Kiwi Munchies Pty Limited v Stern & Ors [2006] NSWSC 433

New South Wales Supreme Court

CITATION : Kiwi Munchies Pty Limited v Stern & Ors [2006] NSWSC 433

HEARING DATE(S) : 21 April 2006

JUDGMENT DATE : 21 April 2006

JURISDICTION : Civil

JUDGMENT OF : McClellan CJatCL

DECISION : 1. Plaintiffs' appeal upheld; 2. I re-determine the assessment of costs in a sum of $4,491; 3. Order the plaintiffs to pay the fourth defendant's costs in a sum of $24,000

CATCHWORDS : APPEAL FROM DECISION OF COSTS ASSESSOR - legal costs - Local Court proceedings - small amount claimed - agreement to pay costs thrown away - whether insurance policy can respond to claim - whether unbilled costs should be deducted from the claim - agreement as to sum redetermined - costs

Kiwi Munchies (1P) Sophia Paras (2P) PARTIES : Terence Stern (1D) John Bartos (2D) Clifford Boyd-Boland (3D) Panalpina World Transport Pty Ltd (4D)

FILE NUMBER(S) : SC 13495/04

S Paras (Pltf in person) Terence Stern (1D - submitting appearance) COUNSEL : John Bartos (2D - submitting appearance) Clifford Boyd-Boland (3D - submitting appearance) M G McHugh (4D)

SOLICITORS : Plaintiff in person Ebsworth & Ebsworth (4D)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCLELLAN CJ at CL

FRIDAY 21 APRIL 2006

13495/04 KIWI MUNCHIES PTY LIMITED v STERN & ORS

JUDGMENT

1 HIS HONOUR: This is an appeal from an assessment by a costs assessor of the legal costs payable by the plaintiffs. The assessment arose from proceedings in the Local Court where the plaintiffs sued the fourth defendant in the proceedings before me for damages in the sum of $10,000. As I related in a judgment with respect to an adjournment application yesterday, the matter was fixed for arbitration on a particular date but did not proceed on that day. The parties reached agreement that the matter would not proceed and, as part of that agreement, the plaintiff agreed to pay the "costs thrown away of the defendant, ie the costs of today and the preparation thereof."