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 ReesSOLICITORS: 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 DIVISIONMaster Malpass
Friday 20 December 2002
JUDGMENT13130 of 2002 Theodore Skalkos & Anor v Joseph Assaf & Anor
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…
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- AGLC
- Skalkos v Assaf [2002] NSWSC 1221
- Case
- [2002] NSWSC 1221
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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