Lange v Back & Schwartz

[2009] NSWDC 180

CITATION:	Lange v Back & Schwartz [2009] NSWDC 180
HEARING DATE(S):	07/05/09, 08/05/09
JUDGMENT DATE:	12 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Norrish QC DCJ
DECISION:	1. Application for extension of time for filing Summons granted 2. Summons filed 5 January 2009 dismissed 3. The plaintiff pay the defendants’ costs.
CATCHWORDS:	LEGAL PROFESSION - Costs - Appeal from Costs Assessor's decision - procedural fairness - ss384 and 385 Legal Profession Act
LEGISLATION CITED:	Legal Profession Act 2004 Uniform Civil Procedure Rules 2005
CASES CITED:	Currabubula and Paola Holdings Pty Ltd v State Bank of NSW [2000] NSWSC 232 Madden v NSW Insurance Ministerial Corporation [1999] NSWSC 196 Forman v Rattray [2006] NSWSC 260 Adamson v Miller [2005] NSWSC 971 Levy v Bergseng [2008] NSWSC 294 CSR v Eddy (2008) 70 NSWLR 725 Wentworth v Rogers (2006) 66 NSWLR 474 Hutchison v RTA [2001] NSWCA 332 Freeman v McNally & Anor [2003] NSWSC 780 Wende v Horwath (NSW) Pty Ltd [2008] NSWSC 124
PARTIES:	Paul John Lange - Plaintiff Francis Joseph Back, Tony Schwartz (t/as Back, Schwartz, Vaughan Solicitors) - Defendants
FILE NUMBER(S):	0006/09
COUNSEL:	Mr Waterstreet with Mr Lange - Applicant Mr Harris - Respondent
SOLICITORS:	Mr P Lange - Applicant Back Schwartz Vaughan - Respondent

JUDGMENT
Introduction

1 Paul Lange (“the plaintiff”) by Summons filed on 5 January 2009, makes application for an extension of time to file a summons so as to appeal the costs assessment made by Mr John McIntyre, Costs Assessor, on 28 July 2008, in a Certificate of Determination of Costs, issued pursuant to ss 367, 368 Legal Profession Act 2004 (“LPA”), in favour of the defendants. An extension of time is required pursuant to r 50 (Uniform Civil Procedure Rules) as the plaintiff was required to file the summons within 28 days or no later than 31 July 2008. The decision by the Costs Assessor was generally founded on the basis that the plaintiff had retained the defendants to provide legal services pursuant to a ‘costs agreement’, that the costs claimed were ‘fair and reasonable’ and that the full amount, less monies already paid towards costs, was owed, plus interest and fee for the application.

2 If the application for extension of time is granted the plaintiff wishes to appeal the assessment of costs pursuant to s 384 LPA. Alternatively, or additionally, he seeks leave to appeal pursuant to s 385 LPA. The grant of an extension of time is opposed by the defendants who also oppose the applications made by the plaintiff pursuant to ss 384, 385 LPA. Appeal from the Costs Assessor’s determination lies only pursuant to the provisions of Part 3.2, Division 11 LPA.

Background to the matter

3 I make the following factual findings on the evidence available at this time. The defendants, Messrs Back and Schwartz, traded as Back Schwartz Vaughan Solicitors, in partnership at relevant times. That firm of solicitors was approached by the plaintiff for legal advice and other legal services…