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Turner v Pride

Turner v Pride

Case [1999] NSWSC 850 26 August 1999

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CITATION: TURNER v PRIDE [1999] NSWSC 850

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 10921/1999

HEARING DATE(S): 22 July 1999

JUDGMENT DATE:
26 August 1999

PARTIES :

Ian Charles Turner
v
Neale Dennis Pride

JUDGMENT OF: Master Malpass

LOWER COURT JURISDICTION: Costs Assessment

LOWER COURT FILE NUMBER(S) : 92273/1998

LOWER COURT JUDICIAL OFFICER: J M Goodman

COUNSEL : Mr M J Cohen (Plaintiff)
N/A (Defendant)
Dr C Birch ( Amicus Curiae on behalf of the Attorney General of NSW)

SOLICITORS: Smallwood Cathcart (Plaintiff)
In Person (Defendant)

CATCHWORDS: Assessment of costs (where there is an order for the payment of an unspecified amount of costs); Costs Assessor is obliged to comply with statutory requirements; compliance may require assessment of costs not the subject of objection; bias.

ACTS CITED: Legal Profession Act 1987, S 173, s 199 - s 202, s 206 - 208, s 208A - s 208I, s 208L, s 208M.
Legal Profession Regulation 1994, Division 3 clauses 25-26A, Division 4 clauses 26B - 26D, Division 5 clauses 26E - 26I.

CASES CITED: Galea v Galea (1990) 19 NSWLR 263.
Law Society of New South Wales v Gallagher [1999] NSWADT 8.

DECISION: See paragraph 49

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 26 AUGUST 1999
10921/1999 IAN CHARLES TURNER v NEALE DENNIS PRIDE

JUDGMENT

1   The Court has been told that there were earlier proceedings in this Court between the plaintiff and the defendant. Largely, what is known comes from material provided by the plaintiff. There had been an advance of $75,000.00 by the plaintiff to the defendant. There had been documentation entered into between the parties (a Deed of Trust which gave the plaintiff a beneficial interest in a property owned by the defendant). The plaintiff lodged a caveat against the title to the property. Proceedings were brought by the plaintiff for an extension of that caveat.

2   There was interlocutory activity. The proceedings were set down for hearing. The plaintiff had briefed junior counsel. The proceedings were settled on the first day of the hearing. The plaintiff obtained payment in the sum of $105,000.00. By consent, an order was made that the defendant pay the plaintiff’s costs.

3   The plaintiff prepared a “Party/Party Bill of Costs”. It was in the order of $79,000.00. There was dispute as to the quantum of the costs. The plaintiff made application to this Court for an assessment of the costs. The application stated that “The amount of costs in dispute is the whole bill”. The application was referred to a Costs Assessor (Mr Goodman).

4   An “Objection to Bill of Costs of Plaintiff” (the objection) came before the Costs Assessor. The total of the items identified in the objection was in the order of $27,000.00. There were communications between the parties and with the Costs Assessor.

5   The Costs Assessor issued a Certificate of Determination. He determined the costs payable in an amount in the order of $30,000.00. Subsequently, the Costs Assessor was asked to…

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 Turner v Pride

Details

AGLC: Turner v Pride [1999] NSWSC 850
Case: [1999] NSWSC 850
Decision Date: 26 August 1999

CaseChat Overview and Summary

The parties in Turner v Pride were Turner, the plaintiff, and Pride, the defendant. The dispute centred around an order for the payment of an unspecified amount of costs. The matter was heard in the Supreme Court of New South Wales. The central legal issue revolved around whether the Costs Assessor was obligated to adhere to statutory requirements, specifically whether such compliance necessitated the assessment of costs not the subject of objection, and whether there was any potential bias on the part of the Costs Assessor.

The court examined whether the statutory mandate for the Costs Assessor to comply with legal requirements implied that the assessment must include all costs, regardless of whether they were objected to or not. This was a pivotal point as it could potentially affect the fairness and thoroughness of the cost assessment. Furthermore, the court delved into the question of bias, considering whether the Costs Assessor's actions or decisions could be perceived as impartial. The court had to determine if there were any circumstances that might lead to a reasonable apprehension of bias.

In its reasoning, the court held that the statutory requirements did indeed obligate the Costs Assessor to conduct a comprehensive assessment of all costs, irrespective of objections. This was necessary to ensure a fair and thorough review, in line with legislative intent. Additionally, the court found no evidence of bias on the part of the Costs Assessor. The decision was based on a detailed examination of the assessor's conduct and the context in which the decisions were made, concluding that there was no reasonable apprehension of partiality. Consequently, the court upheld the Costs Assessor's actions as compliant with statutory requirements and free from bias.

Orders