Muriniti v Lyons [2003] NSWSC 79

New South Wales Supreme Court

CITATION : Muriniti v Lyons [2003] NSWSC 79 HEARING DATE(S) : 11 February 2003 JUDGMENT DATE : 25 February 2003 JURISDICTION: Common Law JUDGMENT OF : Master Harrison DECISION : (1) Leave to grant an extension of time for the plaintiff to sek leave to appeal and/or appeal is refused; (2) The plaintiff is to pay the defendant's costs as agreed or assessed

CATCHWORDS : Extension of time to appeal decision of costs assessor LEGISLATION CITED : Legal Profession Act ss 208M & L Donnelly & Anor v Ross Mining NL [1999] NSWSC 960, Sully J Chapmans Ltd v Yandell [1999] NSWCA 361 CASES CITED : Coulter v The Queen (1988) 164 CLR 350 CDJ v VAJ (1998) 197 CLR 172 Baker v Kearney [2002] NSWSC 746, Master Malpass Leonardo Carlo Muriniti (Plaintiff) PARTIES : Janice Lyons (Defendant) FILE NUMBER(S) : SC 20210/2001 Mr C J Stevens QC with Mr A Porthouse COUNSEL : (Plaintiff)

Ms E Cohen (Defendant) L C Muriniti SOLICITORS : (Plaintiff)

LOWER COURT Costs Assessor JURISDICTION : LOWER COURT N/A FILE NUMBER(S) : LOWER COURT Peter J McNally JUDICIAL OFFICER :

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IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 25 FEBRUARY 2003

20210/2001 - LEONARDO CARLO MURINITI v JANICE LYONS

JUDGMENT (Extension of time to appeal decision of costs assessor) 1 MASTER: These proceedings have been unnecessarily protracted and complicated. There are two sets of proceedings, namely suit 10315/2003 and these proceedings. In these proceedings there are three outstanding notices of motion. However, at this hearing it was agreed between the parties that there is only one short issue to be determined namely, should the plaintiff be granted an extension of time within which to seek either leave to appeal under s 208M or to appeal under s 208L of the Legal Profession Act (the Act). 2 The plaintiff is a practising solicitor. The defendant's husband Robert Lyons was a barrister who died in May 1995. The defendant is the widow of Robert Lyons. On 7 November 2000, the defendant obtained a certificate as to determination of costs in the Supreme Court in proceedings No. 91106 of 1999 in the sum of $24,550 (the first certificate). On 21 November 2000, the defendant obtained an amended certificate as to determination of costs in the sum of $24,855.10 (amended certificate). The defendant registered the first certificate in the local court, as a judgment in proceedings No. 12391 of 2000, and judgment was entered against the plaintiff in the sum of $25,605 on 10 November 2000 (the first judgment). 3 On 25 January 2001, proceedings in relation to the first judgment were stayed by consent in the local court. The stay of those local court proceedings remains in effect pending the determination of all matters in issue between the Judgment Creditor and the Judgment Debtor in the Supreme Court of New South Wales. 4 On 27 March 2001, the plaintiff filed a statement of claim in these proceedings the contents of which are very difficult if impossible to distil. Fortunately, the plaintiff's pleadings were refined and on 24 May 2002 he filed an amended statement of claim (ASC). In the ASC, the plaintiff alleges that the actions taken by the defendant firstly, in obtaining the first and amended certificate; secondly, in registering those certificates so as to obtain each of the first and second judgments in the local court; and thirdly, in obtaining and enforcing a garnishee order, constitute an abuse of process. The plaintiff claims that the certificates, the judgments and the garnishee order were obtained for the collateral purpose of proving conclusively the indebtedness of the plaintiff to the defendant and enforcing judgment, in circumstances where the defendant knew the certificates represented no such thing, and in circumstances were the defendant knew there was a genuine dispute as to the liability of the plaintiff to pay the "Mather" fee which at the time of the registration of the certificates had not been the subject of any judicial determination.