Preston v Commissioner for Fair Trading [2012] NSWDC 81

Preston v Commissioner for Fair Trading [2012] NSWDC 81

The Court of Appeal costs order did not specify a liquidated sum, and the plaintiff identified no provision empowering the District Court to determine the amount payable without costs assessment. Section 366 of the Legal Profession Act 2004 did not give this Court power to determine the amount payable under the Court of Appeal order. The plaintiff was required to use the assessment procedure under Pt 3.2 of the Legal Profession Act 2004 and reg 125 of the Legal Profession Regulations 2005 to convert the order into an enforceable liquidated sum. The District Court proceedings to litigate the quantum afresh were therefore misconceived and did not disclose a reasonable cause of action under...

Jurisdiction
Australia
Judgment Date
04 May 2012
Procedural Posture
Proceedings to Recover or Enforce a Costs Order Made in Other Proceedings / Defendant's Notice of Motion Seeking Dismissal Under R 13.4(1) of the Uniform Civil Procedure Rules 2005
Outcome
Proceedings dismissed; plaintiff ordered to pay the defendant's costs.
Legal Topics
['assessment of Costs' 'enforcement of Costs Order' 'summary Dismissal' 'no Reasonable Cause of Action' 'self Represented Litigant Expenses']
['civil Procedure' 'costs' 'legal Profession'] ['assessment of Costs' 'enforcement of Costs Order' 'summary Dismissal' 'no Reasonable Cause of Action' 'self Represented Litigant Expenses']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Proceedings to Recover or Enforce a Costs Order Made in Other Proceedings / Defendant's Notice of Motion Seeking Dismissal Under R 13.4(1) of the Uniform Civil Procedure Rules 2005

Legal Issues

  1. 1 ['Whether the plaintiff could obtain judgment in the District Court for a specific sum under an unassessed Court of Appeal costs order.' "Whether the defendant's failure to apply for assessment after correspondence amounted to a waiver of any entitlement to assessment." 'Whether the proceedings should be dismissed as disclosing no reasonable cause of action under r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005.' 'Whether costs of the District Court proceedings should follow the event.']

Ratio Decidendi

The Court of Appeal costs order did not specify a liquidated sum, and the plaintiff identified no provision empowering the District Court to determine the amount payable without costs assessment. Section 366 of the Legal Profession Act 2004 did not give this Court power to determine the amount payable under the Court of Appeal order. The plaintiff was required to use the assessment procedure under Pt 3.2 of the Legal Profession Act 2004 and reg 125 of the Legal Profession Regulations 2005 to convert the order into an enforceable liquidated sum. The District Court proceedings to litigate the quantum afresh were therefore misconceived and did not disclose a reasonable cause of action under...

Court Disposition

Proceedings dismissed; plaintiff ordered to pay the defendant's costs.

Orders

  • ['The proceedings be dismissed.' "The plaintiff pay the defendant's costs of the proceedings."]