Lange v Back & Schwartz

Case [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…

Continue reading Lange v Back & Schwartz

Sign in free to access the full text

Details
AGLC
Lange v Back & Schwartz [2009] NSWDC 180
Case
[2009] NSWDC 180
Decision Date

CaseChat Overview and Summary

Lange, the plaintiff, filed a summons against Back & Schwartz, the defendants, seeking an order for the defendants to pay costs. The summons was filed after the time limit specified in the Legal Profession Act, and the defendants sought to have the summons dismissed on that basis. The plaintiff applied for an extension of time, which was granted, but the summons was subsequently dismissed by the Costs Assessor. The plaintiff appealed the Costs Assessor's decision, arguing that the dismissal was unfair due to the granting of an extension of time for filing the summons.

The central legal issue in this appeal was whether the dismissal of the summons was procedurally fair. The plaintiff argued that the extension of time granted by the court should have resulted in the dismissal of the defendants' objection to the summons being out of time, and therefore the subsequent dismissal of the summons itself was unfair. The defendants contended that the granting of an extension of time did not affect the substantive merits of the objection to the summons being out of time, and that the dismissal of the summons was therefore fair.

The court found that the dismissal of the summons was procedurally fair. The court held that the granting of an extension of time did not affect the substantive merits of the objection to the summons being out of time, and that the dismissal of the summons was therefore a valid exercise of the court's discretion. The court also found that the plaintiff had not demonstrated any prejudice resulting from the extension of time being granted, and that the dismissal of the summons was therefore fair. The appeal was dismissed, and the summons was dismissed with costs.

Orders

Orders of the court

1. Application for extension of time for filing Summons granted 2. Summons filed 5 January 2009 dismissed 3. The plaintiff pay the defendants' costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.