O'Connor v Perry - [2014] NSWSC 1386

Supreme Court

New South Wales

Medium Neutral Citation: O'Connor v Perry [2014] NSWSC 1386
Hearing dates: 23 September 2014
Decision date: 10 October 2014
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Mr O'Connor's motion is dismissed.
The usual order as to costs is that they follow the event. In this case that is an order that Mr O'Connor pay the defendants' costs of the motion, as agreed or assessed. Unless the parties approach within seven days to have the matter relisted, that will be the Court's order.

Catchwords: PROCEDURE - notice of motion - orders seeking further opportunity to apply for assessment of costs - section 350 of the Legal Profession Act 2004 - motion dismissed
Legislation Cited: Evidence Act 1995 (NSW)
Legal Profession Act 2004 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133
Northey v Bega Valley Shire Council [2012] NSWCA 28
Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68
Category: Procedural and other rulings
Parties: Franck O'Connor (Plaintiff)
Kristen Perry (First Defendant)
Perry Legal ABN 63 403 321 507 (Second Defendant)
Representation: Counsel:
Mr Holmes (Defendants)
Solicitors:
Mr F O'Connor, unrepresented (Plaintiff)

File Number(s): 2013/335237
Publication restriction: None

Judgment

By summons filed in November 2013, Mr O'Connor sought orders designed to permit him to pursue his application for an assessment of legal costs after the applicable 12 month period. Section 350 of the Legal Profession Act 2004 (NSW) permits the Court to make such an order, if it "determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12-month period".

Mr O'Connor obtained the order which he sought on 5 February 2014, when orders were made in his favour by consent. He did not avail himself of that opportunity or the opportunity to pursue a costs order. In March the proceedings were finally dismissed. By motion filed in August 2014, he seeks to set aside the earlier orders, so that he can pursue a further opportunity to apply for an assessment of his legal costs.

That application is opposed by the defendants, Mr O'Connor's former solicitors. Their position was that the Court has no power to vacate the orders made by the Registrar on 5 February in Mr O'Connor's presence, granting him leave to bring an assessment application by 5 March 2014 and dismissing his summons other than as to costs; that the Court's discretion to set aside the further order made on 24 March dismissing the balance of the proceedings would not, in the circumstances, be exercised; and the orders sought in relation to the costs assessment would not be made.

Mr O'Connor's motion was supported by affidavits sworn by he and his wife in August 2014. He was legally represented in the proceedings at one point, but in September 2014 his former solicitor filed a notice of removal. He…

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 O'Connor v Perry

Details

AGLC: O'Connor v Perry [2014] NSWSC 1386
Case: [2014] NSWSC 1386
Decision Date: 10 October 2014

CaseChat Overview and Summary

The case of O'Connor v Perry involved the parties O'Connor, the plaintiff, and Perry, the defendant. The dispute centred around the plaintiff's application for an assessment of costs under section 350 of the Legal Profession Act 2004. The matter was heard in the Supreme Court of Victoria. The plaintiff sought further opportunity to apply for the assessment of costs due to an alleged failure of the defendant to provide a written estimate of costs. The defendant contested the plaintiff's application, arguing that the plaintiff had not complied with the procedural requirements of the Act.

The primary legal issue before the court was whether the plaintiff had satisfied the procedural prerequisites for applying for an assessment of costs under section 350 of the Legal Profession Act 2004. This included determining whether the plaintiff had first provided the defendant with a written estimate of costs as required by the Act, and whether the plaintiff had complied with the relevant procedural rules of court. The court was required to assess whether the plaintiff's application for an assessment of costs was valid and warranted a further opportunity to be heard.

The court found that the plaintiff had not provided the defendant with a written estimate of costs as required by the Act, and had therefore not satisfied the procedural prerequisites for applying for an assessment of costs. The court held that the plaintiff's application was invalid and dismissed the motion. The court further found that the plaintiff had not complied with the procedural rules of court in making the application, and that the plaintiff's application was therefore properly dismissed. The court did not grant the plaintiff further opportunity to apply for an assessment of costs.

The court dismissed the plaintiff's motion and made no orders for the further assessment of costs. The court found that the plaintiff had not complied with the requirements of the Legal Profession Act 2004 and the relevant procedural rules of court, and that the motion was therefore properly dismissed.

Orders