Wang v Vaughan [2013] NSWSC 1016

Wang v Vaughan [2013] NSWSC 1016

On the objective evidence, the parties had not compromised or settled the proceedings, so the power under s 73 Civil Procedure Act 2005 was not engaged and Mr Wang's motion to enforce the alleged compromise was dismissed. Mr Wang's delay in seeking costs assessment was sufficiently explained by his misunderstanding, language difficulties, complaint to the Legal Services Commissioner, and the solicitor's later mistake, so time was extended under s 350(5) Legal Profession Act 2004 to 27 April 2012.

Jurisdiction
Australia
Judgment Date
19 July 2013
Procedural Posture
Interlocutory Applications / Hearing of Amended Summons for Extension of Time for Costs Assessment and Notice of Motion Seeking Relief Under S73 Civil Procedure Act 2005
Outcome
Orders made on 22 March 2013 set aside; s73 motion dismissed; time to apply for costs assessment extended; costs ordered against the second defendant.
Legal Topics
['enforcement of Compromise Under S73 Civil Procedure Act 2005 (nsw)' 'extension of Time for Costs Assessment Under S350(5) Legal Profession Act 2004 (nsw)' 'whether Proceedings Had Been Compromised or Settled']
['practice and Procedure' 'costs'] ['enforcement of Compromise Under S73 Civil Procedure Act 2005 (nsw)' 'extension of Time for Costs Assessment Under S350(5) Legal Profession Act 2004 (nsw)' 'whether Proceedings Had Been Compromised or Settled']

Case Brief

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Procedural Posture

Interlocutory Applications / Hearing of Amended Summons for Extension of Time for Costs Assessment and Notice of Motion Seeking Relief Under S73 Civil Procedure Act 2005

Legal Issues

  1. 1 ['Whether the parties had compromised or settled the proceedings so as to engage s 73 Civil Procedure Act 2005 (NSW).' 'Whether time should be extended under s 350(5) Legal Profession Act 2004 (NSW) for Mr Wang to apply for a costs assessment.']

Ratio Decidendi

On the objective evidence, the parties had not compromised or settled the proceedings, so the power under s 73 Civil Procedure Act 2005 was not engaged and Mr Wang's motion to enforce the alleged compromise was dismissed. Mr Wang's delay in seeking costs assessment was sufficiently explained by his misunderstanding, language difficulties, complaint to the Legal Services Commissioner, and the solicitor's later mistake, so time was extended under s 350(5) Legal Profession Act 2004 to 27 April 2012.

Court Disposition

Orders made on 22 March 2013 set aside; s73 motion dismissed; time to apply for costs assessment extended; costs ordered against the second defendant.

Orders

  • ['The orders I pronounced on 22 March 2013 are set aside and the proceedings are restored to be heard and dealt with instanter.' "I dismiss Mr Wang's notice of motion seeking relief under s73 Civil Procedure Act 2005." 'The time for Mr Wang to apply for a costs assessment is extended under s 350(5) Legal Profession...