Donnelly & anor. v Ross Mining NL [1999] NSWSC 960

Donnelly & anor. v Ross Mining NL [1999] NSWSC 960

The Court found on the probabilities that the costs assessor sent the relevant letter and certificate to the appellants' solicitor and that they were received not later than 19 April 1999, while that solicitor still acted for both appellants. The material date was therefore 19 April 1999, the 14 day period expired on 3 May 1999, and the summons filed on 26 May 1999 was out of time and irregular because the required statement was not filed until 29 July 1999. The appellants gave no sufficient explanation for the delay and showed no coherent or evidentially supported grounds indicating that leave to appeal was reasonably on the cards. The declaration sought was not relief contemplated by...

Jurisdiction
Australia
Judgment Date
23 September 1999
Procedural Posture
Application for Leave to Appeal Against a Costs Assessor's Determination and Related Interlocutory Applications / Hearing of Summonses and Notices of Motion in the Supreme Court of New South Wales, Common Law Division
Outcome
The appellants' summons and amended summons were dismissed or struck out as specified; their notice of motion was dismissed; the respondent's notice of motion was struck out with no order as to costs; costs were ordered against the appellants except where no order was made.
Legal Topics
['costs Assessment' 'leave to Appeal' 'extension of Time' 'material Date for Appeal Period' 'certificate of Costs Assessor as Judgment Debt']
['civil Procedure' 'costs' 'legal Profession'] ['costs Assessment' 'leave to Appeal' 'extension of Time' 'material Date for Appeal Period' 'certificate of Costs Assessor as Judgment Debt']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against a Costs Assessor's Determination and Related Interlocutory Applications / Hearing of Summonses and Notices of Motion in the Supreme Court of New South Wales, Common Law Division

Legal Issues

  1. 1 ["Whether the appellants' summons seeking leave to appeal from the costs assessor's determination was filed within time under SCR Pt 51A." 'Whether the Court should extend time for the appellants to apply for leave to appeal under SCR Pt 51A Rule 2A(3) and (5).' 'Whether there was practical utility in granting an extension of time because leave to appeal was reasonably on the cards.' "Whether the declaration sought about unsatisfactory conduct by the appellants' solicitors was relief available under s.208M of the Legal Profession Act 1987." 'Whether the related notices of motion and amended summons should be dismissed or struck out.']

Ratio Decidendi

The Court found on the probabilities that the costs assessor sent the relevant letter and certificate to the appellants' solicitor and that they were received not later than 19 April 1999, while that solicitor still acted for both appellants. The material date was therefore 19 April 1999, the 14 day period expired on 3 May 1999, and the summons filed on 26 May 1999 was out of time and irregular because the required statement was not filed until 29 July 1999. The appellants gave no sufficient explanation for the delay and showed no coherent or evidentially supported grounds indicating that leave to appeal was reasonably on the cards. The declaration sought was not relief contemplated by...

Court Disposition

The appellants' summons and amended summons were dismissed or struck out as specified; their notice of motion was dismissed; the respondent's notice of motion was struck out with no order as to costs; costs were ordered against the appellants except where no order was made.

Orders

  • ['As to the Summons filed on 26 May 1999, the claim for relief in paragraph 1 is dismissed.' 'As to the Summons filed on 26 May 1999, the claim for relief in paragraph 2 is struck out as being a claim made out of time.' 'The appellants are to pay the costs of the respondent of the Summons filed on 26 May 1999.' 'The...