Makeig v Derwent [2002] NSWSC 141

New South Wales Supreme Court

CITATION : Makeig v Derwent [2002] NSWSC 141 FILE NUMBER(S) : SC 10369/02 HEARING DATE(S) : 05.03.02 JUDGMENT DATE : 5 March 2002

PARTIES : Peter Makeig Peter Derwent JUDGMENT OF : Simpson J

COUNSEL : T. Molomby (Pl) C. Evatt QC with M.K. Rollinson (D) SOLICITORS : Jennifer E. Darin (P) Trevor J. Carter (D) CATCHWORDS : appeal from Costs Assessor - question of law - sufficiency of evidence - Assessor's finding of fact LEGISLATION CITED : Legal Profession Act 1987 DECISION : Summons dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION/CRIMINAL DIVISION DUTY JUDGE list

SIMPSON J

Tuesday 5 March 2002

10369/02 PETER MAKEIG v PETER DERWENT

JUDGMENT 1 Her Honour: The plaintiff moves on a summons filed on 11 February 2002 claiming relief under s 208L of the Legal Profession Act 1987, which in short permits a party who is dissatisfied with the decision of the Costs Assessor to appeal to this Court on a matter of law arising in the proceedings before the Costs Assessor. 2 The plaintiff contends that two errors of law can be identified, these being each a finding of fact as to which the plaintiff argues there was no evidence in support. 3 The facts as they were outlined to me are these. The plaintiff presented to the Costs Assessor a Bill of Costs for assessment pursuant to a Costs Order made in the District Court on 9 April 1999. The defendant filed certain objections to the costs thereby claimed. So far as is relevant, the objections related to costs of counsel and solicitors claimed in relation to the representation by those practitioners of the parties and those passages of the objection to which I was referred make it clear that the relevant objection was as to whether or not the legal representatives were entitled to make a claim for costs. The basis of that was a contention that the legal representatives had agreed to undertake the representation without fee. 4 It is plain that the Costs Assessor rejected that contention. In doing so he referred to two documents, one entitled "Fee Disclosure" dated 30 May 1996 and sent by counsel to the solicitors, in which counsel stated that he was prepared to act on a contingency or speculative basis but otherwise outlining the fees he would charge. 5 On 27 September 1998 the solicitors wrote to the client confirming that they, too, were prepared to undertake the work on a contingency basis, but setting out the fees that they would charge should he be successful and referring also to the fees that would be charged for work already done. 6 The Assessor referred to these. In doing so he referred to the fact that the copies of the documents that were before him were unexecuted, and this gave rise to a further issue in the proceedings. It seems to me clear that the Assessor accepted that these were genuine documents and were copies of documents that had been forwarded, and probably executed, and what he did was treat them as evidence of what they contained. The conclusion he drew from these documents was that the matter had been undertaken by the solicitor and counsel on what he described as "the not unusual contingency basis". 7 For that reason, he rejected the objections on pages 2 and 3, they being the argument that counsel, and possibly the solicitors, had agreed to perform the work for no fee. If that had been the agreement then a different principle would have applied and it may well have been that the legal representatives were not entitled to recover their costs and their client would therefore not be entitled to recover the costs paid to them. However, as I have said, the Assessor rejected that contention and found as a fact that those representatives had agreed to undertake the work on a contingency basis. They were therefore entitled to recover their fees from their client, who was entitled to recover within the limits of the costs assessment from the unsuccessful party. 8 It was argued that there was no evidence of a costs agreement, at least prior to 27 September, in relation to the solicitors and none at all in relation to counsel, and this may be right. But since the Assessor did not, in my view, make any such finding, or to the extent he did he did not operate on it, it is not material. 9 It was also argued that the assessment of costs was not in accordance with s 208B, in part because the Assessor did not refer to the non-compliance by the legal practitioners with ss 175 and 177. This was not, so far as the evidence before me discloses, raised in the objection and I do not see any reason why the Assessor should have mentioned it, or at least that his failure to mention it constitutes an error of law. 10 Mention was also made of s 208B(d). Section 208B(d) deals with the matters to be considered by Costs Assessors in assessing bills of costs, the primary obligation being to assess a fair and reasonable amount of costs. Sub paragraph (d) requires, where relevant, the Assessor to take into account any relevant costs agreement. It does not seem to me that this advances the matter any further because this was an assessment of costs pursuant to an order of a court. 11 Section 208H(2) prohibits the application of the terms of a costs agreement in such circumstances. Indeed, I was told that the amounts allowed by the Costs Assessor were somewhat less than those referred to in the costs agreement. It does not seem to me that there was any error of law in what the Assessor did. 12 I am satisfied that no such error of law has been identified and accordingly the summons is dismissed with costs. **********