New South Wales Supreme Court CITATION : Michelle Lo & Anor v James Saville Irevach & Anor [2007] NSWSC 1166 HEARING DATE(S) : 17/10/2007 JUDGMENT DATE : 17 October 2007 JUDGMENT OF : Associate Justice Malpass DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons. CATCHWORDS : Proceedings dismissed with costs - said to be interlocutory decisions - construction of Court rule concerning enforcement of costs orders LEGISLATION CITED : Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Michelle Lo PARTIES : Joseph Lo James Saville Irevach Kaylene Gai Irevach FILE NUMBER(S) : SC 13483/07 COUNSEL : In person (Pl) Mr P. Marsh (Def's) SOLICITORS : Paul Marsh (Def's) LOWER COURT JURISDICTION : Costs Assessment Review Panel LOWER COURT FILE NUMBER(S) : 1831/2006 LOWER COURT JUDICIAL OFFICER : J. A. McGruther / M. W. Robinson LOWER COURT DATE OF DECISION : 13/06/2007 - 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MALPASS AS J 17 OCTOBER 2007 13483/07 Michelle Lo & Anor v James Saville Irevach & Anor JUDGMENT 1 HIS HONOUR: The plaintiffs and the defendants are neighbours. They fell into dispute concerning an easement. The plaintiffs commenced proceedings in this Court. 2 The initial proceedings were No.4246/2002. In those proceedings, the plaintiffs sought both an injunction and damages. An Amended Summons came to hearing before Palmer J. 3 Palmer J refused the application for an injunction. He recorded that the claim for damages had been formally abandoned. He then dismissed the Amended Summons with costs. 4 The plaintiffs then sought to bring an appeal out of time. The appeal proceedings were No.40233/2003. On 16 April 2004, the Summons for Leave to Appeal came before Giles and Hodgson JJA. The Court of Appeal refused an application for extension of time and leave to appeal. The Summons was dismissed with costs. An application for a review of a decision of the Registrar was also dismissed with costs. 5 The defendants applied to have the costs in those two proceedings assessed. The assessment was referred to a costs assessor (Alexandra Hutley). The plaintiffs resisted the assessment, inter alia, on the basis that the decisions in both proceedings were interlocutory. They relied on the provisions of Part 52 r9A (the rule) of the now repealed Supreme Court Rules 1970 (NSW). At the relevant times, it read as follows:- "(1) Where, before the conclusion of any proceedings, the Court makes an order for payment of costs or a motion is refused with costs, a party may not, except with the leave of the Court, make an application to proceed with the taxation of the costs until after the conclusion of the proceedings." This provision is not dissimilar to its current embodiment (r42.7 in the Uniform Civil Procedure Rules 2005 (NSW) . 6 The defendants joined issue on that question. The plaintiffs were unsuccessful on it. The Certificate of Determination was issued on 4 March 2007. 7 The plaintiffs sought a review of that Certificate by a Panel. Again, the plaintiffs were unsuccessful on that question. The Panel affirmed the costs assessor's determination. The Certificate was issued on 13 June 2007. 8 The plaintiffs now appeal to this Court (by Summons filed on 11 July 2007). Again, they seek to agitate their contention that the decisions were interlocutory. A declaration is sought, as well as orders setting aside the determinations. 9 The appeal was heard on 17 October 2007. The plaintiffs appeared in person. The defendants were legally represented. 10 It suffices to say that the contention advanced by the plaintiffs is totally misconceived. In the absence of a rule, such as the rule, costs are enforceable upon the making of an order and an order may be made at any stage in the proceedings. Unarguably, both proceedings brought by the plaintiff have been concluded. 11 The rule does not address itself to either proceedings or decisions which are of an interlocutory nature. 12 It is directed to the situation where the Court makes an order for the payment of costs or a motion is refused with costs before the conclusion of the proceedings. In such a case, a party may not, except with the leave of the Court, make an application to proceed with the taxation of the costs (a process which has since been superseded by a regime of assessment) until after the conclusion of the proceedings. 13 Leaving that matter aside, it is erroneous to seek to describe what happened by way of disposition of each of the two proceedings as being of an interlocutory nature. In each case, a final decision was made. Both proceedings were dismissed with costs. The successful parties were at liberty to pursue the assessment process upon dismissal so that the costs orders could be quantified. 14 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.