Minerals Corporation Ltd v Abbot

[2004] NSWSC 246

CITATION:	MINERALS CORPORATION LIMITED v ANTHONY NORMAN ABBOT TRADING AS PIPER ALDERMAN LAWYERS [2004] NSWSC 246
HEARING DATE(S):	20/11/03
JUDGMENT DATE:	2 April 2004
JUDGMENT OF:	Bell J at 1
DECISION:	1. Dismiss the plaintiff's amended notice of motion in proceedings 20094 of 2003; 2. The plaintiff is to pay the defendants' costs of its amended notice of motion in proceedings 20094 of 2003; 3. The plaintiff is to pay the defendants' costs of the motion that was before Greg James J on 21 July 2003; 4.Stand over the summons to 9.15 on Thursday 8 April 2004 to permit the first defendants to amend their undertaking given on 3 November 2003 to include an undertaking not to rely on res judicata or estoppel by record in bar to the plaintiff's claim in proceedings 20094 of 2003.
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Abrahams v Wainwright Ryan [1999] 1 VR 102 Cachia v Isaacs (1985) 3 NSWLR 366 CSR Limited v Cigna Insurance Australia Limited (1996) 189 CLR 345 Jackson v Goldsmith (1950) 81 CLR 446 L & W Developments Pty Limited v Della [2003] NSWCA 140 National Mutual Holdings Limited v Sentry Corporation (1989) 22 FCR 209 re Baker Johnson's Bill of Costs [1995] 2 Qd R 234 re Massey v Carey (1884) 26 Ch D 459 Ryan v Hansen t/as Hansens Solicitors [2000] NSWSC 354; 49 NSWLR 184 Tszyu v Flight Vision Pty Limited [2001] NSWCA 103
PARTIES :	Minerals Corporation Limited (Plaintiff) Anthony Norman Abbot Trading as Piper Alderman Lawyers, Charles Neville Hervey Bagot Trading as Piper Alderman Lawyers, David Gregory Ey Trading as Piper Alderman Lawyers, Mark Allan Gordon Trading as Piper Alderman Lawyers, Gordon Hiatt Trading as Piper Alderman Lawyers, Owen Michael Keen Trading as Piper Alderman Lawyers, John Ignatius Maciel Trading as Piper Alderman Lawyers, Timothy John Patrick O'Callaghan Trading as Piper Alderman Lawyers, Simon Hayes Ward Trading as Piper Alderman Lawyers, Ashley Howard Watson Trading as Piper Alderman Lawyers, (1st Def) Gordon Salier (2nd Def)
FILE NUMBER(S):	SC 20094/03
COUNSEL:	RE Dubler (Plaintiff) CA Sirtes (Defendant)
SOLICITORS:	Abbott Tout (Plaintiff) Mallesons Stephen Jaques (1st Defendants) IV Knight (2nd Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

20094/03 MINERALS CORPORATION LIMITED (ABN 51 002 529 160) v Anthony Norman ABBOTT & Ors

JUDGMENT

1 BELL J: The plaintiff commenced proceedings no. 20094 of 2003 in the Common Law Division of the Court by filing a statement of claim on 17 April 2003 claiming damages in contract and in negligence arising out of the conduct of legal work on its behalf by the first defendants, the partners of a firm of solicitors, Piper Alderman Lawyers (the professional negligence proceedings).

2 By motion in the professional negligence proceedings that was filed on 15 August 2003 the plaintiff claimed orders, including an order staying proceedings 91714 of 2002 in the Common Law Division of the Court.

3 The hearing of the plaintiff’s motion came before me on 3 November 2003. On that occasion the plaintiff was granted leave to file in court an amended notice of motion. By its amended notice of motion the plaintiff claimed an order:

“That proceedings 91714 of 2002 in the Common Law Division of this Court be stayed pending final orders in the herein proceedings.”

4 In support of the motion the plaintiff read the affidavit of Bryan Robert Belling, sworn on 17 June 2003, together with two affidavits of Damian Gregory Ward, sworn on 29 September 2003 and 3 November 2003. The plaintiff tendered its notice of objection to the first defendants’ bill of costs, which was an exhibit to Mr Ward’s first affidavit.

