WENTWORTH v ROGERS; WENTWORTH & RUSSO v ROGERS [2006] NSWCA 145 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
14 March 2006
JUDGMENT DATE:
7 June 2006
JUDGMENT OF:
Santow JA at 1; Basten JA at 68; Hislop J at 214
DECISION:
(1) In relation to the judgment in the Common Law Division given on 15 August 2002 and orders entered on 13 January 2003; (a) appeal allowed; (b) set aside the order made; (c) in lieu thereof, order that the Appellants have leave to appeal to the Court from the determinations of the costs assessor issued on 24 October 2001; and; (d) remit the appeal to the Division for determination; (2) In relation to the judgment given in the Common Law Division on 21 February 2005 and the orders entered on 21 March 2005; (a) allow the appeal; (b) set aside the orders made; (c) in lieu thereof, order that; (i) the appeals under s 208L of the Legal Profession Act 2005 from the determinations of the costs assessor issued on 24 October 2001 be dismissed; and; (ii) there be no order as to the costs of the appeals; (3) There be no order as to the costs of the applications for leave to appeal and the appeals in this Court
CATCHWORDS:
COSTS – Indemnity Principle – costs orders made against Appellant – costs agreement between Respondent and his lawyers that no obligation to pay until successful recovery of costs from Appellant – whether Appellant liable to costs order if Respondent had incurred no lability to pay his lawyers - COSTS ASSESSOR – power of – costs assessor assessed bills – whether costs assessor had power to determine the terms and validity of costs agreement – whether judge in Common Law Division had power to hear appeal from costs assessor’s determination
[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.
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AGLC
Wentworth v Rogers [2006] NSWCA 145
Case
[2006] NSWCA 145
Decision Date
CaseChat Overview and Summary
The case of *Wentworth v Rogers* concerned appeals from decisions of a costs assessor and subsequent judicial review in the Common Law Division of the Supreme Court of New South Wales. The central dispute revolved around the liability of the appellant for costs awarded to the respondent, particularly in light of a costs agreement between the respondent and his legal representatives. This agreement stipulated that the respondent was not obliged to pay his lawyers until he successfully recovered costs from the appellant.
The primary legal issues before the Court of Appeal were whether the appellant could be held liable for costs when the respondent had not yet incurred a liability to pay his own lawyers, and whether a costs assessor possessed the power to determine the terms and validity of a costs agreement. Furthermore, the Court considered whether a judge in the Common Law Division had the authority to hear an appeal from a costs assessor's determination.
The Court of Appeal allowed the appeals, setting aside the previous orders. It held that the appellant should have had leave to appeal to the Court from the costs assessor's determinations, and remitted these appeals for determination. In relation to a subsequent judgment, the Court dismissed the appeals under s 208L of the *Legal Profession Act 2005* from the costs assessor's determinations, and made no order as to the costs of those appeals. The Court also ordered that there be no order as to the costs of the applications for leave to appeal and the appeals before the Court of Appeal itself.
Orders
Orders of the court
(1) In relation to the judgment in the Common Law Division given on 15 August 2002 and orders entered on 13 January 2003; (a) appeal allowed; (b) set aside the order made; (c) in lieu thereof, order that the Appellants have leave to appeal to the Court from the determinations of the costs assessor issued on 24 October 2001; and; (d) remit the appeal to the Division for determination; (2) In relation to the judgment given in the Common Law Division on 21 February 2005 and the orders entered on 21 March 2005; (a) allow the appeal; (b) set aside the orders made; (c) in lieu thereof, order that; (i) the appeals under s 208L of the Legal Profession Act 2005 from the determinations of the costs assessor issued on 24 October 2001 be dismissed; and; (ii) there be no order as to the costs of the appeals; (3) There be no order as to the costs of the applications for leave to appeal and the appeals in this Court