Campbell v James Fuggle Rummery Solicitors & Barristers [2010] NSWSC 148

New South Wales Supreme Court

CITATION : Campbell v James Fuggle Rummery Solicitors & Barristers [2010] NSWSC 148

HEARING DATE(S) : 4 March 2010

JUDGMENT DATE : 9 March 2010

JURISDICTION : Common Law

JUDGMENT OF : Harrison AsJ

DECISION : (1) The summons filed 6 August 2009 is dismissed. (2) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS : PROCEDURE - COSTS - APPLICATION for extension of time for assessment of costs - Prescribed limitation period - No discretionary power under Legal Profession Act 1987

Legal profession Act 1987 LEGISLATION CITED : Legal Profession Act 2004 Legal Profession Regulation 2002

CATEGORY : Procedural and other rulings

CASES CITED : The Estate of Rosalind Allwood v Peter Vivian Benjafield [2009] NSWSC 1383 Radenkovic v Vaughan [2010] NSWSC 36

PARTIES : Ian David Campbell (Plaintiff) James Fuggle Rummery Solicitors and Barristers (Defendant)

FILE NUMBER(S) : SC 2009/298055

SOLICITORS : I D Campbell (Plaintiff in person) J Fuggle (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LIST

ASSOCIATE JUSTICE HARRISON

TUESDAY, 9 MARCH 2010

2009/298055 IAN DAVID CAMPBELL v JAMES FUGGLE RUMMERY SOLICITORS and BARRISTERS

JUDGMENT (Extension of time to seek an assessment of costs) 1 HER HONOUR: By summons filed 6 August 2009 the plaintiff seeks an order for "an extension of time for an out of time application for costs assessment" on the grounds that there is a dispute of the actual costs in the billing and errors made in the working out of the billing. 2 The plaintiff is Ian David Campbell ("the plaintiff"). The defendant is James Fuggle Rummery Solicitors and Barristers ("Mr Fuggle"). The plaintiff relied on his affidavit dated 2 July 2009. Mr Fuggle relied on his affidavit of James Robert Fuggle dated 30 October 2009. Background 3 On 4 December 2002, the plaintiff instructed Mr Fuggle to act for him in District Court proceedings. Mr Fuggle briefed Mr Kinsella of Counsel in the matter. On 18 November 2003, Mr Kinsella forwarded to Mr Fuggle a conditional fee agreement. On 2 September 2004, Mr Fuggle forwarded to the plaintiff a costs agreement. On 1 September 2005, Mr Fuggle forwarded to the plaintiff a letter confirming his instructions which annexed an interim tax invoice. 4 The trial was heard by his Honour Judge Black on 18, 19, 20, 21, 28 and 29 April 2005. Judgment was handed down on 29 July 2009 and costs arguments were heard on 30 September 2005. 5 During September 2005 and through to the early months of 2006, Mr Fuggle deposed that he negotiated with the Crown Solicitors and Mr Kinsella with regard to costs and in the end Mr Campbell received 88 percent of his solicitor/client costs from the Crown Solicitors. 6 It is common ground that an itemised bill of costs was forwarded to Mr Campbell on 28 September 2007. The 12-month period to file the application for assessment expired on 28 September 2008. The summons was filed on 6 August 2009, nearly 11 months out of time.