RAJSKI v YELDHAM [1992] NSWCA 199

RAJSKI vy YELDHAM

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and Cripps JJA 22 June 1992

[1992] NSWCA 199

Mahoney JA This matter comes before the Court upon a motion by the claimant Dr Rajski seeking, amongst other things, an order that a certificate of taxation be set aside.

The situation is that the representatives of the opponent claim that a bill of costs was properly served upon Dr Rajski by it, as I understand it at least, being sent to the solicitor then acting for him in the ordinary way. The certificate was taxed, presumably, in the absence of Dr Rajski and a certificate of taxation was issued. An application was then made by the present motion on 3 February 1992 to set aside the certificate of taxation and for other relief.

It appears from the proceedings that there will be a contest of fact as to whether and in what way the bill of costs and the notice of taxation were served upon Dr Rajski. If it appears that they were not served, then prima facie that is a fact relevant to a decision to set aside the certificate of taxation.

If there is a substantial problem in relation to the matter, for example, if the bill of costs did not effectively reach the solicitor for Dr Rajski or Dr Rajski at the time, by reason of some defect in the procedure, that would be a factor, although, of course, not a determinant factor, in deciding whether the certificate of taxation should stand or whether the matter should be sent back for a fresh taxation of the bill of costs. But that matter is not of significant importance.

An application has been made by Dr Rajski for the matter to be returned to a judge - he submits a judge of the Court of Appeal - to be dealt with. The Court has made enquiries as to what is involved in the hearing of the matter. The matter is one which will involve some issue of fact in relation to a determination of the question of whether the bill of costs was served or effectively came to the notice of the relevant parties. That is not a matter which is proper for the Court presently constituted to deal with.