5 The first defendants read two affidavits sworn by Michelle Kay Bain on 10 July 2003 and on 8 September 2003. Tendered in their case were the pleadings in proceedings in the District Court of New South Wales commenced by them against the plaintiff in May 2002, which were an exhibit to the first affidavit sworn by Ms Bain.

6 The first defendants contended that the plaintiff’s motion was misconceived. The “proceedings” that were the subject of the application for a stay were a costs assessment under Pt 11 Div 6 of the Legal Profession Act 1987 (NSW) (the Act). The conduct of a costs assessment was submitted not to constitute proceedings in the Court: Ryan v Hansent/as Hansens Solicitors [2000] NSWSC 354; 49 NSWLR 184 per Kirby J at 192 [32]. At the conclusion of the hearing I reserved my decision and gave the parties leave to file written submissions on this issue.

7 The proceedings were re-listed before me on 6 November 2003 by consent and on that occasion the plaintiff sought and was granted leave to file a summons in court. By its summons the plaintiff claimed orders against the first defendants and a second defendant, Gordon Salier, the costs assessor to whom the first defendants’ bill of costs had been referred pursuant to s 206 of the Act. By its summons the plaintiff claimed:

“1. An order that the first and second defendants be restrained from further conducting or taking any steps in the costs assessment constituted by application 91714 of 2002 (the application) currently referred to the second defendant as costs assessor pursuant to s 206 of the Legal Profession Act 1997.
2. An order, until further order, that the first and second defendants be restrained from further conducting or taking any steps in the application currently referred to the second defendant as costs assessor pursuant to s 206 of the Legal Profession Act 1997.
3. An order that the application be stayed pending final orders in proceedings 20094 in the Professional Negligence List including any appeal therefrom.”

8 By consent the parties agreed that the affidavits read on the hearing of the amended notice of motion were to be taken as read in the summons proceedings.

9 The summons was stood over for directions to 20 November 2003. It was contemplated that on that date it would be listed for hearing in the event that any party sought to have an oral hearing. Alternatively, it was contemplated that the summons proceedings might be determined on the evidence and the submissions on the amended motion supplemented by further written submissions. The amended motion was also stood over to 20 November 2003.

10 On 20 November 2003 the second defendant entered a submitting appearance. The parties did not seek to have the matter listed for further oral argument. A timetable was fixed for the filing of additional written submissions. The plaintiff filed written submissions on 28 November 2003. The first defendants filed written submissions on 10 December 2003.

11 By commencing summons proceedings in the administrative law list seeking injunctive relief I had rather understood the plaintiff to acknowledge that its endeavour to obtain a stay of the costs assessment “proceedings” by a motion filed in the professional negligence proceedings was misconceived. So much was not conceded by the written submissions filed in the summons proceedings. In his submissions filed under cover of a letter dated 28 November 2003 the plaintiff’s counsel said this:

“1. These submissions do not repeat matters previously put. They merely explain how the previous submissions on the Notice of Motion are equally relevant to the Summons filed in the Administrative Law List which was required if the Court takes the view that a costs assessment is not a proceeding pending in the Supreme Court. Otherwise, a stay of such proceedings on the Motion is appropriate without the need to join the costs assessor”.

12 I am of the opinion that an assessment of costs under Pt 11 Div 6 of the Act is not a proceeding in this Court. I respectfully record my agreement with the reasoning of Kirby J in Ryan in this respect. In that case his Honour drew attention to the terms of s 208S(4) in this respect, “A costs assessor is not an officer of the Court when acting as a costs assessor”.

13 I propose to dismiss the plaintiff’s amended notice of motion. I turn now to the relief claimed by the plaintiff in its summons.

