Steve Watt Constructions v Formscan [2000] NSWSC 833

Steve Watt Constructions v Formscan [2000] NSWSC 833

The plaintiff did not discharge its onus of showing an error of law or miscarriage of discretion justifying disturbance of the Costs Assessor's determination. The tendered fresh affidavits were rejected because the court was exercising an appellate function. Relief under s 208M was unavailable in the Supreme Court because any application for leave had to be brought to the court or tribunal that made the costs order. The Costs Assessor's reductions and allowances concerning written submissions, cross-examination preparation, plaintiff staff costs, solicitors' hourly rates and costs of assessment were open on the material and consistent with the statutory assessment scheme.

Jurisdiction
Australia
Judgment Date
24 August 2000
Procedural Posture
Appeal From Decision of Costs Assessor / Summons Seeking Relief Under S 208 L of the Legal Profession Act 1987 and Leave to Appeal Under S 208 M
Outcome
Summons dismissed.
Legal Topics
['costs Assessment' 'appeal on Question of Law' 'leave to Appeal From Costs Assessment' 'fresh Evidence on Appeal' 'party/party Costs' 'fair and Reasonable Costs' 'costs of Assessment']
['costs' 'legal Profession' 'commercial Arbitration' 'civil Procedure'] ['costs Assessment' 'appeal on Question of Law' 'leave to Appeal From Costs Assessment' 'fresh Evidence on Appeal' 'party/party Costs' 'fair and Reasonable Costs' 'costs of Assessment']

Case Brief

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Procedural Posture

Appeal From Decision of Costs Assessor / Summons Seeking Relief Under S 208 L of the Legal Profession Act 1987 and Leave to Appeal Under S 208 M

Legal Issues

  1. 1 ['Whether fresh evidence could be read on an appeal or application for leave under ss 208L and 208M of the Legal Profession Act 1987.' "Whether the arbitrator's costs award was within Div 6 of Pt 11 of the Legal Profession Act 1987 as costs payable as a result of an order made by a court or tribunal." 'Whether relief under s 208M was available in the Supreme Court.' "Whether the Costs Assessor erred in disallowing or reducing claimed costs for written submissions, preparation of cross-examination questions, plaintiff staff work, solicitors' hourly rates, and costs of the assessment process." 'Whether the Costs Assessor gave sufficient reasons and whether any error of law justified disturbing the determination.']

Ratio Decidendi

The plaintiff did not discharge its onus of showing an error of law or miscarriage of discretion justifying disturbance of the Costs Assessor's determination. The tendered fresh affidavits were rejected because the court was exercising an appellate function. Relief under s 208M was unavailable in the Supreme Court because any application for leave had to be brought to the court or tribunal that made the costs order. The Costs Assessor's reductions and allowances concerning written submissions, cross-examination preparation, plaintiff staff costs, solicitors' hourly rates and costs of assessment were open on the material and consistent with the statutory assessment scheme.

Court Disposition

Summons dismissed.

Orders

  • ['The Summons is dismissed.' 'The plaintiff is to pay the costs of the Summons.' 'Exhibits may be returned.']