Alfred ATTARD & Ors v JAMES LEGAL PTY LIMITED & PETER JAMES T/AS JAMES SOLICITORS [2004] NSWSC 478

Alfred ATTARD & Ors v JAMES LEGAL PTY LIMITED & PETER JAMES T/AS JAMES SOLICITORS [2004] NSWSC 478

The interests of justice favoured staying all three costs assessment applications because the subject matter of the Allatech and master file assessments was directly raised in the Common Law proceedings and potentially the Equity proceedings, the plaintiffs would otherwise have to incur expense preparing notices of objection while litigating their claims, the Costs Assessor had not yet undertaken work, and any prejudice to the defendants was adequately addressed by the plaintiffs' undertaking to pay interest if liability to pay costs or disbursements was established. The Blessington Judd assessment was also stayed because the Common Law proceedings included claims of over-servicing beyond...

Jurisdiction
Australia
Judgment Date
11 June 2004
Procedural Posture
Notice of Motion Seeking a Stay of Applications for Assessment of Solicitors' Costs / Interlocutory Motion
Outcome
Stay granted on terms, with the existing stay continued until further order.
Legal Topics
['stay of Costs Assessment Applications' 'solicitor Client Costs' "costs Assessor's Certificate of Determination" 'alleged Negligent Legal Advice' 'breach of Retainer' 'repudiation of Deed' 'over Servicing']
['legal Profession' 'civil Procedure' 'costs' 'professional Negligence' 'equity' 'trade Practices'] ['stay of Costs Assessment Applications' 'solicitor Client Costs' "costs Assessor's Certificate of Determination" 'alleged Negligent Legal Advice' 'breach of Retainer' 'repudiation of Deed' 'over Servicing']

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Procedural Posture

Notice of Motion Seeking a Stay of Applications for Assessment of Solicitors' Costs / Interlocutory Motion

Legal Issues

  1. 1 ['Whether Applications No. 90043 of 2004, 90044 of 2004 and 90178 of 2004 for assessment of costs should be stayed pending determination of the Common Law and Equity proceedings.' 'Whether allowing the costs assessment process to proceed would be futile or impractical because the Costs Assessor could not determine allegations that costs were incurred as a result of negligent advice.' 'Whether the defendants would suffer prejudice from a stay, including loss of interest, and whether that prejudice could be addressed by an undertaking.' 'Whether the Blessington Judd costs assessment application should also be stayed despite no pleaded negligence concerning that matter.']

Ratio Decidendi

The interests of justice favoured staying all three costs assessment applications because the subject matter of the Allatech and master file assessments was directly raised in the Common Law proceedings and potentially the Equity proceedings, the plaintiffs would otherwise have to incur expense preparing notices of objection while litigating their claims, the Costs Assessor had not yet undertaken work, and any prejudice to the defendants was adequately addressed by the plaintiffs' undertaking to pay interest if liability to pay costs or disbursements was established. The Blessington Judd assessment was also stayed because the Common Law proceedings included claims of over-servicing beyond...

Court Disposition

Stay granted on terms, with the existing stay continued until further order.

Orders

  • ['Grant a stay of Applications No. 90043 of 2004, 90044 of 2004 and 90178 of 2004 pending the determination of the Common Law proceedings No. 1555 of 2004 and the Equity proceedings 20444 of 2004 upon the plaintiffs giving the undertaking set out in paragraph [20].' 'Stand the proceedings over to Thursday 17 June at...