Fordyce v Leung in her capacity as Executrix of the Estate of the late Robert Ho [2021] NSWCA 262

Fordyce v Leung in her capacity as Executrix of the Estate of the late Robert Ho [2021] NSWCA 262

The application for an interim stay is refused because the applicant failed to challenge interlocutory District Court orders refusing stay, the balance of convenience favours refusal due to applicant's delay and prejudice to respondents, and proper avenues under statute exist for review and appeal of costs assessments.

Parties
Applicant: Paul Mervyn Fordyce; First Respondent: Claudia Leung in her capacity as Executrix of the Estate of the late Robert Ho; Second Respondent: Rhodium Pty Ltd
Jurisdiction
Australia
Judgment Date
28 October 2021
Procedural Posture
Application for Interim Stay / Court of Appeal Decision on Interim Stay Pending Final Hearing
Outcome
Application for interim stay refused
Legal Topics
Stay of Proceedings, Costs Assessment, Appeals, Procedural Fairness
Civil Procedure Stay of Proceedings Costs Assessment Appeals Procedural Fairness

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Parties

Paul Mervyn Fordyce

Applicant

Claudia Leung in her capacity as Executrix of the Estate of the late Robert Ho

First Respondent

Rhodium Pty Ltd

Second Respondent

Procedural Posture

Application for Interim Stay / Court of Appeal Decision on Interim Stay Pending Final Hearing

Legal Issues

  1. 1 Whether it is appropriate to grant an interim stay of District Court judgments based on costs assessments
  2. 2 Whether the costs assessor acted within power in issuing interim certificates under the Legal Profession Act 2004 (NSW)
  3. 3 Whether the applicant was denied procedural fairness by the costs assessor

Ratio Decidendi

The application for an interim stay is refused because the applicant failed to challenge interlocutory District Court orders refusing stay, the balance of convenience favours refusal due to applicant's delay and prejudice to respondents, and proper avenues under statute exist for review and appeal of costs assessments.

Court Disposition

Application for interim stay refused

Orders

  • Refuse the application of Mr Fordyce for an interim stay in terms of pars 1, 2, 3, 4, 5 and 6 of the notice of motion filed 18 October 2021, pending determination of the motion.
  • Applicant to pay the respondents' costs of the hearing on 25 October 2021.