Wentworth v Rogers [2002] NSWSC 709

Wentworth v Rogers [2002] NSWSC 709

The plaintiffs failed to show error in the costs assessor's conclusion that the defendant’s lawyers acted on a 'no win/no pay' basis, not an absolute 'pro bono' basis excluding all right to costs. References to 'pro bono' in the evidence did not clearly establish an agreement fully precluding entitlement to costs, especially given the litigation context and commercial realities. The absence of a written costs agreement was irrelevant because the assessment was for party/party costs and any such agreement is not binding on a costs assessor under s.208H of the Act. No obvious error or substantial injustice justifying leave to appeal was demonstrated.

Jurisdiction
Australia
Judgment Date
15 August 2002
Procedural Posture
Application for Leave to Appeal / Judgment on Application for Leave to Appeal Costs Assessor's Determination
Outcome
Applications for leave to appeal dismissed.
Legal Topics
['costs Assessment' 'legal Practitioners' 'retainer Basis' 'pro Bono Representation' 'no Win/no Pay Agreements' 'estoppel' 'quantum Meruit' 'leave to Appeal']
['procedure' 'professions and Trades' 'appeal and New Trial'] ['costs Assessment' 'legal Practitioners' 'retainer Basis' 'pro Bono Representation' 'no Win/no Pay Agreements' 'estoppel' 'quantum Meruit' 'leave to Appeal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal / Judgment on Application for Leave to Appeal Costs Assessor's Determination

Legal Issues

  1. 1 ["Whether the costs assessor erred in finding the defendant's lawyers were on a 'no win/no pay' basis rather than 'pro bono', thus entitling them to costs; Whether absence of a written fee agreement rendered lawyers unable to recover costs under s.184(4) Legal Profession Act 1987; Whether the costs assessor failed to consider all relevant evidence and give adequate reasons; Whether estoppel or quantum meruit principles prevent recovery of costs."]

Ratio Decidendi

The plaintiffs failed to show error in the costs assessor's conclusion that the defendant’s lawyers acted on a 'no win/no pay' basis, not an absolute 'pro bono' basis excluding all right to costs. References to 'pro bono' in the evidence did not clearly establish an agreement fully precluding entitlement to costs, especially given the litigation context and commercial realities. The absence of a written costs agreement was irrelevant because the assessment was for party/party costs and any such agreement is not binding on a costs assessor under s.208H of the Act. No obvious error or substantial injustice justifying leave to appeal was demonstrated.

Court Disposition

Applications for leave to appeal dismissed.

Orders

  • ['Application for leave to appeal under s.208M of the Legal Profession Act 1987 against the determination of costs assessor Mr I F Dwyer dated 24 October 2001 is dismissed in both proceedings (13492/01 and 13494/01).']