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Chilvers v Snowdon

Chilvers v Snowdon

Case [2012] NSWDC 64 24 April 2012

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Chilvers v Snowdon [2012] NSWDC 64
Hearing dates: 16 April 2012 and 23 April 2012 (written submissions)
Decision date: 24 April 2012
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) The plaintiff's application for extension of time to lodge his appeal pursuant to r 51.10(2) UCPR in proceedings number 343903 of 2011 is dismissed.
(2) The plaintiff's summons in proceedings number 343903 of 2011 is dismissed.
(3) The plaintiff is to pay the defendant's costs of the summons in proceedings number 343903 of 2011 on a party/party basis.
(4) The defendant's application for costs on an indemnity basis is refused.
(5) Stay of proceedings number 20636 of 2011 (Snowdon v Chilvers and Chilvers) continued until further order.
(6) Costs of the stay of proceedings number 20636 of 2011 reserved.

Catchwords: LEGAL PRACTITIONERS - Costs Assessment - application for extension of time to appeal from default assessment - six-month delay by plaintiff in responding to assessment, default judgment and bankruptcy notice - whether strict application of the time limitation will or may occasion injustice - merits of grounds of appeal - availability of s 381 Legal Profession Act procedure for costs the defendant agreed were wrongly claimed - lack of merit of grounds of appeal - claim of prejudice by defendant - application for extension of time refused
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Legal Profession Act 2004 (NSW), ss 368, 369, 381, 384 and 385
Motor Accidents Compensation Act 1999 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 51.10(2)
Cases Cited: Agyeman-Badu v The Nominal Defendant [2012] NSWDC 35
Anthony v Chris Savage Pty Ltd [2003] NSWSC 698
Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304
Challen v O'Halloran [2008] WASC 169
D'Alessandro & D'Angelo (a firm) v Bouloudas (1994) 10 WAR 191
DCL Constructions Pty Ltd v Di Lizio [2007] NSWSC 653
Dunn v McCarthy QC [2007] NSWSC 1336
Gallo v Dawson (1990) 93 ALR 479
Infact Consulting Pty Ltd v Kyle House Pty Ltd [2007] NSWSC 56
Kehoe v Williams [2008] FMCA 1371
Kehoe v Williams [2008] NSWSC 807
O'Brien v Doherty [2008] NSWSC 205
Reynolds v Whittens [2002] NSWSC 155; (2002) 57 NSWLR 271
Snowdon v Chilvers [2009] NSWDC 265
Tomko v Palasty (No 2) (2007) 71 NSWLR 61
Wentworth v Rogers (2006) 66 NSWLR 474
Wynn v Blueprint Instant Printing Pty Ltd (No 2) [2011] FCA 723
Texts Cited: G E Dal Pont, Law of Costs (2nd ed, LexisNexis Butterworths, 2009)
Category: Principal judgment
Parties: Plaintiff: Terence Chilvers (aka Chilverton)
Defendant: Leonie Snowdon
Representation: Plaintiff: Mr N Allan
Defendant: Mr W Ward
Plaintiff: Ziman & Ziman Solicitors
Defendant: Gajic & Co, Solicitors

File Number(s): 2011/343903; 2011/206364
Publication restriction: None

Judgment

By further amended summons filed on 20 February 2012, the plaintiff, Terence Chilvers, seeks orders for extension of time to lodge an appeal and to set aside a costs assessment certificate issued under s 368 Legal Profession Act 2004…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chilvers v Snowdon

Details

AGLC: Chilvers v Snowdon [2012] NSWDC 64
Case: [2012] NSWDC 64
Decision Date: 24 April 2012

CaseChat Overview and Summary

The parties involved in this case were Chilvers, the plaintiff, and Snowdon, the defendant. The dispute originated from an assessment of costs in a legal matter, where the plaintiff sought an extension of time to appeal from the default assessment. The delay in the plaintiff's response to the assessment resulted in a default judgment and a bankruptcy notice being issued against him. The court was tasked with determining whether a strict application of the time limitation would cause injustice, evaluating the merits of the grounds of appeal, and considering the defendant's claim of prejudice.

