Barry v Coshott (No 2)

[2014] NSWDC 57

District Court

New South Wales

Medium Neutral Citation:

Barry v Coshott (No 2) [2014] NSWDC 57

Hearing dates:

1 April 2014

Decision date:

02 April 2014

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1) Judgment for the plaintiffs against the second defendant in the sum of $37,528.84; and

(2) The second defendant pay 90 per cent of the plaintiffs' costs of the notice of motion.

Catchwords:

PROCEDURE - interest - costs certificate provided for interest - certificate filed - no interest recorded on court computer record

Legislation Cited:

Civil Procedure Act 2005, s 14, s 100, s 101
Interpretation Act 1987, s 76
Legal Profession Act 1987, s 190, s 208E, s 208J
Legal Profession Regulation 2002, reg 45
Uniform Civil Procedure Rules 2005, r 6.12, r 42.35

Cases Cited:

Barry v Coshott [2014] NSWDC 51
CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 433
Kuligowski v Metrobus (2004) 220 CLR 363 Oliveri v P M Sulcs and Associates Pty Ltd [2012] NSWSC 1198
Oliveri v P M Sulcs and Associates Pty Ltd (in liq) [2013] NSWCA 84
Papua New Guinea, Administration of the Territory of v Daera Guba (1973) 130 CLR 353

Texts Cited:

Ritchie's Uniform Civil Procedure New South Wales

Category:

Costs

Parties:

Stephen Michael Barry (first plaintiff)
Martin Pearce Board (second plaintiff)
Ljiljana Coshott (defendant)

Representation:

Mr K G Oliver (plaintiffs)
Mr O R Jones (defendant)
CKB Partners (plaintiffs)
Martin Place Lawyers (defendant)

File Number(s):

2008/320070

Publication restriction:

None

Judgment

INTRODUCTION

1. This matter concerns the interest and costs to be awarded in connection with a judgment obtained in 2008 by the registration of a costs assessor's certificate. The cost assessment dealt with solicitor/client costs between the parties up to 15 October 2003 in a matter. In accordance with orders made in the earlier judgment and for the reasons therein, the proceedings continue only against the second defendant, Ljiljana Coshott.

1. The background facts in this matter are set out in an earlier judgment of mine dated 13 March 2014 and I repeat the relevant paragraphs from that judgment for convenience.

BACKGROUND

1. Stephen Barry and Martin Board were partners of a city law firm that acted for Robert and Ljiljana Coshott in proceedings up to 2003. The firm posted to Mr and Mrs Coshott on 15 October 2003 a bill of costs including a claim for interest, and filed an application for assessment on 20 November 2003.

1. The costs assessment was delayed several years while professional negligence proceedings were conducted by Mr and Mrs Coshott against Mr Barry. Those proceedings were dismissed with costs on 11 October 2007.

1. On 29 October 2008 the costs assessor finalised his determination of the November 2003 application for assessment of costs and issued a Certificate of Determination. Mr Barry received it on 7 November 2008.

1. The certificate provided, inter alia:

"1. THE APPLICATION IS DETERMINED BY SUBSTITUTING FOR THE DISPUTED COSTS AS A FAIR AND REASONABLE AMOUNT OF COSTS TO BE PAID TO THE PRACTITIONER THE SUM…