14 The plaintiff is a publicly listed company. It is the plaintiff’s case that in or about April 2001 its chief executive officer approached the first defendants and sought to retain their services in connection with the preparation of a prospectus for the issue of converting notes in shares of the plaintiff. It is said that the first defendants were informed of the need for the prospectus to be completed by mid-July 2001. Between mid-May and mid-October 2001 it appears that legal work was conducted by the first defendants in this connection. It is the plaintiff’s case that the work proceeded slowly despite complaints being made to the partner with the conduct of the matter.

15 The prospectus was issued around late October 2001. Thereafter, in November and December 2001, two supplementary prospectuses were issued. The need for the issue of the two supplementary prospectuses arose because of errors in the initial prospectus. The plaintiff contends that those errors were occasioned by the poor legal work of the first defendants.

16 Around the end of December 2001 subscriptions for the issue of converting notes closed. The converting notes were issued to subscribers in about mid-January 2002.

17 The first defendants sent statements of account to the plaintiff for the conduct of the legal work associated with the preparation of the prospectus and the supplementary prospectuses in the amount of $245,442.18.

18 On 15 May 2002 the first defendants commenced proceedings by statement of liquidated claim in the District Court. On 13 June 2002 the plaintiff served its notice of grounds of defence in those proceedings. It pleaded in answer to the whole of the claim that the first defendants were required to have their bill of costs assessed in accordance with the provisions of Pt 11 Div 6 of the Act. It did not cross claim against the first defendants nor plead a defence of equitable set off.

19 On 27 August 2002 the first defendants served on the plaintiff an itemised bill of costs. On 27 September 2002 the first defendants applied to the proper officer of this Court for an assessment of their bill of costs. The application was referred to the second defendant to be dealt with in accordance with Pt 11 Div 6 of the Act.

20 The second defendant wrote to the plaintiff’s solicitors on 12 March 2003 requiring the plaintiff to respond to his earlier letter of 5 March 2003 by close of business on 21 March 2003. It appears that no response was received by that date.

21 On 24 March 2003 the second defendant issued a Certificate as to Determination of Costs in the sum of $245,896.60. On 25 March 2003, the first defendants obtained judgment in that sum by filing the Certificate in the registry of the District Court.

22 On 8 April 2003 the plaintiff filed a summons seeking leave to appeal the second defendant’s costs determination. On 17 April 2003 short minutes of order were entered by consent disposing of the proceedings. The first defendants consented to the assessment being set aside and to the matter being remitted to the second defendant to be determined in accordance with the Act. The plaintiff agreed to serve on the first defendants and on the second defendant its objections to the first defendants’ bill of costs by 7 May 2003. The plaintiff and the first defendants agreed that the plaintiff would not oppose any application made by the first defendants for the issue of an Interim Certificate in respect of the bill of costs.

23 On 17 April 2003 the plaintiff commenced the professional negligence proceedings.

24 On 6 May 2003 the plaintiff served its objections to the defendants’ bill of costs.

25 On 4 June 2003 the second defendant issued an Interim Certificate as to Determination of Costs in the amount of $136,531.47. On 12 June 2003 the defendant obtained judgment in the District Court in that sum by filing the Interim Certificate in the registry of the Court.

26 On 13 June 2003 the defendants sent a letter to the plaintiff’s solicitor demanding payment of the judgment sum. On 18 June 2003 the plaintiff filed a notice of motion in the professional negligence proceedings claiming an order that the Interim Certificate, and any further determination in proceedings 91714 of 2002, be stayed pending the making of final orders in those proceedings.

27 The plaintiff’s motion came before Greg James J on 21 July 2003. A transcript of the proceedings before his Honour on that occasion is annexed to the affidavit of Michelle Kay Bain sworn on 8 September 2003. His Honour declined to grant the relief that was sought noting that no application had been made to set aside or to appeal the judgment in the District Court. It appears from the transcript of the proceedings that his Honour considered the appropriate course was to give the plaintiff time to take such steps as it may be advised to take to have the judgment set aside. To this end his Honour stood the motion over into the professional negligence list and reserved the costs of the motion.

