David Brady v Bale Boshev Solicitors [2009] NSWDC 387

David Brady v Bale Boshev Solicitors [2009] NSWDC 387

The proper interpretation of a 'no win, no fee' retainer requires that the client's liability for the solicitor's fees is limited to the proceeds of the claim settled, in this case $100,000. Both the Costs Assessor and Review Panel erred in law by not applying this principle, and thus the fair and reasonable costs payable are capped at the settlement amount.

Parties
Plaintiff/appellant: David Brady; Defendant: Bale Boshev Solicitors
Jurisdiction
Australia
Judgment Date
20 November 2009
Procedural Posture
Appeal of Costs Assessment (civil) / Determination of Leave to Appeal and Substantive Appeal Judgment
Outcome
Appeal allowed; prior assessments set aside; costs limited to $100,000; leave to appeal granted; plaintiff awarded trial costs since 19 November 2009; previous judgment in related matter set aside; liberty to apply regarding moneys held.
Legal Topics
No Win, No Fee Retainers, Solicitor Client Costs, Quantum Meruit, Legal Costs Assessment, Limitation of Solicitor’s Fees to Settlement Amount
Costs Law Legal Profession No Win, No Fee Retainers Solicitor Client Costs Quantum Meruit Legal Costs Assessment Limitation of Solicitor’s Fees to Settlement Amount

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Parties

David Brady

Plaintiff/appellant

Bale Boshev Solicitors

Defendant

Procedural Posture

Appeal of Costs Assessment (civil) / Determination of Leave to Appeal and Substantive Appeal Judgment

Legal Issues

  1. 1 Whether leave to appeal should be granted based on error of law by Costs Assessor and Review Panel
  2. 2 Interpretation of the 'no win, no fee' retainer as limiting solicitor's fees to proceeds of the claim
  3. 3 Proper quantum of costs recoverable by the defendant under an oral retainer agreement

Ratio Decidendi

The proper interpretation of a 'no win, no fee' retainer requires that the client's liability for the solicitor's fees is limited to the proceeds of the claim settled, in this case $100,000. Both the Costs Assessor and Review Panel erred in law by not applying this principle, and thus the fair and reasonable costs payable are capped at the settlement amount.

Court Disposition

Appeal allowed; prior assessments set aside; costs limited to $100,000; leave to appeal granted; plaintiff awarded trial costs since 19 November 2009; previous judgment in related matter set aside; liberty to apply regarding moneys held.

Orders

  • Appeal allowed.
  • Determinations of Costs Review Panel (6 February 2009) and Costs Assessor (22 September 2008) set aside.