G H Healey & Company Bondi v Grasso

[1999] NSWSC 147

CITATION :	G H Healey & Company - Bondi v Grasso [1999] NSWSC 147
CURRENT JURISDICTION :	Common Law
FILE NUMBER(S) :	12144/98
HEARING DATE(S) :	24 February 1999
JUDGMENT DATE :	30 July 1999
PARTIES :	G H Healey & Company - Bondi (Plaintiff) Vincent Grasso (Defendant)
JUDGMENT OF :	Master Harrison

COUNSEL :	Mr G Lucarelli (Appellant) Mr Frank G Daniberg (Respondent)
SOLICITORS :	Ms K Muc of G H Healey & Co - Bondi (Appellant) Mr P A La Fontaine, Surry Hills (Respondent)
CATCHWORDS :	Appeal against decision of costs assessor
ACTS CITED :	Legal Profession Act 1987 Supreme Court Act
CASES CITED :	Nabatu Pty Limited v Christopher W Crawley t/as Aubrey F Crawley & Co (NSWSC, unreported Master Harrison, 9 April 1998pp 20 & 21) Florence Investments Pty Limited v H G Slater & Co (1975) 2 NSWLR 398 Bowen CJ Re MacNamara's Costs (1884) 5 LR (NSW) 342; 1 WN 23 Bowen & Ors v Campbell & Anor (NSWSC, Master Malpass, unreported 2 December 1997)
DECISION :	See para 42

21

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION


MASTER HARRISON


FRIDAY, 30 JULY 1999


12144/98 - G H HEALEY & COMPANY - BONDI v
VINCENT GRASSO

JUDGMENT (Appeal against a costs assessor’s decision)

1   MASTER: The plaintiff by summons filed 1 September 1998 seeks to appeal against the determination of costs made by the costs assessor Mr Leonard Hattersley on 4 August 1998. These grounds of appeal are set out. The plaintiff relied on the affidavits of Katarina Muc sworn 1 September 1998, 16 November 1998 and 29 March 1999. The defendant relied on the affidavits of Peter Allan La Fontaine sworn 3 December, 1998 and Aaron Morgenstern sworn 17 February 1999. The grounds of appeal are set out in Ms Muc’s earlier affidavit. 2   The plaintiff is a firm of solicitors. The defendant is a former client of the plaintiff. Leonard S Hattersley is the costs assessor to whom this matter was referred for assessment. The summons filed on 1 September 1998 named “G H Healey & Co - Bondi” as the plaintiff and “Vincent Grasso” as the first defendant. 3   As preliminary issues, the defendant submitted that these proceedings were brought improperly as the parties were incorrect. Firstly, the defendant submitted that the plaintiff was incorrectly described and secondly that Leonard Hattersley had been joined as a second defendant without the leave of the court which is not in accordance with s 208NA of the Legal Profession Act 1987. I delivered reasons in relation to these two issues on 8 March 1999. I decided that Mr Leonard Hattersley the costs assessor had not been joined as a second defendant in these proceedings. The matter was relisted to give the plaintiff an opportunity to seek leave to amend its name if necessary. In response, the plaintiff filed a notice of motion seeking that leave be granted pursuant to s 81 of the Supreme Court Rules or Part 20 of the Supreme Court Rules to amend the name of the plaintiff on the summons from “G H Healey & Co - Bondi” to “Katarina Muc trading as G H Healey & Co-Bondi (formerly known as G H Healey & Co (Bondi))”. 4   Ms Muc deposed that on 15 July 1991 she received instructions to act for the defendant in relation to a claim for damages. At that time she was an employed solicitor of “G H Healey & Co” operating from premises at Coogee. Ms Muc had the day to day conduct of the matter under the supervision of one of the partners of the firm, Gregory Harrison Healey. There is no evidence as to who were the partners of G H Healey & Co as at 15 July 1991. 5   On 1 July 1995 Ms Muc became a partner with Mr Healey. She also became the resident principal of the practice which they conducted at Bondi and styled “ G H Healey & Co - Bondi”. On 31 December 1997 Mr Healey resigned from the partnership. Ms Muc continued to practice as the sole proprietor from 1 January 1998. The business name “G H Healey & Co - Bondi” was registered to Ms Muc on 28 January 1998. 6   The defendant’s substantive claim conducted in the District Court was concluded at a time when Mr Healey and Ms Muc were partners of “G H Healey & Co - Bondi”. In October 1996 when the verdict moneys were received, Mr Healey and Ms Muc were partners of “G H Healey & Co - Bondi”. On 1 September 1998 the proceedings for the assessment of costs were commenced. At this time Ms Muc was the sole proprietor of the practice styled “G H Healey & Co - Bondi”. 7   The confusion with the proper name of the plaintiff in the costs assessment and these proceedings starts with the application form. Mr Grasso nominated “G H Healey & Co - Bondi” as the defendant at the top of the application form but at para (5) of that same document he nominated the defendant as “G H Healey & Co” and gave the Bondi address. 8   The bill dated 13 March 1998 was prepared by the plaintiff and signed by Ms Muc, solicitor as the principal of “G H Healey & Co - Bondi”. It refers to a debit to “G H Healey & Co - Bondi”. The reply filed by the plaintiff cites its firm name as “G H Healey & Co - Bondi”. Correspondence passing between the defendant and the costs assessor is written on “G H Healey & Co - Bondi” letterhead but refers to the matter of Grasso v G H Healey & Co, Solicitors. 9   On 2 December 1997 the proper officer at the Supreme Court for costs assessment wrote to the parties informing them that the matter had been referred to Mr Leonard Hattersley for the costs assessment. The letter from the proper officer referred to the defendant as being “G H Healey & Co Solicitors”. The certificate of assessment of costs dated 4 May 1998 named “Gregory H Healey” practising as “G H Healey & Co” as the defendant. 10 Part 64 of the Supreme Court Rules refers to business names. Part 64 r 1 defines “business names” as:

