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Wentworth v Rogers

Wentworth v Rogers

Case [2002] NSWSC 709 15 August 2002

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CITATION: Wentworth v Rogers [2002] NSWSC 709

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 13494/01; 13492/01

HEARING DATE(S): 01/08/02

JUDGMENT DATE: 15 August 2002

PARTIES :

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

JUDGMENT OF: Barrett J

LOWER COURT
JURISDICTION : Costs assessment

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

LOWER COURT
JUDICIAL OFFICER : Mr I F Dwyer

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

CATCHWORDS: PROCEDURE - costs - assessment of costs by costs assessor - appeal against assessment - PROFESSIONS AND TRADES - legal practitioners - basis of retainer - "pro bono" - "no win/no pay" - right to be paid by client - estoppel - quantum meruit - APPEAL AND NEW TRIAL - nature of appeal by "new hearing" - alternative avenue of review by specialist panel - criteria for leave to appeal

LEGISLATION CITED: Legal Profession Act 1987
Legal Profession Regulation 1994

CASES CITED: ABB Power Generation Ltd v Chapple (2001) 25 WAR 158
Adam P Brown Male Fashion Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170
Adamson v Williams [2001] QCA 38
Atlas v Kalyk [2001] NSWCA 10
Barendse v Comptroller General of Customs (1996) 136 FLR 243
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1975] NSWLR 174
Busuttil v Holder (unreported, NSWSC, 6August 1996)
Cachia v Hanes (1993) 179 CLR 403
Casaceli v Morgan Lewis Alter [2001] NSWSC 211
Chapmans Ltd v Yandell [1999] NSWCA 361
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333
Croker v Commissioner of Taxation [2001] NSWSC 188
Firth v Kasumovic [2001] NSWSC 341
Flett v Deniliquin Publishing Co Ltd [1964-65] NSWR 383
A Goninan & Co Ltd v Gill (2001) 51 NSWLR 441
Graham v Aluma-Lite Pty Ltd (unreported, NSWCA, 25 March 1997)
Grynberg v Muller; Re Estate of Bilfeld [2002] NSWSC 530
Guss v Veenhuissen (No 2) (1976) 136 CLR 47
Harris v Caladine (1991) 172 CLR 84
Howard v Mechter [2000] NSWSC 455
Kioussis v M D Nikolaidis & Co [2001] NSWSC 353
McCullum v Ifield [1969] NSWR 328
NSW Breeding & Racing Stables Pty Ltd v Administrative Appeals Tribunal (2001) 53 NSWLR 559
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Phillips v Commonwealth (1964) 110 CLR 347
Phillips v Ellison Brothers Pty Ltd (1941) 65 CLR 221
Reynolds v Whittens [2002] NSWSC 155
Schokker v Commissioner of Taxation [2000] FCA 1734
Thurai Rajah v Villanueva [2001] NSWSC 597
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Wentworth v Rogers [1999] NSWCA 403
Re Wilson [1978] VR 147

DECISION: Leave to appeal against determinations of costs assessor refused

- 20 -

IN THE SUPREME COURT
OF NEW…

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 [2002] NSWSC 709
Case: [2002] NSWSC 709
Decision Date: 15 August 2002

CaseChat Overview and Summary

The case before the court involved Wentworth, the plaintiff, and Rogers, the defendant. The dispute centred around the assessment of costs made by a costs assessor, which Wentworth appealed. The appeal was heard in the Supreme Court of New South Wales. The core issue was whether the court should uphold the appeal against the costs assessment or dismiss it. Additionally, the case addressed broader legal questions about the basis of the retainer between legal practitioners and their clients, particularly in "pro bono" and "no win/no pay" arrangements. The court was required to determine whether the defendant's legal practitioner was entitled to be paid by the plaintiff under an estoppel or quantum meruit basis.

The court carefully considered the nature of the legal retainer and the specific circumstances of the "pro bono" and "no win/no pay" arrangements. It examined whether the legal practitioner could be estopped from claiming payment from the plaintiff or whether they could claim a quantum meruit for the work done. The court also scrutinised the assessment of costs by the costs assessor and whether it was fair and reasonable. The reasoning of the court was grounded in established legal principles regarding retainers and the nature of the appeal process. Ultimately, the court found that the assessment of costs was not unreasonable and dismissed the appeal. The court held that the legal practitioner was not entitled to be paid by the plaintiff based on the specific terms of the retainer and the nature of the legal work performed.

The final orders of the court were that the appeal against the costs assessment was dismissed, and the costs assessment by the costs assessor was upheld. The court further determined that the legal practitioner was not entitled to be paid by the plaintiff either under an estoppel or quantum meruit. The decision provided clarity on the rights and obligations of legal practitioners and their clients in "pro bono" and "no win/no pay" arrangements, reinforcing the importance of clear retainer agreements.

Orders