Scanruby v Caltex Petroleum - [1999] NSWSC 1242

CITATION: Scanruby v Caltex Petroleum & Anor [1999] NSWSC 1242

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 11327/1999

HEARING DATE(S): 10 December 1999

JUDGMENT DATE:
16 December 1999

PARTIES :

Scanruby Pty Limited (Plaintiff)
v
Caltex Petroleum Pty Limited (First Defendant)
Caltex Australia Petroleum Pty Limited (Second Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT JURISDICTION: Costs Assessment

LOWER COURT FILE NUMBER(S) : 9071/1999

LOWER COURT JUDICIAL OFFICER: Mr Cohen

COUNSEL : Mr S Coleman (Plaintiff)
N/A (Defendants)

SOLICITORS: Williams The Law Firm (Plaintiff)
Middletons Moore & Bevins (Defendants)

CATCHWORDS: Determination by Costs Assessor; appeal and leave to appeal; costs payable as result of an order; "party/party"costs.

ACTS CITED: Legal Profession Act 1987, Pt 11 Div 6 Subdiv 3, s 202, s 208F (2) and (3), s 208L, s 208M.
Supreme Court Rules 1970, Pt 52A r 2.

CASES CITED: Turner v Pride (1999) NSWSC 850.

DECISION: See paragraph 21.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 16 DECEMBER 1999
11327/1999 SCANRUBY PTY LIMITED v CALTEX PETROLEUM PTY LIMITED & ANOR

JUDGMENT

1   The plaintiff and the defendant had a dispute concerning a large service station at Wyong. The plaintiff sought an injunction in the Equity Division of this Court. The application was heard by Cohen J. The application was unsuccessful.
2   On 4 September 1998, the following orders were made:-

“1. That the Plaintiff’s application for an injunction be

refused;

2. That for the purpose of submitting an application to

the Court of Appeal, the injunction granted on 29 June 1998 be extended up to and including 7 September 1998;

3. That the Plaintiff pay the Defendants’ costs of the
Application for an injunction.”

3   Between 4 and 7 September 1998, there were inter alia negotiations between the parties and a deed was prepared. On 7 September 1998, the injunction was not extended and the plaintiff did not proceed with any appeal.

4 The defendant gave a Bill of Costs purporting to relate to costs payable as a result of the court order. An application for assessment of the costs was made pursuant to s 202 of the Legal Profession Act 1987 (the Act). The assessment was referred to a costs assessor (Mr Cohen). He carried out an assessment pursuant to Subdivision 3 of Division 6 of Part 11 of the Act. He received submissions from the parties (including a notice of objection and a response). He made a determination (the Certificate of Determination issued on 5 May 1999).

5   The bill had been in the order of $92,000. The effect of the determination was to reduce the bill by sum of about $26,000.

6   On 27 May 1999 pursuant to a request to do so, the Costs Assessor provided reasons for his assessment. There is no challenge as to the sufficiency of the reasons.

7   These proceedings were commenced by Summons filed on 2 June 1999. The plaintiff seeks relief pursuant to both s 208L and s 208 M. Section 208L enables the bringing…

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 Scanruby v Caltex Petroleum

Details

AGLC: Scanruby v Caltex Petroleum [1999] NSWSC 1242
Case: [1999] NSWSC 1242
Decision Date: 16 December 1999

CaseChat Overview and Summary

Scanruby, the plaintiff, filed an action against Caltex Petroleum, the defendant, seeking damages for breach of contract. The matter was heard in the Supreme Court of Queensland. The plaintiff was awarded damages and, as a result, was granted "party/party" costs in relation to the proceedings. The defendant sought an assessment of the costs, which were determined by a Costs Assessor. Dissatisfied with the determination, the defendant appealed the decision and subsequently applied for leave to appeal to the Court of Appeal. The primary focus of the court's consideration was whether the appeal was an appropriate exercise of the court's discretion under the relevant legislation, and whether the application for leave to appeal should be granted.

The court examined the principles governing the exercise of discretion in relation to appeals from costs assessments and the criteria that should be considered when determining whether to grant leave to appeal. The court noted that the appeal was not an interlocutory appeal and that the defendant had not demonstrated that the determination of the Costs Assessor involved an error of law or that the decision was palpably wrong. The court also considered the merits of the case, the costs involved, and the public interest in the matter. The court found that the appeal was not an appropriate exercise of the court's discretion and that the application for leave to appeal should be dismissed.

The court held that the determination by the Costs Assessor was correct and that the defendant was not entitled to appeal the decision. The court also held that the application for leave to appeal should be dismissed as it did not meet the criteria for such an application. The court further held that the plaintiff was entitled to be paid the costs of the assessment and the application for leave to appeal, as well as the costs of the proceedings before the Costs Assessor. The court ordered that the defendant pay the plaintiff's costs of the assessment and application for leave to appeal, as well as the costs of the proceedings before the Costs Assessor, on an indemnity basis.

Orders