28 In the proceedings before me the first defendants contended that the plaintiff’s motion that was before Greg James J was spent. The first defendants sought the costs that his Honour had reserved. The plaintiff did not submit that the motion dealt with by Greg James J was not spent. I will return to the question of the costs that were reserved.

29 Bryan Belling, the plaintiff’s solicitor, in his affidavit sworn on 17 June 2003, asserts that it is the plaintiff’s case that the first defendants acted in breach of their retainer thereby causing loss to the plaintiff in excess of the costs claimed by them. He states:

“Had Piper Alderman conducted their claim for costs in the District Court proceedings and maintained it to hearing, Minerals’ claim for damages would have been filed in the terms of the statement of claim in these proceedings as a cross claim seeking an equitable set off to Piper Alderman’s claims”.

30 In submissions filed by the plaintiff in support of its amended notice of motion it was contended that there were two grounds giving rise to its entitlement to a stay of the costs assessment pending the outcome of the professional negligence proceedings. These were:

“(a) Where there is a major disputed question of negligence in respect of a solicitor’s work, a fortiori where it is the subject of existing Supreme Court proceedings in the Professional Negligence List, the assessment process under the Legal Profession Act is not available as a matter of jurisdiction alternatively, is not the appropriate forum; or
(b) any costs assessment, if it leads to a judgment, may give rise to issues of res judicata/issue estoppel such that it would be manifestly unjust for the plaintiff to be unable to pursue its negligence action in the Supreme Court proceedings.”

31 The plaintiff’s submissions were recast with respect to its summons proceedings although it still sought to rely on the authorities referred to in the earlier submissions. It is the plaintiff’s assertion that the Court’s general supervisory jurisdiction over inferior courts and tribunals includes a supervisory jurisdiction over costs assessors prior to the issue of a determination. An order in the nature of prohibition was submitted to be appropriate in the exercise of the Court’s general supervisory jurisdiction for either of two reasons:

“(a) To prevent the assessor acting in excess of his jurisdiction/statutory function;
(b) to prevent the costs assessment working an injustice or oppression to the plaintiff in light of its Supreme Court professional negligence proceedings no. 20094/03.”

32 The contention that the second defendant would be acting in excess of his “jurisdiction/statutory function” should he proceed with the costs assessment was argued by reference to a number of authorities dealing with the taxation of costs by a taxing officer. In this respect the plaintiff relied upon re Massey v Carey (1884) 26 Ch D 459; re Baker Johnson’s Bill of Costs [1995] 2 Qd R 234 at 240-241 and Abrahams v Wainwright Ryan [1999] 1 VR 102 at 119-120. In its written submissions of 28 November 2003 the plaintiff contended:

“Commencing at least with the statement of principle of Baron Parke in Matchett v Parkes 9 M&W 767 at 768 through to the judgment of the Victorian Court of Appeal in Abrahams v Wainwright Ryan [1999] 1 VR 102 at 119 – 120 (other authorities already referred to in prior submissions), there is ample authority for the proposition that where a client resists a solicitor’s taxation/assessment of his or her fees on the ground of professional negligence and wishes instead to commence an action (and does so) for negligence in the courts, the taxing officer/assessor loses his or her statutory jurisdiction/power to proceed.
Consistent with the reasoning of the Victorian Court of Appeal and considering the Supreme Court Rules , the above principle ought be held not to have been overturned by the Legal Profession Act 1997.”

33 In Ryan Kirby J reviewed the authorities upon which the plaintiff relies, together with a number of other authorities, in the context of considering the scope of the powers conferred upon a cost assessor conducting an assessment of costs under Pt 11 Div 6 of the Act. His Honour considered whether the costs assessor had jurisdiction to determine the issues of negligence raised by the plaintiff by his cross-claim at 196 and following. He noted that the terms of s 208P, which allow a costs assessor to disallow costs claimed by a solicitor against his or her client upon satisfaction:

“… that costs have been incurred improperly or without reasonable cause, or have been wasted by undue delay or by any other misconduct or default.”

