Kiwi Munchies Pty Limited v Stern

[2006] NSWSC 432

CITATION:	Kiwi Munchies Pty Limited v Stern & Ors [2006] NSWSC 432
HEARING DATE(S):	20 April 2006
JUDGMENT DATE :	20 April 2006
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
DECISION:	Application for adjournment refused
CATCHWORDS:	APPLICATION FOR AN ADJOURNMENT - appeal from decision of costs assessor - small sum in issue - admission of fresh evidence on redetermination - adjournment sought to obtain correspondence
LEGISLATION CITED:	Legal Profession Act 1987
PARTIES:	Kiwi Munchies (1P) Sophia Paras (2P) Terence Stern (1D) John Bartos (2D) Clifford Boyd-Boland (3D) Panalpina World Transport Pty Ltd (4D)
FILE NUMBER(S):	SC 13495/04
COUNSEL:	S Paras (plt in person) Terence Stern (1D - submitting appearance) John Bartos (2D - submitting appearance) Clifford Boyd-Boland (3D - submitting appearance) M G McHugh (4D)
SOLICITORS:	Plaintiff in person Ebsworth & Ebsworth (4D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

THURSDAY 20 APRIL 2006

013495/2004
KIWI MUNCHIES PTY LIMITED v STERN & ORS

JUDGMENT

1 HIS HONOUR: This matter comes before me today by way of an appeal from the decision of a costs assessor made in relation to the costs of litigation, which was commenced in the Local Court. The initial claim was for an amount in the order of $10,000. Apparently the matter was fixed for arbitration in the Local Court but on the day on which it was fixed, agreement was reached that it should not proceed. As part of that agreement the plaintiff in these proceedings agreed to pay "the costs thrown away of the defendant." The words "that is the costs of today and the preparation thereof" were added or were included in the written document which evidenced the agreement.

2 The proceedings were a claim brought by the plaintiff against the fourth defendant in the proceedings. The cost assessment was made by Costs Assessor Stern, which was reviewed by a panel pursuant to subdivision 4A of Division 6 of Part 11 of the Legal Profession Act, 1987.

3 The plaintiff in these proceedings appears through a director of the company whom I earlier joined as a party. The amount at issue in the proceedings before me is a sum which, after discussion with the parties, is at most $5922.66, but may be less. It is not a large claim.

4 Out of concern that the matter should be resolved in this Court as expeditiously as could be achieved, doing justice to both parties, I suggested this morning that the matter might be argued upon the assumption that the appeal succeeded and the Court proceed to redetermine the matter as provided by s 208L(3) of the Legal Profession Act 1987. Redetermination can take place having regard to fresh evidence. Both parties agreed to the matter being determined on that basis.

5 At that particular time, only one issue was identified, being whether or not the insurance policy which was in evidence before the assessor, responded to the claim which the plaintiff made against the fourth defendant in the Local Court proceedings.

6 A number of reasons were advanced by the plaintiff why the policy does not respond, and it is said accordingly that, because the fourth defendant is not itself personally liable to pay the solicitor's costs, no monies are owing pursuant to the agreement originally reached in the Local Court.

7 One issue which arises in determining that question is whether or not the claim brought by the plaintiff against the fourth defendant in the Local Court is a claim to which the policy can respond.

8 It seems to me that matter has to be determined by reference to the pleadings filed in the Local Court, which I understand were in evidence before the assessor.

9 The plaintiff says that she wishes to tender evidence beyond that pleading, being correspondence between the parties, and for that purpose seeks an adjournment. She submits that she should be given a further opportunity to provide fresh evidence on this issue and it seems to me there are a number of considerations which I should bear in mind.

10 First of all the amount at issue is not large. I accept that for both parties there are significant issues of principle but the extent to which this Court should grant an adjournment in relation to a dispute with respect to a very modest sum requires careful consideration.

11 Furthermore, having regard to the analysis that I have indicated to my mind is appropriate in relation to the issue it is necessary to consider whether or not, by granting an adjournment or more particularly by failing to grant an adjournment, the plaintiff would suffer any disadvantage. The defendant's counsel has indicated that he has in Court the pleadings and correspondence between the parties in relation to the matter, which he will make available to the plaintiff, if she wishes to see it. My present understanding would not suggest that that material would be of assistance in resolving the issue, but nevertheless, I am mindful that the offer has been made.

12 It is also important to bear in mind that the plaintiff in bringing this appeal, was exercising the right available to her pursuant to s 208L(1). That section contemplated that, if an appeal is upheld, the Court may proceed to redetermine the matter of costs.

13 Having regard to the amount at issue, it should have been apparent to the plaintiff that in bringing these proceedings, if she was to succeed, it would be most likely that the Court would proceed to redetermine and would not contemplate sending the matter back for yet another round of litigation before the costs assessor.

14 Having regard to all of these matters, I am satisfied that the application for an adjournment should not be granted, and accordingly that application is refused.

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