BRIERLEY v REEVES [2001] NSWCA 189

BRIERLEY v REEVES [2001] NSWCA 189

The application for costs assessment was not made within the prescribed period because, although the prescribed form was filed within 12 months, it was not accompanied by the prescribed $5,000 fee and no waiver or postponement under s 203(4) had been obtained or sought on the basis of serious hardship before the period expired. The Proper Officer's acceptance of the form without the fee did not amount to a statutory waiver, and the later waiver could not cure the failure. The costs assessor therefore had no jurisdiction, and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
22 June 2001
Procedural Posture
Appeal Concerning Costs Assessment Under the Legal Profession Act 1987 / Appeal by Leave to the New South Wales Court of Appeal From Master Malpass's Decision Dismissing an Appeal From a Costs Assessor's Determination That He Had No Jurisdiction
Outcome
Appeal dismissed with costs.
Legal Topics
['costs Assessment' 'application Filing Requirements' 'prescribed Fee' 'waiver or Postponement of Fee' 'statutory Construction' 'jurisdiction of Costs Assessor']
['practice and Procedure' 'legal Profession' 'costs'] ['costs Assessment' 'application Filing Requirements' 'prescribed Fee' 'waiver or Postponement of Fee' 'statutory Construction' 'jurisdiction of Costs Assessor']

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Procedural Posture

Appeal Concerning Costs Assessment Under the Legal Profession Act 1987 / Appeal by Leave to the New South Wales Court of Appeal From Master Malpass's Decision Dismissing an Appeal From a Costs Assessor's Determination That He Had No Jurisdiction

Legal Issues

  1. 1 ["Whether an application for assessment of a paid solicitor's bill of costs under s 203 of the Legal Profession Act 1987 is made within time where the prescribed form is filed within 12 months but is not accompanied by the prescribed fee and the fee has not been waived or postponed within that period." 'Whether the Proper Officer waived the prescribed fee before expiry of the 12 month period.' 'Whether a waiver or postponement under s 203(4) can operate after expiry of the prescribed period.']

Ratio Decidendi

The application for costs assessment was not made within the prescribed period because, although the prescribed form was filed within 12 months, it was not accompanied by the prescribed $5,000 fee and no waiver or postponement under s 203(4) had been obtained or sought on the basis of serious hardship before the period expired. The Proper Officer's acceptance of the form without the fee did not amount to a statutory waiver, and the later waiver could not cure the failure. The costs assessor therefore had no jurisdiction, and the appeal was dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']