Stanizzo v Grpcevski - [2005] NSWSC 1185

CITATION:
Stanizzo v Grpcevski [2005] NSWSC 1185

HEARING DATE(S): 17 November 2005

JUDGMENT DATE :

24 November 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Associate Justice Harrison

DECISION:
(1) Leave to appeal is granted; (2) The amount in the certificate as to determination of costs dated 2 September 2005 is varied. The sum of $13,600.00 referred to in paragraph one is deleted and in lieu the sum of $19,948.48 is inserted; (4) The defendant is to pay the plaintiff's costs as agreed or assessed.

CATCHWORDS:
Appeal decision of Costs Assessor - ss 208L & M of the LPA

LEGISLATION CITED:
Legal Profession Act 1987 (NSW) - ss 208L & M
Legal Profession Act 2004 (NSW) - ss 384 and 395

CASES CITED:
Chapmans Ltd v Yandell (t/as Yandells) [1999] NSWCA 361
Coulter v Regina (1988) 164 CLR 350
Larsen v Vile [1999] NSWCA 397
Montgomery v Egan Simpson Solicitors [2005] NSWSC 886

PARTIES:
Vincent Francis Stanizzo
(Plaintiff)
Milorad Grpcevski
(Defendant)

FILE NUMBER(S):
SC 14507/2005

COUNSEL:
Mr M Rollinson
(Plaintiff)
Mr P Menadue
(Defendant)

SOLICITORS:
Mr V Stanizzo,
VF Stanizzo Solicitors
(Plaintiff)
Mr D Lagopodis,
Wiseman & Davidson
(Defendant)

LOWER COURT JURISDICTION:

LOWER COURT FILE NUMBER(S):
91020/2005

LOWER COURT JUDICIAL OFFICER :
Mr Peter Rosier

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

THURSDAY, 24 NOVEMBER 2005

14507/2005 - VINCENT FRANCIS STANIZZO v
MILORAD GRPCEVSKI
JUDGMENT (Appeal decision of Costs Assessor
- ss 208L & M of the LPA)

1 HER HONOUR: By summons filed 27 September 2005 the plaintiff seeks firstly, to appeal the determination of Peter Rosier, Costs Assessor dated 2 September 2005, in the assessment of practitioner and client costs between the plaintiff and the defendant pursuant to s 208L of the Legal Profession Act 1987 (LPA) secondly, in the alternative, leave to appeal against the determination pursuant to s 208M of the LPA and thirdly, an order varying the determination by substituting $19,048.48 as the amount of costs to be paid to the plaintiff (noting a credit of $8,100.00 to the defendant against this sum).

2 The plaintiff is Vincent Francis Stanizzo. The defendant is Milorad Grpcevski. The plaintiff relied upon his affidavits sworn 23 and 26 September 2005. The defendant relied upon the affidavit of Danny Lagopodis sworn 14 November 2005.

3 The plaintiff is the former solicitor for the defendant. He was instructed by the defendant in the matter of his application for a superannuation benefit from the BHP Biliton Superannuation Fund. For convenience I shall refer to the plaintiff as the practitioner and the defendant as the client. On 2 November 2004 the practitioner submitted a bill of costs to the client which totalled the sum of $19,048.48 less the amount paid, namely $8,100.00. The amount due and owing was calculated at $10,948.48. The defendant applied for a practitioner/client assessment of the bill. The matter was referred to Costs Assessor Peter Rosier who issued his determination on 2 September 2005. He determined that a fair and reasonable amount…

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 Stanizzo v Grpcevski

Details

AGLC: Stanizzo v Grpcevski [2005] NSWSC 1185
Case: [2005] NSWSC 1185
Decision Date: 24 November 2005

CaseChat Overview and Summary

The appeal was brought by the appellant against a decision of a Costs Assessor in the Federal Circuit Court. The original proceedings involved a dispute over the costs of an application to set aside a consent judgment. The appellant, Stanizzo, argued that the Costs Assessor had incorrectly assessed the costs. The first respondent, Grpcevski, was the other party in the original matter. The second respondent was the Costs Assessor, who was also a Judge of the Federal Circuit Court.

The appeal centred on the interpretation of sections 208L and 208M of the Legal Profession Act 2004. The appellant argued that the Costs Assessor had failed to properly consider the principle of proportionality when assessing costs. The appellant submitted that the costs awarded were excessive and not in proportion to the nature and complexity of the application. The respondents, on the other hand, contended that the Costs Assessor's decision was correct and that the appeal should be dismissed.

The court found that the Costs Assessor had indeed erred in the assessment of costs. The judge highlighted that the principle of proportionality was not adequately considered, resulting in an award that was disproportionate to the nature and complexity of the application. The judge also noted that the Costs Assessor had failed to consider the appellant's submissions in full, which further contributed to the incorrect assessment. Consequently, the appeal was allowed, and the original decision was set aside. The matter was remitted to the Costs Assessor for re-assessment in accordance with the principles of proportionality and proper consideration of the appellant's submissions.

The court ordered that the appeal be allowed and the decision of the Costs Assessor be set aside. The matter was to be remitted to the Costs Assessor for re-assessment in accordance with the principles outlined in the judgment. The respondents were ordered to pay the appellant's costs of the appeal.

Orders