Wende v Horwath (NSW) Pty Limited [2008] NSWSC 1241

Wende v Horwath (NSW) Pty Limited [2008] NSWSC 1241

Leave to appeal under s 385 was refused because the assessment involved disputed factual questions best left to experienced costs assessors, there had been two broadly similar assessments, and no sufficient basis was shown for the Court to undertake its own assessment. The appeal on a matter of law under s 384...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
28 November 2008
Procedural Posture
Appeal and Application for Leave to Appeal Under Ss 384 and 385 of the Legal Profession Act 2004 Against a Review Panel's Costs Assessment Determination / Supreme Court Determination of Summons
Outcome
Summons dismissed.
Legal Topics
['party/party Costs' 'review Panel of Costs Assessors' 'appeal on Matter of Law' 'leave to Appeal Against Costs Assessment' 'adequacy of Reasons' 'global Assessment of Costs' 'legal Profession Act 2004 Ss 384 and 385']
['legal Profession' 'costs Assessment' 'civil Procedure'] ['party/party Costs' 'review Panel of Costs Assessors' 'appeal on Matter of Law' 'leave to Appeal Against Costs Assessment' 'adequacy of Reasons' 'global Assessment of Costs' 'legal Profession Act 2004 Ss 384 and 385']

Source-derived case record

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Procedural Posture

Appeal and Application for Leave to Appeal Under Ss 384 and 385 of the Legal Profession Act 2004 Against a Review Panel's Costs Assessment Determination / Supreme Court Determination of Summons

Legal Issues

  1. 1 ["Whether leave to appeal under s 385 of the Legal Profession Act 2004 should be granted against the review panel's determination." 'Whether the review panel erred in law by mistaking its function or adopting an incorrect global approach to the costs assessment.' "Whether the review panel failed to give adequate reasons for its determination, including for allowing disputed items, senior solicitor work, counsel's fees, and the total costs allowed."]

Ratio Decidendi

Leave to appeal under s 385 was refused because the assessment involved disputed factual questions best left to experienced costs assessors, there had been two broadly similar assessments, and no sufficient basis was shown for the Court to undertake its own assessment. The appeal on a matter of law under s 384 failed because, although the panel unfortunately approved the assessor's global approach, the panel itself understood its review function under s 375, conducted its own item-by-item assessment, identified disallowed and reduced items, and gave reasons that explained why the remaining costs satisfied the statutory criteria of reasonableness and how the total figure was reached. Its...

Court Disposition

Summons dismissed.

Orders

  • ['Summons dismissed.' "Plaintiffs to pay defendant's costs of the summons."]