Khera v Jones & Ors [2005] NSWSC 122

Khera v Jones & Ors [2005] NSWSC 122

The plaintiff proceeded under s 208L and therefore had to show an error of law. The costs assessor complied with s 208 by giving the parties an opportunity to make written submissions and was not obliged to allow inspection of all opposing documents. Under Guss and Kalyk, the first defendant, as a solicitor acting for himself, was entitled to recover reasonable professional costs based on opportunity cost, and the assessment of the hourly rate and quantum was a factual matter. The asserted defects in the bill of costs and costs orders did not disclose legal error. Accordingly, there was no error of law by the costs assessor or Costs Review Panel.

Jurisdiction
Australia
Judgment Date
02 March 2005
Procedural Posture
Appeal Against Decision of Costs Review Panel and Costs Assessor as to Matter of Law Under Legal Profession Act 1987 (nsw) S 208 L / Determination of Amended Summons Filed 5 November 2004
Outcome
Appeals dismissed; decisions of the costs assessor and Costs Review Panel affirmed; amended summons dismissed; plaintiff ordered to pay the defendant's costs as agreed or assessed.
Legal Topics
['costs Assessment' 'appeal From Costs Review Panel' 'solicitor Acting for Self' 'procedural Fairness' 'hourly Rate for Professional Costs']
['costs' 'legal Profession' 'civil Procedure'] ['costs Assessment' 'appeal From Costs Review Panel' 'solicitor Acting for Self' 'procedural Fairness' 'hourly Rate for Professional Costs']

Case Brief

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Procedural Posture

Appeal Against Decision of Costs Review Panel and Costs Assessor as to Matter of Law Under Legal Profession Act 1987 (nsw) S 208 L / Determination of Amended Summons Filed 5 November 2004

Legal Issues

  1. 1 ['Whether the Costs Review Panel or costs assessor made an error of law in assessing costs payable to the first defendant' "Whether the costs assessor denied procedural fairness by not giving the plaintiff access to the defendant's documents or an opportunity to make further submissions" 'Whether a solicitor acting for himself may recover professional costs' "Whether the hourly rate of $250.00 per hour for the first defendant's professional costs involved an error of law" "Whether the document forwarded with the defendant's letter dated 30 August 2003 was a bill of costs" 'Whether the costs assessor erred in ordering costs of the assessment']

Ratio Decidendi

The plaintiff proceeded under s 208L and therefore had to show an error of law. The costs assessor complied with s 208 by giving the parties an opportunity to make written submissions and was not obliged to allow inspection of all opposing documents. Under Guss and Kalyk, the first defendant, as a solicitor acting for himself, was entitled to recover reasonable professional costs based on opportunity cost, and the assessment of the hourly rate and quantum was a factual matter. The asserted defects in the bill of costs and costs orders did not disclose legal error. Accordingly, there was no error of law by the costs assessor or Costs Review Panel.

Court Disposition

Appeals dismissed; decisions of the costs assessor and Costs Review Panel affirmed; amended summons dismissed; plaintiff ordered to pay the defendant's costs as agreed or assessed.

Orders

  • ['The appeals are dismissed.' 'The decisions of the costs assessor dated 30 January 2004 and the Costs Review Panel dated 6 May 2004 are affirmed.' 'The amended summons filed 5 November 2004 is dismissed.' "The plaintiff is to pay the defendant's costs as agreed or assessed."]