Levy v Bergseng [2008] NSWSC 294

Reported Decision : 72 NSWLR 178

New South Wales Supreme Court

CITATION : Levy v Bergseng [2008] NSWSC 294 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 19 October 2007

JUDGMENT DATE : 4 April 2008

JURISDICTION : Common Law

JUDGMENT OF : Rothman J

(i) To the extent necessary, leave to appeal the Determination of the Review Panel be granted;

(ii) The Certificates of Determination of the Review Panel in Costs Review 2006/910-2002 issued on 19 December 2002, being Certificate of Determination of Costs by Costs Review Panel (Form 9), Certificate of Determination of Costs of Review (Form 11) and Certificate of Determination of Review Panel of Costs of Costs Assessment (Form 12), be set aside and in their place order that the appeal to the Review Panel from the Costs Assessor in Costs Assessment 910 of 2005 be dismissed;

(iii) To the extent necessary, the Certificate of Determination of the Costs Assessor in Costs Assessment 910 of 2005 be reinstated and affirmed;

DECISION : (iv) The cross-summons filed 8 August 2007 be dismissed;

(v) The defendants pay the plaintiff's costs of the proceedings in this Court, as agreed or assessed;

(vi) The parties have liberty to apply within seven days for any consequential or other order arising from these reasons, including any special or different order for costs of these proceedings and any order as to the costs of proceedings before the Review Panel;

(vii) To the extent otherwise entitled, the defendant be granted an indemnity certificate under the Suitors' Fund Act 1951.

CATCHWORDS : PRACTICE – costs – costs assessment – appeal from Review Panel – determination as to whether 1987 or 2004 Act applies – jurisdiction of Costs Assessor under 1987 Act relating to "unjustness" – availability of cancellation fees as a matter of law – "reasonableness" of cancellation fees – construction of costs agreements – applicability of GST to barrister's fees payable by solicitor where client is overseas resident.