Scope Data Systems Pty Ltd v David Goman rep Partnership BDO Nelson Parkhill [2008] NSWSC 42

New South Wales Supreme Court

CITATION : Scope Data Systems Pty Ltd v David Goman rep Partnership BDO Nelson Parkhill [2008] NSWSC 42

HEARING DATE(S) : 31 January 2008

JUDGMENT DATE : 13 February 2008

JUDGMENT OF : Malpass AsJ

DECISION : Proceedings dismissed plaintiff to pay the costs of the proceedings.

CATCHWORDS : COMMON LAW - costs assessment - form of application and service - costs of assessment - setting aside of judgment in the Local Court

Legal Profession Act 1987 LEGISLATION CITED : Legal Profession Act 200 Legal Profession Regulation 2002 Uniform Civil Procedure Rules 2005

CATEGORY : Consequential orders

Brierly v Reeves [2000] NSWSC 305 CASES CITED : Diemasters Pty Ltd v Meadowcorp Pty Ltd NSWSC, (unreported, Macready M, 16 July 2003) Turner v Pride [1999] NSWSC 850

PARTIES : Scope Data Systems Pty Ltd (Plaintiff) David Goman as representative of the Partnership of BDO Nelson Parkhill ( Defendant)

FILE NUMBER(S) : SC 16341/06

COUNSEL : B Green (Plaintiff) JT Johnson (Defendant)

SOLICITORS : Kent Attorneys (Plaintiff) Sally Nash & Co ( Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

Wednesday 13 February 2008

2006/16341

Scope Data Systems Pty Ltd v David Goman as representative of the partnership of BDO Nelson Parkhill

JUDGMENT 1 HIS HONOUR: The plaintiff was the unsuccessful party in litigation heard by Campbell J (as he then was). It was ordered to pay the costs of those proceedings. 2 The defendant made application for the assessment of those party/party costs. The relevant application was received by the proper officer in late July 2005. Prior to the making of that application, the defendant did not send a copy of the proposed application to the plaintiff which gave notice that advised that any objection to the application had to be lodged with the defendant in writing within 21 days of receiving such notice. The proposed application was served by letter addressed to Scope Data Pty Ltd at the registered office of the plaintiff (as opposed to its principal place of business) on 14 April 2005. The letter erroneously described it as a "Bill of Costs". 3 The application was referred to a costs assessor (Mr Scammel). 4 By letter dated 5 August 2005, the costs assessor called upon the parties to make submissions by 4.00 pm on 25 August 2005. Because he had not received submissions from either party by that time, he wrote a further letter dated 30 August 2005. 5 On 6 September 2005, the plaintiff responded to the letter dated 30 August 2005. This letter advised that the plaintiff had not received the letter dated 5 August 2005 and sought a copy of it. It also confirmed that the proposed application had not been received. 6 By letter dated 16 September 2005, the plaintiff raised with the costs assessor the matter of "Defective Application". This matter concerned an allegation of non-compliance with r 56(1)(a) of the Legal Profession Regulation 2002. It called upon the costs assessor to decline to deal with the application. It requested the costs assessor to "kindly ensure" that a copy of all documents passing between him and the defendant should be sent to the plaintiff. 7 By letter dated 18 October 2005 (which was sent to both parties), the costs assessor addressed the questions of the alleged breach of the regulation and of service of the proposed application and gave notice of his decision on both of them. He made a finding that the proposed application had been properly sent and that any deficiencies in the letter dated 14 April 2005 were irrelevant. The decision was expressed in the following terms:- "I have decided that I have jurisdiction to proceed with this assessment and intend to do so."