Baines v Smith

[2000] NSWSC 25

CITATION:

Baines v Smith & Anor [2000] NSWSC 25

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 12738/99

HEARING DATE(S):

2 February 2000

JUDGMENT DATE:

8 February 2000

PARTIES :

Russell George Baines
(Plaintiff)

Gail Joy Smithson
(First Defendant)

Janet Smithson
(Second Defendant)

JUDGMENT OF:

Master Harrison

COUNSEL :	Mr Goodridge (Plaintiff) Mr W Robinson (Defendants)
SOLICITORS:	Firths The Compensation Laywers Sydney (Plaintiff) Abbout Tout Sydney (Defendants)
CATCHWORDS:	Appeal decision of costs assessor
LEGISLATION CITED:	Legal Profession Act
CASES CITED:	Gundry v Sainsbury (1910) 1 KB 645
DECISION:	See para 9

5

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 8 FEBRUARY 2000

12738/99 - RUSSEL GEORGE BAINES v
GAIL JOY SMITHSON & ANOR
JUDGMENT (Appeal decision of costs assessor)

1 MASTER: By summons filed 9 November 1999 the plaintiff seeks to appeal the decision of Robert James Charles Benjamin, costs assessor, dated 12 October 1999 in Supreme Court proceedings No 91654/99 pursuant to s 208L of the Legal Profession Act 1987 (the Act) and that the costs assessor redetermine the matter on a party/party basis.

2   The bill of costs is for legal work done in relation to an appeal to the court of appeal where the defendants were appellants. The plaintiff was order to pay the defendants’ costs of the appeal on a party/party basis.

3 Section 208L of the Legal Profession Act provides:

"Appeal against decision of costs assessor as to matter of law

(1) A party to an application who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the Supreme Court, appeal to the Court against the decision.

(2) After deciding the question the subject of the appeal, the Supreme Court may, unless it affirms the costs assessor's decision:


(a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or

(b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application.

(3) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given."

4   The amount claimed in the bill of costs submitted to the costs assessor was $23,811.25. It is common ground that the account submitted by the defendants’ solicitor to the defendants was for the same amount, namely $23,811.25. A notice of objection put in issue items totalling approximately $8,000. The costs assessor reduced the bill of costs by deducting $600 claimed for counsels’ fees. Thus he allowed the full amount of professional costs claimed by the defendants’ solicitor.

5   On 12 October 1999, the costs assessor gave reasons for his decision. Relevantly he stated:

“I accept that costs on a Party/Party basis must be on a indemnity basis. I am satisfied that the costs claimed by the Costs Applicant are on an indemnity basis.
I am obliged to consider whether the work undertaken was reasonable and if reasonable whether the charges are fair and reasonable.
This is not a taxation of costs it is an assessment of costs. I have carefully considered the items in the costs and disbursements and the whole of the costs and disbursements. I have carefully considered all of the submissions by the Cost Respondent. I am satisfied that the amount of costs claimed by the Cost Applicant are fair and reasonable.”

6   When the costs assessor was asked for clarification of his reasons, he advised:

“When I talk about costs on an indemnity basis I mean the party/party costs are by way of indemnity to the successful party. I did not mean nor did I asses the costs on an indemnity basis as may be provided by Court Orders pursuant to Section 208F(3).”

7   In 1910 the then Master of the Rolls, Sir H H Cozen-Hardy asked the rhetorical question - “What are party and party costs?”. He then supplied the answer in these terms in Gundry v Sainsbury (1910) 1 KB 645 at 649:

“They are not a complete indemnity but they are only given in the character of an indemnity. I cannot do better than read the opinion expressed by Bramwell, B. In Harold v Smith:
‘Costs as between party and party are given by the law as an indemnity to the person entitled to them; they are not imposed as a punishment on the party who pays them, nor given as a bonus to the party who receives them. Therefore if the extent of the damnification can be found out, the extent to which costs ought to be allowed is also ascertained.’”

8   The costs assessor’s statement that costs on a party/party basis must be on an indemnity basis has not been expressed as precisely as it could have been. However, in the next paragraph of his reasons the costs stated that he was obliged to consider whether the work undertaken was reasonable and if reasonable whether the charges were fair and reasonable. After carefully considering the bill and submissions he was satisfied that the amount claimed was fair and reasonable. The costs assessor later clarified that what he meant was that party/party costs are by way of indemnity to a successful party. This statement is correct. In any event the hourly rates charged by the solicitors involved in the litigation are modest. It is my view that the plaintiff has not demonstrated that the costs assessor erred in law. The decision of the costs assessor is affirmed. The appeal is dismissed. The summons is dismissed. Costs should follow the event.

9   The orders I make are:

(1) The decision of the costs assessor dated 12 October 1999 is affirmed.

(2) The appeal is dismissed.

(3) The summons is dismissed.

(4) The plaintiff is to pay the defendants’ costs as agreed or assessed.
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Last Modified: 09/25/2000