Gould v Day

[1999] NSWSC 393

CITATION:	GOULD v DAY & ANOR [1999] NSWSC 393
CURRENT JURISDICTION:	COMMON LAW
FILE NUMBER(S):	12579/98
HEARING DATE(S):	21 April 1999
JUDGMENT DATE:	30 April 1999
PARTIES :	STEPHEN GEORGE GOULD v JULIAN DAY (D1) ALAN MANLY (D2)
JUDGMENT OF:	Master Malpass

LOWER COURT JURISDICTION:	Costs Assessor
LOWER COURT FILE NUMBER(S) :	91382/98
LOWER COURT JUDICIAL OFFICER:	Peter Scammell

COUNSEL :	N/A
SOLICITORS:	N/A PLAINTIFF IN PERSON UNREPRESENTED DEFENDANTS IN PERSON UNREPRESENTED
CATCHWORDS:	Appeal brought pursuant to s 208L of the Legal Profession Act 1987; no matter of law arising in the proceedings to determine the application for assessment of costs.
ACTS CITED:	Legal Profession Act 1987 s 206, s 208L, s 208JA. Supreme Court Rules Pt. 52 r. 37.
DECISION:	SEE PARAGRAPHS 10-11

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 30 APRIL 1999

12579 of 1998 STEPHEN GEORGE GOULD v JULIAN REGINALD DAY & ANOR

JUDGMENT
1 The proceedings were commenced by Summons filed on 23 October 1998. The purport of the Summons was the bringing of an appeal against a decision of a Costs Assessor. An Amended Summons was filed on 23 November 1998. It seeks inter alia an order rescinding an earlier order for costs and disbursements.
2 There are two defendants. The defendants filed a Notice of Motion on 16 February 1999. It seeks inter alia the dismissal of the appeal.
3 The plaintiff has sworn two affidavits. Each defendant has sworn an affidavit.
4 The hearing took place on 21 April 1999. All parties appeared in person. There was considerable animosity.
5 It appears that the plaintiff had brought proceedings against the defendants in the District Court. The proceedings were resolved in favour of the defendants and the plaintiff was ordered to pay costs.
6 It appears that the defendants made application to this Court for an assessment of costs pursuant to s 206 of the Legal Profession Act 1987 (the Act). The application was referred to a Costs Assessor ( Mr Scammell) for the assessment of the party and party costs. Thereafter, communication took place between the Costs Assessor and the parties. The Costs Assessor issued a Certificate As To Determination Of Costs on 24 September 1998. He determined the application by assessing a fair and reasonable amount of costs in the sum of $35,808.44 (the bill of costs had claimed $46,643-54).
7 The only appeal as of right is provided by s 208L of the Act. It confers a restricted avenue of appeal (as to a matter of law arising in the proceedings to determine the application).
8 I have read the process and affidavits. I have listened to the submissions made by the parties. The defendants contend that the plaintiff’s submissions do not raise any question of law. Much time has been devoted to matters which have little or no bearing on the real questions in issue. The nature of the submissions made appears from the affidavit material. It is not necessary to otherwise refer to those submissions. The plaintiff placed stress on Part 52 rule 37 of the SCR (a rule which has application where the costs are payable on an indemnity basis). It suffices to say that the submissions made by the plaintiff did not advance any arguable question of law.
9 The onus rests with the plaintiff to demonstrate an entitlement to relief. I am not satisfied that there is any matter of law which would justify the disturbing of the determination made by the Costs Assessor. The relevant Costs Order was made by the District Court. The Costs Order has not been the subject of a successful appeal. This Court has no power to disturb that Order. It follows that the plaintiff’s claims for relief must be dismissed.
10 The Notice of Motion filed by the defendants is otiose and misconceived. It does contain a prayer for interest. No source of power to make the order sought has been identified. Section 208JA of the Act enables the filing of the Certificate in the appropriate jurisdiction. It is then taken as a judgment of that court. The entitlement to interest will be determined by the rules of that court.
11 I dismiss the Summons. The plaintiff is to pay the costs of the Summons. The defendants are to pay the costs (if any) of the Notice of Motion.

I hereby certify that paragraphs 1-11 are the reasons for judgment of Master Malpass.

Dated 30 April 1999. (H D LEWIS)

Associate.

Last Modified: 05/03/1999