The summons is dismissed; the plaintiffs are to pay the costs of the summons.
CATCHWORDS:
Determination made by costs assessor - abortive application for review - certificate filed in District Court - judgment not set aside - challenge to determination in this court brought out of time - lack of merit and of explanation for default and delay.
In person (Mr Christopoulos for the Plaintiffs) Mr T Dawson (Defendant)
SOLICITORS:
In person (Plaintiffs) Phillips Fox (Defendant)
LOWER COURT JURISDICTION:
Costs Assessor
LOWER COURT FILE NUMBER(S):
91311/04
LOWER COURT JUDICIAL OFFICER :
Mr I Dwyer
- 5 -
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
Associate Justice Malpass
19 October 2005
13330 of 2005 Theodoros Christopoulos & Anor v Nicholas Angelos
JUDGMENT
1 His Honour: These proceedings were commenced by summons filed on 23 July 2005. The plaintiffs are not legally represented. The first plaintiff purports to appear on behalf of both of them.
2 These proceedings represent a further attempt to continue and persist with litigation that has occupied the courts of this country for many years. Hopefully, their disposition can see it come to an end.
3 Initially, the litigation was spawned by a contest concerning a disputed right of way. It has now reached the stage where the dispute mainly concerns questions of costs.
4 Although the plaintiffs had experienced earlier success, the defendant was successful in the last bout of proceedings. He obtained orders for costs in his favour (inter alia, in the District Court). The costs were assessed by a costs assessor (Mr Dwyer). At that stage, the plaintiff had legal representation. The legal representatives participated in the costs assessment process (inter alia, they took objections and made submissions). The certificate as to determination was filed in the District Court. As such, it is taken to be a judgment of that court.
5 The judgment has not been set aside (no application was made prior to the commencement of these proceedings). The plaintiffs unsuccessfully sought a stay of that judgment. The plaintiffs unsuccessfully sought a review of the determination. This was rejected by the acting costs assessment manager (on the basis of, inter alia, the decision in Katingal Pty Limited & Anor v Amor & Ors [2004] NSWSC 36).
6 I put aside any relevant questions concerning power and validity of the decision of the acting manager on this matter (there is an obligation to refer a duly made application to the panel). Such questions were not argued before me and the application for review was doomed for other reasons.
7 The application for review was also brought out of…
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 Christopoulos v Angelos
Sign in free to access the full text
Details
AGLC
Christopoulos v Angelos [2005] NSWSC 1029
Case
[2005] NSWSC 1029
Decision Date
CaseChat Overview and Summary
In the case of Christopoulos v Angelos, the dispute involved a costs determination made by an assessor in a District Court proceeding. The applicant, Christopoulos, sought to challenge the costs determination, claiming it was erroneous and unfair. The matter was brought to the court after Christopoulos filed an application for review which was dismissed due to being out of time. The applicant then appealed the dismissal to the higher court, arguing that the original application should have been successful due to the merits of the case.
The court was required to determine whether the applicant's challenge to the costs determination was justified and whether the delay and failure to provide a satisfactory explanation for the delay were excusable. The central issue was whether the applicant could overcome the procedural barriers to bring the challenge to the court, specifically the timeliness of the application and the absence of a satisfactory explanation for the delay.
The court found that the applicant's challenge to the costs determination was not successful because it was brought out of time and lacked merit. The court also noted that the applicant did not provide a satisfactory explanation for the delay in filing the application. Given these factors, the court held that the application was properly dismissed, and the challenge to the costs determination was not valid. The court emphasised the importance of adhering to procedural requirements in such matters, particularly the timeliness of applications and the provision of adequate explanations for any delays.
The court confirmed the dismissal of the application for review and upheld the costs determination made by the assessor. No further orders were made in relation to the costs or any other aspect of the proceedings.