(1) Summons dismissed; plaintiff’s grounds of appeal dismissed.
(2) Costs reserved with liberty to apply, including the bringing of any application for a gross sum costs order.
(3) Liberty to apply in relation to any claim for interest.
(4) Exhibits retained until further order.
Catchwords:
COSTS APPEAL – costs of a four-day trial in the Equity Division awarded to the defendants on an indemnity basis – plaintiff appeals from Costs Assessor to Review Panel and from Review Panel to the District Court – nature of a rehearing – whether sufficient consideration given to proportionality issues – whether charges by solicitors overlapped – whether briefing senior counsel (without a junior) excessive for assertedly simple Equity proceedings – no issue of principle
Pursuant to s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) (LPULAA), the plaintiff, by Amended Summons filed on 14 April 2023, appeals from the determination of the Review Panel in Costs Assessment proceedings 2021/129768 and seeks the following orders:
Appeal allowed.
The Review Panel’s determinations in 2021/00129768 and 2021/00129768-003 be set aside.
In lieu of the determination made by the Review Panel, a determination to the following effect:
That the amount of costs assessed in respect of the costs order of the Supreme Court made 29 September 2020…
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
AGLC
Shalhoub v Johnson [2023] NSWDC 555
Case
[2023] NSWDC 555
Decision Date
CaseChat Overview and Summary
The plaintiff, Shalhoub, appealed against the costs of a four-day trial in the Equity Division of the Supreme Court of New South Wales, which were awarded to the defendants on an indemnity basis. The dispute arose from the costs associated with the trial, and the plaintiff sought to challenge the amount awarded. The Review Panel and the District Court were both involved in the appeal process, with the plaintiff appealing from the Costs Assessor to the Review Panel, and then from the Review Panel to the District Court. The plaintiff contended that the court did not sufficiently consider the proportionality of the costs, the potential overlap in charges by solicitors, and the necessity of briefing senior counsel without a junior for what the plaintiff claimed were relatively straightforward equity proceedings.
The central legal issues in this appeal revolved around the proportionality and necessity of the costs awarded. Shalhoub argued that the court did not give sufficient consideration to the principle of proportionality when determining the costs, which is a fundamental aspect of cost awards in litigation. Additionally, the plaintiff questioned whether there was an overlap in the charges by the solicitors, potentially leading to double recovery of costs. Furthermore, the plaintiff contended that briefing senior counsel without a junior was excessive for what Shalhoub perceived to be a simple matter in equity.
In dismissing the plaintiff's appeal, the court found that there was no issue of principle that had been overlooked in the original cost assessment. The court held that the Review Panel and the District Court had properly considered the proportionality and necessity of the costs, and that there was no basis to interfere with the assessment. The court found no merit in the plaintiff's argument regarding the overlap in charges by solicitors, and similarly, the decision to brief senior counsel without a junior was deemed appropriate given the nature and complexity of the equity proceedings. Consequently, the summons was dismissed, and the plaintiff's grounds of appeal were rejected.
Orders
Orders of the court
(1) Summons dismissed; plaintiff’s grounds of appeal dismissed.
(2) Costs reserved with liberty to apply, including the bringing of any application for a gross sum costs order.
(3) Liberty to apply in relation to any claim for interest.