Gadd v Kozlowski t/as Lou Baker and Associates [2022] NSWDC 309

Gadd v Kozlowski t/as Lou Baker and Associates [2022] NSWDC 309

The Review Panel committed an error of law by including in the certificate an amount not currently payable but contingent upon future events, contrary to both legislative requirements and its own reasoning. Certificates must only reflect amounts presently and unconditionally payable. Consequently, certificates issued by the Review Panel dated 25 January 2022 must be set aside and replaced with certificates consistent with the correct amount currently payable.

Parties
Plaintiff: Mark Lawrence Gadd; First Defendant: Wlodzimierz Antoni Kozlowski trading as Lou Baker and Associates; Second Defendant: Patrick Ferguson; Third Defendant: Marilyn Filewood
Jurisdiction
Australia
Judgment Date
03 August 2022
Procedural Posture
Civil Appeal / Judgment Post Hearing
Outcome
Appeal allowed; Review Panel’s certificates set aside; parties to draft substitute certificates; costs to plaintiff.
Legal Topics
Costs Assessment, Appeal From Review Panel, Legal Costs Payable, Enforcement of Costs Certificates, Contractual Retainer Agreements
Costs Costs Assessment Appeal From Review Panel Legal Costs Payable Enforcement of Costs Certificates Contractual Retainer Agreements

Case Brief

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Parties

Mark Lawrence Gadd

Plaintiff

Wlodzimierz Antoni Kozlowski trading as Lou Baker and Associates

First Defendant

Patrick Ferguson

Second Defendant

Marilyn Filewood

Third Defendant

Procedural Posture

Civil Appeal / Judgment Post Hearing

Legal Issues

  1. 1 Whether the Review Panel erred in certifying the amount currently payable by the plaintiff
  2. 2 Whether the Review Panel's certificate should have reflected only amounts immediately payable
  3. 3 Whether the retainer agreement was conditional on recovery of party/party costs

Ratio Decidendi

The Review Panel committed an error of law by including in the certificate an amount not currently payable but contingent upon future events, contrary to both legislative requirements and its own reasoning. Certificates must only reflect amounts presently and unconditionally payable. Consequently, certificates issued by the Review Panel dated 25 January 2022 must be set aside and replaced with certificates consistent with the correct amount currently payable.

Court Disposition

Appeal allowed; Review Panel’s certificates set aside; parties to draft substitute certificates; costs to plaintiff.

Orders

  • Pursuant to ss 87 and 89 of the Legal Profession Uniform Law Application Act 2014 (NSW), the Certificate of Determination of Review dated 25 January 2022 is set aside.
  • Pursuant to ss 87 and 89 of the Legal Profession Uniform Law Application Act 2014 (NSW), the Certificate of Determination of Review Panel Costs dated 25 January 2022 is set aside.