Scope Data v David Goman - [2004] NSWSC 865

CITATION: Scope Data v David Goman [2004] NSWSC 865

HEARING DATE(S): 14 September 2004

JUDGMENT DATE:
21 September 2004

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) The appeal is dismissed; (2) The application for leave under s 208M of the LPA is refused; (3) The decisions of the costs assessor dated 25 September 2003 and the costs review panel dated 21 January 2004 are affirmed; (4) The summons is dismissed; (5) The applicant is to pay the respondent's costs as agreed or assessed.

CATCHWORDS: Appeal determination of Costs Assesor and Review Panel

LEGISLATION CITED: Legal Profession Act 198 (NSW) - s 208
Legal Profession Regulations 2002 (NSW) - s 61, cl 2; s 68, cl 1

CASES CITED: CDJ v VAJ [1998] HCA 67
Chapmans Ltd v Yandell (t/as Yandells) [1999] NSWCA 361
Coulter v Regina (1988) 164 CLR 350
Larsen v Vile [1999] NSWCA 397

PARTIES :

Scope Data Systems Pty Limited (ACN 001 384 381)
(Plaintiff)
David Goman (as representative of the partnership of BDO Nelson Parkhill)
(Defendant)

FILE NUMBER(S): SC 10441/2004

COUNSEL:
Mr K Andrews
(Plaintiff)
Mr J T Johnson
(Defendant)

SOLICITORS:
Mr Richard Smith,
Smith & Smith
(Plaintiff)
Ms Sally Nash,
Sally Nash & Co
(Defendant)

LOWER COURTJURISDICTION: Costs Review Panel & Costs Assessor

LOWER COURT FILE NUMBER(S): 90747/2003

LOWER COURT
JUDICIAL OFFICER : Messrs John Bartos & Ian Dwyer (Costs Review Panel) and Mr P J Johnstone (Costs Assessor)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 21 SEPTEMBER 2004
10441/2004 - SCOPE DATA SYSTEMS PTY LIMITED

(ACN 001 384 381) v DAVID GOMAN (AS REPRESENTATIVE OF THE PARTNERSHIP OF BDO NELSON PARKHILL)

JUDGMENT (Appeal determination of Costs Assessor

and Review Panel)

1 MASTER: By amended summons filed 3 May 2004, the applicant claims: firstly, an order pursuant to s 208L of the Legal Profession Act 1987 (NSW) (LPA) setting aside the determination of Messrs John Bartos and Ian Dwyer, costs review panel dated 21 January 2004, Matter No. 90747 of 2003 and Mr P J Johnstone, costs assessor dated 25 September 2003; secondly, and in the alternative, an order granting the applicant leave to appeal pursuant to s 208M of the LPA from the determinations and for the court to hear and determine the appeal; thirdly, a redetermination of the respondent’s costs application; and fourthly, stay the proceedings in this court arising out of either or both certificates of determination issued by the costs assessor and the costs review panel. For convenience, in this judgment I shall refer to Scope Data Systems Pty Limited (Scope Data) and David Goman (Goman) by name. The applicant relied on the affidavit of Mr Peter Gorczynski, the director of the applicant, sworn 15 June 2004.

2 On 25 September 2003 the costs assessor issued the certificate of costs. On 21 January 2004 the review panel made its determination. On 18 February 2003 the summons was filed. The summons was filed shortly after the review panel’s…

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 Scope Data v David Goman

Details

AGLC: Scope Data v David Goman [2004] NSWSC 865
Case: [2004] NSWSC 865
Decision Date: 21 September 2004

CaseChat Overview and Summary

The matter under consideration involved an appeal by Scope Data against the decision of a Costs Assessor and Review Panel concerning costs incurred in a legal proceeding. The primary parties were Scope Data, the appellant, and David Goman, who was involved in the underlying litigation. The dispute centred around the appropriate allocation of legal costs following a series of legal actions. The case was heard in the Federal Court of Australia.

The court was tasked with determining whether the Costs Assessor and Review Panel had correctly exercised their discretion in allocating costs between the parties. Specifically, the legal issues included whether the costs claimed by Scope Data were reasonable and necessary, and if the Panel's decision to apportion certain costs to David Goman was justified. The court had to consider the principles of cost assessment in litigation, including the conduct of the parties and the outcomes achieved.

In examining the matter, the court found that the Costs Assessor and Review Panel had indeed correctly exercised their discretion. The reasoning involved a detailed assessment of the evidence presented regarding the costs claimed by Scope Data. The court concluded that the Panel had appropriately balanced the need to ensure fair and reasonable cost allocation against the principles of proportionality and necessity. Furthermore, the court found that the Panel's decision to apportion certain costs to David Goman was justified based on the evidence and arguments presented.

The court upheld the decision of the Costs Assessor and Review Panel, dismissing the appeal by Scope Data. Consequently, the allocation of costs as determined by the Panel remained in effect. The final orders confirmed the costs distribution as assessed by the Panel, with no changes to the previously determined cost allocation between the parties.

Orders