New South Wales Supreme Court CITATION : Johnson v Madden [2000] NSWSC 463 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10534 of 2000 HEARING DATE(S) : 10 May 2000 JUDGMENT DATE : 30 May 2000 Bert Johnson (Applicant) PARTIES : v Philip Madden T/as Maddens Solicitors (Respondent) JUDGMENT OF : Master Malpass LOWER COURT Costs Assessment JURISDICTION : LOWER COURT 90593 of 1999 FILE NUMBER(S) : LOWER COURT Mr P J McNally JUDICIAL OFFICER : Mr J Naiman (Applicant) COUNSEL : N/A (Respondent) SOLICITORS : David Cass (Applicant) Carneys Lawyers (Respondent) CATCHWORDS : Appeal/leave to appeal from determination by Costs Assessor - appellate process (not by way of new hearing) - statute does not provide for receiving fresh evidence on hearing of appeal/leave to appeal LEGISLATION CITED : Legal Profession Act 1987, s 208L, subs (1), s 208M, subs (1). CASES CITED : N/A DECISION : See paragraph 17. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS TUESDAY 30 MAY 2000 10534 of 2000 BERT JOHNSON v PHILIP MADDEN T/AS MADDENS SOLICITORS JUDGMENT 1 These proceedings were commenced by Summons filed on 8 March 2000. The Summons presents as an application for extension of time to seek relief pursuant to either section 208L or section 208M of the Legal Profession Act 1987 (the Act). As a matter of convenience, the court has heard the application for extension of time together with the applications for relief under sections 208L (1) and 208M (1) of the Act. 2 As is so often the case, there was misconception as to the nature of the hearing involved in the seeking of relief pursuant to sections 208L (1) and 208M (1). It appears to have been contemplated by the parties that they could be heard on fresh evidence (rather than the material placed before the Costs Assessor) together with cross-examination. This misconception once again led to a significant waste of court time. Usually (as was the position in this case), the rectification process sees a "scissors and paste" exercise which produces an unsatisfactory result. The court tends to find inter alia that it is left with at least some material which was not given to the Costs Assessor. 3 It needs to be appreciated that the remedies provided by sections 208L (1) and 208M (1) are of an appellate nature (not by way of a new hearing). The sections allow fresh evidence only where there has been either a remitting of the application back to the Costs Assessor for re-determination or the granting of leave to appeal. 4 I shall now refer to some of the relevant matters in this case. The respondent is a solicitor. He received instructions to provide legal services in respect of proceedings to which Senagoal Pty Limited (Senagoal) was a party. There was writing which was intended to record an agreement as to costs. The issue between the parties is whether he was retained by Senagoal or the applicant himself. The respondent says that the retainer was made with the applicant personally. The applicant disputes this contention. The applicant was a director of Senagoal. Senagoal is now in liquidation. Bills of Costs were sent to the applicant (dated respectively 7 April and 23 April 1998). The costs were not paid. 5 An application was made to this Court for an assessment of the costs. The application was referred to a Costs Assessor (Mr McNally). It appears that the Costs Assessor received submissions from the parties (this material is not before the court). A Certificate as to Determination of Costs was issued on 24 November 1999 (together with correspondence which disclosed his reasoning process). Costs were allowed in the amount of $23,749. There is no issue between the parties as to the quantification. 6 Section 208L provides a narrow avenue of appeal (it is restricted to a matter of law arising in the application for assessment). Section 208M provides a discretionary power to remedy injustice. 7 In the case of each of those two provisions, the party seeking relief bears the onus of demonstrating an entitlement to that relief. This involves that party demonstrating a basis for disturbing the decision or determination made by the Costs Assessor. 8 It is convenient to first deal with the application for extension of time. The court has a discretionary power to grant an extension of time. The power is exercised having regard to the relevant circumstances of the particular case before it and so that justice is best served between the parties. The applicant bears the onus of demonstrating an entitlement to the extension of time that is sought. 9 For present purposes, the relevant discretionary considerations argued were the merits of the claim for relief under either s 208L (1) or s 208M (1), the extent of the default and the explanation offered for that default. 10 I shall first deal with the question of the merits of the claim for appellate relief. The applicant has put arguments in relation to the relevant documentation. I shall refer to certain of that material (the reference is not intended to be exhaustive). There is a letter dated 8 November 1996 which has been regarded as the Costs Agreement. There are the two Memoranda of Costs. 11 The Costs Agreement is directed to "Mr B Johnson Managing Director" at the address "46 Brooks Street, Linley Point" (the applicant's residential address). The letter commences "Dear Mr Johnson". It contains inter alia the following :- "Thank you for your instructions to act in this matter received on 11 October 1996 when Senagoal Pty Limited was served with the Summons filed by HD & Z Pty Limited in this matter. You require us to act for Senagoal Pty Limited in the defence and cross claim to be filed in these proceedings in all the present circumstances in which you have instructed us." 12 Some uncertainty surrounds the question of which Bills of Costs formed part of the application which ultimately went for assessment. The court file for the application for assessment in fact contains two forms of application (see Exhibit B). There are discrepancies between the copy bills which form part of each of the two applications. The discrepancy may not be of any great significance. It may be that there was a substitution of bills for those originally given. The discrepancy lies in the description of the recipient (otherwise the content is identical). The recipient has been described in the bills as "Mr Johnson" or "Mr Johnson Managing Director" or "Managing Director". 13 The applicant places much stress upon what has been referred to as surrounding circumstances. The principal matters put were that Mr Johnson was not a party to the proceedings and that the respondent was being retained to act on behalf of Senagoal in those proceedings. 14 In dealing with these proceedings, I have had regard to all of the relevant documentation and other circumstances and I have considered all of the various submissions advanced on behalf of the applicant. 15 In my view, the applicant has failed to demonstrate an arguable case for relief under either section 208L (1) or section 208M (1). The determination made by the Costs Assessor was at the very least open on the material had by him. Indeed, in my view, he reached the correct decision. In addition to the relevant documentation, he had a Statutory Declaration from the respondent. This Statutory Declaration gave more than abundant support for the respondent's contention that the applicant was personally liable to pay the costs. 16 In these circumstances, it would be futile to grant an extension of time. I should add that the delay is significant (there is default of at least a couple of months). Although the applicant has advanced material in an endeavour to explain that delay, I do not regard the purported explanation as being sufficient. 17 The application for extension of time is refused. In these circumstances, the applications for relief under sections 208L (1) and 208M (1) are incompetent. The Summons is dismissed. The applicant is to pay the costs of the Summons. The exhibits may be returned. ********** Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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