Lange v Back & Schwartz [2009] NSWDC 180

Lange v Back & Schwartz [2009] NSWDC 180

Although an extension of time was granted so the appeal issues could be determined on their merits, the plaintiff established no procedural unfairness or practical injustice that affected the Costs Assessor's determination. The alleged April and June submissions were not received by the Assessor, the Court doubted they were sent, and they would not have changed the result. The February objection was identical to the corporation's objection and would also have had no effect. The evidence supported the Assessor's findings that the plaintiff personally retained the defendants under a valid costs agreement and that the costs were reasonable. There was no basis to allow an appeal under s 384,...

Jurisdiction
Australia
Judgment Date
12 June 2009
Procedural Posture
Civil Appeal From Costs Assessor's Decision / Application for Extension of Time to File Summons and Appeal or Leave to Appeal Under Ss 384 and 385 Legal Profession Act 2004
Outcome
Application for extension of time granted; summons dismissed; plaintiff ordered to pay the defendants' costs.
Legal Topics
['costs Assessment' "appeal From Costs Assessor's Decision" 'extension of Time' 'procedural Fairness' 'costs Agreement' 'legal Costs']
['legal Profession' 'costs' 'civil Procedure'] ['costs Assessment' "appeal From Costs Assessor's Decision" 'extension of Time' 'procedural Fairness' 'costs Agreement' 'legal Costs']

Case Brief

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Procedural Posture

Civil Appeal From Costs Assessor's Decision / Application for Extension of Time to File Summons and Appeal or Leave to Appeal Under Ss 384 and 385 Legal Profession Act 2004

Legal Issues

  1. 1 ['Whether the plaintiff should be granted an extension of time under r 50 Uniform Civil Procedure Rules to file the summons.' 'Whether alleged procedural unfairness by the Costs Assessor constituted a matter of law for an appeal under s 384 Legal Profession Act 2004.' "Whether the Costs Assessor's failure to consider the plaintiff's alleged submissions or objection affected the determination." 'Whether leave should be granted under s 385 Legal Profession Act 2004 to appeal the costs assessment or remit the matter to a panel.' 'Whether the plaintiff personally retained the defendants and was personally liable for the assessed costs.']

Ratio Decidendi

Although an extension of time was granted so the appeal issues could be determined on their merits, the plaintiff established no procedural unfairness or practical injustice that affected the Costs Assessor's determination. The alleged April and June submissions were not received by the Assessor, the Court doubted they were sent, and they would not have changed the result. The February objection was identical to the corporation's objection and would also have had no effect. The evidence supported the Assessor's findings that the plaintiff personally retained the defendants under a valid costs agreement and that the costs were reasonable. There was no basis to allow an appeal under s 384,...

Court Disposition

Application for extension of time granted; summons dismissed; plaintiff ordered to pay the defendants' costs.

Orders

  • ['Application for extension of time for filing Summons granted' 'Summons filed 5 January 2009 dismissed' "The plaintiff pay the defendants' costs."]