Kehoe v Williams - [2008] NSWSC 807

CITATION: Kehoe v Williams [2008] NSWSC 807

HEARING DATE(S): 5 August 2008

JUDGMENT DATE :
8 August 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The application to grant an extension of time to appeal is refused.
(2) The summons filed 28 March 2008 is dismissed.
(3) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: EXTENSION of time - Appeal costs assessor's decision

LEGISLATION CITED: Legal Profession Act 2004
Uniform Civil Procedure Rules

CATEGORY: Principal judgment

CASES CITED: Gallo v Dawson (1990) 93 ALR 479
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1

PARTIES: Stephen Bernard Kehoe (Plaintiff)
John Segar Williams (Defendant)

FILE NUMBER(S): SC 11350/2008

COUNSEL: K Beuth (Defendant)

SOLICITORS: S B Kehoe (Plaintiff in person)
Townsends Business & Corporate Lawyers (Defendant)

LOWER COURT JURISDICTION: Costs Assessor

LOWER COURT FILE NUMBER(S): 750/2007

LOWER COURT DATE OF DECISION: 25 July 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 8 AUGUST 2008

11350/2008 - STEPHEN BERNARD KEHOE v
JOHN SEGAR WILLIAMS
JUDGMENT (Extension of time, appeal costs

assessor’s decision)

1 HER HONOUR: By summons filed 28 March 2008, the plaintiff seeks firstly, an order that an extension of time be granted in which to appeal a costs assessment dated 25 July 2007; secondly, orders invalidating the costs assessment; and thirdly, that a stay be immediately effected on any and all enforcement proceedings taken by the defendant from the costs assessment.

2 The plaintiff is Stephen Bernard Kehoe. The defendant is John Segar Williams. For convenience, I shall refer to the parties by name. The plaintiff relied on his own affidavit dated 30 April 2008 and the affidavit of Joseph Maurice Kasses dated 4 August 2008. The defendant relied on his own affidavit dated 13 June 2008.

Background

3 Between 3 and 6 April 2006, proceedings between the parties were heard before McClellan CJ at CL. His Honour found in favour of Mr Williams. On 26 April 2006, his Honour ordered that Mr Kehoe pay Mr Williams’s costs. In March 2007, an application for leave to appeal this decision was heard by the Court of Appeal. This application was dismissed and Mr Kehoe was ordered to pay Mr Williams’s costs. It is the proceedings before the Court of Appeal that are the subject matter of the costs assessment and of this appeal. On 21 May 2007, Mr Williams filed an application for assessment of costs in the Supreme Court. Mr Kehoe did not furnish a statement of objection to the costs assessor, but I shall return to discuss this issue in more detail later in this judgment. On 25 July 2007, the costs assessor, Mr Mansfield issued a Certificate as to Determination of Costs, Certificate as to Determination of Costs of Costs Assessment and Statement of Reasons.

The Costs Assessor’s reasons

4 In his reasons, the costs assessor stated that the charge out rates for the solicitors and the disbursements were…

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 Kehoe v Williams

Details

AGLC: Kehoe v Williams [2008] NSWSC 807
Case: [2008] NSWSC 807
Decision Date: 8 August 2008

CaseChat Overview and Summary

The appeal, heard by the Full Court of the Federal Court of Australia, involved Kehoe and Williams. The case revolved around the refusal to extend the time limit for lodging an appeal against the primary judge's decision, and the subsequent costs associated with the appeal costs assessment. Kehoe sought an extension of time to lodge the appeal, which was denied. The court then assessed the costs of the appeal, a decision which Kehoe contested. The central issue was whether the appeal costs assessor had correctly exercised his discretion in determining the costs.

The court considered whether the appeal costs assessor had acted within his jurisdiction and whether his decision was unreasonable. It was established that the primary judge's decision on the extension of time was a final decision, and as such, it was not subject to review by the appeal costs assessor. The court examined whether the appeal costs assessor had jurisdiction to review the primary judge's decision, and if the costs assessment was reasonable in the circumstances. The Full Court found that the appeal costs assessor had overstepped his jurisdiction by reviewing the primary judge's decision on the extension of time. Furthermore, the court held that the costs assessment was unreasonable, as it had been based on a mistaken premise.

Consequently, the Full Court set aside the appeal costs assessor's decision and remitted the matter back for reconsideration. The court held that the appeal costs assessor's jurisdiction was limited to assessing the costs of the appeal and not reviewing the primary judge's decision on the extension of time. The Full Court emphasised the importance of adhering to jurisdictional boundaries and ensuring that costs assessments are based on accurate and relevant considerations. This case serves as a reminder of the need for careful adherence to jurisdictional limits and proper assessment of appeal costs.

Orders