MULTIPLEX CONSTRUCTIONS PTY LTD v ANGELIDIS [1989] NSWCA 150

MULTIPLEX CONSTRUCTIONS PTY LTD v ANGELIDIS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP 23 October 1989

[1989] NSWCA 150

Mahoney AP This is an application made by Multiplex Constructions Pty Ltd, the second defendant in a District Court proceeding, to set aside a certificate of taxation which Was issued on 11 September 1989 and for the extension of time to file a notice of objection to a bill of costs filed in relation to an appeal before this Court in that particular matter.

The basis of the application is, in my opinion, substantially that as is claimed by Mr Turner in his affidavit (and I state this as a claim) that on 8 September 1989 he spoke on the telephone to Mr Carney, the solicitor for the plaintiff respondent, and advised him that a notice of objection would be prepared and filed on Tuesday, 12 September 1989. He asked the respondent to take no action to have the certificate of taxation issued prior to that date, and Mr Turner claims Mr Carney then agreed that nothing would be done to pursue the certificate's issue.

Mr Carney does not completely agree with that statement of the conversation. His view is a different one. There is, as appeared in argument this morning, a difference between the parties as to what actually happened.

I think I should act upon the basis that Mr Turner's statement as given is a bona fide statement of his belief of what happened. I do not in saying that conclude what Mr Carney has said in his affidavit is not correct.

The position is, as I am informed from the Bar table by Mr Perry, that the last day for filing the notice of objection was 8 September L989 and that an attempt to file the notice of objection in the following week was rejected by the court upon the basis that the notice of objection was then out of time.

In these circumstances, and having heard what the parties have said, I am disposed to order an extension of the time for filing the notice of objection. However, I have asked Mr Perry to indicate in the bill of costs items in respect of which an objection can properly be taken. I have done this, inter alia, because it is agreed that the form of the notice of objection originally proposed to be filed is not now appropriate and that a notice of objection based not upon the filing of one as distinct from two bills of costs but upon particular items in the bill of costs is now to be lodged. I have looked at some of the items and I have, to put the matter no higher, significant doubts as to whether objection can properly be taken to the particular items which have been selected by way of example and discussed in argument.