Stojanovski v Willis & Bowring [2002] NSWSC 392

New South Wales Supreme Court

CITATION : Stojanovski v Willis & Bowring [2002] NSWSC 392 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12298/2000 HEARING DATE(S) : 1 May 2002 JUDGMENT DATE : 9 May 2002

George Stojanovski (Plaintiff) PARTIES : Ron Toslin, Peter Baltins, Lou Polito & Adrian Mattuissi t/as Willis & Bowring JUDGMENT OF : Master Harrison

LOWER COURT Cost Assessor JURISDICTION : LOWER COURT N/A FILE NUMBER(S) : LOWER COURT Mr Neville Menlove JUDICIAL OFFICER :

COUNSEL : Mr M Pesman (Defendant) SOLICITORS : Mr Paul Matters - Law Student (Plaintiff) CATCHWORDS : Extension of time to appeal decision of costs assessor - leave to appeal Donnelly & Anor v Ross Mining NL [1999] NSWSC 960, 23 September 1999 CASES CITED : Chapmans Ltd v Yandell [1999] NSWCA 361 Coulter v The Queen (1988) 164 CLR 350 CDJ v VAJ (1998) 197 CLR 172 DECISION : (1) The notice of motion and summons are dismissed; (2) The plaintiff is to pay the defendant's costs as agreed or assessed.

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IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 9 MAY 2002

12298/2000 - GEORGE STOJANOVSKI v RON TOSLIN, PETER BALTINS, LOU POLITO & ADRIAN MATTUISSI T/AS WILLIS & BOWRING

JUDGMENT (Extension of time to appeal decision of cost assessor – leave to appeal) 1 MASTER: By notice of motion filed 3 May 2001 the plaintiff seeks leave to appeal against the determination of costs by cost assessor Mr Neville Menlove dated 16 May 2000. The appeal sought is by way of a new hearing with fresh evidence in regard to costs claimed by the defendant. The plaintiff seeks an order that the amount of costs in dispute are not owing by the plaintiff to the defendant. The plaintiff relied on his affidavit sworn 30 November 2001 and the affidavit of Ilce Musarevski sworn 14 September 2001. The defendant relied on two affidavits of Adrian Mattiussi sworn 21 December 2001. The plaintiff was represented by Mr Matters, a law student. Both the plaintiff and his former solicitor were cross examined. 2 The plaintiff submitted that firstly, there was an agreement that the solicitor would act for him on the basis that he (the solicitor) would not charge a fee; secondly, that the costs assessor's assessment was inadequate because he was not provided with adequate explanation as to when Mr Kencevski became a client; and thirdly, the costs assessor attributed most of the work as being done in the plaintiff's matter and not Mr Kencevski's matter. 3 The plaintiff was the president of Illawarra Lions Football Club in 1996 and 1997. He represented the club in negotiations concerning monies owing with the State Bank. Prior to October 1997 the club had been represented by Harrison & Associates in those negotiations. At this time there was litigation on foot. The State Bank was suing the Wollongong Macedonia United Soccer Club (the club) as the first defendant, Peter Kencevski as second defendant and the plaintiff as third defendant. The bank had filed proceedings in this court. In addition to seeking the sum of $344,045.68 being moneys lent to the club, both the plaintiff and Mr Kencevski were sued personally pursuant to guarantees they had given. Ultimately, on 8 May 1998 consent orders were filed in court in those proceedings. 4 In 1997 the plaintiff was introduced to Mr Adrian Mattiussi and Mr Greg Harris of Willis and Bowring at a lunch at the Capri restaurant, Port Kembla. The fact that this meeting took place is not in dispute. According to the plaintiff, Mr Mattiussi proposed that Willis and Bowring act for the club, including in the negotiations with the State Bank on a no fees basis. This offer was accepted by the plaintiff on behalf of the club. According to the plaintiff the offer was made because in return for that firm of solicitors doing the legal work for free, the members of the club would recommend them to their community. Mr Musarevski also attended the lunch. He deposed that he was introduced to Adrian Mattiussi and at the end of the lunch Mr Mattiussi said to George and himself "We will do your work as the other solicitor is doing for free" (Aff 30 November 2001). Even if Mr Mattiussi's version is correct, the former solicitors, Harrison & Associates requested payment for their costs and disbursements before they would release the file to Willis and Bowring (letter dated 31 October 1997). 5 Prior to this explanation being given to this court, the plaintiff had given two prior versions by way of affidavit filed in the local court. On 6 July 2000 the plaintiff deposed that he had been in dispute with the plaintiff in this matter for the past two years. The debt in question, if any, was incurred by the Illawarra Lions Football Club and not by him as the president of the organisation (Ex 1). Later in the affidavit of 29 August 2000 the plaintiff deposed that in 1997 he was introduced to Mr Adrian Mattiussi and Mr Greg Harris of Willis and Bowring at a lunch at the Capri restaurant, Port Kembla, who proposed that Willis and Bowring act for the club, including in the negotiations with the State Bank on a no fees basis. This offer was accepted by the plaintiff on behalf of the club (Also Ex 1). Both of these versions indicate that any agreement that no fee would be charged related to the club only and did not extend to the personal guarantees. 6 Mr Mattiussi solicitor disagrees with the plaintiff's version. Mr Mattiussi's version of events is that at the lunch he recalled the plaintiff saying to him words to the effect: "I want you to act for me. There have been negotiations going on with the State Bank about settling and I want you to get involved in those negotiations. The other guarantor, Kencevski, is represented by another solicitor at the moment, but I will talk to him about coming over to you as well. The fact is the club has no money and the bank knows that. That's why Kencevski and I have been joined because of our guarantees so you will be acting for me. I have been appointed president of the club to try and get it out of its financial problems. I had been president once before. The Macedonian community would like to save the club and make it strong again." 7 Mr Mattiussi then deposes that he took detailed instructions from the plaintiff in relation to the proceedings and at the end of their conference he said words to the effect, "I'll put on a notice of change of solicitor for you and the club although in the circumstances you appreciate that I am acting for you in this matter on the question of your guarantee." A notice of appearance for the club and the plaintiff was duly filed. After Mr Mattiussi accepted instructions for the plaintiff, he also acted for the other guarantor Mr Kencevski. 8 On 22 December 1997 Mr Mattiussi forwarded a letter to the plaintiff confirming his instructions and enclosing a cost agreement. The costs agreement is one between the plaintiff personally and the solicitor. The costs agreement was never signed nor returned to the solicitor. 9 Before the issue of whether leave to appeal should be granted and hence which version of the conversations should be accepted, there is a threshold issue to be determined namely whether an extension of time to appeal should be granted.