Dyktynski v BHP Titanium Minerals [2002] NSWSC 1112

Dyktynski v BHP Titanium Minerals [2002] NSWSC 1112

The plaintiff had no liability whatsoever to pay costs to his solicitors in relation to the appeal because the letter and costs agreement provided that he would not be required to pay any legal costs whatever the outcome. The costs order was for payment of the plaintiff's costs, but he had incurred no such costs, so the indemnity principle justified disallowance of those costs. Section 208H did not prevent the Costs Assessor from considering the costs agreement for the limited purpose of deciding whether the indemnity principle applied. However, the Costs Assessor erred in applying that reasoning to the costs of the Notice of Motion in the Compensation Court, because there had been only...

Jurisdiction
Australia
Judgment Date
22 November 2002
Procedural Posture
Appeal Pursuant to S 208 L of the Legal Practitioners Act 1987 From a Costs Review Panel Decision Affirming a Costs Assessor's Determination / Judgment in the Supreme Court of New South Wales, Common Law Division
Outcome
Determination set aside in part; issue of costs of the Notice of Motion remitted for re-determination; costs reserved.
Legal Topics
['party/party Costs Assessment' 'indemnity Principle' 'conditional Costs Agreement' 'procedural Fairness' 'costs Assessor Powers' 'interest on Costs']
['costs' 'legal Practitioners' 'workers Compensation'] ['party/party Costs Assessment' 'indemnity Principle' 'conditional Costs Agreement' 'procedural Fairness' 'costs Assessor Powers' 'interest on Costs']

Case Brief

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Procedural Posture

Appeal Pursuant to S 208 L of the Legal Practitioners Act 1987 From a Costs Review Panel Decision Affirming a Costs Assessor's Determination / Judgment in the Supreme Court of New South Wales, Common Law Division

Legal Issues

  1. 1 ['Whether the Costs Assessor and Costs Review Panel erred in applying the indemnity principle to disallow costs where the plaintiff had no liability to pay his solicitors under the costs agreement.' 'Whether there was a denial of procedural fairness in relation to submissions on the indemnity principle or interpretation of the costs agreement.' 'Whether s 208H of the Legal Practitioners Act 1987 prohibited the Costs Assessor from having regard to the costs agreement for the purpose of deciding whether the indemnity principle applied.' 'Whether the Costs Assessor erred by applying the indemnity principle to the costs of the Notice of Motion in the Compensation Court despite only limited objection to those costs.']

Ratio Decidendi

The plaintiff had no liability whatsoever to pay costs to his solicitors in relation to the appeal because the letter and costs agreement provided that he would not be required to pay any legal costs whatever the outcome. The costs order was for payment of the plaintiff's costs, but he had incurred no such costs, so the indemnity principle justified disallowance of those costs. Section 208H did not prevent the Costs Assessor from considering the costs agreement for the limited purpose of deciding whether the indemnity principle applied. However, the Costs Assessor erred in applying that reasoning to the costs of the Notice of Motion in the Compensation Court, because there had been only...

Court Disposition

Determination set aside in part; issue of costs of the Notice of Motion remitted for re-determination; costs reserved.

Orders

  • ['The determination is set aside.' 'The decision of the court on the question of the costs of the Notice of Motion in the Compensation Court is remitted back to the Costs Assessor for re-determination.' 'Costs are reserved.']