Spencer v Coshott

Case [2021] NSWCA 235


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

Khera v Jones [2006] NSWCA 85

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:
M Castle/A Bailey (Applicant)
J O’Sullivan (Respondent)

Solicitors:
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

In *Spencer v Coshott*, the applicant, Mr. Spencer, sought judicial review of decisions made by a review panel and the District Court concerning costs. Mr. Spencer was represented by an incorporated legal practice of which he was the principal, sole director, and shareholder. The central dispute revolved around whether Mr. Spencer, as the principal of the incorporated legal practice, was entitled to recover costs from the respondent, Coshott, in circumstances where he was personally acting as the solicitor for the incorporated legal practice.

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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