Stojanovski v Willis and Bowring - [2002] NSWSC 392

CITATION: Stojanovski v Willis & Bowring [2002] NSWSC 392

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 12298/2000

HEARING DATE(S): 1 May 2002

JUDGMENT DATE: 9 May 2002

PARTIES :

George Stojanovski
(Plaintiff)
Ron Toslin, Peter Baltins, Lou Polito & Adrian Mattuissi t/as
Willis & Bowring

JUDGMENT OF: Master Harrison

LOWER COURT
JURISDICTION : Cost Assessor

LOWER COURT
FILE NUMBER(S) : N/A

LOWER COURT
JUDICIAL OFFICER : Mr Neville Menlove

COUNSEL : Mr M Pesman
(Defendant)

SOLICITORS: Mr Paul Matters - Law Student
(Plaintiff)

CATCHWORDS: Extension of time to appeal decision of costs assessor - leave to appeal

CASES CITED: Donnelly & Anor v Ross Mining NL [1999] NSWSC 960, 23 September 1999
Chapmans Ltd v Yandell [1999] NSWCA 361
Coulter v The Queen (1988) 164 CLR 350
CDJ v VAJ (1998) 197 CLR 172

DECISION: (1) The notice of motion and summons are dismissed; (2) The plaintiff is to pay the defendant's costs as agreed or assessed.

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 9 MAY 2002

12298/2000 - GEORGE STOJANOVSKI v RON TOSLIN,
PETER BALTINS, LOU POLITO & ADRIAN
MATTUISSI T/AS WILLIS & BOWRING

1 MASTER: By notice of motion filed 3 May 2001 the plaintiff seeks leave to appeal against the determination of costs by cost assessor Mr Neville Menlove dated 16 May 2000. The appeal sought is by way of a new hearing with fresh evidence in regard to costs claimed by the defendant. The plaintiff seeks an order that the amount of costs in dispute are not owing by the plaintiff to the defendant. The plaintiff relied on his affidavit sworn 30 November 2001 and the affidavit of Ilce Musarevski sworn 14 September 2001. The defendant relied on two affidavits of Adrian Mattiussi sworn 21 December 2001. The plaintiff was represented by Mr Matters, a law student. Both the plaintiff and his former solicitor were cross examined.

2 The plaintiff submitted that firstly, there was an agreement that the solicitor would act for him on the basis that he (the solicitor) would not charge a fee; secondly, that the costs assessor’s assessment was inadequate because he was not provided with adequate explanation as to when Mr Kencevski became a client; and thirdly, the costs assessor attributed most of the work as being done in the plaintiff’s matter and not Mr Kencevski’s matter.

3 The plaintiff was the president of Illawarra Lions Football Club in 1996 and 1997. He represented the club in negotiations concerning monies owing with the State Bank. Prior to October 1997 the club had been represented by Harrison & Associates in those negotiations. At this time there was litigation on foot. The State Bank was suing the Wollongong Macedonia United Soccer Club (the club) as the first defendant, Peter Kencevski as second defendant and the plaintiff as third defendant. The bank had filed proceedings in this court. In…

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 Stojanovski v Willis and Bowring

Details

AGLC: Stojanovski v Willis and Bowring [2002] NSWSC 392
Case: [2002] NSWSC 392
Decision Date: 9 May 2002

CaseChat Overview and Summary

The case of Stojanovski v Willis and Bowring involved a dispute regarding an application for an extension of time to appeal a decision made by a costs assessor. The parties before the court were Stojanovski, the applicant, and Willis and Bowring, the respondents. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the applicant had demonstrated sufficient grounds to warrant an extension of time to appeal the costs assessor’s decision.

The court was required to determine if there were any special circumstances that justified the applicant’s failure to appeal within the prescribed time frame. The court examined the applicant's arguments regarding the late filing of the appeal and assessed whether there were any extenuating circumstances that warranted granting the extension. The court considered the principles of fairness and the importance of adhering to statutory time limits while also balancing the need to ensure justice is served.

The court held that the applicant had not provided a satisfactory explanation for the delay in filing the appeal. The reasons given were not deemed to be special circumstances within the meaning of the applicable legislation. The court emphasised the importance of timely compliance with procedural requirements and noted that the applicant's failure to meet the deadlines without a justifiable reason was significant. Consequently, the application for an extension of time was dismissed, and leave to appeal the costs assessor’s decision was denied.

Orders