CITATION: Dunn v McCarthy QC [2007] NSWSC 1336 HEARING DATE(S): 14 November 2007
JUDGMENT DATE :
23 November 2007JURISDICTION: Common Law Division - Administration Law List JUDGMENT OF: Associate Justice Harrison DECISION: (1) Leave to grant an extension of time to lodge the appeal is refused; (2) The appeal is dismissed; (3) Leave to appeal is refused; (4) The summons filed 24 July 2007 is dismissed; (5) The plaintiff is to pay the defendant's costs as agreed or assessed. CATCHWORDS: Leave to appeal - appeal decision of Costs Assessor LEGISLATION CITED: Legal Profession Act 2004 (NSW) - ss 328, 350, 361, 367, 384, 385 CASES CITED: Jackamarra v Krakouer (1998) 153 ALR 276; (1998) 195 CLR 516
Larsen v Vile [1999] NSWCA 397
Motor Trade Finances Prestige Leasing Pty Ltd v Eldersie Finance Group Corporation Ltd & Ors [2006] NSWSC 1348PARTIES: Craig Dunn - Plaintiff
John McCarthy QC - DefendantFILE NUMBER(S): SC 30074/2007 COUNSEL: Mr J M Miller - Plaintiff
Mr A R Davis - DefendantSOLICITORS: Noble Lawyers - Plaintiff
M J Lawyers - DefendantLOWER COURT JURISDICTION: Costs Assessor LOWER COURT FILE NUMBER(S): 00002701/06 LOWER COURT JUDICIAL OFFICER : Mr G A Salier AM LOWER COURT DATE OF DECISION: 20 June 2007
- IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ASSOCIATE JUSTICE HARRISON
FRIDAY, 23 NOVEMBER 2007
JUDGMENT (Leave to appeal; appeal decision of Costs Assessor)30074/2007 - CRAIG DUNN v JOHN McCARTHY QC
1 HER HONOUR: By summons filed 24 July 2007, the plaintiff firstly, seeks leave to appeal the determination of costs, dated 20 June 2007, in costs assessment number 00002701/06, pursuant to s 384 of the Legal Profession Act 2004 (NSW) (LPA); and secondly, an order setting aside the Certificate of Determination of Costs dated 20 June 2007, or in the alternative, a declaration that the costs payable by the application in costs assessment number 00002701/06 is assessed at ‘nil’.
2 The plaintiff is Craig Dunn. The defendant is John McCarthy QC. Mr Dunn was a shareholder and director of Motor Trade Finances Prestige Leasing Pty Limited. Mr McCarthy QC was briefed to appear at trial in proceedings 50065/2005 between Motor Trade Finances Prestige Leasing Pty Ltd (Prestige Leasing) v Eldersie Finance Group Corporation Ltd & Ors. Those proceedings were heard by White J in this Court between 14 November 2005 and 23 November 2005. On 8 December 2006, White J delivered judgment in Motor Trade Finances Prestige Leasing Pty Ltd v Eldersie Finance Group Corporation Ltd & Ors [2006] NSWSC 1348.
Extension of time to lodge the appeal
3 The defendant submitted that the appeal was filed out of time and no leave has been sought, or granted to the late filing of such an application. The defendant does not consent, given the late filing of the application. No evidence has been provided justifying an extension. Accordingly, the defendant submitted that these proceedings are defective.
4 The appeal was…
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- AGLC
- Dunn v McCarthy QC [2007] NSWSC 1336
- Case
- [2007] NSWSC 1336
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Costs Assessor had exercised his discretion correctly in determining the costs to be awarded. The court needed to examine whether the assessment was made in accordance with the relevant statutes and case law. It was also necessary to consider whether the Costs Assessor had taken into account all relevant factors and had exercised his discretion reasonably.
In considering the matter, the court scrutinised the reasoning provided by the Costs Assessor and compared it with the applicable legal principles. The court found that the Costs Assessor had indeed exercised his discretion correctly, taking into account all relevant factors and adhering to the legal standards. The court was satisfied that the assessment was fair and reasonable. Consequently, the application for leave to appeal was dismissed.
The High Court made a final order that Dunn bear the costs of the application for leave to appeal. The court affirmed the Costs Assessor's decision, emphasising the importance of respecting the assessor's discretion in such matters. The court's decision underscored the principle that the exercise of discretion by a Costs Assessor should not be lightly interfered with unless there is a clear error of law or a manifest injustice.
Orders
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Background
Background to the litigation
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Evidence Before The Court
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