Walker Group Constructions Pty Ltd V Tzaneros Investments Pty Ltd [2021] NSWDC 32

District Court New South Wales

Medium Neutral Citation: Walker Group Constructions Pty Ltd V Tzaneros Investments Pty Ltd [2021] NSWDC 32 Hearing dates: 22 and 23 October 2020, 13 November 2020 and 3 February 2021; submissions to 25 February 2021 Date of orders: 26 February 2021 Decision date: 26 February 2021 Jurisdiction: Civil Before: Gibson DCJ Decision: Orders: (1) The Manager Costs Assessment, Mr Brendan Bellach, is joined as the second defendant to these proceedings for the purpose of facilitating order (2) below. (2) I remit the decision of the Review Panel to the Manager Costs Assessment and order that the application for review be re-determined in accordance with these reasons, either by the original Review Panel or, at Mr Bellach's discretion and subject to the necessary consents from the Chief Justice of the Supreme Court of New South Wales, by a fresh panel. (3) Ground 1 of the Amended Summons: appeal allowed: Certificates of Determination set aside and remitted to the Review Panel (whether the same or differently constituted) to issue certificates in accordance with my findings in relation to this ground. (4) Ground 2 of the Amended Summons: appeal allowed: remit the determination of the Review Panel in relation to the cost indemnity principle to the Review Panel (whether the same or differently constituted) to determine this issue based on a consideration of the submissions of the parties and in the manner required by s 375 of the Legal Profession Act 2004 (NSW). (5) Ground 3 of the Amended Summons is dismissed. (6) Grant leave to the defendant to file an Amended Cross-Summons adding Grounds 5 – 7 and abandoning Ground 4, and dispense with any requirement for service. (7) Ground 1 of the Amended Cross-Summons: appeal allowed: the matter be remitted to the Review Panel (whether the same or differently constituted) to re-determine the plaintiff's entitlement to the filing fee in accordance with the findings set out in this judgment. (8) Ground 2 of the Amended Cross-Summons: appeal allowed: the matter be remitted to the Review Panel (whether the same or differently constituted) to re-determine the plaintiff's entitlement to the cost of the assessment in accordance with the findings set out in this judgment. (9) Ground 3 of the Amended Cross-Summons: appeal allowed: the matter be remitted to Review Panel (whether the same or differently constituted) to re-determine the plaintiff's entitlement to the costs of the review (in light of the redetermination) in accordance with the findings set out in this judgment. (10) Grounds 5, 6 and 7 of the Amended Cross-Summons are dismissed. (11) Liberty to apply in relation to the form of the above orders. (12) Costs reserved with liberty to apply. Catchwords: COSTS ASSESSMENT – Summons and Cross-Summons - Review Panel fails to provide certificates conformably with Wende v Howarth (NSW) Pty Ltd (2014) 86 NSWLR 674 or to accord the parties procedural fairness in relation to the indemnity principle – adequacy of reasons – whether errors identified in the Cross-Summons were errors of law – whether remitter should be made to the Manager Costs Assessment in circumstances where the appointment of one member of the Review Panel had lapsed during the appeal Legislation Cited: Civil Liability Act 2002 (NSW) s 35 Civil Procedure Act 2005 (MSW) ss 14 and 56-62 Legal Profession Act 2004 (NSW) ss 375, 378, 380, 381, 382(1), 384, 385 and 387 Legal Profession Regulation 2005 (NSW) reg 134 Legal Profession Uniform Law Application Regulations 2015 (NSW) reg 59 Cases Cited: Adams v Lambert (2006) 228 CLR 429 Altaranesi v Sydney Local Health District [2012] NSWDC 90 Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2011] NSWDC 55 Cassegrain v CTK Engineering; Cassegrain v Cassegrain [2008] NSWSC 457 Coshott v Spencer [2018] HCA Trans 81; [2019] HCA Trans 166; [2019] HCA Trans 183 Coshott v Vardas [2017] NSWCA 258 CSR Ltd v Eddy (2008) 70 NSWLR 725 eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284 Frumar v Owners of Strata Plan 36957 (2006) 67 NSWLR 321 Hewitt v Comcare [2020] FCA 527 Hollis v Comcare [2017] FCA 558; 154 ALD 541 Hossein v Minister for Immigration and Border Protection (2018) 264 CLR 123 Lahoud v Lahoud [2018] NSWSC 5 Lyons v Wende [2007] NSWSC 100 Mann v Paterson (2019) 373 ALR 1 Minister for Education and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 Minister for Immigration and Border Protection v SZRSG (2019) 264 CLR 421 Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 Randall v Willoughby City Council [2009] NSWDC 118 Re Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82; [2000] HCA 57 Reavill Farm Pty Ltd v Burrell Solicitors Pty Ltd [2017] NSWCA 156 Strinic v Singh [2009] NSWCA 15 Tzaneros Investments Pty Limited v Walker Group Constructions Pty Limited [2016] NSWSC 50 Tzaneros Investments Pty Limited v Walker Group Constructions Pty Limited (No. 3) [2016] NSWSC 526 Tzaneros Investments Pty Ltd v Walker Group Constructions Pty Ltd (No 4) [2018] NSWSC 431 Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27 Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674 Wende v Howarth (No 2) [2015] NSWCA 416; 91 NSWLR 588 Young v Annis-Brown t/as Lincoln Smith & Company [2011] NSWSC 475 Texts Cited: "Law of Costs", 2nd Ed., 2009 (LexisNexis, Australia) Category: Principal judgment Parties: Plaintiff: Walker Group Constructions Pty Ltd