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…

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.

Keep reading for free

Create a free CaseChat account to read Kiwi Munchies Pty Limited v Stern and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWSC 432
Decision Date: 20 April 2006

CaseChat Overview and Summary

Kiwi Munchies Pty Limited, an Australian company, filed an application for an adjournment against Stern, an individual. The matter before the court was a dispute over costs related to a previous legal proceeding. The case originated from an appeal against a decision of a costs assessor who had ruled on a relatively small sum of money. Kiwi Munchies sought an adjournment to allow for the presentation of additional evidence during the redetermination process, specifically correspondence that had not been available at the time of the initial costs assessment.

The primary legal issues before the court involved whether the admission of new evidence during the redetermination of costs was permissible and, if so, what the appropriate procedural steps would be to facilitate this. The court had to determine whether the nature and significance of the new evidence warranted an adjournment and if such an adjournment would be fair and just in the circumstances. The court also needed to consider whether the delay caused by the adjournment would unduly prejudice the opposing party, Stern.

In addressing these issues, the court found that the new evidence presented by Kiwi Munchies was both relevant and significant, as it could potentially alter the outcome of the costs assessment. The court recognised that allowing the presentation of this fresh evidence was necessary to ensure a fair and just determination of the costs in dispute. The court concluded that the potential benefit of obtaining a just result outweighed any inconvenience or delay caused to the opposing party. Consequently, the court granted the application for an adjournment, permitting Kiwi Munchies to obtain and present the additional correspondence as part of the redetermination process.

Orders