Fordyce v Leung as executor of the estate of the late Robert Ho; Fordyce v Leung as executrix of the estate of the late Robert Ho [2023] NSWSC 778

Fordyce v Leung as executor of the estate of the late Robert Ho; Fordyce v Leung as executrix of the estate of the late Robert Ho [2023] NSWSC 778

Section 368(2) permits a costs assessor to issue more than one certificate, including interim certificates, in the assessment process. Interim certificates do not necessarily constitute final determinations for the items they cover and may be qualified or reconciled later in the assessment. The doctrines of finality and functus officio do not limit this power, and parties were afforded a reasonable opportunity to be heard. Mr Fordyce's contentions regarding the limitations imposed by s 368(2), s 371, and s 372 are rejected.

Jurisdiction
Australia
Judgment Date
10 July 2023
Procedural Posture
Appeal (leave to Appeal From Costs Assessment) / Judgment on Leave and Appeal
Outcome
Appeals dismissed; leave granted only for limited grounds; leave refused for other grounds.
Legal Topics
['costs Assessment' 'interim Certificates' 'functus Officio' 'opportunity to Be Heard']
['costs' 'civil Procedure'] ['costs Assessment' 'interim Certificates' 'functus Officio' 'opportunity to Be Heard']

Case Brief

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Procedural Posture

Appeal (leave to Appeal From Costs Assessment) / Judgment on Leave and Appeal

Legal Issues

  1. 1 ['Whether s 368(2) of the Legal Profession Act 2004 permits a costs assessor to issue more than one certificate, including interim certificates, in respect of the same costs assessment' 'Whether interim certificates may later be qualified or varied by a final certificate' 'Whether the doctrine of functus officio applies upon issue of pre-completion certificate' 'Whether parties were given a reasonable opportunity to be heard under s 359(1) Legal Profession Act 2004']

Ratio Decidendi

Section 368(2) permits a costs assessor to issue more than one certificate, including interim certificates, in the assessment process. Interim certificates do not necessarily constitute final determinations for the items they cover and may be qualified or reconciled later in the assessment. The doctrines of finality and functus officio do not limit this power, and parties were afforded a reasonable opportunity to be heard. Mr Fordyce's contentions regarding the limitations imposed by s 368(2), s 371, and s 372 are rejected.

Court Disposition

Appeals dismissed; leave granted only for limited grounds; leave refused for other grounds.

Orders

  • ['Grant leave to Mr Fordyce for the limited purpose of arguing the s 368(2) grounds notified in the Amended Summons in each case.' 'Dismiss the appeals relying on those grounds.' 'Otherwise refuse leave to rely upon the balance of grounds notified in the Amended Summons in each case.']