Rayhill v Cooper

[2010] NSWDC 212

CITATION:	Rayhill v Cooper [2010] NSWDC 212
HEARING DATE(S):	5 August 2010
JUDGMENT DATE:	5 August 2010
EX TEMPORE JUDGMENT DATE:	5 August 2010
JURISDICTION:	Civil - Costs Assessment Appeal
JUDGMENT OF:	Johnstone DCJ
DECISION:	Appeal dismissed with costs
CATCHWORDS:	COSTS - assessment under the Legal Profession Act - appeal from a review panel - adequacy of reasons - procedural fairness
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	B&L Linings Pty Limited v Chief Commissioner of State Revenue [2008] NSWCA 187 Doyle v Hall Chadwick [2007] NSWCA 159 Frumar v The Owners of Strata Plan 36957 [2006] NSWCA 278 Madden v New South Wales Insurance Ministerial Corporation (1999) NSWSC 196 Muriniti v Lyons [2004] NSWSC 135 Randall Pty Ltd v Willoughby City Council [2009] NSWDC 118
PARTIES:	Michael Norman Rayhill (Plaintiff) Colin Joseph Cooper t/as Barkell & Peacock
FILE NUMBER(S):	10/99913
COUNSEL:	Plaintiff in person Mr Rollinson (Defendant)

REASONS FOR JUDGMENT

1. The plaintiff is the former client of the defendant, a solicitor who performed certain legal work for the plaintiff and his former wife between 1994 and 2003 in connection with certain legal proceedings.

2. The defendant’s solicitor rendered a bill of costs in respect of the legal work undertaken by him in an amount of $62,547.75 made up of professional fees and disbursements.

3. The plaintiff or his wife failed to pay the bill of costs. The defendant solicitor therefore applied for his bill of costs to be assessed under the Legal Profession Act 1987 (LPA). A costs assessor was appointed under the Act who assessed the solicitor’s fair and reasonable costs in the sum of $55,301.88, made up of professional fees of $52,458.22 and disbursements of $2,843.22. A Certificate of Determination dated 21 August 2007 was issued.

4. The plaintiff client sought a review of the costs assessor’s determination by an Application for Review dated 20 September 2007.

5. The grounds of review were that the assessor:

(a) failed to properly consider and apply the legal principles of estoppel and unconscionability to the costs assessment;

(b) failed to have proper regard to s 208B(b) of the LPA;

(c) failed to properly consider s 208C of the LPA;

(d) failed to properly assess what costs were fair and reasonable in the whole circumstances of the case;

(e) denied the plaintiff (as the costs respondent) procedural fairness;

(f) denied the plaintiff (as the costs respondent) natural justice.

6. These grounds were not elaborated nor did the plaintiff seek leave to make any additional submissions or tender any fresh or additional evidence to the review panel.

7. A review panel was appointed consisting of two other costs assessors. This panel reviewed the determination of the original costs assessor and affirmed it. The plaintiff now appeals against the determination of the review panel affirming the decision of the original costs assessor and seeks an order setting aside the determination of the review panel.

8. The grounds of appeal set out in the Amended Summons assert that…