The primary legal issue the court had to decide was whether the strict application of the time limitation for the plaintiff to appeal the default assessment would result in injustice, given the six-month delay in responding to the assessment. Additionally, the court needed to assess the merits of the grounds of appeal and the availability of section 381 of the Legal Profession Act procedure for costs that the defendant agreed were wrongly claimed. The court also considered the defendant's claim of prejudice due to the delay in the plaintiff's response to the assessment.

In reaching its decision, the court held that the strict application of the time limitation would not occasion injustice, as the plaintiff had delayed in responding to the assessment for six months. Furthermore, the court found that the grounds of appeal had no merit and that the defendant's claim of prejudice was not sufficient to warrant an extension of time. Consequently, the plaintiff's application for an extension of time to lodge his appeal was dismissed, and his summons was also dismissed. The plaintiff was ordered to pay the defendant's costs on a party/party basis, while the defendant's application for costs on an indemnity basis was refused. The stay of proceedings in another related matter was continued until further order, with the costs of that stay reserved.

The final orders of the court included dismissing the plaintiff's application for an extension of time to appeal, dismissing the plaintiff's summons, and ordering the plaintiff to pay the defendant's costs on a party/party basis. The court also refused the defendant's application for costs on an indemnity basis and continued the stay of proceedings in a related matter, reserving the costs of that stay.

Orders

Orders of the court

(1) The plaintiff's application for extension of time to lodge his appeal pursuant to r 51.10(2) UCPR in proceedings number 343903 of 2011 is dismissed.

(2) The plaintiff's summons in proceedings number 343903 of 2011 is dismissed.

(3) The plaintiff is to pay the defendant's costs of the summons in proceedings number 343903 of 2011 on a party/party basis.

(4) The defendant's application for costs on an indemnity basis is refused.

(5) Stay of proceedings number 20636 of 2011 (Snowdon v Chilvers and Chilvers) continued until further order.

(6) Costs of the stay of proceedings number 20636 of 2011 reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Chilvers v Snowdon [2012] NSWDC 64

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 21 of 21 shown

Agyeman-Badu v The Nominal Defendant
[2012] NSWDC 35 Para 1

…ation to certificates "issued" under the Motor Accidents Compensation Act 1999 (NSW): see the cases discussed in Agyeman-Badu v The Nominal Defendant [2012] NSWDC 35.) The summons in these proceedings was not filed until 28 October 2011, six months and two weeks after the date of issue. Even if the plaintiff was u…
Winn v Blueprint Instant Printing Pty Ltd (No 2)
[2011] FCA 723

…rs [2009] NSWDC 265 Tomko v Palasty (No 2) (2007) 71 NSWLR 61 Wentworth v Rogers (2006) 66 NSWLR 474 Wynn v Blueprint Instant Printing Pty Ltd (No 2) [2011] FCA 723 Texts Cited: G E Dal Pont, Law of Costs (2nd ed, LexisNexis Butterworths, 2009) Category: Principal judgment Parties: Plaintiff: Terence Chilvers (ak…
Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd
[2011] NSWDC 55 Para 1

…e bill of costs aside, on the basis that, for the assessor to award a greater amount means that the assessor has misapplied the indemnity principle ( Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304 at [43]). It is submitted that it is unclear how the assessor reached the greater figure, and that this "opacity" (plaintiff's writ…
Kehoe v Williams
[2008] FMCA 1371 Para 1

…ankruptcy notice was served on Mr Chilvers on 10 October 2011. This was also the case in Kehoe v Williams [2008] NSWSC 807 (see also Kehoe v Williams [2008] FMCA 1371).…
Kehoe v Williams
[2008] NSWSC 807 Para 1

…08] NSWSC 205, Brereton J considered that the material date was the date that the costs assessor issued the certificate (at [3]). In Kehoe v Williams [2008] NSWSC 807 (at [7]), Harrison AsJ similarly stated that the date of the decision of the costs assessor was the date upon which the certificate was "issued". In…
Challen v PAUL O'HALLORAN & ASSOCIATES
[2008] WASC 169

