Bountros v South Western Sydney Area Health Service [2005] NSWSC 564

New South Wales Supreme Court

CITATION : Bountros v South Western Sydney Area Health Service [2005] NSWSC 564

HEARING DATE(S) : 3/6/05

JUDGMENT DATE : 15 June 2005

JUDGMENT OF : Bell J at 1

DECISION : Applicant's motion dismissed; Applicant to pay respondent's costs of the motion

Damages (Infants and Persons of Unsound Mind) Act 1929 Legal Profession Act 1987 Legal Profession Regulation 2002 LEGISLATION CITED : Protected Estates Act 1988 Supreme Court Act 1970 Supreme Court Rules 1970

Davies v Kur-ring-gai Municipal Council [2003] NSWSC 1010 Grogan v Thiess Contractors Pty Limited [2000] NSWSC 1101 CASES CITED : Hughes Brothers Pty Limited v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (1999) NSWSC 1051 Lolomanaia v Roads & Traffic Authority of New South Wales [2002] NSWSC 918

Keke Bountros (Applicant/Plaintiff) PARTIES : South Western Sydney Area Health Service (Respondent/Defendant)

FILE NUMBER(S) : SC 20398/01

E.E. Beilby (Plaintiff/Applicant) COUNSEL : K.C. Morgan (Defendant/Respondent)

MBP Legal (Plaintiff/Applicant) SOLICITORS : Ebsworth & Ebsworth (Respondent/Defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

15 June 2005

20398/01 Keke Bountros v South Western Sydney Area Health Service

JUDGMENT 1 BELL J: By notice of motion filed on 3 May 2005 the applicant claimed order in the following terms: "1. An order that the defendant pay to the plaintiff interest as prescribed by the Supreme Court Act 1970 (presently nine percent per annum) on the party/party component of the plaintiff's cost and disbursements which remain unpaid thirty days or more after the service of the bill of costs and any counsel fee notes or amended bill of costs pursuant to s 190(3) of the Legal Profession Act 1987 and Regulation 45 of the Legal Profession Regulation 2002 ; 2. Further, or in the alternative, an order pursuant to s 190 of the Legal Profession Act 1987 that the defendant pay to the plaintiff interest on the party/party component of costs paid by the plaintiff to his solicitors arising from these proceedings at the rate prescribed by the Supreme Court Act 1970 (presently nine percent per annum) from the date upon which the plaintiff pays such costs to his solicitor until the date that such reimbursement of the party/party component of such costs by the second defendant. 3. Further, or in the alternative, an order pursuant to s 190 of the Legal Profession Act 1987 that the defendant pay to the plaintiff interest on such disbursements as have been paid by the plaintiff from the date of such payment until the date of reimbursement by the defendant." 2 The motion was returnable in the Professional Negligence Motions List on 3 June 2005. The time available to deal with the matter was limited on that occasion. The applicant read the affidavit of Christine Louise Perry, sworn 3 May 2005 and the respondent read the affidavit of Alice Zgolak, sworn 3 June 2005. I heard oral submissions from counsel and reserved my decision fixing a timetable to allow for supplementary written submissions should either party wish to make them. Supplementary written submissions were received from both the applicant (dated 8 June 2005) and the respondent (dated 10 June 2005). 3 The applicant acknowledged that the orders sought in her motion were in some respects misconceived. In oral submissions counsel did not press for the making of orders under s 190 of the Legal Profession Act 1987. This provision admits of a barrister or solicitor charging interest on the unpaid costs of legal services provided by him or her in the circumstances set out therein. 4 In oral argument counsel for the applicant pressed for relief broadly in the terms of that claimed in order 2 above. In her submission the power to make such an order is to be found in s 76 and/or s 95 of the Supreme Court Act 1970. 5 Relevantly s 76 provides: " Costs 76 (1) Subject to this Act and the Rules and subject to any other Act - (a) costs shall be in the discretion of the Court;