Boyce v McIntyre [2009] NSWCA 185

Reported Decision: [2009] NSW ConvR 56-24678 NSWLR 152[2009] ALMD 5723

New South Wales Court of Appeal

CITATION: Boyce v McIntyre [2009] NSWCA 185

HEARING DATE(S): 1 July 2009

JUDGMENT DATE: 20 July 2009

JUDGMENT OF: Ipp JA at 1; Macfarlan JA at 55; Hoeben J at 56

(a) Leave to appeal in regard to the s 361 Issue is granted but the appeal is dismissed. (b) The application for leave to appeal in regard to the Assessment Issues is dismissed. DECISION: (c) Leave to appeal is granted in regard to the GST Issue and the appeal on that issue is upheld. (d) The orders made by Harrison AsJ, the Review Panel and the costs assessor in relation to GST are set aside. (e) CHH to pay Mrs McIntyre's costs of the application for leave to appeal and the appeal.

CATCHWORDS: PROCEDURE - costs - appeals as to costs - construction and application of s 361 of the Legal Profession Act 2004 - assessment of costs involving non-associated third party payer - whether costs assessor required to consider costs agreement where non-associated third party payer not party to that costs agreement - whether costs assessor entitled to determine amounts in respect of GST.

Interpretation Act 1987 LEGISLATION CITED: Legal Profession Act 2004 Legal Profession Further Amendment Act 2006 Supreme Court Act 1970 (NSW)

CATEGORY: Principal judgment

Thomas Damien Boyce & the persons listed in the schedule to the summons seeking leave to appeal (Applicants) PARTIES: Catherine Anne McIntyre (First Respondent) Kosciuszko Thredbo Pty Ltd (Second Respondent)

FILE NUMBER(S): CA 40037/09