In this context his Honour noted at [56] and following that the concept of impropriety in the context of costs had been given a broad definition. His Honour referred to re Massey and re Windeyer , Fawl & Co ; ex parte Foley (1930) 31 SR (NSW) 145; Mason-Jones v Jones (1987) 11 NSWLR 583 and Cachia v Isaacs (1985) 3 NSWLR 366. From that analysis his Honour distilled a number of principles at 199 – 200 [71]:

“Fourthly, if through the solicitors negligence or ignorance, expenditure has been incurred, the assessor may disallow such expenditure on the basis that it has not been properly incurred: re Massey & Carey .
Fifthly, if through negligent advice, work has been done or expenditure has been incurred, the assessor may disallow such expenditure, or the cost of that work: re Windeyer .
…
Ninthly, where a solicitor is negligent, there may be a number of consequences for the client. The client may be disadvantaged in having work done for which he is later charged, where there has been no benefit from that work. The consequences for the client, however, may go beyond that. The negligence may bring about the failure of the action. The client then loses what he sought to gain by the litigation. Or the client may be disadvantaged in some other way. He may, for instance, alter his position to his detriment as a result of poor advice. Where the solicitor’s negligence has consequences beyond the cost of the work performed, the matter is properly one for a cross action.
Tenthly, that is not to say that the client, in such circumstances, can afford to ignore an application by the solicitor to have a bill of costs assessed. The client, in such circumstances, not only has a right to claim damages in a cross-claim, but the right to resist (upon the grounds set out above) a claim for the cost of the work performed. A negligent solicitor, in such circumstances, can only recover for services which, notwithstanding his negligence, were of some real advantage to the client: Cachia v Isaacs .”

34 It does not seem to me that Ryan supports the proposition that a costs assessor to whom an application for an assessment of costs is referred pursuant to s 206 of the Act is without power to carry out an assessment in a case in which there is a “major disputed question of negligence in respect of a solicitor’s work” (plaintiff’s written submissions, 3/11/03).

35 In Abrahams Brooking JA (with whose judgment Winneke P agreed) noted that the case was an unusual one (at 118). His Honour held that the primary judge had been correct to refuse to make an order under the Supreme Court Rules (Vic) disallowing the whole of the solicitors’ costs on the basis of their suggested negligence. The findings of the master to whom the matter had been referred for report would not have supported the making of such an order. After noting that this latter conclusion was sufficient to dispose of the matter his Honour observed that, “…the particular allegation was one of a congeries of claims not fit to be dealt with under the rule” (at 119). Abrahams, in my opinion, is not authority for the broad proposition for which the plaintiff contends that is extracted at paragraph [32] above.

36 I reject the submission that the second defendant is without power to complete the costs assessment because the professional negligence proceedings are pending in this court and include a claim for damages, particularised in paragraph 25 (b) of the statement of claim, that unnecessary costs were incurred in relation to the issue of converting notes.

37 The plaintiff submitted that to permit the costs assessment to proceed would be oppressive. In its submission it was being required to litigate the same issue in more than one tribunal and that this is oppressive and contrary to the interests of justice. Reliance was placed on L & W Developments Pty Limited v Della [2003] NSWCA 140, a case in which this Court stayed its proceedings in favour of proceedings pending in the Industrial Relations Commission arising out of the same controversy. In that case Mason P (in a judgment in which the other members of the Court concurred) discussed the principles that govern the grant of a temporary stay of proceedings in one court to enable related proceedings in another to proceed first to determination.

38 To the extent that it is appropriate to have regard to the principles set out at paragraph [57] in L & W Developments with reference to the plaintiff’s claim for injunctive relief the first defendant submits that the application of them does not favour the plaintiff. The first defendant points to the circumstance that they commenced proceedings to recover their costs in May 2002. The plaintiff did not assert the claim that it now makes by way of defence and cross-claim in those proceedings. It relied upon its entitlement to have the first defendant’s bill assessed under the Act. It was only after that process was underway and costs had been occasioned with respect to the costs assessment that the plaintiff commenced the professional negligence proceedings.

