G H Healey & Company - Bondi v Grasso [1999] NSWSC 147

New South Wales Supreme Court CITATION : G H Healey & Company - Bondi v Grasso [1999] NSWSC 147 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 12144/98 HEARING DATE(S) : 24 February 1999 JUDGMENT DATE : 30 July 1999

G H Healey & Company - Bondi (Plaintiff) PARTIES : Vincent Grasso (Defendant) JUDGMENT OF : Master Harrison

Mr G Lucarelli (Appellant) COUNSEL : Mr Frank G Daniberg (Respondent) Ms K Muc of G H Healey & Co - Bondi (Appellant) SOLICITORS : Mr P A La Fontaine, Surry Hills (Respondent) CATCHWORDS : Appeal against decision of costs assessor ACTS CITED : Legal Profession Act 1987 Supreme Court Act Nabatu Pty Limited v Christopher W Crawley t/as Aubrey F Crawley & Co (NSWSC, unreported Master Harrison, 9 April 1998pp 20 & 21) CASES CITED : Florence Investments Pty Limited v H G Slater & Co (1975) 2 NSWLR 398 Bowen CJ Re MacNamara's Costs (1884) 5 LR (NSW) 342; 1 WN 23 Bowen & Ors v Campbell & Anor (NSWSC, Master Malpass, unreported 2 December 1997) DECISION : See para 42

21

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 30 JULY 1999

12144/98 - G H HEALEY & COMPANY - BONDI v VINCENT GRASSO

JUDGMENT (Appeal against a costs assessor's decision)

1 MASTER: The plaintiff by summons filed 1 September 1998 seeks to appeal against the determination of costs made by the costs assessor Mr Leonard Hattersley on 4 August 1998. These grounds of appeal are set out. The plaintiff relied on the affidavits of Katarina Muc sworn 1 September 1998, 16 November 1998 and 29 March 1999. The defendant relied on the affidavits of Peter Allan La Fontaine sworn 3 December, 1998 and Aaron Morgenstern sworn 17 February 1999. The grounds of appeal are set out in Ms Muc's earlier affidavit. 2 The plaintiff is a firm of solicitors. The defendant is a former client of the plaintiff. Leonard S Hattersley is the costs assessor to whom this matter was referred for assessment. The summons filed on 1 September 1998 named "G H Healey & Co - Bondi" as the plaintiff and "Vincent Grasso" as the first defendant. 3 As preliminary issues, the defendant submitted that these proceedings were brought improperly as the parties were incorrect. Firstly, the defendant submitted that the plaintiff was incorrectly described and secondly that Leonard Hattersley had been joined as a second defendant without the leave of the court which is not in accordance with s 208NA of the Legal Profession Act 1987. I delivered reasons in relation to these two issues on 8 March 1999. I decided that Mr Leonard Hattersley the costs assessor had not been joined as a second defendant in these proceedings. The matter was relisted to give the plaintiff an opportunity to seek leave to amend its name if necessary. In response, the plaintiff filed a notice of motion seeking that leave be granted pursuant to s 81 of the Supreme Court Rules or Part 20 of the Supreme Court Rules to amend the name of the plaintiff on the summons from "G H Healey & Co - Bondi" to "Katarina Muc trading as G H Healey & Co-Bondi (formerly known as G H Healey & Co (Bondi))". 4 Ms Muc deposed that on 15 July 1991 she received instructions to act for the defendant in relation to a claim for damages. At that time she was an employed solicitor of "G H Healey & Co" operating from premises at Coogee. Ms Muc had the day to day conduct of the matter under the supervision of one of the partners of the firm, Gregory Harrison Healey. There is no evidence as to who were the partners of G H Healey & Co as at 15 July 1991. 5 On 1 July 1995 Ms Muc became a partner with Mr Healey. She also became the resident principal of the practice which they conducted at Bondi and styled " G H Healey & Co - Bondi". On 31 December 1997 Mr Healey resigned from the partnership. Ms Muc continued to practice as the sole proprietor from 1 January 1998. The business name "G H Healey & Co - Bondi" was registered to Ms Muc on 28 January 1998. 6 The defendant's substantive claim conducted in the District Court was concluded at a time when Mr Healey and Ms Muc were partners of "G H Healey & Co - Bondi". In October 1996 when the verdict moneys were received, Mr Healey and Ms Muc were partners of "G H Healey & Co - Bondi". On 1 September 1998 the proceedings for the assessment of costs were commenced. At this time Ms Muc was the sole proprietor of the practice styled "G H Healey & Co - Bondi". 7 The confusion with the proper name of the plaintiff in the costs assessment and these proceedings starts with the application form. Mr Grasso nominated "G H Healey & Co - Bondi" as the defendant at the top of the application form but at para (5) of that same document he nominated the defendant as "G H Healey & Co" and gave the Bondi address. 8 The bill dated 13 March 1998 was prepared by the plaintiff and signed by Ms Muc, solicitor as the principal of "G H Healey & Co - Bondi". It refers to a debit to "G H Healey & Co - Bondi". The reply filed by the plaintiff cites its firm name as "G H Healey & Co - Bondi". Correspondence passing between the defendant and the costs assessor is written on "G H Healey & Co - Bondi" letterhead but refers to the matter of Grasso v G H Healey & Co, Solicitors. 9 On 2 December 1997 the proper officer at the Supreme Court for costs assessment wrote to the parties informing them that the matter had been referred to Mr Leonard Hattersley for the costs assessment. The letter from the proper officer referred to the defendant as being "G H Healey & Co Solicitors". The certificate of assessment of costs dated 4 May 1998 named "Gregory H Healey" practising as "G H Healey & Co" as the defendant. 10 Part 64 of the Supreme Court Rules refers to business names. Part 64 r 1 defines "business names" as: "A name, style title or designation under which a person carries on a business, not being a name consisting of the name of that person and the name of each other person, if any, in association with whom that person carries on business, without any addition." 11 Part 64 r 2 does not apply because the business name was registered before the assessment of costs proceedings were commenced. 12 Part 64 r 4 states: "Appearance