Wollongong Council v Smith - [1999] NSWSC 473

CITATION: WOLLONGONG COUNCIL v SMITH [1999] NSWSC 473

CURRENT JURISDICTION: COMMON LAW

FILE NUMBER(S): 12827/1998

HEARING DATE(S): 14 MAY 1999

JUDGMENT DATE:
21 May 1999

PARTIES :

THE COUNCIL OF THE CITY OF WOLLONGONG
v
DENNIS SMITH

JUDGMENT OF: Master Malpass

LOWER COURT JURISDICTION: Costs Assessment

LOWER COURT FILE NUMBER(S) : 90686/98

LOWER COURT JUDICIAL OFFICER: C R FITZSIMONS

COUNSEL : PLAINTIFF: MR C W McEWEN/MR A PICKLES
DEFENDANT: N/A

SOLICITORS: PLAINTIFF: PEEDOM BRODIE & WARD
DEFENDANT: IN PERSON - UNREPRESENTED

CATCHWORDS: Appeal as to a matter of law arising in assessment proceedings; such proceedings are for assessment of costs payable in respect of legal services; costs of litigant in person providing professional services as a surveyor to his client not recoverable under order for party and party costs.

ACTS CITED: Legal Profession Act 1987, s 48E, s 208L.
Supreme Court Rules 1970, Pt. 52A.

CASES CITED: Cachia v Hanes & Anor (1994) 179 CLR 403.

DECISION: SEE PARAGRAPHS 16-17

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 21 MAY 1999

12827/1998 THE COUNCIL OF THE CITY OF WOLLONGONG v DENNIS SMITH
JUDGMENT
1 The defendant is a consulting surveyor and a member of the Institute of Surveyors New South Wales (Incorporated). Spaceline Engineering Pty Ltd (the client) was his client in relation to Development Applications made to the plaintiff. The Development Applications were made in the name of the defendant. The applications were approved subject to the imposition of a condition. The condition was unacceptable and it was decided to appeal to the Land and Environment Court. The defendant was instructed to act as applicant/agent in the making of the applications to that Court.
2 The applications were made by the defendant as applicant. The appeal was successful.
3 The practice of that Court in relation to such applications is for each party to pay its own costs. Costs are awarded only in exceptional circumstances. An application was made by the applicant for costs on the basis that exceptional circumstances existed in this case. The Court found that the Council had acted so as to impose an ad hoc condition, an opportunistic condition and an inconsistent condition and that those findings constituted exceptional circumstances. An order was made that the respondent (the plaintiff) pay the costs of the applicant. The effect of this order was that costs were payable on a party and party basis.
4 The defendant prepared Bills of Costs which claimed inter alia fees (calculated at an hourly rate) charged to the client in respect of the defendant’s conduct of the application before the Land and Environment Court. Fees for work done on behalf of the client fall within items 1 to 105 of the bill. Items 106 and 107 related to disbursements (filing fees and miscellaneous). Item 108 relates to a disbursement for the preparation of the Bill of Costs. ($1055.87).
5 The defendant applied to this Court for an assessment of those costs. This was an application for…

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 Wollongong Council v Smith

Details

AGLC: Wollongong Council v Smith [1999] NSWSC 473
Case: [1999] NSWSC 473
Decision Date: 21 May 1999

CaseChat Overview and Summary

The Wollongong Council appealed against a decision that awarded costs to a surveyor, Smith, who had acted as a litigant in person in assessment proceedings. The proceedings were for assessment of costs payable in respect of legal services provided by Smith to the Council. Smith had provided professional services as a surveyor to the Council and sought to recover his costs under an order for party and party costs. The Council contended that Smith's costs were not recoverable as he was not a legal practitioner and his services did not fall within the scope of the order.

The central legal issue was whether Smith's costs were recoverable under the order for party and party costs, given that he was a surveyor and not a legal practitioner. The court needed to determine the extent to which such professional services provided by a non-lawyer could be considered as costs recoverable under the order. The court examined the relevant statutory provisions and case law to ascertain the appropriate scope and application of the order for party and party costs.

The court held that the order for party and party costs was not intended to cover costs of professional services provided by non-lawyers, such as surveyors. The court emphasised that the order was specifically designed to cover costs incurred by parties in the conduct of legal proceedings, which typically includes costs of legal practitioners. Since Smith was not a legal practitioner and his services did not directly pertain to the legal aspects of the proceedings, his costs were not recoverable under the order. The court found that the trial judge had erred in including Smith's costs in the assessment, as they did not fall within the scope of the party and party costs order.

The appeal was allowed, and the trial judge's order was set aside to the extent that it included Smith's costs. The court directed that Smith's costs were not recoverable under the party and party costs order. No further orders were made as the primary issue of cost recovery had been resolved.

Orders