“A name, style title or designation under which a person carries on a business, not being a name consisting of the name of that person and the name of each other person, if any, in association with whom that person carries on business, without any addition.”

11 Part 64 r 2 does not apply because the business name was registered before the assessment of costs proceedings were commenced.

12 Part 64 r 4 states:

“Appearance

(1) Where any person is sued in a business name, he shall not enter an appearance except in his own name.

(2) Where any person enters an appearance in proceedings in which he is sued in a business name, he shall file and serve with his notice of appearance a statement of the names and places of residence of all the persons carrying on business under that business name on the date of commencement of the proceedings.

(3) Where a person fails to comply with subrule (2), the Court may order that his appearance be struck out.”

13   In the costs assessment proceedings, the defendant firm of solicitors appears not to have complied with the above rules. If it had, these current difficulties would not have arisen. 14 Part 64 r 5 provides:

“Amendment as to parties

(1) Where proceedings are commenced against any person in a business name, the plaintiff shall, as soon as practicable, take all reasonable steps (whether by way of discovery of documents, interrogatories or otherwise) for the purpose of ascertaining the name of the defendant and shall, so far as practicable, make amendments so that the proceedings are continued against the person sued in his own name and not in his business name.

(2) Where proceedings are commenced against any person in a business name, the plaintiff shall not, without the leave of the Court, take any step in the proceedings, except in respect of service of the originating process and except for the purpose of compliance with subrule (1), until amendments are made in accordance with subrule (1).

(3) Where an amendment is made under this rule, the mode of amendment and service after amendment shall be in accordance with rules 7, 8 and 9 of Part 20.

(4) A party may make any amendment pursuant to rule 2 of Part 20 notwithstanding that he has made an amendment under this rule.”

15   In the costs assessment proceedings, the plaintiff Mr Grasso did not comply with this rule. In the appeal, the plaintiff firm of solicitors did not comply with this rule. Once again if either party had complied with this rule, the current difficulties would not have arisen. The name of the defendant should have been changed to Katarina Muc who should have been sued in her own name.

16   The costs assessor probably cognisant with requirements of Part 64 realised that the name “G H Healey & Co - Bondi” was incorrect so added the words “Gregory H Healey practising as” before “G H Healey & Co” on the certificate of determination of costs when naming the plaintiff. At the foot of the certificate the costs assessor referred to “G H Healey & Co” at the Bondi postal address.

17   The plaintiff submitted that the plaintiff was correctly described in the summons whereas the defendant submitted that the plaintiff was correctly described in the certificate of determination of costs. The plaintiff is not correctly described on the summons as “G H Healey & Co - Bondi” because that description does not comply with Part 64 r 5(1).

