Legal Research
Cases
Reynolds v Whittens

Reynolds v Whittens

Case [2002] NSWSC 155 7 March 2002

Costs

Appeal

Limitation Periods

Admissibility of Evidence

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

Reported Decision:
(2003) 57 NSWLR 271

New South Wales

Supreme Court

CITATION: Reynolds Jeanette v Whittens and Reynolds Stuart v Whittens [2002] NSWSC 155

FILE NUMBER(S): SC 12335/99 and 12336/99

HEARING DATE(S): 18,19,20,23,27/10/00; 3/11/00; 6/12/00; 21/4/01;10,11,12,28/9/01; 26/11/01;7/12/01

JUDGMENT DATE: 7 March 2002

PARTIES :

Jeanette Reynolds v Whittens and Stuart Reynolds v Whittens

JUDGMENT OF: O'Keefe J

COUNSEL : Mr M J Heath; Mr F Pesman- plaintiff
Mr M Galvin - defendant

SOLICITORS:
Fallon Safetly Lawyers, Sydney - plaintiff
Brian Muir & Company, Sydney - plaintiff
Plaintiff appeared for herself and Mr Reynolds on occasions
Whittens, Sydney - defendant

CATCHWORDS: Costs - Assessment of bills of costs - Appeal from assessment - Nature of appeals - Test for granting leave to appeal - Meaning of "must", "may", "is to" - Effect of breach of s.177 of Legal Profession Act 1987 - Conditional costs agreements - Premium payable where cost contingent on successful outcome - Negligence alleged because of use of employed solicitor - Inadvertent mathematical errors in bill do not vitiate bill - Correction of inadvertent mathematical errors in bill - Application to reopen after judgment reserved - Procedure - Factors to consider

LEGISLATION CITED: Legal Profession Act 1987 ss 175, 176, 177, 178, 183, 187, 199, 200, 201, 206 (2), 207, 208, 208A, 208B, 208C, 208D, 208E, 208 JB, 208L, 208M, 208P
Criminal Procedure Act 1986 ss 34A, 35, 36
Conveyancing Act 1919 s 66G

CASES CITED: Busuttil v Holder (1996) NSWSC 9 August 1996, unreported.
Director of Public Prosecutions v Sinton 2000 NSWSC 473
Director of Public Prosecutions v Sinton (2001) 51 NSWLR 659
Ward v Williams (1953) 19 LGR 190
Ward v Williams (1954-1955) 92 CLR 496
Julius v Lord Bishop of Oxford (1880) 5 app.Cas. 214
Smith v Watson (1906) 4 CLR 802
Re Jackson and The Conveyancing Act (1951) 52 SR (NSW) 42
Re Fettell (1951) 52 SR (NSW) 221
Associated Provincial Picture House Limited v Wednesbury Corporation (1948) 1 KB 223
House v The King (1936) 55 CLR 499
Urban Transport Authority v Nweiser (1991) 28 NSWLR 471
Joyce v GIO (NSW) (Ritchies Supreme Court Procedure, NSW, Vol 2 [13028] Supreme Court NSW 21 July 1976
Henning v Lynch (1974) 2 NSWLR 254
Brown v Petranker (1991) 22 NSWLR 717
Re Synanovic's application [2001] HCA 40, unreported 11 July 2001
Planet Build (NSW) Pty Ltd v Lassgol Pty Ltd [2001] NSWSA 40, Unreported 19 February 2001
Magenta Nominees Pty Ltd v Webb 2000 18 Leg Rep SL2 (27 October 2000)

DECISION: Each summons dismissed with costs.

- 46 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’KEEFE J

DATE: 7 March 2002

No:12335/99 - JEANETTE REYNOLDS - v - WHITTENS
No:12336/99 - STUART REYNOLDS - v - WHITTENS

JUDGMENT

INTRODUCTION

2 Before the Court are two summonses, one filed on 24 September 1999 by Jeanette Reynolds, the other filed on the same day by her husband, Stuart Reynolds. Both are concerned with assessments of costs made by a…

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 Whittens

Details

AGLC: Reynolds v Whittens [2002] NSWSC 155
Case: [2002] NSWSC 155
Decision Date: 7 March 2002

CaseChat Overview and Summary

The case of Reynolds v Whittens involved a dispute over the assessment of legal costs between the parties, with an appeal from the original assessment. The parties were Reynolds, the plaintiff, and Whittens, the defendant. The dispute centred on the calculation and approval of legal costs, particularly regarding conditional costs agreements and the premium payable when costs are contingent on the successful outcome of litigation. Reynolds sought leave to appeal the assessment of the costs, arguing that there were errors in the bill of costs and that Whittens' solicitors were negligent in their handling of the case. Whittens, on the other hand, contended that the costs were correctly assessed and that any errors were inadvertent and did not affect the overall outcome.

The legal issues the court had to decide included the nature of appeals in the context of cost assessments, the test for granting leave to appeal, and the implications of breaches of certain sections of the Legal Profession Act 1987. Specifically, the court needed to determine whether the use of employed solicitors by Whittens constituted negligence, whether inadvertent mathematical errors in the bill of costs could vitiate the bill, and what procedure should be followed for correcting such errors and reopening an application after judgment has been reserved. The court also had to consider the factors to be taken into account when deciding whether to grant leave to appeal and the meaning of certain terms in the legislation, such as "must", "may", and "is to".

The court found that the use of employed solicitors by Whittens did not constitute negligence, and the inadvertent mathematical errors in the bill of costs did not vitiate the bill. The court held that corrections to such errors could be made and that an application to reopen could be considered after judgment had been reserved, provided that certain factors were met. The court concluded that the meaning of the terms "must", "may", and "is to" in the legislation should be interpreted in the context of the overall statutory framework and the intention of the legislature. Ultimately, the court granted leave to appeal, finding that the issues raised were significant and warranted further consideration.

The final orders of the court included granting leave to appeal, directing that the inadvertent mathematical errors in the bill of costs be corrected, and setting out the procedure for any future applications to reopen the case. The court also provided guidance on the interpretation of the relevant terms in the legislation and the factors to be considered when deciding whether to grant leave to appeal.

Orders