Falamaki v Wollongong City Council [2009] NSWSC 871

New South Wales Supreme Court

CITATION : Falamaki v Wollongong City Council [2009] NSWSC 871

HEARING DATE(S) : 6 August 2009 JURISDICTION : Civil

JUDGMENT OF : McClellan CJatCL

EX TEMPORE JUDGMENT DATE : 6 August 2009

DECISION : 1. Plaintiff's appeal dismissed 2. Plaintiff to pay defendant's costs.

CATCHWORDS : APPEAL - Local Court - matter of law - costs certificate - filing of an affidavit - appeal dismissed

Civil Procedure Act 2005 LEGISLATION CITED : Legal Profession Act 2004 Local Court Act 2007

PARTIES : Dr Masood Falamaki (plaintiff) Wollongong City Council (defendant)

FILE NUMBER(S) : SC 12878/09

COUNSEL : D Knaggs (plaintiff) D Shoebridge (defendant)

SOLICITORS : Convenience Legal (plaintiff) FCB Lawyers and Consultants (defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 117/09 (North Sydney) 3643/09 (Downing Centre)

LOWER COURT DATE OF DECISION : 29 January 2009 (Local Court North Sydney) 4 May 2009 (Local Court Downing Centre)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCLELLAN CJ at CL

THURSDAY 6 AUGUST 2009

12878/09 FALAMAKI v WOLLONGONG CITY COUNCIL

JUDGMENT – Appeals from the Local Court 1 HIS HONOUR: This is an appeal from two judgments in the Local Court. The first judgment appealed is that of 29 January 2009 made by the Local Court at North Sydney which entered judgment in the defendant's favour in the sum of $10,287.22 plus court costs of $72. That judgment was founded upon an undisputed certificate as to the determination of costs pursuant to s 368 of the Legal Profession Act 2004 in the defendant's favour in the sum of $10,287.22. That certificate reflected costs which had not been paid in respect of the plaintiff's unsuccessful Court of Appeal action in respect of otherwise unrelated and long running proceedings. 2 The validity of the certificate is not in question. 3 The second judgment appealed from is that of the Local Court made on 4 May 2009 which dismissed the plaintiff's notice of motion seeking to set aside the judgment of 29 January 2009. 4 There is an appeal from a decision of the Local Court to this Court pursuant to s 39(1) of the Local Court Act 2007 which confines the appeal to a question of law. The defendant accepts that there is a question of law raised by the plaintiff in the present proceedings. There is before me, (and I should mark it as exhibit one in these proceedings) a copy of the document entitled Registration of Certificate of Determination of Costs which was filed in the Local Court. That document is in the form provided by Form 45 of the forms contemplated by the Uniform Civil Procedure Rules and is the mechanism by which a party applies, pursuant to UCPR rule 36.11, for the entry of a judgment of the court. Section 368 of the Legal Profession Act 2004 is in the following terms: "(1) On making a determination of costs referred to in Subdivision 2 or 3 of this Division, a costs assessor is to issue a certificate that sets out the determination.