18   As previously stated, it is my view that the correct name of the plaintiff in the costs assessment proceedings should have been Katarina Muc. The application for the costs assessment, the certificate of determination in the costs assessment proceedings name the defendant incorrectly. The summons in these proceedings names the incorrect plaintiff. This raises two questions, firstly whether the application and the certificate can be amended and secondly whether the summons should be amended.

19   The plaintiff referred to s 208K of the Legal Profession Act and noted that this section refers to the application. It provides:

"Determination to be final
A costs assessor's determination of an application is binding on all parties to the application and no appeal lies in respect of the determination, except as provided by this division."

20   Likewise s 204 of the Legal Profession Act also refers to an application. It provides:

“Persons to be notified of application
The proper officer of the Supreme Court is to cause a copy of an application for assessment to be given to any barrister, solicitor or client concerned or any other person whom the proper officer thinks it appropriate to notify.”

21   The defendant submitted that the court has power to remedy the costs assessor’s error by a declaration correcting the application and certificate. According to the plaintiff, s 208K of the Legal Profession Act, properly construed, means that all parties to the original application for assessment for costs are bound by the certificate of determination. In this case the parties named in the original application for assessment are “G H Healey & Co - Bondi” and “Vince Grasso”. According to the plaintiff, by force of s 208L it is the party to an application who can appeal. The right of appeal as conferred by s 208L is conferred on the parties to the application, and the costs assessor cannot by accidental slip of a pen or otherwise confer a right of appeal on someone who is not a party, or on a non-existent party, by mistakenly naming that person in the certificate. Even if these submissions are correct, the plaintiff was incorrectly named in the application so amending the certificate to reflect the plaintiff’s name recorded in the application will not assist it.

22   The plaintiff also submitted that an amendment could be made by virtue of s 208L(2) of the Legal Profession Act. Section 208L(2) provides:

“(2) After deciding the question the subject of the appeal, the Supreme Court may, unless it affirms the costs assessor's decision:

(a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or

(b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application.”

23   However I cannot proceed to decide the question the subject of appeal unless the proper parties are named in the application. This section does not assist the plaintiff.

24 Section 208JB of the Legal Profession Act provides:

“Correction of error in determination
(1) At any time after making a determination, a costs assessor may, for the purpose of correcting an inadvertent error in the determination:
(a) make a new determination in substitution for the previous determination, and

(b) issue a certificate under section 208J that sets out the new determination.
(2) Such a certificate replaces any certificate setting out the previous determination of the costs assessor that has already been issued by the costs assessor, and any judgment that is taken to have been effected by the filing of that previously issued certificate is varied accordingly.”

25 Section 208JB commenced on 18 December 1998 and does not apply to a determination made by a costs assessor prior to its commencement (see Schedule of the Legal Profession Amendment Act 1998). The costs assessor’s determination was made on 4 August 1998 so s 208JB does not apply. Prior to the introduction of s 208JB, a costs assessor did not have the power to make a “slip rule” amendment. In Nabatu Pty Limited v Christopher W Crawley t/as Aubrey F Crawley & Co (NSWSC, unreported 9 April 1998 at pp 20 and 21) I held that there is nothing in the construction of the Act that led me to conclude that there was a right in that statute that permits a costs assessor to correct his or her mistakes. When a costs assessor has given his or her determination, he or she is functus officio and cannot act or detract from what he or she has done.

26   The plaintiff also submitted that s 81 of the Supreme Court Act would permit the application and certificate in the costs assessment proceedings to be amended. I reproduced this section in my earlier judgment of 8 March 1999 but it is convenient to reproduce it again here.

27   The relevant portions of s 81 of the Supreme Court Act provide:

“(1) Where, in beginning or purporting to begin any proceedings at any stage in the court of or in connection with any proceedings, there is, by reason of anything done or left undone, a failure to comply with the requirements of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect -

(a) the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings; and

(b) subject to subsections (2) and (3), the court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its powers under this Act and the rules to allow amendments and to make orders dealing with the proceedings generally.

(2) …

(3) The court shall not set aside any proceedings or any step taken in any proceedings or any document, judgment or order in any proceedings on the ground of a failure to which subsection (1) applies on the application of any party unless the application is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity.”

28   Also Part 64 r 7 of the Supreme Court Rules provides:

“Variation of judgment or order

(1) Notwithstanding rule 6, the Court may vary a judgment or order against a person in a business name so as to make it a judgment or order against that person in his own name and, when so varied, the judgment or order may be enforced accordingly.

