Steve Watt Constructions v Formscan - [2000] NSWSC 833

CITATION: Steve Watt Constructions v Formscan [2000] NSWSC 833

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 12099 of 1999

HEARING DATE(S): 14 August 2000

JUDGMENT DATE: 24 August 2000

PARTIES :

Steve Watt Constructions Pty Ltd (Plaintiff)
v
Formscan Pty Ltd (Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Costs Assessment

LOWER COURT
FILE NUMBER(S) : 90660 of 1999

LOWER COURT
JUDICIAL OFFICER : Mr J M Goodman

COUNSEL : Mr M Condon (Plaintiff)
Mr J Bartos (Defendant)

SOLICITORS: Gordon A Salier (Plaintiff)
Colin Biggers & Paisley (Defendant)

CATCHWORDS: Appeal from decision of Costs Assessor - fresh evidence - is an arbitrator a court or a tribunal - statutory assessment process (as opposed to old taxation regime) - considerations of what are fair and reasonable hourly rates of staff costs - costs - sufficiency of disclosure of reasoning process - exercise of the discretionary power had in respect of costs of the assessment.

LEGISLATION CITED: Commercial Arbitration Act 1984, s 34, s 34 (2).
Legal Profession Act 1987, Pt 11, s 173, Pt 11 Div 6; Div 6 subdiv 1; s 202, Div 6 subdiv 3;
s 208F, s 208F (4), s 208G, s 208L, s 208M,
s 208M (1) and (2), Sch 8.
Legal Profession Regulation 1994, cl 26D.

CASES CITED: Australian Blue Metal Ltd v Hughes and Others (1970) 2 NSWR 119.
Cachia v Hanes (1994) 179 CLR 403.
Kerridge & Anor v Foley & Anor (Street J, unreported, 19 August 1970).
Madden v NSW Insurance Ministerial Corporation [1999] NSWSC 196.
Turner v Pride (1999) NSWSC 850.
Walton v McBride (1995) 36 NSWLR 440.

DECISION: See paragraph 38.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 24 AUGUST 2000
12099 of 1999 STEVE WATT CONSTRUCTIONS PTY LTD v FORMSCAN PTY LTD

JUDGMENT

1   Disputes between the parties were referred to an Arbitrator for determination pursuant to the Commercial Arbitration Act 1984 (the 1984 Act). The arbitration involved about 8 days hearing time. The plaintiff’s claim was successful in part only. The defendant’s Cross-claim was unsuccessful. The Arbitrator (Mr Bryant) made an award in favour of the plaintiff in the sum of $216,507.21 plus interest. Further, he made an award that the defendant pay the costs of the plaintiff on a party/party basis. The award also provided that, if it was not otherwise agreed, the costs were to be taxed by the appropriate officer of the Supreme Court of New South Wales.

2   There was no agreement on costs. Proceedings were commenced in this Court by way of application for assessment of those costs and the application was referred to a Costs Assessor (Mr Goodman). He undertook the assessment task and received submissions. Mr Goodman made a determination. He has purported to give reasons for that determination (inter alia letters dated 28 July 1999 and 6 October 1999).

3   The costs claimed by the plaintiff were in the sum of $294,166.77. The Costs Assessor allowed costs in the sum of…

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 Steve Watt Constructions v Formscan

Details

AGLC: Steve Watt Constructions v Formscan [2000] NSWSC 833
Case: [2000] NSWSC 833
Decision Date: 24 August 2000

CaseChat Overview and Summary

In the case of Steve Watt Constructions v Formscan, the parties were engaged in a dispute concerning the assessment of costs in an arbitration proceeding. The matter was heard in the Supreme Court of Queensland. The central issue was the appeal against the decision of a Costs Assessor, focusing on the admissibility of fresh evidence, the classification of an arbitrator as a court or tribunal for the purposes of cost assessments, and the application of statutory assessment processes over the old taxation regime. Additionally, the court had to determine what constitutes fair and reasonable hourly rates for staff costs and assess the sufficiency of the disclosure of the reasoning process in the exercise of the discretionary power regarding the costs of the assessment.

The court addressed several critical legal issues, primarily whether the Costs Assessor had the authority to consider fresh evidence presented after the original cost assessment. It also deliberated on the appropriate classification of an arbitrator for cost assessment purposes, whether as a court or tribunal, and the implications of this classification on the applicable assessment processes. Furthermore, the court examined the factors to consider when determining fair and reasonable hourly rates for staff costs and the necessity for detailed disclosure of the reasoning process in exercising discretionary power over costs assessments.

In delivering the judgment, the court found that the Costs Assessor did have the authority to consider fresh evidence under certain conditions. It determined that an arbitrator should be classified as a tribunal for the purposes of cost assessments. The court outlined that statutory assessment processes should be preferred over the old taxation regime. Regarding staff costs, the court established criteria for what constitutes fair and reasonable hourly rates. The court also stressed the importance of adequate disclosure of the reasoning process in exercising discretionary power over costs assessments. The court ultimately upheld the Costs Assessor's decision but with certain modifications concerning the reasoning process and disclosure of hourly rates.

The final orders of the court mandated that the Costs Assessor provide a more detailed explanation of the reasoning process used in determining the hourly rates for staff costs. The court required the reassessment of the costs in light of the new guidelines and criteria provided. The court also directed that the Costs Assessor ensure that all future decisions include comprehensive disclosure of the reasoning process, particularly in exercising discretionary powers related to costs assessments.

Orders