Lace v Yonan [1999] NSWSC 1072

Lace v Yonan [1999] NSWSC 1072

The former solicitors had neither rendered a bill of costs nor indicated an intention to claim costs, and there was no agreement, undertaking, assessment, or lien establishing Mr Yonan's liability to them. In those circumstances no solicitor-client costs had become due and payable, so the party ordered to pay costs was not liable to pay those unincurred costs. The appeal was upheld, the costs assessor's decision set aside, and time to appeal extended because there was no demonstrated prejudice and justice favoured extension.

Jurisdiction
Australia
Judgment Date
02 November 1999
Procedural Posture
Common Law; Appeal From Decision of Costs Assessor and Application for Extension of Time Under the Legal Profession Act 1987 (nsw) / Amended Summons Seeking Extension of Time, Appeal Under S 208 L, and Leave to Appeal Under S 208 M
Outcome
Time to appeal extended; appeal upheld; costs assessor's decision set aside; defendant ordered to pay the plaintiff's costs.
Legal Topics
['assessment of Costs' 'extension of Time to Appeal' 'appeal From Costs Assessor' 'leave to Appeal' 'functus Officio' 'liability for Solicitor Client Costs']
['legal Profession' 'costs' 'civil Procedure'] ['assessment of Costs' 'extension of Time to Appeal' 'appeal From Costs Assessor' 'leave to Appeal' 'functus Officio' 'liability for Solicitor Client Costs']

Case Brief

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Procedural Posture

Common Law; Appeal From Decision of Costs Assessor and Application for Extension of Time Under the Legal Profession Act 1987 (nsw) / Amended Summons Seeking Extension of Time, Appeal Under S 208 L, and Leave to Appeal Under S 208 M

Legal Issues

  1. 1 ["Whether time to lodge the appeal from the costs assessor's decision should be extended." 'Whether the costs assessor erred in assessing costs where the defendant had not paid costs to his former solicitors and those solicitors had not rendered an account.' "Whether a client becomes liable to pay former solicitors' costs absent a bill of costs, agreement, undertaking, or lien." 'Whether leave to appeal should be granted under s 208M in relation to disputed additional items totalling $2,950.']

Ratio Decidendi

The former solicitors had neither rendered a bill of costs nor indicated an intention to claim costs, and there was no agreement, undertaking, assessment, or lien establishing Mr Yonan's liability to them. In those circumstances no solicitor-client costs had become due and payable, so the party ordered to pay costs was not liable to pay those unincurred costs. The appeal was upheld, the costs assessor's decision set aside, and time to appeal extended because there was no demonstrated prejudice and justice favoured extension.

Court Disposition

Time to appeal extended; appeal upheld; costs assessor's decision set aside; defendant ordered to pay the plaintiff's costs.

Orders

  • ['The time to lodge an appeal is extended to 23 April 1999.' 'The appeal is upheld. The decision of the costs assessor dated 15 November 1998 is set aside.' "The defendant is to pay the plaintiff's costs."]