…5 Anthony v Chris Savage Pty Ltd [2003] NSWSC 698 Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304 Challen v O'Halloran [2008] WASC 169 D'Alessandro & D'Angelo (a firm) v Bouloudas (1994) 10 WAR 191 DCL Constructions Pty Ltd v Di Lizio [2007] NSWSC 653 Dunn v McCarthy QC [2007] NSWSC…
O'Brien v Doherty
[2008] NSWSC 205 Para 1

…ice of this on 26 April 2011. I note that no point was taken as to which of these three dates the 28-day period should run from. In O'Brien v Doherty [2008] NSWSC 205, Brereton J considered that the material date was the date that the costs assessor issued the certificate (at [3]). In Kehoe v Williams [2008] NSWSC…
Tomko v Palasty (No 2)
[2007] NSWCA 369

…Brien v Doherty [2008] NSWSC 205 Reynolds v Whittens [2002] NSWSC 155; (2002) 57 NSWLR 271 Snowdon v Chilvers [2009] NSWDC 265 Tomko v Palasty (No 2) (2007) 71 NSWLR 61 Wentworth v Rogers (2006) 66 NSWLR 474 Wynn v Blueprint Instant Printing Pty Ltd (No 2) [2011] FCA 723 Texts Cited: G E Dal Pont, Law of Costs (2nd e…
Wentworth v Rogers & Anor
[2007] HCATrans 747 Para 1

…ts appeal, Mr Chilvers, claims the indemnity principle precludes Ms Snowdon from recovering more costs than she is liable to pay ( Wentworth v Rogers (2006) 66 NSWLR 474 at 503-504). Orders are sought setting the whole bill of costs aside, on the basis that, for the assessor to award a greater amount means that the as…
Dunn v McCarthy QC
[2007] NSWSC 1336 Para 1

…A delay of six months is a lengthy delay. In Dunn v McCarthy QC [2007] NSWSC 1336, an application filed six days out of time was rejected because the delay was unexplained. In that case the sum claimed was $103,400 plus interest, but the size of this sum claimed did not discourage Harrison AJ from making the orders.…
DCL Constructions v Di Lizio
[2007] NSWSC 653 Para 1

…ication of the time limitation will or may occasion in justice: Anthony v Chris Savage Pty Ltd [2003] NSWSC 698; DCL Constructions Pty Ltd v Di Lizio [2007] NSWSC 653; O'Brien v Doherty [2008] NSWSC 205.…
Infact Consulting Pty Ltd v Kyle House Pty Ltd
[2007] NSWSC 56 Para 1

…ble to raise, with the costs assessor, the question of who should sue for the costs of the assessment: Infact Consulting Pty Ltd v Kyle House Pty Ltd [2007] NSWSC 56 at [13] per White J. If White J's interpretation of s 369 is correct, the question of who may enforce these costs is a problem both for parties and f…
Wentworth v Rogers
[2006] NSWCA 145 Para 1

…aintiff to this costs appeal, Mr Chilvers, claims the indemnity principle precludes Ms Snowdon from recovering more costs than she is liable to pay ( Wentworth v Rogers (2006) 66 NSWLR 474 at 503-504). Orders are sought setting the whole bill of costs aside, on the basis that, for the assessor to award a greater amount mean…
Anthony v Chris Savage Pty Ltd
[2003] NSWSC 698 Para 1

…he fundamental consideration is whether the strict application of the time limitation will or may occasion in justice: Anthony v Chris Savage Pty Ltd [2003] NSWSC 698; DCL Constructions Pty Ltd v Di Lizio [2007] NSWSC 653; O'Brien v Doherty [2008] NSWSC 205.…
Reynolds v Whittens
[2002] NSWSC 155

…se Pty Ltd [2007] NSWSC 56 Kehoe v Williams [2008] FMCA 1371 Kehoe v Williams [2008] NSWSC 807 O'Brien v Doherty [2008] NSWSC 205 Reynolds v Whittens [2002] NSWSC 155; (2002) 57 NSWLR 271 Snowdon v Chilvers [2009] NSWDC 265 Tomko v Palasty (No 2) (2007) 71 NSWLR 61 Wentworth v Rogers (2006) 66 NSWLR 474 Wynn v Blue…
Gallo v Dawson
[1990] HCA 30 Para 1

…n AsJ noted and applied the principles relevant to an application for leave to bring an appeal out of time as explained by McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480:…
Jess v Scott
[1986] FCA 473

