O'Brien v Doherty & Ors [2008] NSWSC 205

O'Brien v Doherty & Ors [2008] NSWSC 205

Despite gross procedural defaults by Mr O'Brien, he demonstrated a strongly arguable case that he was not liable or only liable for a substantially reduced amount under the costs assessment certificate, as the costs agreement did not render him personally liable as guarantor and the joint venture documents suggested legal costs were only recoverable out of profits (which never materialised). Not extending the time would risk serious injustice; thus, time was extended, leave to appeal granted and the certificate set aside.

Parties
Plaintiff: Douglas Ashley O'Brien; First Defendant: Peter Doherty; Second Defendant: Lloyd Lancaster Lawyers; Third Defendant: Geoffrey Rafter; Fourth Defendant: Law Society of NSW
Jurisdiction
Australia
Judgment Date
04 March 2008
Procedural Posture
Appeal / Extension of Time and Leave to Appeal From Costs Assessment Certificate; Determination of Appeal
Outcome
Time to apply for leave to appeal extended; leave granted; appeal allowed; certificate set aside; no order as to costs.
Legal Topics
Costs Assessment, Practitioner Client Assessment, Appeal and Review, Extension of Time, Leave to Appeal, Joint Venture Legal Work and Liability
Legal Practitioners Law Costs Costs Assessment Practitioner Client Assessment Appeal and Review Extension of Time Leave to Appeal Joint Venture Legal Work and Liability

Case Brief

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Parties

Douglas Ashley O'Brien

Plaintiff

Peter Doherty

First Defendant

Lloyd Lancaster Lawyers

Second Defendant

Geoffrey Rafter

Third Defendant

Law Society of NSW

Fourth Defendant

Procedural Posture

Appeal / Extension of Time and Leave to Appeal From Costs Assessment Certificate; Determination of Appeal

Legal Issues

  1. 1 Whether time to apply for leave to appeal should be extended
  2. 2 Whether leave to appeal from costs assessment should be granted
  3. 3 Whether the plaintiff is liable under the costs assessment certificate

Ratio Decidendi

Despite gross procedural defaults by Mr O'Brien, he demonstrated a strongly arguable case that he was not liable or only liable for a substantially reduced amount under the costs assessment certificate, as the costs agreement did not render him personally liable as guarantor and the joint venture documents suggested legal costs were only recoverable out of profits (which never materialised). Not extending the time would risk serious injustice; thus, time was extended, leave to appeal granted and the certificate set aside.

Court Disposition

Time to apply for leave to appeal extended; leave granted; appeal allowed; certificate set aside; no order as to costs.

Orders

  • Extend time for filing application for leave to appeal from the certificate of assessment to 5 February 2008.
  • Grant leave to appeal pursuant to Legal Profession Act, s 385(1).