Weller v Fong

[2020] NSWDC 350

District Court

New South Wales

Medium Neutral Citation:

Weller v Fong [2020] NSWDC 350

Hearing dates:

03 July 2020

Date of orders:

03 July 2020

Decision date:

03 July 2020

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 29

Catchwords:

PRACTICE AND PROCEDURE – civil proceeding – invocation of ‘slip’ rule to correct word in Court’s dispositive orders – Court’s orders gave effect to Terms of Settlement – Terms of Settlement provided for proceeding to be ‘dismissed’ – Court order was that the proceedings were ‘discontinued’ – application to substitute the word ‘dismissed’ for ‘discontinued’ – explanation for application is a party’s application for costs assessment, apparently concerning same subject matter of proceeding – whether discretion to correct the order should be exercised – whether any utility in making correction

Legislation Cited:

Civil Procedure Act2005 (NSW), s 91

Uniform Civil Procedure Rules 2005 (NSW), rr 12.3, 36.15, 36.16, 36.17

Category:

Principal judgment

Parties:

Mr H Weller (Plaintiff/Respondent)
Ms R Fong (Defendant/Applicant)

Representation:

The respondent appeared in person
The applicant appeared in person

File Number(s):

2017/00043529

Publication restriction:

Nil

Judgment

THE APPLICATION

1. Before the Court is an unusual procedural application by the defendant (the applicant). It is to substitute a single word in orders of the Court disposing of the proceeding made by a Judge of the Court (Norton SC DCJ) on 22 July 2019. Those orders were based on a settlement reached between the parties.

2. The proceeding generally concerned a solicitor’s attempts to recover his fees for acting for the client in a proceeding in the Supreme Court of New South Wales. The solicitor, who was the plaintiff in the proceeding in this Court, and respondent to the present motion, entered into a costs agreement with the defendant (the applicant on the motion) on 27 February 2014. He said he performed services and sent invoices to the applicant on 17 July 2015 and 17 August 2015. The respondent rendered an account on 17 July 2015 and claimed the sum of $167,432.06 for unpaid fees. The applicant resisted those attempts and brought her own cross-claim to set aside the costs agreement.

3. On 22 July 2019, the Court made orders to dispose of the proceeding. the dispositive orders, made by consent, were as follows:

1. The Plaintiff’s Statement of Claim and the Defendant’s Cross-claim be discontinued.

2. No order as to costs

4. A notation then appeared on the face of the Court orders. It was as follows:

“Matter has settled. The Defendant and the solicitor for the plaintiff have signed terms on the 18^th and 19^th July 2019 respectively.”

5. The word ‘terms’ in this notation appears to be a reference to the ‘Terms of Settlement’, written on the Court’s pro forma title page which was supplied to the Court. Relevantly, term 1 represented the parties’ agreement that the parties’ respective pleadings be “dismissed”, not “discontinued”.

6. There is no evidence before the Court to suggest that the compromise reached between the parties extended beyond the content of the Terms of Settlement supplied to the Court. There is no suggestion, for example, that the Terms of Settlement were simply the formal means of terminating the proceeding with the underlying compromise involving payment by the applicant to the respondent of a sum of money in exchange for the respondent’s discharge and release of any claim concerning the subject matter of the proceeding; as is commonly the case.

7. By her motion, the defendant seeks an order that the Court substitute for order 1 made on 22 July 2019 that the relevant pleadings (consisting of a Statement of Claim and a Cross-Claim) be “dismissed” for the order which was made, that the respective claims be “discontinued”. The other order, about which no variation is sought, provides that there is no order as to costs of the proceeding in this Court.

8. The respondent’s position is not to oppose the application.

9. The applicant asserts that the Court’s order erroneously recorded the word ‘discontinued’ when the terms of settlement supplied to the Court had indicated that the parties had agreed that the pleadings be dismissed.

10. Although the application is made late – 11 months after the order was made – the Court’s power on an application of this kind appears in r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’). It is notable that, unlike r 36.16, there is no time limit to bringing the application. In that respect, the rule is similar to r 36.15, which is the relevant court rule concerning judgments or orders made irregularly.

11. Although ordinarily, an application of this kind should be brought before the Judge who made the order sought to be varied, in this case, the extent of her Honour’s involvement appears to have been to do no more than to make dispositive orders consistent with the parties’ settlement. That being so, I do not consider myself inhibited in deciding this application myself.

12. There is no indication in the evidence before me that her Honour intended to choose a word contrary to the common intention of the parties. Prima facie, the rule would be capable of being invoked. But the power under r 36.17 is discretionary; and discretionary decisions on matters of practice and procedure are to be made in accordance with case management objects, including, but not limited to, delay. Self-evidently, there must be some utility in making the order.

