Chapman v Spence (No. 2)

[2013] NSWSC 1830

Supreme Court

New South Wales

Medium Neutral Citation:

Chapman v Spence (No. 2) [2013] NSWSC 1830

Hearing dates:

20 December 2013

Decision date:

20 December 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Stay on the Writs for Levy of Property imposed on 21 May 2013 lifted.

(2) Defendant to pay the Plaintiff's costs of 15 November 2013 and 20 December 2013

Catchwords:

JUDGMENTS - stay on execution - costs assessment - application for review - no extension of time sought - stay given on condition that extension sought - no application for extension - stay lifted

Cases Cited:

Chapman v Spence [2013] NSWSC 615

Category:

Interlocutory applications

Parties:

Shaye Chapman (Plaintiff)
Allan Spence (Defendant)

Representation:

Counsel:
Solicitors:
Shaw McDonald (Plaintiff)
In person (Defendant)

File Number(s):

2013/39571 & 2013/39622

Judgment

1. On 21 May 2013 I gave judgment in respect of a stay which had been sought by the Defendant in relation to a certificate of determination and a judgment as a result of a costs assessment process: Chapman v Spence [2013] NSWSC 615. The history of the matter is set out in that judgment.

1. On 21 May 2013 it was evident that the only way there could be a review by the Defendant of the costs assessment determination was if an extension of time was sought by him for a review of that decision. I said in paragraph [13] of that judgment:

[13] 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. I said in paragraph [16]:

[16] 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. The matter came back before me on 15 November 2013. There was no appearance for the Defendant. The Plaintiff sought on that occasion to lift the stay but I declined to do so because Mr Spence was not present. I stood the matter over to today.

1. Mr Spence has appeared this morning. It does not appear that any application has been made for an extension of time to seek a review of the determination. The reason for that is that Mr Spence maintains that it is not necessary to do so. He claims that the costs assessor has told him that it is not necessary to do so. There is no evidence of that at all.

1. It is inconsistent with the view I have formed that resulted in my judgment of 21 May 2013. Mr Spence has not sought leave to appeal against my determination that it would be necessary for him to seek an extension of time to have a review. That means that nothing has happened since 21 May 2013 in respect of the determination that was made and has now become a judgment of the Court.

1. In those circumstances the Plaintiff is entitled to execute on the judgment if it wishes to do so. The stay that I imposed on 21 May 2013 is therefore lifted.

1. The Defendant is to pay the costs of 15 November 2013 and of today.

**********

Decision last updated: 03 January 2014