39 The plaintiff submitted that it was appropriate for this Court to issue an injunction restraining a party in proceedings before it from “prosecuting proceedings in another forum” in order to avoid injustice or to prevent the unconscionable use of the other proceedings by a party. In support of this submission it relied on CSR Limited v Cigna Insurance Australia Limited (1996) 189 CLR 345 at 372. Allied to this submission was the contention the continuation of the costs assessment would interfere with the professional negligence proceedings and in this respect it relied on CSR at 391 – 392; and National Mutual Holdings Limited v Sentry Corporation (1989) 22 FCR 209 at 232. The principles applied in those cases were submitted to be relevant to what was characterised as this Court’s supervisory jurisdiction over an inferior tribunal exercising jurisdiction with respect to the same subject matter as proceedings pending in this Court. In this respect the plaintiff cited Tszyu v Flight Vision Pty Limited [2001] NSWCA 103.

40 As I have stated I do not approach the matter upon the basis that the costs assessment constitutes proceedings in this or any other court. I do not consider it apt to characterise the second defendant as an inferior tribunal. He is carrying out an administrative function under the Act.

41 The first defendants contend that it is wrong to assert that the second defendant is in any sense exercising jurisdiction over the same subject matter as the professional negligence proceedings. The latter involves a claim for damages in an amount of $1.8 M, being holding costs incurred by the plaintiff in connection with the Skardon River Project in the period August to December 2001. The claim in the professional negligence proceedings with respect to legal costs incurred unnecessarily as the result of the negligent performance of the legal work represents a small fraction of the claim.

42 The costs component of the plaintiff’s claim may be expected to raise disputed questions of fact. The second defendant’s determination as to the fairness and reasonableness of the amount of the costs in relation to the work carried out by the first defendants is an exercise in quantification that is to be carried out in accordance with s 208A and having regard to the matters in s 208B. He has the power to disallow costs pursuant to s 208P in accordance with the principles explained by Kirby J in Ryan. He is required to accord procedural fairness to the parties and to arrive at his determination of what is a fair and reasonable amount of costs taking into account the material and submissions placed before him by the parties. However, he does not have the power to take sworn evidence or to resolve disputed questions of fact as a court or a tribunal may. That the second defendant may determine an amount for costs that includes legal work that this Court subsequently finds to have been performed unnecessarily as the result of the first defendant’s negligence and/or in breach of contract and for which the plaintiff is entitled to damages does not seem to me to require that the integrity of this Court’s proceedings be protected by restraining him from completing his assessment. His determination is not a judicial one.

43 The plaintiff asserts that its rights with respect to the professional negligence proceedings may be prejudiced in that if the second defendant is not restrained the certificate of his determination may be filed in the registry of the District Court and take effect as a judgment of the District Court. The plaintiff is concerned that the first defendants may plead an estoppel or res judicata to defeat that part of its claim that seeks damages for the unnecessary legal costs that it incurred.

44 The first defendants, through their counsel, gave an undertaking to the Court during the course of the hearing on 3 November 2003 in the following terms:

“The defendants undertake at the hearing of these proceedings not to raise issue estoppel or Anshun estoppel in bar to the plaintiff’s rights to raise matters previously raised before Gordon Salier, Costs Assessor, subject to the defendants being entitled to rely on any reduction in its bill of costs as determined by the costs assessor in relation to the issue of quantum in these proceedings.”

45 In the plaintiff’s submission the undertaking is not adequate to protect it. It does not extend to res judicata. In the plaintiff’s submission the parties may not avoid res judicata by consent. This latter contention was submitted to flow from the judgment of Mason P in Tszyu at [57] – [61].

46 In its written submissions the first defendants stated that they are willing to amend their undertaking so as to include that they will not rely on res judicata in bar of the plaintiff’s claim in the professional negligence proceedings. They state that the omission of res judicata from their undertaking was deliberate because it is unarguable on their behalf. In this respect they rely on the statement of the rule in Jackson v Goldsmith (1950) 81 CLR 446 by Fullagar J at 466:

“The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action.”

The conduct of a costs assessment under the Act is not an action in this or any other court.

