TSEKOURAS v XENOS [1998] NSWCA 239

TSEKOURAS v XENOS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA and STEIN JA 2 February 1998

[1998] NSWCA 239

Sheller JA. This is an application by the claimant, Mr Con Tsekouras, for leave to appeal from a decision of his Honour Barr J of 5 August 1997 and leave to appeal out of time. The summons was filed on 11 December 1997 and I would understand that what I have just quoted from the summons is directed to an extension of time to seek leave to appeal.

The application is opposed by the opponent, Mr John Xenos. The claimant had applied for an order that his application for assessment of costs dated 6 December 1995 and the memorandum of costs of 13 October 1994 and 15 August 1994 be assessed.

The application was apparently based on the provisions of s 199 of the Legal Profession Act 1987. The period prescribed by cl 25 of the regulations for such an application is twelve months after the bill was given to the client. It is accepted that the application for assessment had been made after the expiration of this period.

In his reasons for judgment Barr J accepted that he had a discretion to extend that twelve month period up to and including the time in December 1995 when the application was made. However, in the exercise of his discretion his Honour dismissed the application. The claimant seeks leave to appeal from that decision.

In this case, it seems to me that the claimant is faced with the insuperable obstacle of a discretionary judgment. A number of factors were referred to by Mr Crowley, who appeared for the claimant, which might be said to support an extension of time. These were matters which no doubt were referred to his Honour. One of which is the somewhat informal way in which the two bills of costs were furnished. Other matters referred to were the fact that the bills followed upon the discontinuance of the services of Mr Xenos who had been acting for the claimant on a matter which led to an application for special leave to the High Court. It was said that for some period of time the claimant hadbeen taken up with the preparation of that application. However, that application was dismissed on 17 February 1995.