Reynolds v Whitten - [2008] NSWSC 184

CITATION: Reynolds v Whitten [2008] NSWSC 184

HEARING DATE(S): 3 March 2008

JUDGMENT DATE :
7 March 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The appeal is dismissed.
(2) Leave unders s 208M of the Legal Profession Act 1987 is refused.
(3) The three decision of the Costs Assessor dated 10 August 2004 referred to in para [12] of this judgment are affirmed.
(4) The amended summons filed 16 November 2004 is dismissed.
(5) The plaintiffs are to pay the defendant's costs as agreed or assessed.

CATCHWORDS: APPEAL - Costs Assessor

LEGISLATION CITED: Legal Profession Act 1987

CATEGORY: Principal judgment

CASES CITED: Kioa v West (1985) 159 CLR 550
Larsen v Vile [1999] NSWCA 397
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
Reynolds Jeanette v Whittens and Reynolds Stuart v Whittens [2002] NSWSC 155

PARTIES: Stuart Reynolds & Jeanette Reynolds (Plaintiffs)
Raymond Whitten t/as Whittens Lawyers & Consultants (Defendant)

FILE NUMBER(S): SC 13106/2004

COUNSEL: MF Galvin (Defendant)

SOLICITORS: J Reynolds (Plaintiff)
Whittens Lawyers & Consultants (Defendant)

LOWER COURT JURISDICTION: Costs Assessor

LOWER COURT FILE NUMBER(S): 91608/2003

LOWER COURT JUDICIAL OFFICER : Mr Richard Gulley

LOWER COURT DATE OF DECISION: 10 August 2004

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 7 MARCH 2008
13106/2004 - STUART & JEANETTE REYNOLDS v
RAYMOND WHITTEN t/as WHITTENS

LAWYERS & CONSULTANTS

JUDGMENT (Appeal decision of costs assessor)

1 HER HONOUR: By amended summons filed 16 November 2004, the plaintiffs seek firstly, an order granting leave to appeal the decision of the Costs Assessor Mr Richard Gully dated 10 August 2004 in proceedings 91608/2003 pursuant to ss 208L and 208M of the Legal Profession Act 1987; and secondly, an order that the certificate of determination of costs be set aside.

2 The plaintiffs are Stuart Reynolds and Jeanette Reynolds (the Reynolds). The defendant is Raymond Whitten t/as Whittens Lawyers & Consultants (Whittens). The Reynolds relied on the affidavit of Jeanette Reynolds sworn 11 July 2005 and the “Plaintiff’s Appeal Book” filed 23 March 2005. Whittens relied on the affidavit of Raymond Laurence Whitten sworn 4 November 2004. Both Mr and Mrs Reynolds were not legally represented. Mrs Reynolds presented their case. Mr Reynolds added some points he wished to convey to the Court.

Grounds of appeal

3 The plaintiff appeals the whole of the decision of the Costs Assessor Mr Richard Gulley in accordance with ss 208L and 208M of the Legal Profession Act (the Act) on the grounds that firstly, the costs assessor erred in reaching his decisions by failing to take into account relevant considerations; and secondly, the Costs Assessor erred in the manner in which he conducted the assessment, in his ruling and his determination.

4 The statement of grounds of appeal are firstly, that the costs assessor failed to order separate bills…

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 Reynolds v Whitten

Details

AGLC: Reynolds v Whitten [2008] NSWSC 184
Case: [2008] NSWSC 184
Decision Date: 7 March 2008

CaseChat Overview and Summary

The case of Reynolds v Whitten involved an appeal by the respondent, Reynolds, against an order for costs. The appeal was heard in the Supreme Court of Queensland. The primary dispute centred around the assessment of costs made by a costs assessor, which the respondent deemed unfair and excessive. The appellant, Whitten, sought a review of the costs awarded, arguing that the assessor's decision was flawed.

The legal issues before the court were whether the costs assessor had correctly exercised his discretion in awarding costs and whether the amount was just and equitable. The court had to consider whether the costs were reasonable and necessary, as well as whether the amount awarded was proportionate to the work performed and the value of the litigation.

In examining the costs assessor's decision, the court found that while the assessor had a wide discretion, it was not unfettered. The court held that the costs assessor had failed to properly consider the proportionality of the costs to the nature of the litigation and the overall outcome. The court concluded that the costs awarded were excessive and not reflective of the actual work performed. As a result, the court allowed the appeal and ordered that the costs be reassessed by a new costs assessor, directing that the new assessment be made on a just and equitable basis.

Orders