Doyle v Hall Chadwick

[2007] NSWCA 159

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Assessment of costs
4. › Certificate of determination filed as judgment
5. › Whether appeal against costs assessor's determination still available after certificate takes effect as judgment
6. › Legal Profession Act 1987 (NSW), ss 208J, 208K, 208L, 208M
1. Practice and Procedure
2. › Costs
3. › Assessment of costs
4. › Jurisdiction of costs assessor
5. › Whether costs assessor can determine questions of construction of a costs agreement
6. › Legal Profession Act 1987 (NSW), ss 208, 208C, 208D
1. Contract
2. › Construction and interpretation
3. › Conditional costs agreement
4. › Condition precedent to payment
5. › Whether condition requiring 'sufficient monies are recovered' satisfied by set-off rather than actual receipt of money
6. › Distinction between actual recovery of money and obtaining a set-off

Quick Take

A judgment arising from the filing of a costs assessor's certificate under s 208J(3) of the Legal Profession Act 1987 (NSW) does not preclude an appeal against the underlying determination; the judgment can be set aside if the certificate is set aside. Costs assessors have jurisdiction to construe costs agreements between lawyer and client, though they should decline to do so where disputed facts require sworn evidence. Under a conditional costs agreement requiring 'sufficient monies are recovered', a set-off against pre-existing liabilities does not constitute 'recovery' of monies.