Boyce v McIntyre [2008] NSWSC 1218

Boyce v McIntyre [2008] NSWSC 1218

Section 361 of the Legal Profession Act 2004 does not apply to an application for costs assessment by a non-associated third party payer; the assessment must be conducted under s 363, which looks to what is fair and reasonable, and the costs agreement between law practice and client is not binding on the non-associated third party payer. Consideration of proportionality and conduct is permitted under s 363. The review panel and assessor made no legal error in their assessment or their approach to GST.

Parties
First Plaintiff: Thomas Damien Boyce; Second Plaintiff: Charmian Victoria Barton; Third Plaintiff: Peter Ravelin Grinter; Fourth Plaintiff: Luke Aiken; Fifth Plaintiff: Lucinda Judith Smith; Sixth Plaintiff: Michael George; Seventh Plaintiff: Philip Raymond Smith; Eighth Plaintiff: Philip Noel de Haan; Ninth Plaintiff: Jacquie Charak Seemann; Tenth Plaintiff: Millie Telan; Eleventh Plaintiff: Sean O'Donnell; First Defendant: Catherine Anne McIntyre; Second Defendant: Kosciuszko Thredbo Pty Limited
Jurisdiction
Australia
Judgment Date
20 November 2008
Procedural Posture
Appeal / Judgment Refusing Leave to Appeal and Dismissing Appeal From Costs Review Panel
Outcome
Leave to appeal is refused. Appeal is dismissed. Decision of costs review panel affirmed. Summons filed 3 April 2008 is dismissed. Plaintiffs to pay first defendant's costs as agreed or assessed.
Legal Topics
Legal Costs Assessment, Third Party Payer, Fixed Fee Agreements, Sublease Legal Costs, Statutory Construction
Costs Law Administrative Law Legal Costs Assessment Third Party Payer Fixed Fee Agreements Sublease Legal Costs Statutory Construction

Case Brief

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Parties

Thomas Damien Boyce

First Plaintiff

Charmian Victoria Barton

Second Plaintiff

Peter Ravelin Grinter

Third Plaintiff

Luke Aiken

Fourth Plaintiff

Lucinda Judith Smith

Fifth Plaintiff

Michael George

Sixth Plaintiff

Philip Raymond Smith

Seventh Plaintiff

Philip Noel de Haan

Eighth Plaintiff

Jacquie Charak Seemann

Ninth Plaintiff

Millie Telan

Tenth Plaintiff

Sean O'Donnell

Eleventh Plaintiff

Catherine Anne McIntyre

First Defendant

Kosciuszko Thredbo Pty Limited

Second Defendant

Procedural Posture

Appeal / Judgment Refusing Leave to Appeal and Dismissing Appeal From Costs Review Panel

Legal Issues

  1. 1 Whether s 361 of the Legal Profession Act 2004 applies to costs assessments initiated by non-associated third party payers
  2. 2 Whether the costs review panel and costs assessor erred in assessment criteria under s 363 Legal Profession Act 2004
  3. 3 Whether proportionality is a relevant consideration under s 363

Ratio Decidendi

Section 361 of the Legal Profession Act 2004 does not apply to an application for costs assessment by a non-associated third party payer; the assessment must be conducted under s 363, which looks to what is fair and reasonable, and the costs agreement between law practice and client is not binding on the non-associated third party payer. Consideration of proportionality and conduct is permitted under s 363. The review panel and assessor made no legal error in their assessment or their approach to GST.

Court Disposition

Leave to appeal is refused. Appeal is dismissed. Decision of costs review panel affirmed. Summons filed 3 April 2008 is dismissed. Plaintiffs to pay first defendant's costs as agreed or assessed.

Orders

  • Leave to appeal is refused.
  • The appeal is dismissed.