David Brady v Bale Boshev Solicitors [2009] NSWDC 387

New South Wales District Court

CITATION: David Brady v Bale Boshev Solicitors [2009] NSWDC 387

HEARING DATE(S): 19 November 2009 - 20 November 2009 EX TEMPORE JUDGMENT DATE : 20 November 2009

JURISDICTION: Civil Jurisdiction

JUDGMENT OF: Neilson DCJ at 1

Held: DECISION: 1. Leave to appeal ought be allowed as both Cost Assessor and Review Panel erred in law and therefore the Plaintiff/Appellant had in any event an unfettered right of appeal. 2. The proper consideration of the term "no win, no fee" is that "the client will not have to pay the solicitor other than from the proceeds of the claim". 3. Accordingly, Defendant's fees limited to $100,000 plus interest.

CATCHWORDS: COSTS. Costs between solicitor and client. COSTS on NO WIN, NO FEE basis. - Plaintiff retained Defendant to act for him in a claim for damages for personal injury suffered in a motor vehicle accident. The retainer was oral and was on a "no win, no fee" basis. Plaintiff settled his action for $100,000 inclusive of costs. - Defendant initially delivered a bill for $171,179.23 on a without prejudice basis. A bill lodged for assessment claimed $281,649.23. - A Costs Assessor allowed $222,359. - A Review Panel affirmed the Costs Assessor's decision. - Plaintiff sought leave to appeal.

Cassegrain v CTK Engineering; Cassegrain v Cassegrain [2008] NSWSC 457 CASES CITED: Adamson v Williams [2001] QCA 38 Baker Johnson v Jorgensen [2002] QDC 205 Baker v Legal Services Commissioner [2006] QCA 145

TEXTS CITED: Dal Pont and Walker, Law of Costs (2003) LexisNexis Butterworths