New South Wales Supreme Court CITATION : Doyles Construction Lawyers v Rickard Constructions [2003] NSWSC 1101 HEARING DATE(S) : 19 November 2003 JUDGMENT DATE : 27 November 2003 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned. CATCHWORDS : Appeal - defence or answer to assessment under Statutory regime - construction of consent orders. LEGISLATION CITED : Corporations Law CASES CITED : Rickard Constructions v Doyle [2002] NSWSC 882. James Doyle trading as Doyles Construction Lawyers (Plaintiff) PARTIES : v Rickard Constructions Pty Limited (under Deed of Company Arrangement) (Defendant) FILE NUMBER(S) : SC 11432 of 2003 COUNSEL : N/A (Plaintiff) Mr M L Brabazon (Defendant) SOLICITORS : Doyles Construction Lawyers (Plaintiff) Cordato Partners (Defendant) LOWER COURT Costs Assessment JURISDICTION : LOWER COURT 91014 of 2001 FILE NUMBER(S) : LOWER COURT Costs Review Panel JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Thursday 27 November 2003 11432 of 2003 James Doyle trading as Doyles Construction Lawyers v Rickard Constructions Pty Limited (under Deed of Company Arrangement) JUDGMENT 1 MASTER: The plaintiff is a solicitor. The defendant is his former client. He was retained in early 2000. 2 On 19 October 2000, the defendant appointed an administrator. On 22 December 2000, it entered into a Deed of Company Arrangement. On 31 March 2001, the plaintiff ceased to act for the defendant. 3 On 1 June 2001, the defendant applied to this Court for an assessment of costs rendered by the plaintiff. The application was referred to a Costs Assessor (Mr Hattersley). 4 During the long history of disputes between the parties concerning costs, the costs have been classified into three categories. The first category comprised invoices rendered during the period between early 2000 and 19 October 2000. The second category comprised invoices rendered during the period from 20 October 2000 and 21 December 2000. The third category comprised invoices rendered during the period between 22 December 2000 and 31 March 2001. 5 The Costs Assessor determined the application. He did not assess the costs that fell within the first and second categories. He assessed the costs that fell within the third category in the sum of $51,667.79. 6 In respect to the application to asses the first category costs, the plaintiff successfully submitted that they were not assessable. 7 On 3 May 2002, the defendant brought an appeal against the determination. The plaintiff responded with a Cross-Appeal filed on 31 May 2002. 8 The appeal was brought in respect of the non-assessment of the first category costs. The Cross-Appeal was brought in respect of the non-assessment of the second category costs. 9 On 4 June 2002, the Cross-Appeal was resolved by consent. For present purposes, the relevant provisions of the consent orders are as follows:- "1. That the part of the Determination of Costs, made by Leonard S Hattersley on 24 April 2002 under assessment no.91014/02, that relates to costs claimed by the Defendant against the Plaintiff as incurred by the Administrator of the Plaintiff during the period 20 October 2000 to 21 December 200 (which costs Mr Hattersley declined to assess), is set aside. 2. An order remitting this part of the application for Assessment of Costs back to Leonard S Hattersley for re-determination, and Mr Hattersley is directed to assess the costs referred to in order 1 and issue a separate certificate in respect of this assessment. …………………………………………………………………….." 10 The appeal went to a hearing. The plaintiff adopted the same stance as had been taken in the application for assessment and vigorously opposed the appeal on the basis that the costs were not assessable under the costs assessment regime. In so doing, it relied on arrangements made with the administrator following his appointment. The arrangements inter alia quantified the amount of costs that were payable in respect of the first category in the sum of $25,569.15. The plaintiff was then saying that liability to pay the costs arose prior to 19 October 2000. Reliance was also placed on provisions of the Deed and of the Corporations Law. 11 The plaintiff was successful in the appeal. It was dismissed (Rickard Constructions v Doyle [2002] NSWSC 882). He was successful on the basis that in the particular circumstances of that case, he had what might be described as a defence or answer to the application that the costs be assessed under the Statutory regime by the Costs Assessor. There was no appeal from that decision. 12 The consent orders made in the Cross-Appeal saw part of the application being remitted to the Costs Assessor for redetermination. It took place subsequent to the dismissal of the appeal. 13 In the course of the redetermination, the plaintiff changed his stance and sought an assessment of both first and second category costs. It was contended that the consent orders embraced both categories of costs. 14 This contention was rejected by the Costs Assessor. He declined to assess the first category costs. He assessed the second category costs in the sum of $55,091.72. 15 The plaintiff then applied for a review of the determination by a panel. The panel reviewed the determination and affirmed it. 16 The plaintiff then appealed to this Court. The Summons was filed on 17 June 2003. It is presently incompetent, being just out of time. Accordingly, an extension of time is required to maintain it. 17 There was also a further preliminary matter. There is a question between the parties as to whether or not leave to commence the proceedings was required under the Corporations Law. 18 I shall return to the preliminary matters in due course. It is convenient at this stage to turn to the question of the merits of the proposed appeal. 19 The plaintiff argues that the arrangements made with the administrator during the period 20 October 2000 to 21 December 2000 saw the administrator incurring the costs which fell within the first category. Accordingly, it is said that this brings them within the meaning of consent order 1. 20 There has been lengthy argument on a number of matters (including what remedies the plaintiff may now have). It seems to me, that it is unnecessary to deal with all of them. The task confronting the court is essentially a matter of the proper construction of the consent orders. 21 The task requires the court to consider the language used by the parties in the context in which the orders were made. 22 During the original assessment, the parties were approaching their disputes on the basis that the costs claimed by the plaintiff fell into the three categories. Between 19 October 2000 and 21 December 2000, the company had an administrator. During that time, the plaintiff was retained by the administrator and provided legal services. Whatever arrangements were made with the administrator during the period, a liability of the defendants to pay the first category of costs arose prior to 20 October 2000. 23 The subject matter of the consent orders was the appeal being propounded by the Cross-Appeal. Order 1 sought in the Cross-Appeal was in the following terms:- "The Defendant claims: 1. An order setting aside that part of the Determination of Costs, made by Leonard S Hattersley on 24 April 2002 under assessment no.91014/02, that relates to costs allegedly claimable against the Administrator of the Plaintiff for the period 20 October 2000 to 21 December 2000, and which Mr Hattersley declined to assess." It is framed in terms similar to consent order 1 and it was an appeal brought in respect of the second category of costs only. 24 At the time of the making of the consent orders, the appeal against the non-assessment of the first category of costs was extant and yet to be heard. 25 Also, at that time, the plaintiff was then opposing the appeal and maintaining his stance that the first category of costs were not assessable under the costs assessment regime. 26 It seems to me to be absurd to now argue that the consent orders reflect an intention of the parties to remit the first category of costs to the Costs Assessor for reassessment. 27 It might be thought that the question of whether or not the first category of costs are assessable under the Statutory costs assessment regime had already been determined between the parties. As this matter was not the subject of any full argument, I take it no further. 28 The plaintiff bears the onus of satisfying the court that there is a basis for disturbing the decision which is the subject of the appeal. In my view, that onus has not been discharged. I consider that the proposed appeal is without merit and hopeless. In those circumstances, it is unnecessary to consider the questions of leave and an extension of time. 29 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned. ********** Last Modified: 12/08/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.