…s of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194; 70 ALR 185 When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of t…
Mitchelson v Mitchelson
[1979] FCA 48

…o consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested rig…
[2009] NSWDC 265
[2009] NSWDC 265 Para 1

…ted to party/party costs assessed by the defendant's solicitor following a three day hearing in this court before Hungerford ADCJ: Snowdon v Chilvers [2009] NSWDC 265. Ms Snowdon obtained judgment against Mr Chilvers and another party for $271,437.08.…
[1973] 2 NZLR 86
[1973] 2 NZLR 86

…, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194; 70 ALR 185 When the application is for an extension of time in which to file an appeal, it is always ne…
Vilenius v Heinegar
(1962) 36 ALJR 200

…e expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201."…

Legislation cited in this decision · 4

Legal Profession Act 2004 (Vic)
368, 369, 381, 384, 385 6 mentions (from Para 1)
Civil Procedure Act 2005 (NSW)
56 2 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
51.10(2) 2 mentions (from Para 1)
Motor Accidents Compensation Act 1999 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Chilvers v Snowdon [2012] NSWDC 64
Hearing dates:	16 April 2012 and 23 April 2012 (written submissions)
Decision date:	24 April 2012
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The plaintiff's application for extension of time to lodge his appeal pursuant to r 51.10(2) UCPR in proceedings number 343903 of 2011 is dismissed. (2) The plaintiff's summons in proceedings number 343903 of 2011 is dismissed. (3) The plaintiff is to pay the defendant's costs of the summons in proceedings number 343903 of 2011 on a party/party basis. (4) The defendant's application for costs on an indemnity basis is refused. (5) Stay of proceedings number 20636 of 2011 (Snowdon v Chilvers and Chilvers) continued until further order. (6) Costs of the stay of proceedings number 20636 of 2011 reserved.
Catchwords:	LEGAL PRACTITIONERS - Costs Assessment - application for extension of time to appeal from default assessment - six-month delay by plaintiff in responding to assessment, default judgment and bankruptcy notice - whether strict application of the time limitation will or may occasion injustice - merits of grounds of appeal - availability of s 381 Legal Profession Act procedure for costs the defendant agreed were wrongly claimed - lack of merit of grounds of appeal - claim of prejudice by defendant - application for extension of time refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Legal Profession Act 2004 (NSW), ss 368, 369, 381, 384 and 385 Motor Accidents Compensation Act 1999 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 51.10(2)
Cases Cited:	Agyeman-Badu v The Nominal Defendant [2012] NSWDC 35 Anthony v Chris Savage Pty Ltd [2003] NSWSC 698 Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304 Challen v O'Halloran [2008] WASC 169 D'Alessandro & D'Angelo (a firm) v Bouloudas (1994) 10 WAR 191 DCL Constructions Pty Ltd v Di Lizio [2007] NSWSC 653 Dunn v McCarthy QC [2007] NSWSC 1336 Gallo v Dawson (1990) 93 ALR 479 Infact Consulting Pty Ltd v Kyle House Pty Ltd [2007] NSWSC 56 Kehoe v Williams [2008] FMCA 1371 Kehoe v Williams [2008] NSWSC 807 O'Brien v Doherty [2008] NSWSC 205 Reynolds v Whittens [2002] NSWSC 155; (2002) 57 NSWLR 271 Snowdon v Chilvers [2009] NSWDC 265 Tomko v Palasty (No 2) (2007) 71 NSWLR 61 Wentworth v Rogers (2006) 66 NSWLR 474 Wynn v Blueprint Instant Printing Pty Ltd (No 2) [2011] FCA 723
Texts Cited:	G E Dal Pont, Law of Costs (2nd ed, LexisNexis Butterworths, 2009)
Category:	Principal judgment
Parties:	Plaintiff: Terence Chilvers (aka Chilverton) Defendant: Leonie Snowdon
Representation:	Plaintiff: Mr N Allan Defendant: Mr W Ward Plaintiff: Ziman & Ziman Solicitors Defendant: Gajic & Co, Solicitors
File Number(s):	2011/343903; 2011/206364
Publication restriction:	None