Simms v Gallande Pty Ltd [2018] NSWSC 701

Simms v Gallande Pty Ltd [2018] NSWSC 701

Although time was extended, Ms Simms did not establish any reviewable error. The costs assessor's concerns went to disclosure to Clear Position, not to the existence of Ms Simms' contractual liability under the signed costs agreement. The agreement extended to costs for third parties such as a spouse or related company, and the Kisimul proceedings arose from the same factual matrix. The asserted failure to give reasons failed because the assessor was not required to make the conclusion advanced by Ms Simms. Ms Simms also did not discharge her onus of proving that she did not receive notice of the costs assessment or that procedural fairness was denied. The summons was therefore dismissed.

Jurisdiction
Australia
Judgment Date
18 May 2018
Procedural Posture
Administrative Law Judicial Review of Costs Assessment Certificate and Local Court Judgment / Supreme Court Principal Judgment on Summons
Outcome
Leave to extend time granted; summons dismissed; plaintiff ordered to pay the defendant's costs.
Legal Topics
['judicial Review' 'costs Assessment' 'legal Costs Agreement' 'error of Law on the Face of the Record' 'failure to Give Reasons' 'procedural Fairness' 'extension of Time']
['administrative Law' 'legal Profession' 'civil Procedure'] ['judicial Review' 'costs Assessment' 'legal Costs Agreement' 'error of Law on the Face of the Record' 'failure to Give Reasons' 'procedural Fairness' 'extension of Time']

Case Brief

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Procedural Posture

Administrative Law Judicial Review of Costs Assessment Certificate and Local Court Judgment / Supreme Court Principal Judgment on Summons

Legal Issues

  1. 1 ['Whether leave should be granted to extend time to commence judicial review proceedings under UCPR r 59.10(2).' 'Whether the costs assessor made a jurisdictional error or error of law on the face of the record by issuing a certificate against Ms Simms for costs incurred in proceedings involving Clear Position Pty Ltd.' 'Whether the costs assessor failed to give adequate reasons for concluding that Ms Simms was liable for the costs.' 'Whether Ms Simms was denied procedural fairness because she did not receive notice of the costs assessment.' 'Whether discretionary relief should be granted where statutory review and appeal rights under the Legal Profession Act 2004 (NSW) were not pursued.']

Ratio Decidendi

Although time was extended, Ms Simms did not establish any reviewable error. The costs assessor's concerns went to disclosure to Clear Position, not to the existence of Ms Simms' contractual liability under the signed costs agreement. The agreement extended to costs for third parties such as a spouse or related company, and the Kisimul proceedings arose from the same factual matrix. The asserted failure to give reasons failed because the assessor was not required to make the conclusion advanced by Ms Simms. Ms Simms also did not discharge her onus of proving that she did not receive notice of the costs assessment or that procedural fairness was denied. The summons was therefore dismissed.

Court Disposition

Leave to extend time granted; summons dismissed; plaintiff ordered to pay the defendant's costs.

Orders

  • ['Leave is granted to extend the time to commence these proceedings under UCPR r 59.10(2).' 'The summons is dismissed.' "The plaintiff is to pay the defendant's costs of these proceedings."]