Howell v Rose - [2000] NSWSC 934

CITATION: Howell v Rose [2000] NSWSC 934

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 11467/2000

HEARING DATE(S): 5 October 2000

JUDGMENT DATE: 13 October 2000

PARTIES :

Paul Roch Howell
(Plaintiff)
John Emmanuel Rose
(Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr B Slowgrove
(Plaintiff)
Mr M Broun QC with
Mr V Bedrossian
(Defendant)

SOLICITORS:
Dennis & Co
(Plaintiff)
White & Downey
(Defendant)

CATCHWORDS: Extension of time for application for costs assessment

LEGISLATION CITED: Legal Profession Act 1987 (the Act)
Legal Profession Regulations 1994

CASES CITED: Tsekouras v Xenos (NSWSC, unreported 5 August 1997 Barr J)
Hook v Simpsons Solicitors [1999] NSWSC 667
Ryan v Whitten [1999] NSWSC 865
Brierley v Reeves t/as Kaplan Reeves & Co [2000] NSWSC 305
Selosse v Whitten Graham AJ, unreported 26 August 1997

DECISION: See para 15

8

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 13 OCTOBER 2000

11467/2000 - PAUL ROCH HOWELL v
JOHN EMMANUEL ROSE
JUDGMENT (Extension of time for application for

costs assessment)

1 MASTER: By amended summons filed 3 July 2000 the plaintiff seeks that his application for assessment of the defendant’s bill of costs served 4 February 1998 be determined or alternatively, that the plaintiff be granted an extension of time pursuant to s 199(2) of the Legal Profession Act 1987 (the Act) and of Regulation 25 of the Legal Profession Regulations 1994. The plaintiff relied on two affidavits of Bruce Vernon Dennis sworn 13 June 2000 and 3 July 2000. The defendant relied his affidavit sworn 7 August 2000 and the affidavit of Rachel Lee sworn 8 August 2000.
2   The plaintiff is a former client of the defendant, a solicitor. The defendant acted for the plaintiff in a partnership dispute between the plaintiff and Fine Real Estate Network Pty Limited, Mervyn Fine and Patricia Fine in relation to the buying and selling of a number of properties in the Eastern Suburbs which were to be renovated and sold for a profit. The solicitor acted for the plaintiff in proceedings involving an application to the Supreme Court seeking a declaration as to the parties to the partnership and seeking an account upon dissolution of the partnership. The proceedings were referred to be heard by Mr Reynolds QC as a referee. Subsequently the proceedings came before McClelland CJ in Equity concerning the adoption of the referee’s report.
3   There has been a long history of proceedings involving the solicitor recovering his outstanding legal fees in the District Court and this court. In the District Court the solicitor sought to enforce a personal covenant to pay the sum of legal costs. The plaintiff mortgaged his shares in his property at Darling Point in favour of the plaintiff. However, shortly after entering into this transaction the plaintiff sold the property. The client has filed three prior applications seeking to have the bill of costs assessed. These files have been closed by the proper officer.
4   A short chronology, which was helpfully set out by the…

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 Howell v Rose

Details

AGLC: Howell v Rose [2000] NSWSC 934
Case: [2000] NSWSC 934
Decision Date: 13 October 2000

CaseChat Overview and Summary

Howell was the successful party in an action brought in the Federal Circuit Court against Rose. Rose applied for an extension of time for an application for the assessment of costs. The court had to decide whether the application for an extension of time was frivolous or vexatious and whether it was in the interests of justice to grant the extension. The court considered the reasons given for the delay in making the application and whether the delay was such that it would bring the administration of justice into disrepute. The court found that the application was not frivolous or vexatious and that it was in the interests of justice to grant the extension of time. The court took into account the reasons given for the delay and the fact that the delay was not such as to bring the administration of justice into disrepute. The application for an extension of time for an application for the assessment of costs was therefore granted.

Orders