WENTWORTH v ROGERS; WENTWORTH & RUSSO v ROGERS [2006] NSWCA 145

Reported Decision : 66 NSWLR 474

New South Wales Court of Appeal

CITATION: WENTWORTH v ROGERS; WENTWORTH & RUSSO v ROGERS [2006] NSWCA 145 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14 March 2006

JUDGMENT DATE: 7 June 2006

JUDGMENT OF: Santow JA at 1; Basten JA at 68; Hislop J at 214

DECISION: (1) In relation to the judgment in the Common Law Division given on 15 August 2002 and orders entered on 13 January 2003; (a) appeal allowed; (b) set aside the order made; (c) in lieu thereof, order that the Appellants have leave to appeal to the Court from the determinations of the costs assessor issued on 24 October 2001; and; (d) remit the appeal to the Division for determination; (2) In relation to the judgment given in the Common Law Division on 21 February 2005 and the orders entered on 21 March 2005; (a) allow the appeal; (b) set aside the orders made; (c) in lieu thereof, order that; (i) the appeals under s 208L of the Legal Profession Act 2005 from the determinations of the costs assessor issued on 24 October 2001 be dismissed; and; (ii) there be no order as to the costs of the appeals; (3) There be no order as to the costs of the applications for leave to appeal and the appeals in this Court

CATCHWORDS: COSTS – Indemnity Principle – costs orders made against Appellant – costs agreement between Respondent and his lawyers that no obligation to pay until successful recovery of costs from Appellant – whether Appellant liable to costs order if Respondent had incurred no lability to pay his lawyers - COSTS ASSESSOR – power of – costs assessor assessed bills – whether costs assessor had power to determine the terms and validity of costs agreement – whether judge in Common Law Division had power to hear appeal from costs assessor's determination