CITATION: Scope Data Systems Pty Ltd v Aitken (No. 2) [2010] NSWDC 65 HEARING DATE(S): 25 March 2010 EX TEMPORE JUDGMENT DATE: 25 March 2010 JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Plaintiffs’ application for adjournment of the proceedings dismissed.
(2) Plaintiffs pay defendants’ costs of the application.
(3) Plaintiffs’ application for an extension of time to commence proceedings dismissed.
(4) Plaintiffs pay defendants’ costs of these proceedings, which are dismissed.
(5) Exhibits remain with the file for 28 days.
(6) Defendants’ submissions in support of their application for indemnity costs to be served in 7 days.
(7) Plaintiffs’ submissions in reply in 7 days.
(8) Judgment on the application for indemnity costs to be emailed to the parties by Gibson DCJ.CATCHWORDS: COSTS - appeal from three costs assessor's awards - summons filed almost a year after 28-day appeal period expired - application for leave to appeal out of time dismissed LEGISLATION CITED: Civil Procedure Act 2005 (NSW), ss 56-62, 59 and 60
Evidence Act 1995 (NSW), s 140(2)
Legal Profession Act 1987 (NSW), ss 208L or 208M
Legal Profession Act 2004 (NSW), ss 348 and 385
Supreme Court Rules 1970 (NSW), Pt 51A r 3(1)
Uniform Civil Procedure Rules 2005 (NSW), Pt 50, rr 50.2(1) and 50.3(1)(a)CASES CITED: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Brierley v Reeves t/as Kaplan Reeves & Co [2000] NSWSC 305
Currabubula & Paola v State Bank NSW [2000] NSWSC 232
Doyle v Hall Chadwick [2007] NSWCA 159
Gallo v Dawson (1990) 93 ALR 479
Jess v Scott (1986) 12 FCR 187
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153
Morris v Public Transport Commission of NSW (unreported, Court of Appeal, 28 May 1984)
Moulieux v Girvan NSW Pty Ltd (unreported, Court of Appeal, 20 September 1991)
Muriniti v Lyons [2004] NSWSC 135
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1TEXTS CITED: Ritchie's Uniform Civil Procedure NSW PARTIES: First Plaintiff: Scope Data Systems Pty Ltd
Second Plaintiff: Peter Gorczynski
Defendants: Andrew Napier Aitken, Peter Douglas McLachlan and Andrew Bruce Thorpe trading as Aitken McLachlan Thorpe LawyersFILE NUMBER(S): 4076 of 2008 COUNSEL: Plaintiffs: Mr Niall Connolly (solicitor)
Defendants: Mr J KnackstredtSOLICITORS: Plaintiffs: Niall Connolly Lawyers
Defendants: Macpherson + Kelley Lawyers
Judgment
[1] HER HONOUR: The plaintiffs, by an Amended Summons dated 9 October 2007 (in place of an earlier summons filed in September 2007), seek to set aside determinations of cost assessor John Sharpe in assessments numbers 2005/1780, 2005/1766 and 2005/1919. Orders are also sought to set aside certain consequential orders. Each of the assessments, the subject of these orders, relates to fees for legal work undertaken by the defendants (hereafter referred to as “AMT”) on behalf of the plaintiffs in relation to extended litigation in which they and other lawyers acted for the plaintiffs, for which the plaintiffs did not pay when invoiced.
[2] The grounds of appeal that…
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- AGLC
- Scope Data Systems Pty Ltd v Aitken (No. 2) [2010] NSWDC 65
- Case
- [2010] NSWDC 65
- Decision Date
CaseChat Overview and Summary
The court found that the summons was filed well beyond the statutory time limit for appealing the costs decision, and no exceptional circumstances existed to justify an extension of time. The appeal was dismissed, and the plaintiff was ordered to pay the defendant's costs of the application. Additionally, the plaintiff's application for an adjournment of the proceedings was dismissed, and the plaintiff was ordered to pay the defendant's costs of these proceedings. The court found that the plaintiff had failed to establish any grounds for an adjournment or an extension of time to commence proceedings.
The final orders of the court were that the plaintiff's application for an adjournment of the proceedings was dismissed, and the plaintiff was ordered to pay the defendant's costs of the application. The plaintiff's application for an extension of time to commence proceedings was also dismissed, and the plaintiff was ordered to pay the defendant's costs of these proceedings. The exhibits were to remain with the file for 28 days, and the defendant was given seven days to serve submissions in support of their application for indemnity costs. The plaintiff was given seven days to reply, and the judgment on the application for indemnity costs was to be emailed to the parties by Gibson DCJ.
Orders
Orders of the court
(1) Plaintiffs’ application for adjournment of the proceedings dismissed.
(2) Plaintiffs pay defendants’ costs of the application.
(3) Plaintiffs’ application for an extension of time to commence proceedings dismissed.
(4) Plaintiffs pay defendants’ costs of these proceedings, which are dismissed.
(5) Exhibits remain with the file for 28 days.
(6) Defendants’ submissions in support of their application for indemnity costs to be served in 7 days.
(7) Plaintiffs’ submissions in reply in 7 days.
(8) Judgment on the application for indemnity costs to be emailed to the parties by Gibson DCJ.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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