rules 2015 (NSW), Pt 4.3
Legal Profession Uniform Law 2014 (NSW), Divs 3, 4, ss 3, 6, 169, 172, 184, 194, 196, 198, 199, 200, 204
Legal Profession Uniform Law Application Act2014 (NSW), Pt 7, ss 67, 68, 69, 70, 73, 78, 83, 84, 85, 87, 93B, 93C
Legal Profession Uniform Law Application Regulation 2015 (NSW), Pt 5
Limitation Act1969 (NSW), s 78
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Abdul-Rahman v WorkCover Authority of NSW (No 2) [2015]…

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 Ramsay v Gatland

Details

AGLC: Ramsay v Gatland [2022] NSWSC 1514
Case: [2022] NSWSC 1514
Decision Date: 07 November 2022

CaseChat Overview and Summary

In the matter of Ramsay v Gatland, the appellant, a barrister, sought to recover unpaid invoices from the respondent, a solicitor, through the Local Court in New South Wales. The core dispute involved the recovery of costs that had not been assessed and the procedural challenges encountered by the appellant in pursuing this claim. The Local Court dismissed the appellant's application, leading to an appeal to the District Court and subsequently to the Supreme Court.

The primary legal issues addressed by the court encompassed whether a barrister could pursue a contractual claim for unpaid costs not assessed after an application for costs assessment had been rejected as out of time. Additionally, the court examined whether the legislative framework precluded the barrister from applying to the Local Court for such recovery and whether the rejection of an out-of-time application constituted a "costs determination." The court also considered whether the barrister's actions constituted an abuse of process and if estoppel applied to prevent the barrister from pursuing the claim.

The court found that the rejection of the out-of-time application for costs assessment did not constitute a "costs determination" as defined under the Legal Profession Uniform Law Application Act 2014 (NSW). It concluded that the statutory regime did not preclude the barrister from seeking recovery of unpaid costs in the Local Court. Furthermore, the court held that there was no abuse of process and no estoppel applied to bar the barrister's claim. Consequently, the barrister was permitted to pursue the recovery of unpaid costs through the Local Court.

The final orders of the court affirmed that the barrister could proceed with the recovery of unpaid costs not assessed in the Local Court, affirming the barrister's right to pursue this claim despite the procedural hurdles encountered.

Orders