CIVIL AND CIVIC v BREARTON [1994] NSWCA 49

CIVIL AND CIVIC v BREARTON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE JA

5 September 1994, 5 September 1994

[1994] NSWCA 49 Motion — Objection to certificate of taxation of costs.

Cole JA This as an application to set aside, a taxing certificate which has been issued and served.

The matter has some history. Judgment was given by the Court of Appeal on 29 April 1993 in favour of the respondent and orders were made that the appellant pay the costs of the appeal.

Nothing appears to have happened until 1 November 1993 when there was some discussion regarding whether or not the parties could, by negotiations, agree upon the quantum of costs.

On 19 January 1994 the appellant's solicitors requested an assessment of the costs and in February the respondents solicitors advised that that was being attended to. Nothing further occurred, and on 4 July the respondent's solicitors forwarded a bill of costs to the solicitors for the appellant.

It is clear from the affidavit of Mr Hankey, in particular para5, that thereafter for a period of a month the matter did not receive the attention it should have received in that his firm's offices. That apparently was due to various changes which were occurring within the office of the solicitors for the appellants. In those circumstances, the time for filing objection to the bill of costs expired and the certificate of taxation for costs issued.

The appellants contend they have proper objection to some aspects of the costs and those objections are set forth in a document which is annexure F to the affidavit of Mr Hankey of 29 August 1994.

In the circumstances, I think it is appropriate that the appellant's solicitors have the right to contest the costs to which they have indicated draft objections in that annexure F, but upon terms that the appellant pay within 48 hours to the solicitor for the respondent the costs as certified in the certificate of taxation subject to the solicitors for the respondent retaining a sum equivalent to the amount of costs in respect of which draft objections have been indicated pending a hearing of the objection referred to in that draft notice.