Ferella v Stomo [2017] NSWDC 34

District Court New South Wales

Medium Neutral Citation: Ferella v Stomo [2017] NSWDC 34 Hearing dates: 3 March 2017 Date of orders: 07 March 2017 Decision date: 07 March 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Summons dismissed. (2) Costs reserved. (3) Liberty to apply in relation to costs. Catchwords: STATUTORY CONSTRUCTION – summons appealing two costs assessment determinations of the Review Panel – transitional provisions of the Legal Profession Uniform Law (NSW), Sch 4, cl 2 – whether the repealed Legal Profession Act 2004 (NSW) continues to apply to the assessment of costs and/or costs appeals brought in the New South Wales for proceedings commenced and concluded prior to 1 July 2015 – correct legislation applicable is the repealed Legal Profession Act 2004 (NSW) COSTS APPEALS – whether failure to raise the issue of the applicable legislation during the course of the costs assessment process amounted to an error of law and, if so, under which statutory regime – failure of plaintiffs to distinguish between s 384 and s 385 Legal Profession Act 2004 (NSW) – as to s 384, issue of applicability of the repealed legislation not raised with the Review Panel and therefore not capable of amounting to an error of law – no jurisdiction to grant leave to appeal under s 385 – alternatively, leave to appeal should not be granted under s 89(1)(a) Legal Profession Uniform Law Application Act 2014 (NSW), if that legislation were applicable to the hearing of the summons – appeal dismissed Legislation Cited: Interpretation of Legislation Act 1984 (Vic) Legal Profession Act 2004 (NSW), ss 359, 382, 384 and 385 Legal Profession Regulation 2005 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW), ss 4, 76, 89 and 167 Legal Profession Uniform Law Application Regulation 2015 (NSW), r 59 Legal Profession Uniform Law (NSW), Sch 4, cl 2 Uniform Civil Procedure Rules 2005 (NSW), Part 50 Cases Cited: Adelaide Bank Ltd v Phontos [2016] FCA 824 Aktas v Westpac Banking Corporation Ltd [2013] NSWSC 1451 Altaranesi v Sydney Local Health District (2012) 17 DCLR (NSW) 300 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 B & L Linings Pty Ltd & Anor v Chief Commissioner of State Revenue (2008) 74 NSWLR 481 Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2011] NSWDC 55 Council of the Law Society of NSW v Gallego [2017] NSWCATOD 29 Council of the New South Wales Bar Association v Breeze [2015] NSWCATOD 152 Craig v State of South Australia (1995) 184 CLR 163 eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (2015) 90 NSWLR 451 Giles Payne & Co v Penson [2016] NSWDC 72 Gorczynski v A W M Dickinson & Son [2005] NSWSC 277 Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 McCausland v Surfing Hardware International Holdings Pty Ltd (2010) 11 DCLR (NSW) 294 Riva NSW Pty Ltd v Key Nominees Pty Ltd [2014] NSWCA 381 Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170 Wende v Horwath (No 2) (2015) 91 NSWLR 588 Category: Principal judgment Parties: First Plaintiff: Angelo Ferella Second Plaintiff: Gustavo Ferella Third Plaintiff: Riva NSW Pty Ltd Defendant: Chris Stomo Representation: Counsel: Plaintiff: Mr R K Newton Defendant: Mr T Buterin