Gilles v Palmieri [2017] NSWCA 320

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gilles v Palmieri [2017] NSWCA 320 Hearing dates: 6 November 2017 Decision date: 12 December 2017 Before: McColl JA at [1] White JA at [2] Barrett AJA at [8] Decision: (1) Grant leave to appeal. (2) Direct that the applicants do within seven days file a notice of appeal in the form of the draft in the white folder. (3) Appeal allowed. (4) Set aside the following orders made in the District Court on 27 February 2017: (a) Order that the statement of claim filed in 21 October 2016 be dismissed pursuant to rule 13.4 subrule (1)(c) of the Uniform Civil Procedure Rules 2005 (NSW). (b) Order that the plaintiffs pay the defendants' costs of the notice of motion and the proceedings as agreed or assessed. (5) Make the following orders in lieu thereof: (a) Order that the notice of motion filed by the defendants on 18 November 2016 be dismissed. (b) Order that the defendants pay the plaintiffs' costs of the notice of motion. (6) Order that the respondents pay the applicants' costs of the application for leave to appeal and the appeal. Catchwords: LEGAL PROFESSION – costs – practitioner-client costs – costs assessment – first instruction for provision of legal services given before commencement of Legal Profession Act 2004 (NSW) – application for assessment of costs lodged after commencement of Legal Profession Uniform Law (NSW) – practitioners institute District Court action for recovery of costs after lodgement of application for assessment – clients apply for summary dismissal of action – application granted on the basis that a provision of the Legal Profession Act 2004 (NSW) precludes recovery proceedings while assessment in progress – which statutory regime for costs assessment applies in the circumstances – whether primary judge erred in granting summary dismissal – discussion of current and repealed legislation