CONCERIA PELL MEC SPA v SWEET RING IMPORTS PTY LIMITED [1995] NSWCA 90

CONCERIA PELL MEC SPA v SWEET RING IMPORTS PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P, PRIESTLEY JA and POWELL JA 13 March 1995

[1995] NSWCA 90

COSTS — taxation of costs — issue of certificate of taxation — application for order setting aside certificate of taxation taxed in absence of objecting party — primary judge (Rolfe J) finds that sufficient excuse is given for the absence of the party from the taxation — further finds that no adequate reason has been shown to set aside the certificate — dispute concerning whether costs of earlier solicitor properly included in bill — evidence shows that party, at time of alleged retainer of earlier solicitor, stated in correspondence its ignorance of the proceedings — held (Kirby P; Priestley JA and Powell JA concurring): (1) Granting leave to appeal and allowing the appeal; There was evidence before the primary judge which, without more, provided a proper basis for setting aside the certificate of taxation and requiring explanation to justify the retainer of the earlier solicitors; (2) The proceedings should be returned to the Division for reconsideration as to whether the objection should not be heard on its merits.

PRACTICE & PROCEDURE — Commercial Division — review of certificate of taxation — absence of objecting party from taxation — adequate proof of explanation for absence — whether adequate proof of substantial objection — observations by the Court of Appeal on the general desirability of resolution of issues on the merits.

Kirby P. The Court has heard a summons for leave to appeal from orders made by Rolfe J in the Commercial Division of the Supreme Court. By consent of the parties, the Court has proceeded to deal with the appeal, pursuant to the leave which the Court is minded to grant.

The proceedings arise out of an objection by the claimant to a certificate of taxation which it received in respect of a bill of costs which was taxed. The bill contained substantial items for professional costs, allegedly performed by Messrs Baker McKenzie, solicitors.