O’Connor v Fitti [2000] NSWSC 540

O’Connor v Fitti [2000] NSWSC 540

The plaintiff was entitled to relief because the costs assessor made material errors of law: the costs agreement was misconstrued, costs were disallowed or reduced beyond the disputed costs identified by the objections contrary to the proper function under s 208A, and interest was disallowed by reference to a regulation that did not apply to the bills. Those errors significantly affected the assessment, so the decision was not affirmed and the application was remitted to the same costs assessor for re-determination under s 208L(2)(b).

Jurisdiction
Australia
Judgment Date
16 June 2000
Procedural Posture
Appeal From Decision of Costs Assessor Concerning Assessment of Solicitor Client Bills of Costs / Supreme Court Summons Seeking Relief Under Legal Profession Act 1987, Ss 208 L and 208 M
Outcome
Costs assessor's decision not affirmed; matter remitted to the costs assessor for re-determination; indemnity certificate refused.
Legal Topics
['assessment of Bills of Costs' 'construction of Costs Agreement' "disputed Costs and Costs Assessor's Function" 'interest on Unpaid Costs' 'remittal for Re Determination' 'indemnity Certificate Under Suitors Fund Act 1951']
['costs' 'legal Profession' 'civil Procedure'] ['assessment of Bills of Costs' 'construction of Costs Agreement' "disputed Costs and Costs Assessor's Function" 'interest on Unpaid Costs' 'remittal for Re Determination' 'indemnity Certificate Under Suitors Fund Act 1951']

Case Brief

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Procedural Posture

Appeal From Decision of Costs Assessor Concerning Assessment of Solicitor Client Bills of Costs / Supreme Court Summons Seeking Relief Under Legal Profession Act 1987, Ss 208 L and 208 M

Legal Issues

  1. 1 ['Whether the costs assessor erred in construing the costs agreement as applying the $225 hourly rate only to work actually done by the plaintiff requiring his skill and expertise.' 'Whether, on an application relating to a bill of costs, the costs assessor could disallow items not disputed in the notice of objection or reduce items by more than the amount put in dispute.' 'Whether the costs assessor erred in disallowing interest by relying on Legal Profession Regulation 1994, cl 22A(1).' 'Whether the Court could remit the matter to a different costs assessor.' 'Whether an indemnity certificate should be granted under the Suitors Fund Act 1951.']

Ratio Decidendi

The plaintiff was entitled to relief because the costs assessor made material errors of law: the costs agreement was misconstrued, costs were disallowed or reduced beyond the disputed costs identified by the objections contrary to the proper function under s 208A, and interest was disallowed by reference to a regulation that did not apply to the bills. Those errors significantly affected the assessment, so the decision was not affirmed and the application was remitted to the same costs assessor for re-determination under s 208L(2)(b).

Court Disposition

Costs assessor's decision not affirmed; matter remitted to the costs assessor for re-determination; indemnity certificate refused.

Orders

  • ['The matter is remitted to the Costs Assessor and the Costs Assessor is ordered to re-determine the application.' "The defendant is to pay the plaintiff's costs of the Summons." 'The Exhibits may be returned.' 'The application for an indemnity certificate is not granted.']