47 The filing of a costs assessor’s certificate in the registry of a court having jurisdiction to order the payment of that sum of money takes effect as a judgment of the court for the amount of the unpaid money by operation of s 208J(3) of the Act. Section 208JAA(1)(a) requires that a certificate be accompanied by a statement of the reasons for the costs assessor’s determination. I consider that there is force to the first defendant’s submission with respect to res judicata. However, if it is open to argue res judicata or estoppel by record arising out of the circumstance that the certificate of the second defendant’s determination takes effect as a judgment then it seems to me that this concern may be addressed by an amendment to the undertaking.

48 In Tszyu the continuation of the proceedings in the Industrial Commission (seeking a declaration that the appellant’s contract was void, or a variation of it) was to contradict the basis upon which the judgment against the plaintiff in this Court stood. This was an abuse of process (at [59]). It does not seem to me that a like difficulty arises in this case. I consider that an undertaking that precludes the first defendants from reliance upon issue estoppel, Anshun estoppel, estoppel by record or res judicata arising out of the determination of the second defendant and any judgment obtained as the result of filing the certificate of his determination would adequately preserve the plaintiff’s position with respect to the professional negligence proceedings.

49 The legal work the subject of controversy was performed between May and October 2001. The first defendants have been deprived of the fees to which they claim to be entitled for a lengthy period. Should the plaintiff be granted the relief that it seeks, it will be seen that significant delay was brought about by the plaintiff’s decision not to raise the claim that it now asserts until 11 months after the first defendants commenced their proceedings in the District Court.

50 The costs assessment was underway at the time when the professional negligence proceedings were commenced. Substantial work has been undertaken in connection with it. So much is apparent from the plaintiff’s notice of objections. The first defendants may be taken to have incurred costs in connection with the assessment to-date.

51 The first defendants point to the absence of evidence to establish the likelihood of the plaintiff succeeding in the professional negligence proceeding. I note that a certificate signed by Mr Belling under s 198L of the Act is annexed to the statement of claim. This is in terms that there exist reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that there is a reasonable prospect that the statement of claim has reasonable prospects of success. I accept that the professional negligence proceedings are properly brought but it remains that the evidence in these proceedings is not such as to persuade me that the plaintiff is likely to succeed.

52 The first defendants assert, and I accept, that there is no suggestion that the plaintiff would not recover any monies that it is required to pay under the second defendant’s certificate of assessment in the event that it succeeds in this Court on the costs component of its claim.

53 Upon the basis that the first defendants are willing to amend their undertaking so as to include an undertaking that they will not rely on res judicata or estoppel by record in bar to the plaintiff’s claim in the professional negligence proceedings, I have concluded that the balance of convenience does not favour granting the plaintiff the relief that it seeks. I propose to stand the summons over to 9.15 am on Thursday 8 April 2004 to allow the first defendants an opportunity to amend their undertaking. In the event that the first defendants do not agree to do so, I will hear further from the parties. I will make orders with respect to the costs of the summons on that occasion.

54 I turn to the question of the costs reserved by Greg James J with respect to the notice of motion that was before his Honour on 23 July 2003. It is convenient for me to deal with the matter since the motion is spent. The plaintiff was wholly unsuccessful in obtaining the relief that it sought. In my view there is no reason to depart from the usual order as to costs.

55 I am of the opinion that the plaintiff should pay the first defendant’s costs of its amended notice of motion.

ORDERS

1. Dismiss the plaintiff’s amended notice of motion in proceedings 20094 of 2003,

2. The plaintiff is to pay the defendants’ costs of its amended notice of motion in proceedings 20094 of 2003,

3. The plaintiff is to pay the defendants’ costs of the motion that was before Greg James J on 21 July 2003,

4. Stand over the summons to 9.15 am on Thursday 8 April 2004 to permit the first defendants to amend their undertaking given on 3 November 2003 to include undertaking not to rely on res judicata or estoppel by record in bar to the plaintiff’s claim in proceedings 20094 of 2003.

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Last Modified: 04/05/2004