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Wentworth v Rogers

Wentworth v Rogers

Case [2005] NSWSC 143 21 February 2005

Civil Litigation & Procedure

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CITATION:
Wentworth v Rogers [2005] NSWSC 143

HEARING DATE(S): 10 December 2004

JUDGMENT DATE :

21 February 2005

JURISDICTION:
Common Law Division

DECISION:
Appeals dismissed with costs

LEGISLATION CITED:
Legal Profession Act 1987
Home Builders Act
Builders Licensing Act

CASES CITED:
Graham v Alum-Lite Pty Ltd (unreported NSWCA 25 March 1997)
Howard v Mechtler - (2000) NSWSC 455
Muriniti v Lyons - (unreported)2004 NSWSC 135
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR
221
Craven-Ellis v Canons Ltd (1936 2KB 403)
Phillips v Ellison Bros Pty Ltd (1941) 65 CLR 221
Wentworth v Rogers (1999) NSWCA 403A

PARTIES:
Katherine Wentworth- First Plaintiff
Salvatore Russo-Second Plaintiff
Gordon John Rogers - Defendant

FILE NUMBER(S):
SC SC 013494/01; SC 013492/01

COUNSEL:
First Plaintiff in person
Mr D P F Officer QC/Ms V Culkoff - Second Plaintiff
Mr P J Beazley, Solicitor - Defendant

SOLICITORS:
First Plaintiff in person
Russo & Partners - Second Plaintiff
Beazley Singleton - Defendant

LOWER COURT JURISDICTION:
Costs Assessor

LOWER COURT FILE NUMBER(S):
91247/00; 91248/00

LOWER COURT JUDICIAL OFFICER :
Mr I F Dwyer

- 34 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PATTEN AJ

21 FEBRUARY 2005

No:13494 of 2001 – WENTWORTH & ANOR v ROGERS

No:13492 of 2001 – WENTWORTH v ROGERS

JUDGMENT:

1 HIS HONOUR: Before the court are appeals pursuant to s. 208L of the Legal Profession Act (the Act), from two determinations of a costs assessor (Mr I F Dwyer). Each determination was dated 24 October 2001. One found that $25,300.50 was payable by the Plaintiff, Katherine Wentworth (Ms Wentworth) to the Defendant (Mr Rogers) in proceedings 91247 of 2000, and the other found that $147,085.03 was payable by Ms Wentworth and the Plaintiff, Mr Russo, to Mr Rogers in proceedings 91248 of 2000.

2 Section 208L of the Act provides:

208L Appeal against decision of costs assessor as to matter of law

(1) A party to an application who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the Supreme Court, appeal to the Court against the decision.

(2) After deciding the question the subject of the appeal, the Supreme Court may, unless it affirms the costs assessor’s decision:

a) Make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or

b) Remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application.

(3) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.”

The Relevant Costs Orders:

3 Although nothing turns on this, I note that the costs in proceedings 91247/00 were payable pursuant to orders of Sperling J made on 28 August 1997 and the Court of Appeal (Handley JA, Stein JA and Sheppard AJA) on 29…

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 Wentworth v Rogers

Details

AGLC: Wentworth v Rogers [2005] NSWSC 143
Case: [2005] NSWSC 143
Decision Date: 21 February 2005

CaseChat Overview and Summary

Wentworth v Rogers [2005] NSWSC 143 involved two appeals from determinations of a costs assessor by Katherine Wentworth and Salvatore Russo against Gordon John Rogers. Wentworth and Russo appealed on the grounds of law against two costs orders made against them by the costs assessor. The appeals were heard by Patten AJ who dismissed them with costs. The costs assessor had determined that Wentworth owed Rogers $25,300.50 and that Wentworth and Russo owed Rogers $147,085.03. The appeals were dismissed on the basis that the costs assessor was entitled to determine the nature of the retainers between Rogers and his lawyers and that the failure of the retainers to comply with statutory requirements did not preclude Rogers from recovering reasonable remuneration for work done.

Orders