Dye v Fisher Cartwright Berriman Pty Ltd [2010] NSWSC 895

New South Wales Supreme Court

CITATION : Dye v Fisher Cartwright Berriman Pty Ltd [2010] NSWSC 895

HEARING DATE(S) : 5 August 2010

JUDGMENT DATE : 12 August 2010

JUDGMENT OF : Studdert AJ

DECISION : 1. Order that the plaintiff's application for costs assessment pursuant to s 350 of the Legal Profession Act 2004 be dealt with by the costs assessor notwithstanding the expiration of a period of 12 months prior to the making of the application in relation to the items challenged by the plaintiff in the defendant's invoices number 231868 and number 232012. 2. Order that each party pay her and its own costs on the summons.

CATCHWORDS : Costs - Application to have costs assessment dealt with out of time - Consideration of delay and reasons for it - Whether just and fair that application be dealt with

Civil Procedure Act 2005, s 98(1) LEGISLATION CITED : Legal Profession Act 2004, ss 302, 309, 310, 312, 350 Uniform Civil Procedure Rules 2005, r 42.1

CATEGORY : Principal judgment

CASES CITED : Holt v Wynter (2000) 49 NSWLR 128

PARTIES : Vivienne Dye (Plaintiff) Fisher Cartwright Berriman Pty Ltd (Defendant)

FILE NUMBER(S) : SC 2010/00068261

COUNSEL : Plaintiff - Mr D O'Sullivan Defendant - Mr G Boyce

SOLICITORS : Plaintiff - In person Defendant - FCB Workplace Lawyers & Consultants

- 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUTY LIST

STUDDERT AJ

THURSDAY 12 AUGUST 2010

2010/00068261 VIVIENNE DYE V FISHER CARTWRIGHT BERRIMAN PTY LTD

JUDGMENT 1 HIS HONOUR: By summons filed on 17 March 2010 the plaintiff Vivienne Dye makes an application for an extension of time for a costs assessment pursuant to s 350 of the Legal Profession Act 2004. The application is opposed by the defendant, Fisher Cartwright Berriman Pty Ltd which acted for the plaintiff between June 2008 and October 2009. Two affidavits were read in the plaintiff's support, being affidavits of the plaintiff affirmed on 13 May 2010 and 8 June 2010. Mr Gee, solicitor, affirmed an affidavit on 26 May 2010 on behalf of the defendant and by way of response to the plaintiff's case. Mr Gee had the conduct of the matter in respect of which the defendant had taken instructions. The instructions received related to proceedings brought by the plaintiff in the Federal Court of Australia. 2 A reading of the affidavits discloses that there are assertions made by the plaintiff which are disputed by Mr Gee. However neither deponent was required for cross-examination and it was not possible for me to determine which account is to be preferred on disputed aspects. In any event the outcome of this application does not depend on a resolution of those disputed matters. 3 Section 350 of the Legal Profession Act 2004 provides so far as is relevant: