Maxted & Anor v LC Smith and Co
[2009] QSC 20
•13 February 2009
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
FRYBERG J
[2009] QSC 20
No 11250 of 2006
| MAXTED AND ANOR | Plaintiff |
| and | |
| LC SMITH AND CO | Defendant |
BRISBANE
..DATE 13/02/2009
ORDER
HIS HONOUR: The plaintiffs were the unsuccessful litigants in litigation, which concluded last year and were, I infer as the result of a counter claim, ordered to pay the defendant $3,000 and costs to be assessed. The $3,000 has not been paid.
Costs were, as I have said, to be assessed. The defendant had a bill of costs prepared and it was delivered to the solicitors for the plaintiffs on the 3rd of December. There is no evidence before me of what precisely the plaintiffs did about it. In particular, they have not given any evidence to suggest that the bill was referred promptly to a costs assessor for a determination of whether any objections should be raised to the content of the bill.
They allowed time to pass until the 19th of December, when they wrote a letter to the solicitors for the defendant seeking an extension of time for delivery of a notice of objection under rule 706 of Uniform Civil Procedure Rules. That letter was received in the ordinary course of post by the solicitors for the defendant on the 23rd of December.
In accordance with their instructions, the solicitors for the defendant refused to grant the extension of time. A failed communication on the 24th of December is not, I think, attributable to fault on either side. On the 8th of January, the defendant applied for and obtained the appointment of a costs assessor. On that day the Court ordered that Mr Adam Bloom be appointed to assess the costs of the defendant, pursuant to the orders of the Court made in 2007 and 2008.
The plaintiff, meanwhile, had been active in having a notice of objection prepared, and that notice was filed and served on the 9th of January. However, no application was made to the Supreme Court to extend time for the service of the notice.
On the 13th of January the defendant gave notice of its application for default assessment and subsequent correspondence concluded with the assessor's cost certificate being sent to the plaintiffs solicitors and received on the 2nd of February. It seems that the assessment was completed toward the end of January.
The claim made by the defendant for costs in its bill was of the order of $170,000. The assessor disregarded the notice of objection, it being out of time, although he did in fact reduce the bill by a little over $5,000 which was attributable to two of the three classes of objections contained in the notice. The notice contended that the amount properly payable was $50,000.
The present application was filed on the 6th of February. It seeks an order that the order of the deputy registrar made on the 8th of January be set aside or varied. That order as already noted was that Mr Bloom be appointed to assess the costs. It emerged in the course of argument before me that what the plaintiffs really want is not the setting aside of that order but rather the setting aside of the assessment which was made by the assessor.
I am prepared to deal with the application as though it were an application under rule 709 to set aside the assessment. I note, however, that that requires an indulgence to the plaintiffs. The material explains to some degree the plaintiffs' failure to file a notice of objection, in the sense that it shows that the bill was received at the busy Christmas period. However, it seems to me that the failure to provide evidence of at least an attempt to comply with the requirements of rule 706 in the time permitted, is a factor which weighs against the plaintiffs.
There has also in the context of the case been some delay since the notice of objection. Had the plaintiffs at the time the notice of objection was served also applied to the Court for an extension of time to serve it, the matter would have been dealt with before the default assessment was made, and the need to have that assessment set aside would have been obviated.
Another factor which is in my judgment material in assessing this issue is the fact that one of the people behind the defendant is in ill-health and suffering stress as a result of the delay in this matter. Ms Chappel on behalf of the defendant emphasised this point but it is not one which I think carries a great deal of weight since there is no evidence that setting aside the assessment will cause any great delay to the process of reassessment.
The plaintiffs' position then is in my judgment precarious. There has been a failure to comply with the rules. It is only partially explained. The plaintiffs have conceded that $50,000 at least is payable and have not made any offer regarding payment of that amount. They have not paid the amount of the judgment, an amount of only $3,000. It seems to me that if the assessment which now stands is to be set aside, justice can be done between the parties only if the amounts which it is undisputed are due from the plaintiffs to the defendant, are paid promptly.
Mr Thompson for the plaintiffs submitted that this would be onerous and unfair to the plaintiffs. It would, he submitted, mean that they were deprived of a fair assessment of over $100,000 worth of costs if they were unable to raise the $53,000 within a reasonably short time. However, I note that the $3,000 which surely could not have been hard to raise if they were capable of raising anything has not been paid. If they are unable to raise what is admittedly payable then it is not reasonable that they should demand what would obviously be a very expensive assessment of costs, secure in the knowledge that even if unsuccessful they will be able to cause the defendant further expense.
...
HIS HONOUR: I therefore order:
Provided the plaintiffs pay the defendant
(a) the judgment sum of $3,069, and
(b) $52,215.15on account of costs ordered to be paid to date on or before 6 March 2009, set aside the decision and certificate of assessor Bloom dated 30 January 2009.
If the proviso in paragraph 1 is fulfilled, direct:
(a) That the time for service of a notice of objection
under rule 706 be enlarged to 9 January 2009;
(b)That assessor Bloom reassess the defendant's costs statement served on the 3rd of December 2008, taking the notice of objection into account.
...
Liberty to apply.
That the plaintiffs pay the defendant's costs of the application to be assessed.
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