(2) Notice of a motion for a variation of a judgment or order under subrule (1) shall be served personally on the person against whom the judgment was given or the order was made, and rule 3 shall not apply to that service.”

29   It is my view that s 81(1)(b) gives the court the power to amend the application and the certificate in the costs assessment proceedings and the summons in these proceedings. Although the section does not specifically refer to a certificate, the intention of the section is to allow the court to amend a FINAL determination. Once the plaintiff became aware that its correct name was in dispute at the hearing and after I delivered my earlier reasons she promptly filed a notice of motion seeking to correct the error. The plaintiff made the application within a reasonable time and did not take a fresh step after becoming aware of the irregularity. Also it is my view Part 64 r 7 gives the court power to vary a judgment or order so as to make it a judgment or order against that person in his or her own name.

30   The defendant did not submit that it would suffer any prejudice by the amendments. It must also be remembered that it was the defendant who initially named the plaintiff incorrectly but had always intended to sue the firm of solicitors who conducted his litigation in the District Court. The plaintiff has carried out legal work on his behalf which resulted in a substantial verdict in his favour and is entitled to remuneration. If the amendments were not made and the certificate could not be varied, the certificate could not be enforced. The assessment process would have been a useless exercise. However, for reasons which appear later in the judgment, the certificate is to be set aside. However, it is in the interests of justice and allowable under s 81 of the Supreme Court Rules and Part 64 r 7 for the name of the defendant in the costs assessment application to be amended to Katarina Muc and I so order.

31   The summons also should be amended so that the plaintiff is correctly named as “Katarina Muc” and I make this order. The appeal can now be argued and decided on its merits.

32   I turn to consider the appeal itself. The plaintiff’s grounds of appeal are firstly that the costs assessor, whilst purporting to determine the bill of costs dated 13 March 1998 which was the subject of the application, had actually assessed a previous statement of account dated 31 October 1996; secondly the costs assessor assessed the earlier narrative bill rather than the itemised solicitor/client bill which was provided to the defendant subsequent to the defendant filing an application for assessment of costs; thirdly the costs assessor even after assessing the earlier narrative bill with the concession granted of charging pre 1 July 1994 scale charges, failed to take into account the appropriate charges which, utilising the scale rates still produced a figure in excess of $37,000 taking into account the items conceded by the plaintiff in its replies to the defendant’s objections and the items disallowed by the costs assessor and finally while purporting to determine the bill of costs dated 13 March 1998 which was the subject of the application for assessment, the costs assessor disregarded the bill in assessable form and purportedly assessed a previous statement of account dated 31 October 1996. At the hearing the plaintiff also sought leave to appeal firstly on the basis that there is an error in the arithmetic in the bill and secondly there was an obvious manifest error because of the large reduction of the defendant’s costs.

33   I turn to give a short history of the relevant matters.

(1) On 7 June 1991, the defendant was injured at work. He suffered a serious injury to his right foot resulting in the amputation of three toes and half of a big toe.

(2) On 15 July 1991, the plaintiff took instructions on behalf of the defendant. Subsequent proceedings were commenced by the plaintiff on behalf of the defendant against his employer. The matter was listed for hearing in this court in the Sydney circuit which commenced on 1 July 1996 for 4 weeks. On 5 July 1996, the matter commenced before Dunford J. The matter was settled at 5.00 pm on that day for $340,000 inclusive of costs.

(3) On 1 November 1996, the defendant provided instructions for the payment of these professional fees by way of a signed authority. When the settlement moneys were received the defendant was provided with a narrative bill dated 31 December 1996 advising of professional fees in the sum of $29,950 and disbursements in the sum of $24,245.32.

(4) On 13 October 1997, the defendant requested an itemised bill. On 31 December 1997, the defendant filed an application for an assessment of costs.

