FRUMAR v THE OWNERS OF STRATA PLAN 36957 [2010] NSWCA 172

New South Wales Court of Appeal

CITATION: FRUMAR v THE OWNERS OF STRATA PLAN 36957 [2010] NSWCA 172

HEARING DATE(S): 21/07/2010

JUDGMENT DATE: 16 September 2010

JUDGMENT OF: Giles JA at 1; Macfarlan JA at 20; Handley AJA at 21

(1) Appeal allowed with costs. DECISION: (2) Judgment of the District Court of 18 December 2009 set aside. (3) In lieu thereof substitute judgment for the plaintiff in the sum of $101,815.51 including pre-judgment interest with effect from 26 July 2010 and costs. (4) The respondent is to have a certificate under the Suitors Fund Act if qualified.

CATCHWORDS: COSTS -- assessment -- certificate -- taken to be judgment when filed in Court -- certificate set aside on appeal -- effect on judgment - JUDGMENTS & ORDERS -- permanent stay of judgment -- effect - LEGAL PRACTITIONERS -- costs -- assessment -- certificate -- taken to be judgment when filed in Court -- certificate set aside on appeal -- effect on judgment - RESTITUTION -- moneys paid under judgment based on costs certificate -- certificate set aside on appeal -- costs respondent entitled to restitution of moneys paid pending fresh assessment

LEGISLATION CITED: Civil Procedure Act, s 135 Legal Profession Act 1987, s 208KF(1)

CATEGORY: Principal judgment

Allanson v Midland Credit Ltd (1977) 30 FLR 108 Beswicke v Alner [1926] VLR 72 Port of Melbourne Authority v Anshun Pty Ltd (No 1) [1980] HCA 41, 147 CLR 35 CASES CITED: TCN Channel 9 Pty Ltd v Antoniadis [No 2] (1999) 48 NSWLR 381 CA Production Spray Painting and Panel Beating Pty Ltd v Newnham [No 2] (1992) 27 NSWLR 659 CA R v P (No 2) [2003] NSWCA 360 Re Marks ex parte The Australian Building Construction Employees and Builders Labourers Federation (1981) 55 ALJR 395 Stollmeyer v Trinidad Lake Petroleum Co [1918] AC 498