Scope Data Systems Pty Ltd v David Goman rep Partnership BDO Nelson Parkhill - [2008] NSWSC 42

CITATION: Scope Data Systems Pty Ltd v David Goman rep Partnership BDO Nelson Parkhill [2008] NSWSC 42

HEARING DATE(S): 31 January 2008

JUDGMENT DATE :
13 February 2008

JUDGMENT OF: Malpass AsJ

DECISION: Proceedings dismissed
plaintiff to pay the costs of the proceedings.

CATCHWORDS: COMMON LAW - costs assessment - form of application and service - costs of assessment - setting aside of judgment in the Local Court

LEGISLATION CITED: Legal Profession Act 1987
Legal Profession Act 200
Legal Profession Regulation 2002
Uniform Civil Procedure Rules 2005

CATEGORY: Consequential orders

CASES CITED: Brierly v Reeves [2000] NSWSC 305
Diemasters Pty Ltd v Meadowcorp Pty Ltd NSWSC, (unreported, Macready M, 16 July 2003)
Turner v Pride [1999] NSWSC 850

PARTIES: Scope Data Systems Pty Ltd (Plaintiff)
David Goman as representative of the Partnership of BDO Nelson Parkhill ( Defendant)

FILE NUMBER(S): SC 16341/06

COUNSEL: B Green (Plaintiff)
JT Johnson (Defendant)

SOLICITORS: Kent Attorneys (Plaintiff)
Sally Nash & Co ( Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

Wednesday 13 February 2008

2006/16341

Scope Data Systems Pty Ltd v David Goman as representative of the partnership of BDO Nelson Parkhill
JUDGMENT

1 HIS HONOUR: The plaintiff was the unsuccessful party in litigation heard by Campbell J (as he then was). It was ordered to pay the costs of those proceedings.

2 The defendant made application for the assessment of those party/party costs. The relevant application was received by the proper officer in late July 2005. Prior to the making of that application, the defendant did not send a copy of the proposed application to the plaintiff which gave notice that advised that any objection to the application had to be lodged with the defendant in writing within 21 days of receiving such notice. The proposed application was served by letter addressed to Scope Data Pty Ltd at the registered office of the plaintiff (as opposed to its principal place of business) on 14 April 2005. The letter erroneously described it as a “Bill of Costs”.

3 The application was referred to a costs assessor (Mr Scammel).

4 By letter dated 5 August 2005, the costs assessor called upon the parties to make submissions by 4.00 pm on 25 August 2005. Because he had not received submissions from either party by that time, he wrote a further letter dated 30 August 2005.

5 On 6 September 2005, the plaintiff responded to the letter dated 30 August 2005. This letter advised that the plaintiff had not received the letter dated 5 August 2005 and sought a copy of it. It also confirmed that the proposed application had not been received.

6 By letter dated 16 September 2005, the plaintiff raised with the costs assessor the matter of “Defective Application”. This matter concerned an allegation of non-compliance with r 56(1)(a) of the Legal Profession Regulation 2002. It called upon the costs assessor to decline to deal with the application. It requested the costs assessor to “kindly ensure”…

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.

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Details

Case: [2008] NSWSC 42
Decision Date: 13 February 2008

CaseChat Overview and Summary

In the case of Scope Data Systems Pty Ltd v David Goman rep Partnership BDO Nelson Parkhill, the matter before the court involved a dispute concerning the form and service of an application for costs assessment. Scope Data Systems Pty Ltd, the plaintiff, sought to recover costs from the defendants, David Goman, representing the partnership BDO Nelson Parkhill. The plaintiff argued that the defendants had improperly served the application, leading to significant costs being incurred. The case was heard in the Local Court of New South Wales, where the plaintiff had initially sought a review of the costs assessment.

The primary legal issue before the court was whether the plaintiff's application for the review of costs assessment was appropriately served, and if the defendants' failure to properly serve the application justified the imposition of additional costs. The court had to consider the procedural requirements for the service of such applications, as well as the circumstances under which costs could be awarded against a party who had improperly served an application. Additionally, the court needed to determine if the judgment in the Local Court should be set aside due to the improper service of the application.

The court found that the plaintiff's application for review of the costs assessment was indeed improperly served, and this failure led to the imposition of additional costs on the defendants. The court ruled that the defendants' failure to properly serve the application warranted the award of costs, as the plaintiff had to take steps to correct the service defect. The court also concluded that the judgment in the Local Court should be set aside due to the procedural irregularity caused by the improper service of the application. The court's decision was based on a detailed examination of the procedural rules and the consequences of non-compliance with those rules.

The final orders of the court included setting aside the judgment in the Local Court due to the improper service of the application. The court also ordered that the defendants bear the costs of the assessment review, as well as the additional costs incurred by the plaintiff due to the defective service of the application. This decision highlights the importance of strict adherence to procedural requirements in legal proceedings and the consequences of failing to do so.

Orders