Macdonald v Benjafield (Judgment No 4) [1999] NSWSC 42

New South Wales Supreme Court CITATION : Macdonald v Benjafield (Judgment No 4) [1999] NSWSC 42 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 12921/98 HEARING DATE(S) : 3 February; 1999 JUDGMENT DATE : 3 February 1999

(Plaintiff): Neil Macdonald PARTIES : v (Defendant): Peter Benjafield Trading as Benjafield Milne & Another JUDGMENT OF : Sperling J

COUNSEL : (Plaintiff): T J Morahan (Defendant): V R W Gray SOLICITORS : (Plaintiff): A R Conolly & Company (Defendant): David Milne & Associates CATCHWORDS : ACTS CITED : Legal Profession Act 1987 s 208M DECISION : See paragraphs 13 - 19

1 Application is made by the plaintiff for leave to appeal pursuant to s.208 M of the Legal Profession Act 1987. I refer to the judgment which I have given dismissing an appeal pursuant to s.208 L of the Act. 2 In his reasons for determination, the cost assessor said that he did not intend to endeavour to set out the alleged facts and circumstances relating to or surrounding the agreement said to have been made between the solicitors. He said it was sufficient to say that statutory declarations, which he identified, had been made. He then referred to the statutory declarations and to correspondence which had passed between the cost assessor and the solicitors representing the parties before him. Relevantly, the cost assessor went on to say: "I express the view that I prefer the evidence and explanations of the applicant solicitors as being the more probable in all of the circumstances of this case". 3 He then went on to determine that the applicant solicitors were entitled to recover an amount which he assessed for their costs, and he attached to his reasons a certificate as to the amount payable. 4 Counsel for the plaintiff in the present proceedings has informed the court, in the course of his submissions, that any appeal pursuant to s.208 M would not challenge the quantification of costs certified by the cost assessor but would be limited to the factual issue as to whether the alleged agreement, to which I referred in my earlier judgment, was or was not made. 5 It is material, in my view, to note that the issue proffered by the plaintiff does not involve the quantification of costs. 6 I now refer to the correspondence consisting of the letters of 16 September and 19 September 1994. In the letter of 16 September, Mr Connolly said: "We note you will continue acting for Neil Macdonald, the second defendant, in these proceedings on the basis that if Neil Macdonald's claim against C E Heath Underwriting & Insurance (Australia) Pty Limited is unsuccessful your firm will not seek to recover from Neil Macdonald or our client, the fees already or later incurred by you in the conduct of this matter." 7 The letter is prefaced by a reference to the writer's conference with Mr Benjafield on 13 September. Mr Connolly went on to refer to a qualification in relation to counsel's fees. 8 In the letter of 19 September 1994, Mr Benjafield acknowledged receipt of the letter of 16 September. He said: "We acknowledge receipt of your letter dated 16 September 1994 and conform most of the details as set out". (I read the word "conform" as intended to be "confirm".) 9 He then went on to refer to the matter of counsel's fees. 10 I recognise that Mr Benjafield's confirmation related to "most of the details" set out in the letter of 16 September. Nonetheless, the correspondence was relevant evidentiary material, particularly in proceedings which were not bound by the rules of evidence. I am left with a feeling of serious disquiet as to whether the cost assessor took that correspondence into account and gave it the consideration which was required. 11 Having regard to the two matters to which I have referred, namely, the nature of the issue proffered in the proposed appeal and the September 1994 correspondence, I find that this is an appropriate case in which to grant leave to appeal, and leave is accordingly granted. 12 I note that the defendant, as in the case of the plaintiff, does not intend to challenge the quantification of costs by the cost assessor. I also note that the plaintiff has filed the evidence on which he intends to rely on the hearing of the appeal. I make the following orders: 13 I order the plaintiff to pay the defendants costs of the appeal pursuant to s.208 L. 14 I order that the costs of the application for leave to appeal pursuant to s.208 M be costs in the appeal under s.208 M. 15 The proceedings are transferred to the holding list with an estimate of one half to one day. 16 Plaintiff to file and serve any further amended summons by 4 pm on 10 February 1999. 17 Defendants to file and serve affidavits by 4 pm on 17 February 1999. 18 Plaintiff to file and serve any affidavits in reply by 4 pm on 24 February 1999. 19 Liberty to apply on two days notice. I note for the record that the hearing of the application for leave to appeal occupied approximately 50 minutes of court time today.