Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Spencer v Coshott [2021] NSWCA 235 Hearing dates: 7 September 2021 Date of orders: 8 October 2021 Decision date: 08 October 2021 Before: Bell P at [1]
Emmett AJA at [2]
Simpson AJA at [14]Decision: 1. Leave granted to rely on the proposed amended summons provided to the Court on 7 September 2021;
2. The orders of the District Court of 19 February 2021 set aside;
3. The Certificates of the review panel of 17 July set aside;
4. The respondent pay the applicant’s costs of the appeal to the District Court and of the application to this court;
5. Within seven days of the date of these reasons, the applicant file and serve any evidence on which he proposes to rely in support of the application that costs be quantified as a lump sum, and the quantum thereof, together with any submissions (not exceeding five pages) in support of such an application;
6. Within seven days thereafter, the respondent file and serve any evidence and submissions in reply.
Catchwords: COSTS — Chorley exception — where party represented by incorporated legal practice of which he was the principal and sole director and shareholder — whether primary judge erred in denying solicitor applicant costs payable to incorporated legal practice — Bell Lawyers Pty Ltd v Pentelow
JUDICIAL REVIEW — what constitutes “the record” for the purposes of error of law on the face of the record
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Uniform Application Act 2014 (NSW)
Supreme Court Act 1970 (NSW), s 69
Supreme Court Rules 1970 (NSW)
Cases Cited: Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166
Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 372 ALR 555
Burrows v Macpherson & Kelley Lawyers (Sydney)Pty Ltd [2021] NSWCA 148
Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Coshott v Spencer [2016] NSWDC 43
Coshott v Spencer [2017] NSWCA 118
Coshott v Spencer [2018] HCATrans 81
Coshott v Spencer (High Court, Keane J, 11 September 2019, unrep)
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Guss v Veenhuizen [No 2] (1976) 136 CLR 47; [1976] HCA 57
Hamilton v Whitehead (1988) 166 CLR 121; [1988] HCA 65
Hockey v Yelland (1984) 157 CLR 124; [1984] HCA 72
Keith Spencer v Ronald Coshott, unreported, District Court, 19 September 2021
London Scottish Benefit Society v Chorley (1884) 13 QBD 872
McIlraith v Ilkin [2007] NSWSC 1052;
McMahon v John Fairfax Publications Pty Ltd (No 8) [2014] NSWSC 673
Salomon v Salomon Ltd & Co Ltd [1897] AC 22
United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA 15
Category: Principal judgment Parties: Keith Spencer (Applicant)
Ronald Coshott (Respondent)Representation: Counsel:
Solicitors:
M Castle/A Bailey (Applicant)
J O’Sullivan (Respondent)
Nexus Lawyers (Applicant)
A Segal & Legal (Respondent)
File Number(s): 2021/142329
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- AGLC
- Spencer v Coshott [2021] NSWCA 235
- Case
- [2021] NSWCA 235
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the primary judge erred in denying the applicant costs payable to his incorporated legal practice. This question engaged the application of the *Chorley* exception, which generally permits a party acting as their own solicitor to recover costs, and its relevance to incorporated legal practices, particularly in light of the High Court's decision in *Bell Lawyers Pty Ltd v Pentelow*. The Court also considered what constitutes "the record" for the purposes of an error of law on the face of the record in judicial review proceedings.
The Court of Appeal, comprising Bell P, Emmett AJA, and Simpson AJA, found that the primary judge had erred in denying the applicant costs. Applying the principles established in *Bell Lawyers*, the Court held that the *Chorley* exception, which allows a party who is a solicitor to recover costs when acting in person, extends to situations where a party is represented by an incorporated legal practice of which they are the sole director and shareholder. The Court reasoned that in such circumstances, the individual solicitor is effectively acting in person, and the corporate structure does not alter the fundamental nature of their involvement or disentitle them to costs.
Consequently, the Court of Appeal granted leave to amend the summons, set aside the orders of the District Court and the review panel, and ordered that the respondent pay the applicant’s costs of the appeal to the District Court and of the application to the Court of Appeal. Directions were also given for the quantification of these costs.
Orders
Orders of the court
1. Leave granted to rely on the proposed amended summons provided to the Court on 7 September 2021;
2. The orders of the District Court of 19 February 2021 set aside;
3. The Certificates of the review panel of 17 July set aside;
4. The respondent pay the applicant’s costs of the appeal to the District Court and of the application to this court;
5. Within seven days of the date of these reasons, the applicant file and serve any evidence on which he proposes to rely in support of the application that costs be quantified as a lump sum, and the quantum thereof, together with any submissions (not exceeding five pages) in support of such an application;
6. Within seven days thereafter, the respondent file and serve any evidence and submissions in reply.
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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