Ryan v Whitten - [1999] NSWSC 865

CITATION: RYAN v WHITTEN [1999] NSWSC 865

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 12881/1998

HEARING DATE(S): 12 August 1999

JUDGMENT DATE:
27 August 1999

PARTIES :

Yvette Michelle Ryan (nee Morgan)
v
Raymond Laurence Whitten

JUDGMENT OF: Master Malpass

COUNSEL :
Mr M L Brabazon (Plaintiff)
Mr M F Galvin (Defendant)

SOLICITORS:
Brian Muir & Company (Plaintiff)
Whittens (Defendant)

CATCHWORDS: Application by client for assessment of costs; request for payment; payment made in respect of costs; no jurisdiction to entertain application.

ACTS CITED: Legal Profession Act 1987, s 199, s 208C, s 208D.
Legal Profession Regulation 1994, reg 25.

CASES CITED: Hook v Simpsons Solicitors [1999] NSWSC 667.
Selosse v Whitten (Graham AJ, unreported 26 August 1997).

DECISION: See paragraph 24

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 27 AUGUST 1999
12881/1998 YVETTE MICHELLE RYAN (nee Morgan) v RAYMOND LAURENCE WHITTEN

JUDGMENT

1   The defendant is a solicitor. He was instructed to act on behalf of the plaintiff in her professional negligence action against the Liverpool Hospital. Previously, she had been represented by other solicitors. A Costs Agreement was made on 17 January 1995.

2   An offer to settle the action was made. On 19 May 1997, there was a conference in which the offer was discussed. Both the plaintiff and her husband attended the conference. Instructions were given to accept the offer. A Memorandum of Costs and Disbursements (for the period 10 November 1994 to 14 May 1997) in the sum of $182,283.55 was given to the plaintiff. One of the items appearing in the memorandum was an estimate to complete the matter in the sum of $12,500.

3   The compromise was implemented and the net moneys payable pursuant to the settlement ($804,494.40) was received. These moneys were paid into the defendant’s trust account.

4   In July 1997, the defendant paid certain disbursements from the trust moneys. He gave the plaintiff a Memorandum of Costs and Disbursements dated 11 July 1997 (for the period up to 30 June 1997) in the sum of $186,339.73. The plaintiff signed an authority which she returned to the defendant. She was paid a sum of $618,154.67 from the trust moneys. The sum of $96,679.72 was also paid out of the trust moneys for the defendant’s professional costs.

5   Subsequently, certain small sums were paid in respect of professional costs and disbursements from moneys retained in trust.

6   A costs consultant was instructed to prepare a Party/Party Bill of Costs. There was some delay in the preparation of that bill. It appears that at least part of the delay was due to difficulty had in obtaining files from the other solicitors who had previously acted for the plaintiff in respect of her action. A bill was ultimately prepared. It was in the order of $170,000. It was submitted to the defendant in the professional negligence proceedings. An offer was made to pay costs in the sum of $110,000. The offer was rejected. An application was made to…

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 Ryan v Whitten

Details

AGLC: Ryan v Whitten [1999] NSWSC 865
Case: [1999] NSWSC 865
Decision Date: 27 August 1999

CaseChat Overview and Summary

The case of Ryan v Whitten involved a client seeking an assessment of costs from their former legal representatives, Whitten. The client, Ryan, applied to the court for an assessment of costs, requesting payment from Whitten for legal services rendered. Whitten had already made a payment in respect of the costs in question. The matter was heard in the Federal Court of Australia. The court had to determine whether it had jurisdiction to hear Ryan's application for the assessment of costs, given that a payment had already been made by Whitten.

The primary legal issue before the court was whether it possessed the jurisdiction to entertain Ryan's application for the assessment of costs. The court considered whether it had the authority to assess the costs when a payment had already been made by the party responsible for those costs. The court examined the relevant provisions of the law governing costs and the circumstances of the case, including the fact that a payment had been made in respect of the costs in question.

The court found that it did not have jurisdiction to entertain Ryan's application for the assessment of costs, as a payment had already been made by Whitten. The court concluded that the relevant provisions of law did not permit it to reassess the costs in the circumstances. The court held that it was not open to it to conduct a further assessment of the costs when a payment had already been made by the responsible party. Consequently, the application for the assessment of costs was dismissed.

The Federal Court of Australia dismissed Ryan's application for the assessment of costs. The court held that it did not have jurisdiction to entertain the application, given that a payment had already been made by Whitten. The court's decision was based on the relevant provisions of law and the circumstances of the case, including the fact that a payment had been made in respect of the costs in question.

Orders