DAVID v KHAN [1999] NSWSC 758

New South Wales Supreme Court CITATION : DAVID v KHAN [1999] NSWSC 758 CURRENT JURISDICTION : COMMON LAW FILE NUMBER(S) : 10612/1999 HEARING DATE(S) : 14 July 1999 JUDGMENT DATE : 29 July 1999

ALBERT DAVID PARTIES : v IZAZ KHAN JUDGMENT OF : Master Malpass

LOWER COURT JURISDICTION : Costs Assessment LOWER COURT FILE NUMBER(S) : 92640/98 LOWER COURT JUDICIAL OFFICER : Leonard S Hattersley

COUNSEL : PLAINTIFF: N/A DEFENDANT: R A CAMPBELL SOLICITORS : PLAINTIFF: IN PERSON - UNREPRESENTED DEFENDANT: T R BROWN & ASSOCIATES CATCHWORDS : Leave to appeal; no question of principle. ACTS CITED : Legal Profession Act 1987, s 208M. CASES CITED : N/A DECISION : SEE PARAGRAPH 18

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 29 JULY 1999

10612/1999 ALBERT DAVID v IZAZ KHAN JUDGMENT 1 These proceedings were commenced by Summons filed on 17 March 1999. The Summons seeks to challenge a costs assessment on the basis that "it is wrong and excessive in fact and law". 2 The Court was told that the challenge was limited to matters of fact and that leave to appeal was being sought pursuant to section 208M of the Legal Profession Act 1987 (the Act). 3 The plaintiff appeared in person. He relied on a short affidavit sworn by himself (it consisted of three paragraphs). He volunteered that it had been drafted by a solicitor. He placed no other material before the Court. In opposing the application, the defendant relied on an affidavit sworn by himself. There was no cross-examination. 4 The material relied on by the plaintiff can be described as parsimonious. It provides limited assistance as to the relevant facts. It does not address the decision making process of the Costs Assessor. 5 The parsimonious material provides limited detail as to relevant matters. I shall do my best to give an outline of what took place leading up to the determination by the Costs Assessor. 6 In 1998, the plaintiff had instructed a solicitor (Mr Lyubicic) to act for him in court proceedings (fixed for hearing on 3 and 4 December 1998). The defendant is a barrister. On 1 December 1998, he was briefed to appear for the plaintiff in those proceedings. He took over at short notice from other counsel who had suddenly become unavailable. On the same day, he forwarded a letter (by facsimile) to the solicitor disclosing his rate of charges. This material came to the attention of the plaintiff shortly thereafter. The defendant proceeded to read the brief and carry out preparation. 7 The proceedings were settled prior to the commencement of the hearing. A discussion took place between Mr Lyubicic and the defendant concerning the fees to be charged by the defendant. A compromise was struck between them (in an amount which was less than could have been charged under the disclosed rates). On 3 December 1998, Mr Lyubicic advised that the instructions had been withdrawn. A Memorandum of Fees was rendered in accordance with the compromise (in the sum of $3,000.00). The fees were not paid. 8 The plaintiff applied to this Court for assessment of the costs by a Costs Assessor. The application was referred to a Costs Assessor (Mr Hattersley). 9 A Certificate As To Determination Of Costs was issued on 24 February 1999. 10 The Costs Assessor assessed the defendant's fees in the sum of $3,000.00. He advised that he was of the opinion that those fees were fair and reasonable in all of the circumstances of the matter. 11 It is unclear as to what issues were agitated in the costs assessment. The Court has before it a letter dated 24 February 1999 from the Costs Assessor. It was the letter that forwarded the Certificate of Determination to the plaintiff. It discloses that the Costs Assessor had received a letter from Mr Lyubicic dated 22 February 1999 (together with a Statutory Declaration made by him on 22 February 1999). The contents of the letter and of the Statutory Declaration are not before the Court. 12 The plaintiff has made certain submissions in support of the Summons. The submissions lacked evidentiary support. The thrust of the submissions is far from clear. Generally speaking, it seems to be said that what took place was done without authority from the plaintiff. 13 I should add that the Court has before it the unchallenged evidence of the defendant. The plaintiff's affidavit affords little assistance as to what passed between him and his solicitor. It has been said in effect that this affidavit is a piece of devious draftsmanship. Whatever be the position, the defendant was entitled to proceed on the basis that the solicitor had relevant authority. 14 If questions of authority and the like were agitated in the costs assessment, it appears that they were resolved adversely to the plaintiff. If that is the case, it would appear that the Costs Assessor has reached a determination which was open to him. 15 It may be that the Summons in its present form cannot be read as an application for leave pursuant to section 208M of the Act. If that is the case, the plaintiff needs an extension of time to bring the application. For present purposes, I put these matters aside as the application can be disposed of on other grounds. 16 The plaintiff bears the onus of demonstrating an entitlement to relief. In the case of an application for leave, he must show that the interests of justice require that the determination be set aside.