Explanation for bringing the application

13. By her most recent affidavit, filed 29 June 2020, the applicant has explained that this motion is brought because of an application for a costs assessment made by the respondent; which was filed, apparently, on 8 April 2020. The particulars of the application for assessment state that the costs sought to be assessed concern a bill for the sum of $165,720.57 issued to the applicant on 17 August 2015, which is said to be unpaid.

14. The costs assessor is a barrister (Mr Eagle of Counsel) who acknowledged his appointment in correspondence to the parties on 11 May 2020.

15. In the costs assessor’s letter on 11 May 2020, he requested information from both the plaintiff (the costs applicant) and the defendant (the costs respondent), by 25 May 2020. In particular, insofar as he requested information from the applicant, he sought an explanation why the terms of settlement represented a response to the plaintiff’s application for costs assessment. This was after the costs assessor indicated that he was uncertain whether the fact that the proceeding had been dismissed would be an answer to the application for costs assessment.

16. Since the costs assessor’s letter, the plaintiff has, on multiple occasions, sought extensions of time for the provision of information to the assessor.

17. On 22 June 2020, the costs assessor sent a further letter to the parties. Relevant parts of that letter were as follows. First, the assessor noted that the respondent had not explained why, having discontinued the proceeding, he has subsequently brought an application to have his costs assessed. Secondly, the assessor alluded to the circumstance that a mere dismissal of a proceeding, without a determination on the merits, does not prevent the respondent from bringing the above application.

18. The applicant says that the respondent has not supplied explanation to the costs assessor why he is entitled to proceed to a costs assessment in circumstances where there is a subsisting order of the Court that there is no order of the costs of the proceeding that was discontinued following a settlement.

19. The applicant says that she has received legal advice (without indicating the source) that due to the current wording of the Court order – that the proceeding was ‘discontinued’, the respondent was not prevented from bringing a costs assessment application; whereas if the wording was changed to ‘dismissed’, he would not be able to do so.

20. It appears that the applicant considers, based on legal advice, that if the single word in the orders made on 22 July 2019 is changed, then this will support her position in response to the application for costs assessment currently before the costs assessor. Indeed, she said to me this morning (she appeared unrepresented, although was assisted by her son, a law student, who assisted the Court to understand what she was saying) that she believes that if the Court makes the order she seeks, the respondent will be prevented from pursuing his application for a costs assessment.

CONSIDERATION

21. Under the current position, where the pleadings are ‘discontinued’ and where an additional and express order is made that there is no order as to costs, the plaintiff would not be prevented from commencing a fresh proceeding seeking the same relief: UCPR, r 12.3.

22. Under the proposed position, given that the proposed order for the pleadings to be “dismissed” arises from settlement (and not from a determination of the proceedings on their merit) and in the absence of any inconsistent terms, again, the plaintiff is not prevented from bringing fresh proceedings seeking the same relief: Civil Procedure Act2005 (NSW), s 91(1) and (2).

23. In both cases, however, the word ‘proceeding’ is a legal proceeding instituted in a Court. No reference is made in either rule about a party’s right to make an application for costs assessment if an earlier proceeding – relating to the subject matter of the costs assessment – has been terminated, either by discontinuance or by dismissal, without a determination on the merits.

24. It appears to me, therefore that there is no practical difference between the effect of the proceeding being terminated as a result of a discontinuance or dismissal where, in the circumstances of this case, the proceeding was terminated with no determination on the merits.

25. At any rate, it appears from the costs assessor’s letter of 22 June 2020 that he is well aware of the applicant’s contention that the proceeding was, in substance if not form, dismissed, rather than discontinued. That explains his reference to r 91(2) to the legal effect of a dismissal, as distinct from a discontinuance, of the proceeding. The costs assessor is also well aware of the reference to ‘dismissal’ in order 1 of the Terms of Settlement that were presented to the Court. Finally, the costs assessor is astute to the applicant’s concern that, prima facie, it appears that the respondent is arguably seeking to obtain, by the route of the costs assessment process, a result which (on the face of evidentiary material before me) he did not substantively obtain from the proceeding in this Court which was settled in July 2019.

26. I note, further, that it is not the role of this Court, on the application currently before it, to pre-empt anything that the costs assessor may do. Both parties to the current assessment process will, I expect, have rights to merits and legal review of the costs assessment process; including, possibly, rights of appeal to this Court in due course.

27. In the circumstances, I am not persuaded as to the utility of the current application. A Court will not ordinarily lend itself to making procedural orders that have no utility; lest it encourage insubstantial applications by litigants; and thereby add to the Court’s workload.

28. The application is, accordingly, dismissed. Having regard to the respondent’s neutrality in respect to the application, I make no order as to the costs of the application.

29. The orders of the Court are therefore that the Notice of Motion filed 15 June 2020 is dismissed and there is no order as to costs.

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Decision last updated: 06 July 2020