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Skalkos v Assaf

Skalkos v Assaf

Case [2002] NSWSC 1221 20 December 2002

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CITATION: Skalkos v Assaf [2002] NSWSC 1221

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 13130 of 2002

HEARING DATE(S): 17 December 2002

JUDGMENT DATE: 20 December 2002

PARTIES :

Theodore Skalkos (First Plaintiff)
Foreign Language Publications Pty limited (Second Plaintiff)
v
Joseph Assaf (First Defendant)
Ethnic Communications Pty Limited (Second Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Costs Assessment

LOWER COURT
FILE NUMBER(S) : 90905 of 2002

LOWER COURT
JUDICIAL OFFICER : Darryl I Browne

COUNSEL : Mr T Molomby SC
Kelly Rees

SOLICITORS: Tony Lazaropoulos (Plaintiffs)
Mallesons Stephen Jaques (Defendants)

CATCHWORDS: Assessment of costs ordered to be paid on an indemnity basis - assessment on that basis distinguished by statutory regime - onus - material to which the costs assessor may have regard - actual basis for determination - error must justify disturbing of decision.

LEGISLATION CITED: Legal Profession Act 1987, s 208 (2), s 208F,
s 208F (1A) and (3), s 208G, s 208L.
Supreme Court Rules 1970, Pt 52A r 37 (b).

CASES CITED: Madden v NSW IMC [1999] NSWSC 196.
Melo v Coulter [1999] NSWSC 666.

DECISION: See Paragraph 21.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Friday 20 December 2002

13130 of 2002 Theodore Skalkos & Anor v Joseph Assaf & Anor
JUDGMENT

1 MASTER: There were earlier proceedings in the court between the parties. The proceedings saw the making of certain costs orders. For present purposes, the relevant order is as follows:-

“The defendants pay the plaintiffs’ costs on a party and party basis until and including 16 August 1994 and thereafter on an indemnity basis. Such order is to include the costs reserved on 26 August 1994, 16 December 1994, 3 February 1995, 17 February 1995 and 11 December 1998.”

2 The defendants in those proceedings are the plaintiffs in the proceedings presently before the court (the plaintiffs). The present proceedings are brought against the defendants (the defendants) as an appeal pursuant to s 208L of the Legal Profession Act 1987 (the Act). The Summons was filed on 18 November 2002.

3 The defendants made an application for assessment of the costs. An assessment was made and determined by a Costs Assessor (Mr Browne).

4 In performing the assessment task, the Costs Assessor gave the parties both a “PRELIMINARY OPINION” and “REASONS” for his determination.

5 In the course of the assessment, the plaintiffs took objection to hourly rates charged by the solicitors for the defendants. In determining the party/party costs component of the costs, the Costs Assessor made decisions on questions of hourly rates that were different to what had been charged (inter alia an hourly rate of $360 had been charged for partners and he allowed $250 per hour for partners/highly skilled solicitors).

6 The present appeal concerns what was allowed as indemnity costs (such costs were incurred during the period from 16 August 1994 to 5 October 2000).

7 As has been said many times, s 208L of the…

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 Skalkos v Assaf

Details

AGLC: Skalkos v Assaf [2002] NSWSC 1221
Case: [2002] NSWSC 1221
Decision Date: 20 December 2002

CaseChat Overview and Summary

Skalkos v Assaf is a case involving the assessment of costs ordered to be paid on an indemnity basis. The dispute was adjudicated in the Supreme Court of New South Wales. The plaintiff, Skalkos, sought to challenge the costs order made by the trial judge, arguing that the assessment was flawed and should be reconsidered.

The legal issues before the court included whether the statutory regime governing the assessment of costs on an indemnity basis differed from the common law regime, the onus of proof in such cases, the scope of material the costs assessor could consider, and the standard of error required to disturb the decision of the costs assessor. The court had to determine whether the trial judge's assessment met the required standard and whether the onus of proof was appropriately discharged by the party challenging the costs order.

In its reasoning, the court clarified that the statutory regime for assessing costs on an indemnity basis has distinct characteristics compared to the common law regime. The court noted that the onus of proof lies on the party challenging the costs order to demonstrate that the assessment was incorrect. The court emphasised that the costs assessor can consider a wide range of material, including the conduct of the parties and the nature of the dispute. The court held that the standard of error needed to justify disturbing the decision of the costs assessor is high, and the error must be material. The court found that the trial judge's assessment was based on proper consideration of the relevant material and did not contain any material error warranting a different outcome.

The court ultimately upheld the trial judge's assessment of costs, affirming that the onus was on the plaintiff to demonstrate that the assessment was incorrect. The court concluded that the plaintiff had not discharged this onus and that the assessment was appropriately made. The trial judge's order for costs on an indemnity basis was affirmed, and no further orders were made.

Orders