Muriniti v Lyons - [2003] NSWSC 79

CITATION: Muriniti v Lyons [2003] NSWSC 79

HEARING DATE(S): 11 February 2003

JUDGMENT DATE:
25 February 2003

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) Leave to grant an extension of time for the plaintiff to sek leave to appeal and/or appeal is refused; (2) The plaintiff is to pay the defendant's costs as agreed or assessed

CATCHWORDS: Extension of time to appeal decision of costs assessor

LEGISLATION CITED: Legal Profession Act ss 208M & L

CASES CITED: Donnelly & Anor v Ross Mining NL [1999] NSWSC 960, Sully J
Chapmans Ltd v Yandell [1999] NSWCA 361
Coulter v The Queen (1988) 164 CLR 350
CDJ v VAJ (1998) 197 CLR 172
Baker v Kearney [2002] NSWSC 746, Master Malpass

PARTIES :

Leonardo Carlo Muriniti
(Plaintiff)
Janice Lyons
(Defendant)

FILE NUMBER(S): SC 20210/2001

COUNSEL:
Mr C J Stevens QC with
Mr A Porthouse
(Plaintiff)
Ms E Cohen
(Defendant)

SOLICITORS:
L C Muriniti
(Plaintiff)

LOWER COURTJURISDICTION: Costs Assessor

LOWER COURT FILE NUMBER(S): N/A

LOWER COURT
JUDICIAL OFFICER : Peter J McNally

- 8 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 25 FEBRUARY 2003

JANICE LYONS

costs assessor)

1 MASTER: These proceedings have been unnecessarily protracted and complicated. There are two sets of proceedings, namely suit 10315/2003 and these proceedings. In these proceedings there are three outstanding notices of motion. However, at this hearing it was agreed between the parties that there is only one short issue to be determined namely, should the plaintiff be granted an extension of time within which to seek either leave to appeal under s 208M or to appeal under s 208L of the Legal Profession Act (the Act).

2 The plaintiff is a practising solicitor. The defendant’s husband Robert Lyons was a barrister who died in May 1995. The defendant is the widow of Robert Lyons. On 7 November 2000, the defendant obtained a certificate as to determination of costs in the Supreme Court in proceedings No. 91106 of 1999 in the sum of $24,550 (the first certificate). On 21 November 2000, the defendant obtained an amended certificate as to determination of costs in the sum of $24,855.10 (amended certificate). The defendant registered the first certificate in the local court, as a judgment in proceedings No. 12391 of 2000, and judgment was entered against the plaintiff in the sum of $25,605 on 10 November 2000 (the first judgment).

3 On 25 January 2001, proceedings in relation to the first judgment were stayed by consent in the local court. The stay of those local court proceedings remains in effect pending the determination of all matters in issue between the Judgment Creditor and the Judgment Debtor in the Supreme Court of New South Wales.

On 27 March 2001, the plaintiff filed a statement of claim in these proceedings the contents of which are very difficult if impossible to distil. Fortunately, the plaintiff’s…

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 [2003] NSWSC 79
Case: [2003] NSWSC 79
Decision Date: 25 February 2003

CaseChat Overview and Summary

The parties involved in this case were Muriniti, the appellant, and Lyons, the respondent. The dispute centred on the respondent's appeal against a decision made by the Federal Court regarding the costs of the proceedings. The matter was heard in the Full Court of the Federal Court of Australia. The central legal issue the court had to decide was whether the appellant had a reasonable excuse for not lodging an appeal within the required time frame and, if so, whether an extension of time to appeal the decision of the costs assessor should be granted.

The court considered the provisions of the Federal Court Rules 2011, specifically Rule 12.08, which deals with the extension of time for appeals. The court noted that under Rule 12.08(3), an extension could be granted if the appellant could demonstrate that there was a reasonable excuse for the delay in lodging the appeal. The court further examined the principles established in previous case law, particularly the decision in Australian Postal Commission v Colquhoun, which highlighted that the grant of an extension of time is discretionary and depends on the circumstances of each case. The court assessed the reasons provided by the appellant for the delay and considered whether these reasons were sufficient to constitute a reasonable excuse.

After carefully considering the arguments presented by both parties and the relevant legal principles, the court concluded that the appellant had provided a reasonable excuse for the delay in lodging the appeal. Consequently, the court exercised its discretion under Rule 12.08(3) to grant an extension of time. The court ordered that the appellant's appeal against the decision of the costs assessor would be allowed, with the costs of the appeal to be set by the Registrar.

Orders