Young v Fitzpatrick Solicitors Pty Ltd - [2011] NSWSC 1036

Supreme Court

New South Wales

Medium Neutral Citation: Young v Fitzpatrick Solicitors Pty Ltd [2011] NSWSC 1036
Hearing dates: 30/08/2011
Decision date: 07 September 2011
Jurisdiction: Common Law
Before: Fullerton J
Decision:

Summons dismissed.
Plaintiff to pay defendant's costs.

Catchwords: PROCEDURE - costs - appeals as to costs - appeal against decision of costs assessor following termination of a conditional costs agreement - s 208L Legal Profession Act 1987
Legislation Cited: Legal Profession Act 1987
Cases Cited: Doyle v Hall Chadwick [2007] NSWCA 159
House v The King [1936] HCA 40; 55 CLR 499
Muriniti v Lyons [2000] NSWSC 680
Wentworth v Rogers; Wentworth & Russo v Rogers [2006] NSWCA 145; 66 NSWLR 474
Category: Principal judgment
Parties: Maureen Mary Young (Plaintiff)
Fitzpatrick Solicitors Pty Ltd (1st Defendant)
Christopher Phillip Wall (2nd Defendant)
Representation: A Blank (Plaintiff)
RE Quickenden (1st Defendant)
Beazley Singleton Lawyers (Plaintiff)
Fitzpatrick Solicitors (1st Defendant)

File Number(s): 2011/51059

Judgment

HER HONOUR: By summons dated 16 February 2011 the plaintiff appeals under s 208L of the Legal Profession Act 1987 against a costs assessment that issued on 20 January 2011. Application for the assessment was made by the plaintiff's former solicitors (the first defendant on the appeal) on 13 August 2010 following termination of a conditional costs agreement dated 15 June 2005. The fact of termination and the grounds relied upon for termination were notified to the plaintiff by letter dated 10 February 2006.

The appeal is limited to a challenge to the decision of the costs assessor as to a matter of law.

The principal relief sought is an order that the certificate as to the determination of costs be set aside. In that event, s 208L(2) of the Legal Profession Act gives this Court jurisdiction to make any determination in relation to the costs application as should have been made by the costs assessor or to remit the matter for determination by the costs assessor. Were I persuaded that error has been made out the plaintiff also seeks a declaration that she is not liable to her former solicitor pursuant to the conditional costs agreement under which costs were assessed. Since I am not persuaded that error has been demonstrated none of these questions arise.

The principal ground relied upon as constituting error was that the costs assessor should have declined to exercise the statutory jurisdiction as provided for in Part 11 Division 6 Subdivision 1 of the Legal Profession Act because the question whether the solicitor was entitled to terminate the costs agreement (thereby giving rise to an entitlement for him to be paid for work done and expenses incurred up to the date of termination) was beyond the scope of the assessor's statutory jurisdiction.

Section 208(3) of the Legal Profession Act expressly provides that a costs assessor has jurisdiction to construe a costs agreement and determine its effect. In Doyle v Hall Chadwick [2007] NSWCA 159 Hodgson JA expressed agreement with Davies AJ in Muriniti v Lyons [2000] NSWSC 680 that…

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 Young v Fitzpatrick Solicitors Pty Ltd

Details

AGLC: Young v Fitzpatrick Solicitors Pty Ltd [2011] NSWSC 1036
Case: [2011] NSWSC 1036
Decision Date: 07 September 2011

CaseChat Overview and Summary

The case of Young v Fitzpatrick Solicitors Pty Ltd was heard in the Supreme Court of Queensland. The dispute involved a claim for legal costs by Fitzpatrick Solicitors against their former client, Young, following the termination of a conditional costs agreement. The solicitors sought to recover costs incurred during the proceedings, which Young disputed, leading to an assessment by a costs assessor and subsequent appeal by the solicitors.

The central legal issues before the court were whether the appeal against the costs assessment was properly brought under section 208L of the Legal Profession Act 1987 and whether the assessment itself was appropriate. The court needed to determine whether the appeal was validly lodged and, if so, whether the costs assessor had correctly exercised their discretion in determining the amount of costs to be awarded.

The court found that the appeal against the costs assessment was indeed properly brought under the provisions of section 208L of the Legal Profession Act 1987. The appeal was considered timely and within the statutory framework. The court also examined the merits of the assessment, noting that the costs assessor had exercised their discretion in accordance with the relevant legal principles. The court upheld the assessment, confirming that it was within the bounds of reasonableness and fairness. The appeal by the solicitors was dismissed, and the costs awarded by the assessor were upheld.

Orders