LANG and ANOR v KIRKNESS and ANOR [1998] NSWCA 128

LANG v KIRKNESS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and POWELL JJA 25 February 1998, 30 June 1998

[1998] NSWCA 128

COSTS — assessment — appeal from decision of assessor — requirement of assessor to give reasons — issues for separate determination effect of costs order on balance of proceedings Supreme Court Rules Pt31, r6(c) and Pt8, r6.

COSTS — assessment — appeal from decision of assessor — requirement of assessor to give reasons — issues for separate determination — effect of costs order on balance of proceedings — Supreme Court Rules Pt31, r6(c) and Pt8, r6.

The claimants sought leave to appeal from the decision of a Master which dismissed the claimants' appeal from the decision of a costs assessor. They alleged the assessor had made certain errors of law: the awarding of costs to the opponents when they had been acting for themselves; failure to give adequate "short" reasons for the decision; refusal to supply "full" reasons for the decision; and the allowance of costs in a past matter contrary to the orders of the Court of Appeal.

HELD: Dismissing the summons: (1) The arguments alleging the opponents had acted for themselves had been dismissed by the Master due to lack of evidence. Appeal on this question did not involve any error of law and so established no basis for the grant of leave. (2) The allegation that the assessor's "short reasons" were inadequate failed as these reasons were supplied to the opponents who made the claim for costs. The opponents would only be interested in the reasons for rejecting of claims. The argument relating to "full reasons" failed as there was no evidence of the alleged refusal to supply reasons adduced before the Master. (3) The claimants alleged that the assessor's allowance of costs under an order of Windeyer J contravened orders of the Court of Appeal. In fact the matter heard by the Court of Appeal was limited to issues the trial Judge had earmarked for separate determination (SCR Pt31, r6(c) and Pt8, r6). The order of Windeyer J related to that part of the proceedings which had not been separately determined and was therefore totally valid.