Hirsch & Ors v Marchlewski & Anor [2004] NSWSC 942

Hirsch & Ors v Marchlewski & Anor [2004] NSWSC 942

The panel failed to address the specific provisions (clauses 1.3 and 2.3) of the 1996 agreement that purported to define the circumstances of a successful outcome as required by the Legal Profession Act 1987. This omission amounted to a misdirection, therefore the finding in 8.1 of the panel's reasons should be set aside and the matter remitted for reconsideration according to law.

Parties
Plaintiffs: David Hirsch & 16 others as named in the schedule of plaintiffs attached to the summons; First Defendant: Roman Marchlewski; Second Defendant: Lamphud Marchlewski
Jurisdiction
Australia
Judgment Date
20 October 2004
Procedural Posture
Appeal / Judgment
Outcome
Panel's determination set aside in part; matter remitted for redetermination; costs awarded to plaintiffs; certificate under Suitors' Fund Act 1951 if entitled.
Legal Topics
Conditional Costs Agreement, Assessment of Legal Costs, Statutory Compliance With Costs Agreements
Costs Legal Profession Law Conditional Costs Agreement Assessment of Legal Costs Statutory Compliance With Costs Agreements

Case Brief

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Parties

David Hirsch & 16 others as named in the schedule of plaintiffs attached to the summons

Plaintiffs

Roman Marchlewski

First Defendant

Lamphud Marchlewski

Second Defendant

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the 1996 legal costs agreement was a conditional costs agreement as defined by the Legal Profession Act 1987
  2. 2 Whether the agreement set out the circumstances constituting a successful outcome as required by statute

Ratio Decidendi

The panel failed to address the specific provisions (clauses 1.3 and 2.3) of the 1996 agreement that purported to define the circumstances of a successful outcome as required by the Legal Profession Act 1987. This omission amounted to a misdirection, therefore the finding in 8.1 of the panel's reasons should be set aside and the matter remitted for reconsideration according to law.

Court Disposition

Panel's determination set aside in part; matter remitted for redetermination; costs awarded to plaintiffs; certificate under Suitors' Fund Act 1951 if entitled.

Orders

  • The determination of the costs assessment panel is set aside in part (being the finding made in 8.1 of the reasons).
  • The decision of this court is remitted to the panel and the panel is ordered to redetermine the said part of the application.