Svir v Yisrael [2002] NSWSC 944

New South Wales Supreme Court

CITATION : Svir v Yisrael [2002] NSWSC 944 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 12175 of 2002 HEARING DATE(S) : 10 October 2002 JUDGMENT DATE : 10 October 2002

Daniel Svir (Plaintiff) PARTIES : v Stanley Yisrael (Defendant)

JUDGMENT OF : Master Malpass

LOWER COURT Costs Assessment Review Panel JURISDICTION : LOWER COURT 90736 of 2001 FILE NUMBER(S) : LOWER COURT Leonard S Hattersley and Gordon A Salier - Costs Review Panel Members JUDICIAL OFFICER :

COUNSEL : Mr Rod Freeman (Plaintiff) N/A (Defendant) SOLICITORS : Daniel Svir (Plaintiff) In Person (Defendant) CATCHWORDS : Assessment of costs - leave to appeal from panel and hearing of any appeal - review by panel of determination by Costs Assessor. LEGISLATION CITED : Legal Profession Act 1987, s 208M. CASES CITED : N/A DECISION : See Paragraph 22.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

Thursday 10 October 2002

12175 of 2002 Daniel Svir v Stanley Yisrael

REASONS FOR JUDGMENT 1 Master: The plaintiff is a solicitor. The defendant was his client. The plaintiff acted for the defendant in respect of certain District Court proceedings. The proceedings were resolved by mediation. The mediation produced a result which entitled the defendant to payment of a sum of $125,000. He was led to understand that he would receive the sum of $50,000 after payment of costs and disbursements. 2 The parties had entered into a cost agreement dated 25 February 1999. On 16 October 2000, the plaintiff rendered a memorandum of fees to the defendant in the sum of $74,003.34. On 26 October 2000, the defendant authorised the plaintiff to deduct the costs and disbursements from moneys received pursuant to the mediation settlement (save for a sum of $10,000 which related to counsel's fees). Save for that sum of $10,000, the costs were satisfied from the settlement moneys. The sum of $10,000 remained in the solicitor's trust account until about October 2001. 3 It is said by the plaintiff that, prior to 27 April 2001, the only matter in dispute had been the payment of the said counsel's fees. The defendant presents a contrary view. He says that the plaintiff failed to comply with requests to have the costs assessed and forced him to make application to the court. 4 On 27 April 2001, the defendant made application in this Court for an assessment of costs. The application was referred to a costs assessor (Mr Castle). After receiving objections and submissions, the Costs Assessor made a determination (the certificate was issued on 17 October 2001). He reduced the costs and disbursements by a total sum of $10,180.00. Accordingly, he determined the sum payable in an amount of $63,823.34. Further, he determined that the costs of the assessment be paid by the parties in equal shares. 5 The plaintiff sought a review by the panel. A review took place (Messrs Hattersley and Salier). The Legal Profession Act 1987 (the Act) provides that, unless the panel otherwise determines, the review is conducted on the material received by the Costs Assessor. In this case, there was no otherwise determination. An attempt to put further material before the panel by the defendant was rejected. 6 The panel set aside the determination as to the costs of the assessment and substituted a determination that such costs be paid by the plaintiff. The panel also determined that the defendant was entitled to a credit in the sum of $740.03 being the fee for the application for assessment of costs. Save for these matters, the panel made the same determination as to the costs payable by the defendant. 7 The plaintiff now seeks to challenge in this Court the determination made by the panel. A Summons was filed on 8 August 2002. In that Summons he seeks inter alia leave to appeal (there are seven prayers for relief). The power to grant such relief is conferred by s 208M of the Act. Under that provision, the court has a discretionary power to grant leave. The discretion is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served. The onus rests with the party seeking relief. 8 The application for leave itself is determined by the court having regard to the material that was before the panel. The court does not receive fresh evidence. 9 However, if leave is granted and the court decides to hear and determine it, the appeal is by way of a new hearing and fresh or other evidence may be received on the hearing of the appeal itself. 10 Grounds of appeal form part of the originating process. They are six in number. It is unnecessary to reproduce them in this judgment. 11 There are some technical problems which go to the form in which the grounds are expressed. The grounds are framed in the form of a challenge to the determination made by the Costs Assessor. I merely make these observations in passing, as the matters of challenge were debated between the parties on their merits. 12 The plaintiff was represented by counsel (Mr Freeman). The defendant was unrepresented. He appeared and argued the case on his own behalf. 13 In substance, only two matters were argued before the court. One matter was a question of estoppel. The other matter was a question of natural justice. This related to an allegation that the plaintiff was not afforded the opportunity to prepare and present before the Costs Assessor what has been described as an itemised bill of costs in assessable form. Any other matter raised by the grounds was not pressed by the plaintiff. 14 The court took the course of first hearing the question of whether leave to appeal should be granted. Evidence was received on this question and the parties made their submissions. 15 Upon the completion of submissions, the parties were informed that the court was of the view that it was not satisfied that leave should be granted in this case. The court ordered that the Summons be dismissed. It further ordered that the plaintiff pay the defendant's costs of the Summons. By consent, these costs were assessed in the sum of $50. The parties were informed that detailed reasons would be forwarded in due course. 16 I have considered the submissions made on the question of estoppel. I am not satisfied that any basis has been demonstrated for the disturbing of the decision made on that matter. 17 The stated aim of the plaintiff is to bring about a situation where there can be a fresh assessment in which the plaintiff can rely on a more detailed costs document. The view was expressed that the memorandum of fees he rendered in October 2000 was in a discounted sum and if the plaintiff had known that there were going to be objections taken to what he regarded as an agreed quantum he would have prepared a detailed bill of costs which would have claimed all costs to which the plaintiff was entitled. It was further said that such a bill would be in a quantum of about $30,000 larger than that to be found in the memorandum of fees. At the same time, it was stressed that the plaintiff was pressing such a claim to the extent only of a sum in the order of about $10,000 (being the amount disallowed by the Costs Assessor). 18 The approach of the plaintiff can be described as being unusual. Rarely is a solicitor heard to complain that he has been deprived of the entitlement to give an itemised bill of costs in assessable form. What is being sought in the guise of an appeal may be described as being in the nature of an application for leave to re-open the original costs assessment for the purposes of placing further material before the Costs Assessor. 19 The task presented to counsel for the plaintiff was not merely difficult, it was impossible. Nevertheless, it was handled with both skill and good grace. 20 The questions of relying on such a bill of costs and denial of natural justice were not ventilated at any stage before the Costs Assessor. There were a number of approaches available to the plaintiff (including a withdrawal of the memorandum of fees or making application to the Costs Assessor to rely on a fresh bill), but none of these were taken. Instead, the plaintiff chose to proceed with an assessment of the memorandum of fees and rely inter alia on the ill-founded estoppel arguments. 21 If the matters now sought to be agitated had been ventilated in the costs assessment, the costs assessment could have been expected to take a much different course. I do not consider that these are matters which the plaintiff should now be allowed to advance by way of appeal. 22 I have carefully considered all the arguments put on behalf of the plaintiff. I am not satisfied that any basis has been demonstrated for the granting of leave to appeal. The onus has not been discharged. Accordingly, the application for leave is refused. **********