Baker & Anor v Kearney [1999] NSWSC 1241

New South Wales Supreme Court CITATION : Baker & Anor v Kearney [1999] NSWSC 1241 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 13047/1998 HEARING DATE(S) : 8 December 1999 JUDGMENT DATE : 16 December 1999

Alan Howard Baker (First Plaintiff) PARTIES : Jiwira Pty Limited (Second Plaintiff) v James Aloysius Kearney (Defendant) JUDGMENT OF : Master Malpass

LOWER COURT JURISDICTION : Costs Assessment LOWER COURT FILE NUMBER(S) : 92622/1997 LOWER COURT JUDICIAL OFFICER : Mr Hattersley

Mr J R Young (Plaintiffs) COUNSEL : Mr P Lever-Naylor (Defendant)

SOLICITORS : Leary & Company (Plaintiffs) Perkes & Stone (Defendant) CATCHWORDS : Leave to appeal and extension of time; sufficiency of reasons; counsel's fees; unfair or unreasonable. ACTS CITED : Legal Profession Act 1987, s 208A (2), s 208M. CASES CITED : N/A. DECISION : See paragraph 31.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 16 DECEMBER 1999

13047/1998 ALAN HOWARD BAKER & ANOR v JAMES ALOYSIUS KEARNEY JUDGMENT 1 The defendant is a barrister. He provided legal services for the plaintiffs. The work was performed in chambers. A significant part of it involved the reviewing of documentation and drafting work (including a draft Statement of Claim and a draft Reply to a Request for Further and Better Particulars). The work was performed during a period between 15 May 1995 and 8 January 1997. He rendered fees in the total sum of $61,510. He gave them a "a Memorandum of Fees due to James A Kearney (Bill of Costs)" dated 15 January 1997. 2 None of the fees have been paid. On 17 December 1997, the defendant applied to this Court for an assessment of costs. The application was referred to a costs assessor (Mr Hattersley). He received submissions from the parties. He had the opportunity to inspect documents in the chambers of the defendant (five A4 folders). The assessment appears to have been a protracted exercise. A Certificate of Determination was issued on 13 November 1998. The determination allowed the costs in full (in effect, he determined the application by confirming the Bill of Costs). 3 The Costs Assessor sent the certificate under cover of a letter of the same date. It contained inter alia the following:- "I have now considered all of the material and evidence put before me by yourselves and Perkes & Stone solicitors acting for Mr James Kearney.