Schaeffer & Anor v Schaeffer [1999] NSWSC 834

New South Wales Supreme Court CITATION : Schaeffer & Anor v Schaeffer [1999] NSWSC 834 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 10489/99 HEARING DATE(S) : 18 August 1998 JUDGMENT DATE : 18 August 1999

Nigel Robert Schaeffer (First Plaintiff)

PARTIES : TCN Glenowen Pty Limited (Second Plaintiff)

Noel Frederick Schaeffer (Defendant) JUDGMENT OF : Master Harrison

Mr D Jenkins (Plaintiffs) COUNSEL : Mr W S Johnson (Defendant) Watson McNamara & Watt (Plaintiffs) SOLICITORS : Vile & Vile (Defendant) CATCHWORDS : Leave to appeal decision of costs assessor ACTS CITED : Legal Profession Act 1987 (NSW) - s 208M CASES CITED : Busuttil v Holder & Anor (NSWSC, unreported 9 August 1996) DECISION : See para 9

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THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 18 AUGUST 1999

10489/99 - NIGEL ROBERT SCHAEFFER TCN GLENOWEN PTY LIMITED v NOEL FREDERICK SCHAEFFER

JUDGMENT (Leave to appeal decision of costs assessor)

1 MASTER: The appellant by summons filed 2 March 1999 seeks leave to appeal against the decision of costs assessor, Mr David Harold Cohen made on 3 February 1999. The appellant relies on s 208M of the Legal Profession Act 1987 (NSW). The appellant relied on the affidavit of Roderick James Watt sworn 9 April 1999 and affidavit of William Watson sworn 14 April 1999. The respondent relied on the affidavit of June Vile sworn 9 June 1999. 2 Section 208M of the Legal Profession Act 1987 (NSW) (the Act) provides: "(1) A party to an application relating to a bill of costs may, in accordance with the rules of the Supreme Court, seek leave of the Court to appeal to the Court against the determination of the application made by a costs assessor. (2) A party to an application relating to costs payable as a result of an order made by a court or a tribunal may, in accordance with the rules of the court or tribunal, seek leave of the court or tribunal to appeal to the court or tribunal against the determination of the application made by a costs assessor. (3) The Supreme Court or court or tribunal may, in accordance with its rules, grant leave to appeal and may hear and determine the appeal. (4) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given." 3 In seeking to appeal under s 208M rather than s 208L, the applicant requires material, other than, or in addition to a point of law in order to be successful. This section provides that such an application requires leave in accordance with the rules of the court. 4 I have read Master Greenwood's decision in Busuttil v Holder & Anor (NSWSC, unreported 9 August 1996). In particular I agree with his comments on the applicable test for leave. He says: "Thus whilst each application for leave to appeal is to be determined on its merits and I heed the statement of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 that it is "unnecessary and unwise to lay down rigid and exhaustive criteria" for the grant of leave to appeal, as the circumstances of different cases are "infinitely various"" I can see nothing in what is before me that leads me to a conclusion that I ought to look to the question of leave other than to apply the criteria of an obvious error on the face of the record and substantial injustice done to the appellant if the determination of the costs assessor is allowed to stand." 5 The assessor's certificate dated 3 February 1999 determined that the sum of $15,808.72 was the fair and reasonable amount payable by the plaintiffs instead of $18,458.47 as submitted. The bill of costs related to an appeal to the Court of Appeal. This was a reduction of $2,649.75. The plaintiff has paid $9,400 and the sum of $6,408.72 remains outstanding. 6 It was not submitted that the costs assessor did not conduct the costs assessment in accordance with the procedures laid down in the Legal Profession Act 1987 (NSW). The plaintiff conceded that the items that it submitted were excessive were those in which the costs assessor had a discretion. The plaintiffs' case at its highest was that the professional costs should have been reduced from $8,566.04 to $5,916.29 (a further reduction of $2,469.75) and disbursements should also have been reduced. 7 The plaintiffs' counsel referred to some specific items which were allowed by the costs assessor which he submitted were either not allowable on a party/party assessment or excessive. According to the plaintiff the preparation fees charged by counsel, the costs of the costs assessor preparing the party/party bill ($725) were not allowable and the amount allowed for care, skill and consideration was too high. 8 It is my view that the sum of $15,808.75 is a fair and reasonable amount for the costs of an appeal to the Court of Appeal. The only possible error of principle may be that the costs assessor allowed the costs of the costs consultant to prepare the bill of costs but this item amounts to the sum of $725. I have reached the conclusion that there is no obvious error on the face of the record. Nor has there been a substantial injustice done to the appellant if the costs assessor's decision is allowed to stand. For these reasons leave to appeal is refused. 9 The orders I make are: