Katingal P/L & Anor v Amor & Ors [2004] NSWSC 36

Katingal P/L & Anor v Amor & Ors [2004] NSWSC 36

The summons was dismissed because the plaintiffs' attempted appeal was filed after the costs assessor's certificate had been entered as a judgment of the Supreme Court, and s 208L permits an appeal only against a costs assessor's determination, not against a judgment finally disposing of the matter. The appeal was also incompetent because the plaintiffs had not supplied grounds as required by Part 51A(5) of the Supreme Court Rules. Because the documents sought by the notice to produce could only be relevant if there were a right to appeal under s 208L, the notice to produce was set aside.

Jurisdiction
Australia
Judgment Date
19 February 2004
Procedural Posture
Summons Seeking Extension of Time to Appeal Against Costs Assessment; Notice of Motion to Dismiss Proceedings and Set Aside Notice to Produce / Hearing Before Master in the Supreme Court of New South Wales, Common Law Division
Outcome
Summons dismissed; plaintiffs' notice to produce set aside; plaintiffs ordered to pay defendants' costs as agreed or assessed.
Legal Topics
['costs Assessment' "appeal From Costs Assessor's Determination" 'registration of Costs Certificate as Judgment' 'notice to Produce' 'extension of Time to Appeal']
['civil Procedure' 'costs' 'legal Profession'] ['costs Assessment' "appeal From Costs Assessor's Determination" 'registration of Costs Certificate as Judgment' 'notice to Produce' 'extension of Time to Appeal']

Case Brief

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Procedural Posture

Summons Seeking Extension of Time to Appeal Against Costs Assessment; Notice of Motion to Dismiss Proceedings and Set Aside Notice to Produce / Hearing Before Master in the Supreme Court of New South Wales, Common Law Division

Legal Issues

  1. 1 ["Whether the plaintiffs could appeal against a costs assessor's determination under s 208L of the Legal Profession Act 1987 (NSW) after the costs certificate had been filed and entered as a judgment of the Supreme Court of New South Wales." 'Whether the proceedings should be dismissed as incompetent.' "Whether the plaintiffs' notice to produce should be set aside." 'Whether the plaintiffs failed to comply with Part 51A(5) of the Supreme Court Rules by not filing or serving grounds of appeal.']

Ratio Decidendi

The summons was dismissed because the plaintiffs' attempted appeal was filed after the costs assessor's certificate had been entered as a judgment of the Supreme Court, and s 208L permits an appeal only against a costs assessor's determination, not against a judgment finally disposing of the matter. The appeal was also incompetent because the plaintiffs had not supplied grounds as required by Part 51A(5) of the Supreme Court Rules. Because the documents sought by the notice to produce could only be relevant if there were a right to appeal under s 208L, the notice to produce was set aside.

Court Disposition

Summons dismissed; plaintiffs' notice to produce set aside; plaintiffs ordered to pay defendants' costs as agreed or assessed.

Orders

  • ['The summons filed 24 July 2003 is dismissed.' "The plaintiffs' notice to produce dated 11 August 2003 is set aside." "The plaintiffs are to pay the defendants' costs as agreed or assessed."]