Whalen v McCarthy [1999] NSWSC 336

New South Wales Supreme Court CITATION : Whalen v McCarthy [1999] NSWSC 336 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 12338/98 HEARING DATE(S) : 9 March 1999 JUDGMENT DATE : 15 April 1999

John Whalen (Appellant) PARTIES : Peter McCarthy t/as McCarthy Killalea (Respondent) JUDGMENT OF : Master Harrison

Miss E Cohen (Appellant) COUNSEL : Mr D Cowan (Respondent) SOLICITORS : Mr Joe Mannix of Dixon Holmes du Pont (Respondent) CATCHWORDS : Appeal decision of costs assessor ACTS CITED : Legal Profession Act - S 208 Attorney General v L G Smith & Anor (NSWCA unreported, 4 November 1998) CASES CITED : Attorney General of New South Wales & Anor v Kennedy Miller Television Pty Ltd (1997-1998) 43 NSWLR 729 Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 Busuttil v Holder & Anor (Master Greenwood, unreported, 9 August 1996) DECISION : See para 34

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THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 15 APRIL 1999

12338/98 - JOHN WHALEN v PETER McCARTHY t/as McCARTHY KILLALEA

JUDGMENT (Appeal against decision of costs assessor)

1 MASTER: By summons filed 25 September 1998 the appellant seeks to appeal against the decision of costs assessor, Frank Riley made on 14 September 1998. The appellant relied on his affidavit dated 2 November 1998. The respondent did not rely on any affidavit evidence. 2 The background facts are as follows: (1) In May 1997, the appellant John Whalen retained Peter McCarthy of McCarthy Killalea a firm of solicitors (the respondent) to act for him in relation to a dispute between shareholders and himself . These disputes ultimately led to proceedings being instituted in the commercial division of this court.