Lange v Back & Schwartz [2009] NSWDC 180

New South Wales District Court

CITATION: Lange v Back & Schwartz [2009] NSWDC 180

HEARING DATE(S): 07/05/09, 08/05/09

JUDGMENT DATE: 12 June 2009

JURISDICTION: Civil

JUDGMENT OF: Norrish QC DCJ

1. Application for extension of time for filing Summons granted DECISION: 2. Summons filed 5 January 2009 dismissed 3. The plaintiff pay the defendants' costs.

CATCHWORDS: LEGAL PROFESSION - Costs - Appeal from Costs Assessor's decision - procedural fairness - ss384 and 385 Legal Profession Act

LEGISLATION CITED: Legal Profession Act 2004 Uniform Civil Procedure Rules 2005

Currabubula and Paola Holdings Pty Ltd v State Bank of NSW [2000] NSWSC 232 Madden v NSW Insurance Ministerial Corporation [1999] NSWSC 196 Forman v Rattray [2006] NSWSC 260 Adamson v Miller [2005] NSWSC 971 CASES CITED: Levy v Bergseng [2008] NSWSC 294 CSR v Eddy (2008) 70 NSWLR 725 Wentworth v Rogers (2006) 66 NSWLR 474 Hutchison v RTA [2001] NSWCA 332 Freeman v McNally & Anor [2003] NSWSC 780 Wende v Horwath (NSW) Pty Ltd [2008] NSWSC 124

PARTIES: Paul John Lange - Plaintiff Francis Joseph Back, Tony Schwartz (t/as Back, Schwartz, Vaughan Solicitors) - Defendants

FILE NUMBER(S): 0006/09

COUNSEL: Mr Waterstreet with Mr Lange - Applicant Mr Harris - Respondent

SOLICITORS: Mr P Lange - Applicant Back Schwartz Vaughan - Respondent

JUDGMENT Introduction

1 Paul Lange ("the plaintiff") by Summons filed on 5 January 2009, makes application for an extension of time to file a summons so as to appeal the costs assessment made by Mr John McIntyre, Costs Assessor, on 28 July 2008, in a Certificate of Determination of Costs, issued pursuant to ss 367, 368 Legal Profession Act 2004 ("LPA"), in favour of the defendants. An extension of time is required pursuant to r 50 (Uniform Civil Procedure Rules) as the plaintiff was required to file the summons within 28 days or no later than 31 July 2008. The decision by the Costs Assessor was generally founded on the basis that the plaintiff had retained the defendants to provide legal services pursuant to a 'costs agreement', that the costs claimed were 'fair and reasonable' and that the full amount, less monies already paid towards costs, was owed, plus interest and fee for the application.