NSW v Avery

(2016) 92 NSWLR 141; [2016] NSWCA 147

NSW Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › Personal injury damages
3. › Maximum costs recoverable
4. › Calculation of 'amount recovered'
5. › Whether pre-judgment interest to be deducted
6. › Legal Profession Act 2004 (NSW), ss 338, 343(2)
7. › Civil Procedure Act 2005 (NSW), s 100(1)
1. Statutory Interpretation
2. › Construction of costs-capping provisions
3. › Meaning of 'amount recovered on a claim'
4. › Meaning of 'addition of interest'
5. › Whether expression confined to post-judgment or post-compromise interest
6. › Legal Profession Act 2004 (NSW), ss 338(1), 343(2)
1. Administrative Law
2. › Judicial review
3. › Error of law on face of record
4. › Review of District Court decision on appeal from costs assessor
5. › Supreme Court Act 1970 (NSW), s 69

Quick Take

Pre-judgment interest awarded under s 100(1) of the Civil Procedure Act 2005 (NSW) is not to be deducted from the judgment sum in determining the 'amount recovered' for the purposes of the costs cap in s 338(1) of the Legal Profession Act 2004 (NSW). The 'amount recovered' means the judgment sum, not the amount actually paid to the plaintiff. Section 343(2) is directed at post-compromise interest, not pre-judgment interest. Equivalent provisions in the Legal Profession Uniform Law Application Act 2014 (NSW), Sch 1 are in virtually identical form.