Branson v Tucker [2012] NSWCA 310

Branson v Tucker [2012] NSWCA 310

Division 11 of the Legal Profession Act 2004 does not provide an exclusive regime for the assessment or recovery of legal costs between law practices. Where a barrister sues to recover fees, and the defendant solicitor raises a defence or cross-claim that challenges the reasonableness of such fees on contractual or implied terms, the court retains jurisdiction to determine that dispute, even if the statutory time for cost assessment has expired and that process is unavailable. The existence of the statutory assessment scheme does not exclude the court's ordinary jurisdiction in contested contractual claims for fees.

Parties
Applicant: Christopher Charles Branson; First Respondent: David Tucker; Second Respondent: Richard Cowen; Third Respondent: David Schwarz
Jurisdiction
Australia
Judgment Date
26 September 2012
Procedural Posture
Application for Leave to Appeal and Appeal / Court of Appeal Determination on Leave and Substantive Appeal
Outcome
Leave to appeal granted; appeal dismissed; costs ordered against applicant.
Legal Topics
Recovery of Legal Costs, Assessment of Costs, Costs Agreements, Barristers' Entitlement to Fees, Civil Procedure Striking Out Pleadings
Costs Contract Law Legal Profession Recovery of Legal Costs Assessment of Costs Costs Agreements Barristers' Entitlement to Fees Civil Procedure Striking Out Pleadings

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Parties

Christopher Charles Branson

Applicant

David Tucker

First Respondent

Richard Cowen

Second Respondent

David Schwarz

Third Respondent

Procedural Posture

Application for Leave to Appeal and Appeal / Court of Appeal Determination on Leave and Substantive Appeal

Legal Issues

  1. 1 Whether Division 11 of the Legal Profession Act 2004 provides the exclusive regime for assessment and challenge to legal costs when a barrister sues to recover fees from solicitors after the statutory time for costs assessment has lapsed.
  2. 2 Whether a court retains jurisdiction to determine disputes over reasonableness or fairness of particular items in a costs agreement, outside the statutory assessment process.
  3. 3 Whether Attard v James Legal Pty Ltd [2010] NSWCA 311 remains correct authority for the proposition that statutory assessment is not exclusive.

Ratio Decidendi

Division 11 of the Legal Profession Act 2004 does not provide an exclusive regime for the assessment or recovery of legal costs between law practices. Where a barrister sues to recover fees, and the defendant solicitor raises a defence or cross-claim that challenges the reasonableness of such fees on contractual or implied terms, the court retains jurisdiction to determine that dispute, even if the statutory time for cost assessment has expired and that process is unavailable. The existence of the statutory assessment scheme does not exclude the court's ordinary jurisdiction in contested contractual claims for fees.

Court Disposition

Leave to appeal granted; appeal dismissed; costs ordered against applicant.

Orders

  • Grant leave to the Applicant to appeal.
  • Direct the Applicant to file a notice of appeal within 7 days of the date of delivery of these reasons.