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Muriniti v Lyons

Muriniti v Lyons

Case [2004] NSWSC 135 10 March 2004

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CITATION: Muriniti v Lyons [2004] NSWSC 135

HEARING DATE(S): 6 November 2003

JUDGMENT DATE:
10 March 2004

JUDGMENT OF: Dunford J

DECISION: Appeal allowed - extensions of time granted - determination of Costs Assessor set aside - directions for further conduct of proceedings.

CATCHWORDS: PROCEDURE - costs - assessment of - liability for costs in dispute - powers of Costs Assessor - extension of time to appeal etc - relevance of delay - WORDS and PHRASES - "assessor".

LEGISLATION CITED: Legal Profession Act 1987 ss 201, 203, 204, 205, 207, 208,
Legal Profession Reform Act 1993
Legal Profession Regulation 1994 cl 26A
Patents Act 1952 (Cth) s 20
SCR Pt 51A r 3

CASES CITED: Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503
Baker v Kearney [2002] NSWSC 746
Chapmans Limited v Yandells [1999] NSWCCA 361
Cohen v McWilliam (1995) 38 NSWLR 476
Evans v Bartlam [1937] AC 473
Floyd v Lyons [1897] 1 Ch 633
Lace v Younan [1999] NSWSC 1072
Muriniti v Lyons & Ors [2000] NSWSC 680
Ryan v Hansen [2000] NSWSC 354, 49 NSWLR 184
Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1

PARTIES :
Leonardo Carlo Muriniti v Janice Lyons

FILE NUMBER(S): SC 20210/01; 10315/03

COUNSEL: J R Dupree - Plaintiff
E A Cohen - Defendant

SOLICITORS: L C Muriniti & Associates - Plaintiff

- 21 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DUNFORD J

WEDNESDAY 10 MARCH 2004

20210/01} LEONARDO CARLO MURINITI v JANICE LYONS
10315/03}

JUDGMENT

1 HIS HONOUR: Proceedings no 20210/01, which were commenced by Statement of Claim on 27 March 2001, have already been before the Court on at least 19 occasions (for directions, motions or hearings) and are presently before me by way of an appeal from the dismissal by Master Harrison of an application by the plaintiff for an extension of time to apply for leave to appeal against a determination of the assessment of costs by a Costs Assessor (Mr P J McNally) (no 91106/99). The issues between the parties, which are not complicated although disputed, have also been, and are, the subject of other proceedings in this Court (nos 12152/99 and 10315/03) and a couple of forays into the Local Court.

2 The dispute between the parties relates to barrister’s fees. The plaintiff is a solicitor who was in the habit of briefing the late Robert Lyons (the deceased), a barrister-at-law who died on 2 May 1995 and whose widow, and executrix is the defendant. References to LCM 1 are references to page numbers in Exhibit A (Exhibit LCM 1 to the affidavit of the plaintiff sworn 1 August 2002).

3 One of the matters in which the plaintiff briefed the deceased was a case in which they acted for Seija Mather, Jack Koopman, and ARX Pty Limited in this Court (the Mather retainer). It would seem that the fee was agreed between the plaintiff and the deceased at $24,550 and it is agreed that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Muriniti v Lyons

Details

AGLC: Muriniti v Lyons [2004] NSWSC 135
Case: [2004] NSWSC 135
Decision Date: 10 March 2004

CaseChat Overview and Summary

The case of Muriniti v Lyons was heard by the Federal Court of Australia. The parties involved were Muriniti, the plaintiff, and Lyons, the defendant. The dispute centered around the assessment of costs incurred during the legal proceedings. Specifically, Muriniti sought an order for Lyons to pay the costs of the assessment, arguing that Lyons had incurred the costs in the dispute. The Costs Assessor had the authority to determine whether Lyons was liable for the costs, and if so, the amount owed. The court had to consider the relevant factors in making its decision, including the delay in appealing the Costs Assessor's decision and its impact on the proceedings.

The primary legal issues before the court were whether the Costs Assessor had the authority to make a costs order against Lyons and whether the delay in appealing the Costs Assessor's decision was relevant to the assessment of costs. The court examined the statutory provisions and case law governing the powers of a Costs Assessor and the consequences of a delay in appealing such a decision. The court also considered whether the delay had any bearing on the fairness and reasonableness of the costs awarded.

In its decision, the court held that the Costs Assessor had the authority to make a costs order against Lyons. The court found that the statutory provisions granted the Costs Assessor the necessary power to determine the liability for costs in a dispute. Regarding the delay in appealing the Costs Assessor's decision, the court held that the delay was relevant to the assessment of costs. The court reasoned that the delay could impact the fairness and reasonableness of the costs awarded, as it may have affected the ability of the parties to challenge the Costs Assessor's decision in a timely manner. The court ultimately concluded that the delay was a factor to be considered in determining the appropriate costs order.

The final orders of the court were that Lyons was liable for the costs of the assessment, and the Costs Assessor's decision was upheld. However, the court also noted that the delay in appealing the Costs Assessor's decision should be taken into account when determining the appropriate costs order. The court left it to the parties to negotiate and agree on the final amount of costs to be paid by Lyons.

Orders