Rickard Constructions v Doyle - [2002] NSWSC 882

CITATION: Rickard Constructions v Doyle [2002] NSWSC 882

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 11263 of 2002

HEARING DATE(S): 17 September 2002

JUDGMENT DATE: 27 September 2002

PARTIES :

Rickard Constructions Pty Limited (Under Deed of Company Arrangement) (Plaintiff)
v
James Doyle trading as "Doyles Construction Lawyers" (Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Costs Assessment

LOWER COURT
FILE NUMBER(S) : 91014 of 2001

LOWER COURT
JUDICIAL OFFICER : Leonard S Hattersley

COUNSEL : Mr B Sharpe (Plaintiff)
N/A (Defendant)

SOLICITORS: Cordato Partners (Plaintiff)
Doyles Construction Lawyers (Defendant)

CATCHWORDS: Appeal from decisions of a costs assessor - grounds upon which a costs assessor may decide not to proceed with an assessment - costs quantified by legally binding arrangement made between the parties (other than a costs agreement) - powers conferred by s 207 and their exercise - natural justice.

LEGISLATION CITED: Corporations Law.
Legal Profession Act 1987, Division 2, Division 3, s 189, s 199 (2), s 207, s 208A, s 208B, s 208C, s 208D, s 208L.

CASES CITED: Baker & Anor v Kearney [2002] NSWSC 746.
Hook v Simpsons Solicitors [1999] NSWSC 667.
Wollongong Council v Smith [1999] NSWSC 473.

DECISION: See Paragraph 35.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Friday 27 September 2002

11263 of 2002 Rickard Constructions Pty Limited (Under Deed of Company Arrangement) v James Doyle trading as “Doyles Construction Lawyers”
JUDGMENT

1 Master: The defendant is a solicitor. He was retained by the plaintiff to provide legal services in respect to a building dispute.

2 The legal services were provided during what have been described as three periods. The first period ran between January 2000 and 19 October 2000. On 19 October 2000, an administrator was appointed. The second period ran from 19 October 2000 until 22 December 2000. This was a period when the company was under administration. The third period ran from 22 December 2000 until 31 March 2001. This was a period during which the plaintiff was operating under a Deed of Arrangement (a situation which subsists). The retainer came to an end on 31 March 2001.

3 As at 19 October 2000, the defendant had rendered a number of invoices for legal services and various payments had been made. According to a statement from the defendant to the plaintiff dated 19 October 2000 there was a balance owing in the sum of $29,325.47. Since then, there has been a correction made and the defendant concedes that a sum in the order of $25,000 only remained owing in respect of these invoices.

4 The defendant contends that at or about this time a legally binding arrangement was made with the plaintiff relating to the payment of the costs claimed in those invoices (inter alia it is said that they were accepted as costs of the administration). He relies on inter alia various documents.

5 A report as to affairs was made by the directors. It acknowledged…

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 Rickard Constructions v Doyle

Details

AGLC: Rickard Constructions v Doyle [2002] NSWSC 882
Case: [2002] NSWSC 882
Decision Date: 27 September 2002

CaseChat Overview and Summary

In the matter of Rickard Constructions v Doyle, the appeal was brought against the decisions of a costs assessor who declined to proceed with an assessment of costs. The dispute arose from a construction project where the costs incurred by Rickard Constructions, the appellant, were to be assessed against Doyle, the respondent. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the costs assessor was correct in deciding not to proceed with the assessment due to the existence of a legally binding arrangement between the parties, which quantified the costs. The court was also required to consider the grounds upon which the assessor may decline to proceed with an assessment, as well as the powers conferred by section 207 of the relevant legislation and their exercise. Furthermore, the court needed to examine whether the assessor's decision contravened the principles of natural justice.

The court found that the costs assessor had the discretion to decline proceeding with the assessment if the costs had already been quantified by a legally binding arrangement between the parties. In this instance, the legally binding arrangement did indeed quantify the costs, and thus, the assessor's decision not to proceed with the assessment was supported by the applicable legal principles. The court also determined that the assessor's decision was in accordance with the principles of natural justice, as the appellant was given an opportunity to be heard and the assessor's decision was based on the relevant legal grounds. The appeal was dismissed, and the costs assessor's decision was upheld.

No further orders were made by the court in this matter.

Orders