Lace v Yonan [1999] NSWSC 1072

New South Wales Supreme Court CITATION : Lace v Yonan [1999] NSWSC 1072 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 10566/99 HEARING DATE(S) : 22 October 1999 JUDGMENT DATE : 2 November 1999

S Lace (Plaintiff) PARTIES : Albert Yonan (Defendant) JUDGMENT OF : Master Harrison

Mr J McIntrye (Plaintiff) COUNSEL : Mr D Knaggs (Solicitor) (Defendant) Edwards Johnstone Sullivan (Plaintiff) SOLICITORS : Douglas Knaggs (Defendant) CATCHWORDS : Extension of time to appeal; Appeal decision of costs assessor; Leave to appeal; functus officio ACTS CITED : Legal Profession Act 1987 (NSW) (as amended) Saddington's Legal Practitioner's Act Annotated CASES CITED : Attorney General for New South Wales v Kennedy Miller Television Pty Limited (1998) 43 NSWLR 729 Busuttil v Holder & Anor (NSWSC, unreported 9 August 1996, Master Greenwood) DECISION : See para 27

16

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 2 NOVEMBER 1999

10566/99 - S LACE v ALBERT YONAN

JUDGMENT (Extension of time to appeal;) Appeal decision of costs assessor; Leave to appeal)

1 MASTER: By amended summons filed 23 April 1999 the plaintiff seeks to appeal from the decision of the costs assessor Mr R J Moyle dated 15 November 1998 pursuant to s 208L and leave to appeal pursuant to s 208M of the Legal Profession Act 1987 (NSW) (as amended) (the Act). The plaintiff also seeks an order extending the time within which to institute this appeal to the date of the filing of the summons pursuant to Part 51A r 3(1) of the Supreme Court Rules. Paragraphs 2, 3, 5, 8, 9, and 10 of the amended summons were not pressed. The plaintiff relied on the affidavit of Terrence Anthony Sullivan sworn 9 March 1999. The defendant relied on the affidavits of his solicitor Douglas Knaggs sworn 31 August 1999. Extension of time to appeal 2 The costs assessor gave his reasons for his decision on 24 September 1998. He issued a certificate of assessment of costs on 15 November 1998. On 25 November 1998 the solicitor acting for the plaintiff forwarded a letter to the costs assessor seeking further reasons for his determination. On 7 January 1999 the plaintiff's solicitors wrote a further letter to the costs assessor seeking a reply to his letter of 25 November 1998. On 10 February 1999 the costs assessor replied to the plaintiff's solicitor directing him to the decision of Attorney General for New South Wales v Kennedy Miller Television Pty Limited (1998) 43 NSWLR 729 and informed the plaintiff's solicitor that he was now functus officio. 3 On 11 March 1999 the plaintiff filed his summons. An amended summons was filed on 23 April 1999. The plaintiff should have lodged his summons by 15 December 1998, however it was actually lodged a little less than three months after that date, and about one month after the costs assessor informed the plaintiff's solicitor that he (the costs assessor) was functus officio. 4 The court has a wide discretion when considering whether or not to extend time to appeal. The ultimate test is to do justice between the parties. As a general rule, time will be extended if there is no prejudice to the other party and appropriate orders for costs or the imposition of other terms of the extension adequately protect their position. 5 The issue raised under s 208L of the Act, which will be referred to in more detail later in the judgment is, in my view, of importance to the profession. The defendant did not demonstrate that he suffered any prejudice caused by the delay. The plaintiff's solicitor filed the summons within about one month after he had been informed that the costs assessor was functus officio. It is my view that justice is best served if the plaintiff is granted an extension of time in which to appeal. History of the matter