Levitt v Dalton

[2001] NSWSC 919

CITATION:	Levitt v Dalton [2001] NSWSC 919 revised - 3/03/2003
FILE NUMBER(S):	SC 4478/00
HEARING DATE(S):	16 October 2001
JUDGMENT DATE:	16 October 2001
PARTIES :	Stewart Alan Levitt t/as LMG Solicitors & Attorneys (Plaintiff) Sharon Lyle Dalton (First Defendant) Carey Richard Maher (Second Defendant)
JUDGMENT OF:	Master McLaughlin

COUNSEL :
SOLICITORS:	S. Mitchell, LMG Solicitors & Attorneys (for Plaintiff) Second Defendant in person
DECISION:	See paragraph 24.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 16 October 2001

4478/00 STEWART LEVITT -V- SHARON LYLE DALTON and ANOR

JUDGMENT

1 MASTER: On 6 November 2000 Hamilton J made a number of orders in these proceedings. Order 2 required that the first defendant to the proceedings, Sharon Lyle Dalton, pay into Court the sum of $16,000 to abide the further order of the Court. That amount of money in compliance with his Honour's order was paid into Court on 15 November 2000.

2 There is presently before me an application by the plaintiff, Stewart Alan Levitt, trading as LMG solicitors and Attorneys, made by way of a notice of motion filed on 25 June 2001. The plaintiff seeks by order 2 thereof an order,

That the monies paid into Court pursuant to the orders of Hamilton J of 6 November, 2000 together with interest as accrued (hereinafter “the monies”) be paid out to the Plaintiff, upon the Plaintiff being granted certificate of Costs Assessment in favour of the Plaintiff for the amount held in Court, or such similar amount as is in the costs certificate.

3 There is also before me the balance of the application made by the second defendant, Carey Richard Maher (to whom I shall refer as “the defendant”), since the first defendant complied with the order of Hamilton J and no longer has any interest in the proceedings.

4 A notice of motion was filed by Mr. Maher on 5 February 2001, paragraph 9 in that notice of motion seeking an order that the money being held by the Supreme Court be returned to the defendant.

5 This matter was previously before me on 22 March 2001 upon the hearing of an application by Carey Richard Maher, the defendant made by way of notice of motion filed on 5 February 2001. For the reasons which I delivered on that occasion I ordered that the relief sought in paragraph 9 of that notice of motion (being Mr. Maher's application for payment to him, of the moneys presently standing in Court) be stood over to a date therein specified before a Registrar. I also ordered that the balance of the notice of motion (other than paragraph 6 thereof, which was the subject of consent orders which had been earlier made by the Registrar) be dismissed.

6 The procedural history of this matter is set forth in my reasons for judgment of 21 March 2001. It is unnecessary for me to repeat that procedural history in my present reasons.

7 Since the matter was last before the Court there has been issued by a costs assessor a certificate as to determination of costs pursuant to sections 208A and 208J of the Legal Profession Act 1987. By paragraph 2 of that certificate the defendant is required to pay to the plaintiff the sum of $22,098.97. That certificate was issued on 19 September 2001. The statement of reasons of the costs assessor dated 19 September 2001 has been placed in evidence before me as exhibit 1.

8 On 15 October 2001 the certificate as to determination of costs was filed with the Local Court of New South Wales at the Downing Centre, Sydney in proceedings 12460 of 2001 as a judgment of that court, being a court with jurisdiction to enforce the costs determination.

9 The plaintiff applies to have the moneys presently standing in the Supreme Court paid out to him in partial satisfaction of the judgment which the plaintiff has in the Local Court.

10 The defendant applies to have the moneys in the Supreme Court paid out to the defendant upon the ground that those moneys belong to him.

11 It must be appreciated that there is an order of a judge of this Court, being the order of Hamilton J of 6 November 2000, which requires that the amount of $16,000 be paid into the Supreme Court and that amount should "abide the further order of the Court." That is, the Supreme Court must decide who is entitled to that amount.

12 There is a judgment of a court of record, being the Local Court of New South Wales at the Downing Centre, Sydney, in favour of the plaintiff against the defendant in the amount of $22,098.97. That judgment, as perfected, is a binding judgment of a court of record. It has not been set aside. It is not a provisional or conditional judgment.

