ASH STREET PROPERTIES PTY LTD AND ORS v POLLNOW AND ORS [1992] NSWCA 11

ASH STREET PROPERTIES PTY LTD AND ORS v POLLNOW AND ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA 26 October 1992

[1992] NSWCA 11

Handley JA The notice of motion arises out of a decision given by the Court as long ago as 12 June 1987 in which it allowed an appeal from a decision of McLelland J given on 31 July 1985. The Court published its reasons for judgment on 12 June 1987 and made final orders on 18 July. Thereafter the claimant sought special leave to appeal to the High court but this was refused on 11 December 1987.

The successful appellants in this Court were entitled to orders in respect of their costs of the appeal and the proceedings before McLelland J. No steps were taken to tax those costs until 9 June 1992 when the appellants' bill of costs for the proceedings in this Court was filed and served on the claimant. The bill relates to work done between 8 August 1985 and 4 November 1987.

The following day the bill of costs for the proceedings in the Equity Division heard by McLelland J was also filed and served.

It is clear from the evidence that the preparation of a bill of costs for taxation inevitably takes time, and involves considerable work and expense. Allowing for these matters the delay in proceeding with the taxation of the costs in this Court might be thought to commence in June 1988 or thereabouts. Accordingly there has been a delay of some four years. Some of that delay is explained, in a way which has been criticised by Mr Walker, by negotiations over about five months in 1991 which culminated in the execution of the deed of settlement of 6 June 1991.

Mr Walker for the claimant submits that the overall delay, the reasons for it and the resulting prejudice to the claimant furnishes a ground for this Court to permanently stay the proceedings by the opponents to tax their costs under the order of this Court.