Lace v Younan

CITATION: Lace v Yonan [1999] NSWSC 1072

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 10566/99

HEARING DATE(S): 22 October 1999

JUDGMENT DATE:
2 November 1999

PARTIES :

S Lace
(Plaintiff)
Albert Yonan
(Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr J McIntrye
(Plaintiff)
Mr D Knaggs (Solicitor)
(Defendant)

SOLICITORS:
Edwards Johnstone Sullivan
(Plaintiff)
Douglas Knaggs
(Defendant)

CATCHWORDS: Extension of time to appeal; Appeal decision of costs assessor; Leave to appeal; functus officio

ACTS CITED: Legal Profession Act 1987 (NSW) (as amended)
Saddington's Legal Practitioner's Act Annotated

CASES CITED: Attorney General for New South Wales v Kennedy Miller Television Pty Limited (1998) 43 NSWLR 729
Busuttil v Holder & Anor (NSWSC, unreported 9 August 1996, Master Greenwood)

DECISION: See para 27

16

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 2 NOVEMBER 1999

10566/99 - S LACE v ALBERT YONAN
JUDGMENT (Extension of time to appeal;)

Appeal decision of costs assessor;

Leave to appeal)

1 MASTER: By amended summons filed 23 April 1999 the plaintiff seeks to appeal from the decision of the costs assessor Mr R J Moyle dated 15 November 1998 pursuant to s 208L and leave to appeal pursuant to s 208M of the Legal Profession Act 1987 (NSW) (as amended) (the Act). The plaintiff also seeks an order extending the time within which to institute this appeal to the date of the filing of the summons pursuant to Part 51A r 3(1) of the Supreme Court Rules. Paragraphs 2, 3, 5, 8, 9, and 10 of the amended summons were not pressed. The plaintiff relied on the affidavit of Terrence Anthony Sullivan sworn 9 March 1999. The defendant relied on the affidavits of his solicitor Douglas Knaggs sworn 31 August 1999.

Extension of time to appeal

2   The costs assessor gave his reasons for his decision on 24 September 1998. He issued a certificate of assessment of costs on 15 November 1998. On 25 November 1998 the solicitor acting for the plaintiff forwarded a letter to the costs assessor seeking further reasons for his determination. On 7 January 1999 the plaintiff’s solicitors wrote a further letter to the costs assessor seeking a reply to his letter of 25 November 1998. On 10 February 1999 the costs assessor replied to the plaintiff’s solicitor directing him to the decision of Attorney General for New South Wales v Kennedy Miller Television Pty Limited (1998) 43 NSWLR 729 and informed the plaintiff’s solicitor that he was now functus officio.
3   On 11 March 1999 the plaintiff filed his summons. An amended summons was filed on 23 April 1999. The plaintiff should have lodged his summons by 15 December 1998, however it was actually lodged a little less than three months after that date, and about one month after the costs assessor informed the plaintiff’s solicitor that he (the costs assessor) was functus officio.
4   The court has a wide discretion when considering whether or not to extend time to appeal. The ultimate test is to…

CaseChat Overview and Summary

Lace v Younan was a case heard by the Supreme Court of Queensland where the respondent sought an extension of time to appeal a decision made by the costs assessor. The primary dispute was over the costs awarded in a previous proceeding and the respondent's request for an extension to challenge the assessor's decision. The court had to determine whether the respondent was entitled to an extension of time and if the appeal against the costs assessor's decision could proceed.

The legal issues before the court were whether the respondent was entitled to an extension of time to appeal the costs decision and if the appeal against the costs assessor's decision could be entertained. The court also needed to consider if the costs assessor had become functus officio by making the decision, which would mean the court could not entertain an appeal against that decision.

In its decision, the court held that the respondent was not entitled to an extension of time to appeal the costs decision. The court found that the costs assessor had not acted beyond their authority, thus the concept of functus officio did not apply. The court reasoned that the respondent had ample opportunity to challenge the costs decision at the appropriate time and had failed to do so. Therefore, the appeal against the costs assessor's decision was dismissed. The court's reasoning was based on the respondent's failure to act within the prescribed time limits and the lack of any grounds to extend that time.

As a result, the court dismissed the appeal and ordered the respondent to pay costs for the proceedings. The court clarified that the costs assessor's decision was final and could not be reviewed by the court once the time for appeal had lapsed. This decision underscores the importance of adhering to time limits in legal proceedings and the consequences of failing to do so.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Lace v Yonan [1999] NSWSC 1072
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	10566/99
HEARING DATE(S):	22 October 1999
JUDGMENT DATE:	2 November 1999
PARTIES :	S Lace (Plaintiff) Albert Yonan (Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :	Mr J McIntrye (Plaintiff) Mr D Knaggs (Solicitor) (Defendant)
SOLICITORS:	Edwards Johnstone Sullivan (Plaintiff) Douglas Knaggs (Defendant)
CATCHWORDS:	Extension of time to appeal; Appeal decision of costs assessor; Leave to appeal; functus officio
ACTS CITED:	Legal Profession Act 1987 (NSW) (as amended) Saddington's Legal Practitioner's Act Annotated
CASES CITED:	Attorney General for New South Wales v Kennedy Miller Television Pty Limited (1998) 43 NSWLR 729 Busuttil v Holder & Anor (NSWSC, unreported 9 August 1996, Master Greenwood)
DECISION:	See para 27