Wende v Horwath (No 2)

Case [2015] NSWCA 416


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Wende v Horwath (No 2) [2015] NSWCA 416
Hearing dates:8 July 2015
Decision date: 22 December 2015
Before: Beazley ACJ at [1];
Basten JA at [91];
Adamson J at [142]
Decision:

(1)   Set aside orders (1), (4) and (6) made in the District Court on 23 October 2014.

 

(2)   Set aside orders (1)-(7) made by the District Court on 1 April 2015.

 

(3)   Remit the proceedings to the District Court for that Court to make final orders with respect to the applicants’ appeal, including, if thought appropriate –

 

(a)   orders remitting the assessment of costs to the Manager, Costs Assessment, for determination according to law;
(b)   orders as to the costs of the parties in the District Court in relation to proceedings subsequent to the first judgment of this Court;
(c)   an order specifying the amount of any costs payable in the District Court, including pursuant to order (2) made on 23 October 2014.

 (4)   Order the first respondent to pay 50% of the applicants’ costs in this Court.
Catchwords:

COSTS – costs assessment under the Legal Profession Act 2004 (NSW) – appeal from determination of review panel to District Court pursuant to s 384 – question of law determined by Court of Appeal and remitted to District Court

 

COSTS – costs of costs assessment – whether necessary to give a separate certificate in respect of each costs order subject of a costs assessment – whether parties’ costs of assessment included with certificate of costs or alternatively with certificate of costs of costs

 

COSTS – outcome of proceedings unlikely to alter substantive liability – effect on order as to costs

 

JUDGMENTS AND ORDERS – scope of remitter to District Court

 

COURTS – powers of District Court on appeal as to question of law

STATUTORY INTERPRETATION – Legal Profession Act 2004, s 384(2) – whether power enlivened on remittal to District Court after question of law determined by Court of Appeal
Legislation Cited: Civil Procedure Act 2005 (NSW), s 133, Form 45
District Court 1973 (NSW), Pt 3
Judiciary Act 1903 (Cth), s 32
Legal Profession Act 2004 (NSW), ss 367A, 368, 369, 378, 384, 385
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW) (UCPR)
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
Allianz Australia Insurance Ltd v BlueScope Steel Ltd [2014] NSWCA 276; 87 NSWLR 332
Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department) [2010] NSWCA 72; 79 NSWLR 354
B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187
Bale v Mills [2011] NSWCA 266; 81 NSWLR 498
Blair v Curran [1939] HCA 23; 62 CLR 464
Building Insurers’ Guarantee Corporation v The Owners Strata Plan 60848 [2012] NSWCA 375
Calandra v Murden [2015] NSWCA…

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AGLC
Wende v Horwath (No 2) [2015] NSWCA 416
Case
[2015] NSWCA 416
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the Court of Appeal of New South Wales from a determination of a review panel under the *Legal Profession Act 2004* (NSW). The appeal had previously been before the Court of Appeal, which had determined a question of law and remitted the proceedings to the District Court. The present appeal arose from the District Court's subsequent orders.

The legal issues before the Court of Appeal included the scope of the District Court's powers upon a remitter after a question of law had been determined by the Court of Appeal, and whether the District Court had correctly interpreted and applied section 384(2) of the *Legal Profession Act 2004* (NSW) in this context. Further questions related to the proper approach to costs certificates in the context of a costs assessment, and whether the substantive outcome of proceedings, which was unlikely to alter liability, should affect orders as to costs.

The Court of Appeal reasoned that the District Court's powers on remittal were not limited to simply implementing the Court of Appeal's previous decision, but extended to making final orders, including the assessment of costs. The Court clarified that the District Court retained the power to remit the assessment of costs to the Manager, Costs Assessment, and to make orders regarding the costs of the parties in the District Court, including those incurred subsequent to the first judgment of the Court of Appeal. The Court also addressed the requirements for costs certificates, noting that a separate certificate was not necessarily required for each costs order subject to assessment.

The Court of Appeal set aside the orders made by the District Court on 23 October 2014 and 1 April 2015. The proceedings were remitted to the District Court for it to make final orders, including the potential remittal of costs assessment, orders as to the costs of the parties in the District Court, and specification of any costs payable. The first respondent was ordered to pay 50% of the applicants’ costs in the Court of Appeal.

Orders

Orders of the court

(1) Set aside orders (1), (4) and (6) made in the District Court on 23 October 2014.

(2) Set aside orders (1)-(7) made by the District Court on 1 April 2015.

(3) Remit the proceedings to the District Court for that Court to make final orders with respect to the applicants’ appeal, including, if thought appropriate –

(a) orders remitting the assessment of costs to the Manager, Costs Assessment, for determination according to law;

(b) orders as to the costs of the parties in the District Court in relation to proceedings subsequent to the first judgment of this Court;

(c) an order specifying the amount of any costs payable in the District Court, including pursuant to order (2) made on 23 October 2014.

(4) Order the first respondent to pay 50% of the applicants’ costs in this Court.

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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