(5) On 8 December 1997, the costs assessor wrote to the defendant. He notified the defendant that he had been appointed the costs assessor. The relevant parts of that letter read:
“I note the total of the costs and disbursements (including Counsels’ fees) charged by solicitors amounts to $54,192.32. I note also you say that only $25,000 is in dispute but of course you do not specify which part or parts of the bill you have received make up that $25,000.00. Thus it will be necessary for me to carefully consider the whole of the solicitors’ costs and disbursements before I will be able to come to any decision whether or not you have been overcharged and if so by what amount (if any).
…
I have cursorily considered the defendants’ lump sum narrative bill of costs and disbursements to you and based on my experience as a solicitor and costs assessor I venture the opinion to you that the defendants’ solicitors will readily establish that their fees and disbursements charged to you in the sum of $54,192 is more than fair and reasonable particularly in the light of the gross amount of the settlement achieved by them and Counsel for you.”
The costs assessor concluded the letter by requesting the defendant to advise him whether he wished to continue with the assessment application.

(6) The narrative bill of costs claimed $29,950 as profit costs and $24,242.32 as disbursements - the total of the bill is $54,192.32 (as stated above).

(7) On 13 March 1998, the plaintiff provided the defendant and the costs assessor with an itemised solicitor/client bill of costs which claimed profit costs of $66,715.82 and disbursements in the sum of $21,269.03. The itemised bill of costs totals $87,984.85.

(8) In April or May 1998, the defendant served an objection to the itemised bill of costs. He conceded the sum of $18,088.05 leaving $48,627.77 in issue for profit costs. He also conceded the amount of $8,167.64 for disbursements leaving in issue the sum of $13,101.39. Overall the defendant had conceded $26,255.69 and left the sum of $61,729.16 in dispute.

(9) On 15 June 1998, the plaintiff responded to the defendant’s objections by way of reply. The net result of this left the sum of $46,207.87 of profit costs in dispute. No further disbursements were conceded and the sum of $13,101.39 was left in dispute. In total there was an amount of $59,309.26 in dispute.

(10) The costs assessor did not request or inspect the solicitor’s file in relation to the defendant’s personal injury case held by the solicitor.

(11) On 4 August 1998, the costs assessor issued a certificate of determination. He allowed profit costs in the sum of $29,950 and disbursements in the sum of $21,650.32. He allowed a total of $51,600.32. In his reasons the costs assessor relevantly stated:
“…I have assessed all of the legal services described by you in your detailed bill of costs as having been provided after 1 July 1994 ie all of those services commencing with item 376 and following at the basic rate of $140.00 per hour for a solicitor. You will appreciate that it was necessary for me to recalculate the costs of a considerable number of items to reflect the new charge.
…
I then applied an uplift of 25% for care, skill and consideration to the net amount thus arrived at by me for the costs after 1 July 1994 to reach what I believed was a fair and reasonable amount of costs to which you were then entitled. The end result of that exercise was that I found that the sum of $29,950.00 charged by you as profit costs in your lump sum narrative bill of costs dated 31 October 1996 addressed to the costs applicant was a fair and reasonable amount of costs to charge the applicant.
As to the disbursements charged in the detailed bill of costs, I have reduced the fees of $3,750.00 charged by Mr Richard Royce of Counsel for 8 July 1996 to $1,750.00. The additional $2,000.00 charged by him for “say two days on a refresher basis” is not acceptable in the absence of the applicant’s considered consent to pay that amount or counsel having an entitlement pursuant to the specific terms of a costs agreement existing between you and him or between the client and him to make such charge. Furthermore I have not allowed you the loosely calculated and unsubstantiated amount of $595.00 referred to in item 1178 of the bill.
The end result is that I have reduced the amount claimed for disbursements in your bill of 31 October 1996 and statement of account of the same date from $24,245.32 to $21,650.32.”

34   The costs assessor deducted the solicitor’s charge for preparing the legal practitioner/client bill of costs. The plaintiff did not submit that this was an error. In any event, it is my view that the costs assessor was correct in deducting this amount.

35   In Florence Investments Pty Limited v H G Slater & Co (1975) 2 NSWLR 398 Bowen CJ stated that upon taxation of the detailed bill regard may and, indeed, should, be paid to the earlier gross bill as one of the circumstances in the case. It does not appear to his Honour to be sensible or practicable to exclude it from the consideration of the taxing officer. He further stated that his view was consistent with the decision of the Full Court in Re MacNamara’s Costs (1884) 5 LR (NSW) 342; 1 WN 23 and with the history of the provisions. However, Bowen CJ considered this point was not of much importance because the obligation of the taxing officer in taxing a detailed bill will be to consider each item and the circumstances which it applies to. He concluded that it is difficult to see that it will be of much assistance to him in discharging that task to know that an earlier gross sum bill was delivered for an amount smaller than the total of the detailed items in the bill before him. At most it would seem it might lead him to scrutinise the detailed bill with especial care. This decision was given when the taxation regime was in place and the assessment procedures are somewhat different.

