Frumar v The Owners of Strata Plan 36957 [2006] NSWCA 278

Reported Decision : 67 NSWLR 321

New South Wales Court of Appeal

CITATION: Frumar v The Owners of Strata Plan 36957 [2006] NSWCA 278 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 26 September 2006

JUDGMENT DATE: 17 October 2006

JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Ipp JA at 89

DECISION: (1) Grant leave to appeal and direct the filing of the notice of appeal within seven days; (2) Appeal allowed; (3) Set aside the orders of Harrison AsJ made on 4 April 2006 and 2 May 2006; (4) In lieu of her Honour's orders: (a) order that the determination of the costs review panel issued on 31 August 2005 be set aside; (b) remit this decision to the panel; (c) order that the panel redetermine the application; (5) Order that the opponent pay the claimant's costs of the appeal to the Supreme Court and of the application for leave to appeal and appeal in this Court, and as to the latter have a certificate under the Suitors Fund Act if otherwise qualified.

CATCHWORDS: Costs - assessment by costs assessor - review by costs review panel - requirement to give reasons for determination - statements that amounts of profit costs were fair and reasonable - whether adequate reasons - dispute whether cross-claim costs within order - whether proper view taken of order - whether adequate reasons for inclusion of cross-claim costs in assessment - consideration of requirement of reasons - must be sufficient to enable meaningful exercise of right of appeal.

LEGISLATION CITED: Legal Profession Act 1987; Legal Profession Amendment (Costs Assessment) Act 1998;

Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430; Cachia v Colaco [2004] NSWSC 1043; CASES CITED: Freeman v McNally [2003] NSWSC 780; Kennedy Miller Television Pty Ltd v Lancken (Sperling J, 1 August 1997, unreported); Mifsud v Campbell (1991) 21 NSWLR 725; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.