13 The defendant has informed the Court that he does not agree with the amount which was determined by the costs assessor and that he is desirous of availing himself of the provision of Division 6 Subdivision 4A of Part II of the Legal Provision Act 1987, which subdivision makes provision for a review of a determination by a costs assessor. The defendant has not yet made such an application for review of the costs assessor's determination of 19 September 2001. However, the time for that review appears not yet to have elapsed. No application has been made by the defendant to set aside the judgment grounded upon the determination of the costs assessors, which has been entered in the Local Court at the Downing Centre on 15 October 2001.

14 The defendant (who as at the hearing before me this day appeared in person, as he did at the earlier hearing on 22 March 2001, and as he has done on all other occasions when the matter has been before the Court) has submitted that the plaintiff is not entitled to be paid the amount which is presently standing in Court.

15 Apart from the complaint of the defendant that that amount is excessive, the defendant complains, as I understand it, that the plaintiff, is precluded from any relief which he might seek for the payment of the costs by the defendant to the plaintiff (who is a solicitor). It is submitted on behalf of the defendant that the plaintiff did not comply with the requirements of section 174(1)(e) of the Legal Profession Act, in that a bill of costs in the proper form had not been given to the defendant at least 30 days before the institution of what the defendant has submitted has been proceedings against him for the recovery of costs.

16 The defendant has also relied upon the provisions of section 192 of the Legal Profession Act. Subsection (1) of that section provides that,

"Proceedings for the recovery of costs by a barrister or solicitor for providing legal services must not be commenced or maintained against any person unless at least 30 days have passed since a bill for those costs was given to the person in accordance with this Division."

17 In my earlier reasons for judgment (upon the application of the defendant which was heard on 22 March 2001) I referred to the reliance which the defendant placed upon the foregoing provisions of the Legal Profession Act.

18 I referred to the problems which appeared to me to confront the defendant in obtaining the relief which he sought on that occasion and especially the relief grounded upon the provisions of the Legal Profession Act. For the purposes of my earlier decision it was not necessary for me to express concluded views upon those problems to which I referred. The defendant appears now to be under the belief that the effect of my earlier reasons for judgment was that I held that I had no power to deal with the matter and that the matter should have been before the Court of Appeal.

19 It will be appreciated that the reference to the Court of Appeal was a reference to the procedure by which it might have been open for the defendant to challenge orders made by two of the judges of the Court in the proceedings, and that it was not for me at the hearing on 22 March 2001 to go behind those orders.

20 I have already recorded that the defendant has stated an intention to apply for a review of the determination by the costs assessor. He has not yet made such an application, although the time limit for making such an application has not yet expired.

21 So long as there is presently a judgment in favour of the plaintiff against the defendant which is not subject to a pending appeal and execution upon which has not been stayed, it seems to me that I should grant the relief which the plaintiff is presently seeking. But since there has been expressed intention on the part of the defendant to seek a review of the determination upon which that judgment is based. I consider that I should order that execution upon the orders which I propose to make be stayed for a period sufficient to enable the defendant to make his application for review, and that an opportunity should then to be given to the defendant to seek to have that stay of execution upon my orders continued until the review procedure has been determined.

22 Upon the basis of the orders of Hamilton J that the disposition of the moneys now standing in Court should abide the further order of the court, and upon the basis of the judgment of the Local Court in favour of the plaintiff against the defendant (execution upon which judgment has not been stayed, and no appeal in respect of which judgment has been lodged), I consider that the plaintiff has established an entitlement to have paid to him the moneys standing in Court and that the defendant has not established an entitlement to have those moneys paid to the defendant.

23 Nevertheless, as I have already stated, I propose to make an order that execution upon such an order as I have foreshadowed will be stayed, to enable the defendant to avail himself of the review procedures.

24 I make the following orders:

(1). I order that the moneys presently standing in Court, being the sum of $16,000 together with interest earned thereon, be paid out to the plaintiff.

(2). I order that paragraph 9 in the notice of motion filed by the second defendant on 5 February 2001 be dismissed.

(3). I order that the second defendant pay the costs of the plaintiff of the notice of motion filed by the plaintiff on 16 October 2001, such cost to be on the party and party basis.

(4). I order that execution upon the foregoing orders be stayed up to and including 30 October 2001 and, if on or before that date the defendant has made an application pursuant to Subdivision 4A of Division 6 of Part II of the Legal Profession Act 1987 for review of determination of the costs assessor dated 19 September 2001, the foregoing orders be stayed until such application for review has been determined.

(5). I reserve to the parties liberty to apply in respect to the aforesaid stay of execution.

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Last Modified: 05/19/2003