Chapman v Spence

[2013] NSWSC 615

Supreme Court

New South Wales

Medium Neutral Citation:

Chapman v Spence [2013] NSWSC 615

Hearing dates:

21 May 2013

Decision date:

21 May 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Stay the Writs for Levy of Property issued in both proceedings until determination of Defendant's application for extension of time for review of cost assessor's determinations.

(2) Defendant to pay the costs of the Motions.

Catchwords:

PROCEDURE - judgments and orders - stay of enforcement - failure to challenge determination of costs assessor within time - writ of levy of property issued - judgment debtor's intention to seek extension of time for review - stay granted

Legislation Cited:

Legal Profession Act 2004

Category:

Interlocutory applications

Parties:

Shaye Chapman (Plaintiff)
Allan Spence (Defendant)

Representation:

Solicitors:
L McBride, Shaw McDonald (Plaintiff)
In person (Defendant)

File Number(s):

2013/39571 & 2013/39622

Judgment

1. I have before me two Notices of Motion, one in each of a set of proceedings that are relevantly the same. Both sets of proceedings arise out of a costs assessment which in both cases took place during 2012.

1. In matter number 2013/39571 a certificate of determination was issued on 28 November 2012 by the costs assessor and forwarded on 14 December 2012. The Plaintiff in the proceedings, the solicitor, entered judgment based on that assessment on 8 February 2013.

1. In the other proceedings, 2013/39622, the certificate of determination was issued on 30 January 2013 and sent on 8 February 2013. In those proceedings also the Plaintiff/solicitor entered judgment based on the assessment on 8 February 2013.

1. In proceedings 2013/39571 Mr Spence sent an email on 13 January 2013 to the Manager of Costs Assessment at this court, the email being headed "Request Leave For District Court Appeal Section 385 of the Legal Profession Act 2004".

1. Correspondence was then sent from the Plaintiff to the Defendant on 12 February informing him of the judgments and requiring payment failing which a writ for levy of property would be issued. As it now transpires, Mr Spence had left for overseas on 7 February.

1. The Legal Profession Act 2004 provides two methods of review of a costs assessment. The first is pursuant to s 373 of the Act which entitles a party who is dissatisfied with the determination of a costs assessor within thirty days to apply to the Manager of Costs Assessment for a review of the determination. The application must be made in accordance with the regulations and must be accompanied by the fee prescribed.

1. The alternative method of review is found in s 385 of the Act which provides that a party to an application for a costs assessment may in accordance with the Rules of the District Court seek leave of the Court to appeal to the Court against the determination of the application made by the costs assessor.

1. The email of 13 January 2013 forwarded by Mr Spence did not comply with s 385 because it was not made in accordance with the Rules of the District Court.

1. In proceedings 2013/39622 Mr Spence sent an email on 17 February requesting leave to appeal in relation to both matters. That suggests that although he left Australia apparently on 7 February and the certificate of determination in that matter was not sent until 8 February he had received notification of the determination. However, the email did not institute any form of review or appeal.

1. In any event, when there was no response to the entry of judgment and the correspondence from the solicitor the solicitor applied for writs to enforce the judgments obtained on 8 February. Such writs issued on 21 March 2013. A letter from the sheriff was sent on 4 April to Mr Spence, but it appears that he was not back from overseas until 10 April. It was only when subsequently the sheriff attempted to seize his motor vehicle that the present Motions were filed on 22 April.

1. Subsequently Mr Spence has filed an application for review of a determination of the costs assessor in each matter on 10 May 2013. That would appear to be the review contemplated by s 373. Both applications for review are out of time, but s 373(1) permits the Manager of Costs Assessment to extend the time for the seeking of such a review within any time that the manager so determines.

1. The present Motions seek, first, that the default judgments be set aside, that the writs for levy of property be cancelled and that payment of outstanding judgment debts be cancelled. In the first place, there are no default judgments to be set aside. There is only the judgment that the Plaintiff was entitled to ask for in response to the costs assessment.

1. It seems to me in the light of Mr Spence's desire to have a proper review of each of the costs assessment, and making allowance for the fact that he has acted for himself ever since the costs assessment was sought, it would be appropriate to permit the applications for leave to extend time for the review to go forward at this stage. The only thing that stands in the way of that happening successfully is if the sheriff again attempts to levy execution on Mr Spence's property.

1. Mr McBride, who appears as the agent for the Plaintiff, has rightly submitted that the present Notices of Motion do not seek a stay on the writs for levy of property, and he says that he does not have instructions from his principal about what attitude she would take if such orders had been sought.

1. It is necessary for me to assume that the Plaintiff would oppose a stay being granted in the present circumstances. I can understand why such a stay would be opposed because of the length of time since the costs assessments were sought and made, and because of the delay since the time when any review or appeal ought to have been instituted.

1. Nevertheless, taking into account Mr Spence's unrepresented status and the fact that he was absent from Australia for a period of about two months during a crucial period, he should not be denied the opportunity to obtain an extension if he is able to do so. It is only fair in the circumstances that the status quo should be preserved until that has been determined.

1. For that reason I propose to stay the writs that have been issued on 21 March 2013 until the application for an extension of time has been determined. If that application is refused, the stay will lapse. If the application is granted, a further application to stay execution of the writs is likely to be favourably received. In those circumstances the Plaintiff might consider, if that situation arises, not opposing a further stay until the determination of any review which has been permitted to be made.

1. The Plaintiff seeks costs of today, particularly because what was ultimately granted was not what was sought in the Notices of Motion. In my opinion, the Defendant should pay the costs of the Motions today. The Motions were brought about by the failure on the part of the Defendant properly to institute either a review or an appeal pursuant to ss 373 or 385 of the Act. It was that failure which led to the issue of the writs and brought the Defendant to court on the present Motions. Accordingly, the Defendant should pay the cost of the Motions.

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Decision last updated: 30 May 2013