Levy v Bergseng [2008] NSWSC 294

Levy v Bergseng [2008] NSWSC 294

The appeal was allowed because (1) the Review Panel's determination involved errors of law regarding consideration of submissions and procedural fairness, construction of the costs agreements (particularly as to overseas loadings and cancellation fees), and (2) the Review Panel lacked jurisdiction to determine whether the cancellation fees were 'unjust' in these circumstances; reinstatement of the Costs Assessor's certificate was appropriate.

Jurisdiction
Australia
Judgment Date
04 April 2008
Procedural Posture
Appeal From Costs Review Panel Determination / Judgment After Hearing of Appeal and Cross Summons
Outcome
Appeal allowed; Review Panel's Determination set aside; Costs Assessor's Certificate reinstated and affirmed; cross-summons dismissed; costs to the plaintiff as agreed or assessed.
Legal Topics
['costs Assessment' 'jurisdiction of Costs Assessor and Review Panel' 'interpretation of Costs Agreements' 'gst on Legal Services' 'procedural Fairness' 'provision of Reasons' 'reasonableness and Unjustness of Cancellation Fees' 'overseas Loadings']
['professional Costs' 'legal Practice'] ['costs Assessment' 'jurisdiction of Costs Assessor and Review Panel' 'interpretation of Costs Agreements' 'gst on Legal Services' 'procedural Fairness' 'provision of Reasons' 'reasonableness and Unjustness of Cancellation Fees' 'overseas Loadings']

Case Brief

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Procedural Posture

Appeal From Costs Review Panel Determination / Judgment After Hearing of Appeal and Cross Summons

Legal Issues

  1. 1 ['Which statutory regime applies to the costs assessment and subsequent review and appeal for legal costs incurred prior to the Legal Profession Act 2004?' 'Whether the Review Panel failed to afford procedural fairness to Mr Levy.' 'Whether the Review Panel provided sufficient reasons for its decision.' 'Whether overseas loadings and cancellation fees as claimed by Mr Levy could lawfully and reasonably be charged under the costs agreements.' 'Whether GST was payable by the solicitor (MBP) even though the ultimate client was a non-resident.']

Ratio Decidendi

The appeal was allowed because (1) the Review Panel's determination involved errors of law regarding consideration of submissions and procedural fairness, construction of the costs agreements (particularly as to overseas loadings and cancellation fees), and (2) the Review Panel lacked jurisdiction to determine whether the cancellation fees were 'unjust' in these circumstances; reinstatement of the Costs Assessor's certificate was appropriate.

Court Disposition

Appeal allowed; Review Panel's Determination set aside; Costs Assessor's Certificate reinstated and affirmed; cross-summons dismissed; costs to the plaintiff as agreed or assessed.

Orders

  • ['Leave to appeal the Determination of the Review Panel be granted (if necessary).' 'The Certificates of Determination of the Review Panel in Costs Review 2006/910-2002 (Form 9, Form 11, Form 12) be set aside and order made that the appeal to the Review Panel be dismissed.' 'The Certificate of Determination of the...