New South Wales Supreme Court CITATION : O'Brien v Doherty & Ors (No 2) [2008] NSWSC 447 HEARING DATE(S) : 28 March 2008 JURISDICTION : Equity Division Expedition List JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 28 March 2008 DECISION : Nil assessment substituted for Costs Assessor's certificate. CATCHWORDS : COSTS – costs assessment – appeal and review – substitution of Court's decision for Assessor's – nil assessment LEGISLATION CITED : (NSW) Legal Profession Act 2004, s 385 CATEGORY : Consequential orders Douglas Ashley O'Brien (plaintiff) Peter Doherty (first defendant) PARTIES : Lloyd Lancaster Lawyers (second defendant) Geoffrey Rafter (third defendant) Law Society of NSW (fourth defendant) FILE NUMBER(S) : SC 1358/08 COUNSEL : Douglas O'Brien (in person) Peter Doherty (first defendant) (sol) (in person) SOLICITORS : Douglas O'Brien (in person) Lloyd Lancaster Lawyers (first & second defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST BRERETON J Friday 28 March 2008 1358/08 Douglas Ashley O'Brien v Peter Doherty & 3 Ors JUDGMENT (ex tempore) 1 HIS HONOUR: On 4 March 2008 I made orders (1) extending time for filing an application for leave to appeal from the Costs Assessor's decision, (2) granting the plaintiff Douglas Ashley O'Brien leave, pursuant to (NSW) Legal Profession Act 2004, s 385(1), to appeal against the Cost Assessor's decision, (3) allowing the appeal, and (4) setting aside the Certificate of the Costs Assessor. I adjourned the proceedings for further mention today, on the basis that the defendant Mr Doherty would consider, in the meantime, whether he wished further to pursue his application for assessment of costs. Mr Doherty has now indicated that he does not wish to pursue the matter further and, accordingly, rather than remitting the matter to a Costs Assessor for re-assessment, I will exercise the Court's power under s 385(5) to substitute its own decision for that of the Costs Assessor. 2 On 4 March 2008, I gave reasons for concluding that it was at least seriously arguable that Mr O'Brien is not liable to pay Mr Doherty's costs. In view of Mr Doherty's concession, I now hold, on a final basis, for the same reasons, that he is not so liable. Accordingly, pursuant to Legal Profession Act, s 385(5), I find that the fair and reasonable costs payable by Mr O'Brien to Mr Doherty in respect of the bills the subject of the application for assessment are nil, and I substitute, for the assessment of the Costs Assessor, a nil assessment. 3 The Costs Assessor's certificate was filed in the Local Court at Kogarah and registered, and thereupon took effect as a judgment of that Court in favour of Mr Doherty against Mr O'Brien for the amount of the assessment. The parties are agreed that that judgment should now be set aside, and Mr Doherty has generously and properly offered to attend to the formal requirements to effect that, subject to Mr O'Brien's co-operation. 4 The proceedings in the Federal Magistrates Court, in which a creditor's petition had been issued by Mr Doherty against Mr O'Brien, will now be founded on no debt, and as a result Mr Doherty agrees that they should be discontinued or dismissed. 5 My orders are: (1) Order pursuant to Legal Profession Act , s 385(5), that a nil assessment be substituted for the Costs Assessor's certificate. (2) Order that each of the parties do all things necessary or convenient on their respective parts to facilitate an application by Mr Doherty, with the consent of Mr O'Brien, to the Local Court at Kogarah to have the judgment dated 26 July 2007 in proceedings 856 of 2007 in that Court set aside, with no order as to costs. (3) Order that each of the parties do all things and execute all documents necessary or convenient on their respective parts to procure that the proceedings in the Federal Magistrates Court between them be discontinued or dismissed on the application of Mr Doherty, with the consent of Mr O'Brien, with no order as to costs. (4) Order that the documents produced to the Court by Mr Doherty be returned to Mr Doherty. (5) Reserve liberty to the parties to apply, by arrangement with my Associate, in the event of any difficulty arising in connection with return of those documents. (6) Order that the exhibits be returned. ********** 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.