Fordyce v Leung in her capacity as Executrix of the Estate of the late Robert Ho

The applicant, Mr Fordyce, sought an interim stay of proceedings against the respondent, Ms Leung, in her capacity as executrix of the estate of the late Robert Ho. The dispute concerned an interim certificate of costs assessment which had been treated as a judgment upon filing in the District Court under section 368(5) of the *Legal Profession Act 2004* (NSW). Mr Fordyce's appeal against the costs assessor's decision was still pending in the District Court, and he sought leave to appeal the District Court's refusal to set aside the deemed judgment. The application before the Court of Appeal was for a stay of the deemed judgment, the District Court appeal proceedings, and the costs assessment process itself.

The primary legal issue before Gleeson JA was whether it was appropriate to grant interim stays in the circumstances of the case. This involved considering the interplay between the statutory framework for costs assessments and appeals, and the principles governing the grant of interlocutory relief, particularly in the context of a pending application for leave to appeal.

Gleeson JA refused the applicant's request for an interim stay of the proceedings. The Court noted that the applicant had not demonstrated a sufficient basis for the grant of such relief pending the determination of the substantive motion. The Court also vacated the hearing date for the applicant's notice of motion and ordered that it be stood over to the hearing of the leave application. Leave was granted for the parties to approach the Registrar to obtain a hearing date for the leave application, which could be heard concurrently with the appeal if leave were granted, and for related judicial review proceedings. The applicant was ordered to pay the respondent's costs of the hearing.