Arnott v Glissan

[2013] NSWCA 138

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Arnott v Glissan [2013] NSWCA 138

Hearing dates:

13 May 2013

Decision date:

13 May 2013

Before:

Beazley P

Decision:

Notice of motion filed 1 May 2013 dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - civil - application for stay of District Court judgment, pending hearing of summons pursuant to Supreme Court Act 1970, s 69 - no arguable case - no denial of procedural fairness

Legislation Cited:

Legal Profession Act 2004

Category:

Interlocutory applications

Parties:

Maralyn June Arnott (Applicant)
Paul Glissan (Respondent)

Representation:

Counsel:
In person (Applicant)
In person (Respondent)
Solicitors:
In person (Applicant)
In person (Respondent)

File Number(s):

CA 2013/62988

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-09-04 00:00:00

Before:

Truss DCJ

File Number(s):

2012/130486

Judgment

1. HER HONOUR: By notice of motion filed on 1 May 2013 the applicant, Ms Arnott, seeks an order that a judgment dated 4 September 2012 be stayed pending the outcome of the s 69 summons commencing proceedings, filed in the Supreme Court on 28 February 2013 (order 1 in the notice of motion). The applicant also seeks stay orders in respect of an examination notice and an examination order. However, an examination has already been conducted, so that I proceed on the basis that the only order sought before me today is that contained in para (1) of the notice of motion.

1. The notice of motion is supported by an affidavit of Ms Arnott affirmed on 8 April 2013 and an affidavit of Jack Arnott affirmed on 8 April 2013. In defence of the motion, the respondent, Paul Raymond Glissan, has filed an affidavit sworn on 11 May 2013. I note that Mr Glissan did not read paras 25(c), (e) and (g) of that affidavit for the purposes of this notice of motion.

1. The s 69 summons seeks judicial review of the decision of Truss DCJ dated 20 July 2012. The proceedings before Truss DCJ involved an application by Mr Glissan challenging the decision of a costs assessor pursuant to the Legal Profession Act 2004, s 384 on the basis that he was dissatisfied with the decision of the costs assessor as to a matter of law arising on the assessment. Her Honour identified the matter of law in para (3) of her reasons as relating to the construction of the costs agreement between the plaintiff, Mr Glissan, Ms Arnott, and others.

1. Mr Glissan was successful on that appeal, with the effect that Ms Arnott was made responsible, as a matter of construction of the costs agreement, for all costs that had relevantly…