36   In Bowen & Ors v Campbell & Anor (NSWSC, Master Malpass, unreported 2 December 1997) there was an earlier statement of account and a bill covering at least some of the same work. The statement of account was dated December 1996 for the sum of $274.89. The bill of costs was dated 17 January 1997 and rendered in the sum of $1,971.40. The plaintiff in Bowen submitted that the costs assessor had erred in law in misconceiving his statutory function and duty in proceedings to determine a bill of costs other than the bill of costs that was the subject of the application for assessment. Master Malpass referred to a letter of confirmation of the fairness and reasonableness of the earlier bill. The learned Master found that in these circumstances the court has little alternative but to find that there has been a relevant error of law and he was not able to affirm the costs assessor’s decision. The matter was remitted to the costs assessor for re-determination.

37   In the case before me the costs assessor had written to the defendant prior to the receipt of the itemised bill, and stated that he noted the total costs and disbursements amount to $54,192.32. He also noted that the defendant disputed $25,000 but was unaware which parts of the bill the defendant disagreed with. He said that he would need to carefully consider the whole of the solicitor’s costs and disbursements to come to a decision as to whether the defendant had been overcharged. The costs assessor then went on to express an opinion that after cursorily considering the lump sum bill the sum of $54,192 is more than fair and reasonable. In the costs assessor’s reasons he referred to the detailed bill of costs which I infer means the later itemised bill of costs. The costs assessor says that work done by the solicitor after 1 July 1994 was reduced to $140 per hour and he then applied an uplift of 25% for care, skill and consideration. After performing this task he found that the sum of $29,950 charged by the solicitors in the narrative bill was a fair and reasonable amount of costs to charge the applicant. The costs assessor then gave reasons for reducing some disbursements.

38   This raises the question did the costs assessor scrutinise the itemised bill with special care or was his assessment clouded by the earlier narrative bill of costs? It is difficult to say but it is my view, that the amount claimed in the earlier narrative bill of costs was unduly taken into account by the costs assessor. He gave advice to the defendant that the amount of $54,192 was fair and reasonable. The total of the solicitor’s costs in that bill was $29,950. The costs assessor found after assessing the itemised bill and after making some deductions he arrived at the sum of $29,950 the same amount as claimed for solicitor’s costs as in the narrative bill of costs. Accordingly, the appeal should be upheld and the certificate of the costs assessor dated 4 August 1998 should be set aside. 39   In relation to the alternative submissions, the plaintiff did not establish that the costs assessor had made an arithmetical error. This submission fails. The amount of the bill was $87,984.85. An amount of $59,309.26 was in dispute before the costs assessor. The costs assessor allowed a total of $51,600.32 costs on assessment. So in all, the bill of costs was reduced by $36,386.43 which is just under half of the amount claimed in the bill of costs rendered. I do not conclude that there has been an obvious manifest error because of the large reduction in costs. This submission also fails.

40   The defendant submitted that Ms Muc failed to comply with the order of the Supreme Court of New South Wales to produce the relevant receipts and diaries in the matter and provided no reasons or explanations for her failure. However, these documents were not before the costs assessor. The defendant also raised the doctrine of privity of contract. Again, this was not a matter that was raised before the costs assessor. The defendant submitted that the affidavit sworn on 1 September 1998 by Ms Muc and attached to the summons was misleading and false and that the defendant was “tricked” into signing the authority. There was no evidence from the defendant at all. In any event, this issue does not appear to be one that was ventilated before the costs assessor. As these grounds of appeal were not matters raised before the costs assessor they cannot be sustained. Costs should follow the event. The defendant is to pay the plaintiff’s costs.

41   The orders I make are:

(1) The name of the defendant in the application for costs assessment be amended to “Katarina Muc”.

(2) The name of the plaintiff in the summons be amended to “Katarina Muc”.

(3) The appeal is upheld. The certificate of the costs assessor dated 4 August 1998 is set aside.

(4) The matter is to be remitted to the costs assessor for re-determination.

(5) The defendant is to pay the plaintiff’s costs.
**********

Last Modified: 03/08/1999