Hanna v Uther Webster & Evans [2018] NSWSC 465

Hanna v Uther Webster & Evans [2018] NSWSC 465

The Court refused the extension because the plaintiff was fully aware, through costs agreements, invoices, notices, correspondence and conversations, of the right to challenge or have assessed the defendant's costs; no satisfactory explanation was given for the substantial delay; there was no arguable case that the fees were unfair or unreasonable; and the allegation that the defendant charged for work funded by Legal Aid was unsupported and contrary to the evidence. The plaintiff failed to satisfy the onus that it was just and fair to grant a dispensation under s 350(5) of the Legal Profession Act 2004 (NSW).

Jurisdiction
Australia
Judgment Date
17 April 2018
Procedural Posture
Summons Seeking Orders Under S 350(5) of the Legal Profession Act 2004 (nsw) for an Application for Costs Assessment to Be Dealt With Out of Time / Supreme Court Determination of Opposed Summons
Outcome
Summons dismissed; the plaintiff was ordered to pay the defendant's costs of and incidental to the proceedings.
Legal Topics
['costs Assessment' 'extension of Time' 'third Party Payer' 'legal Costs Disclosure' 'indemnity Costs']
['costs' 'legal Profession'] ['costs Assessment' 'extension of Time' 'third Party Payer' 'legal Costs Disclosure' 'indemnity Costs']

Case Brief

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Procedural Posture

Summons Seeking Orders Under S 350(5) of the Legal Profession Act 2004 (nsw) for an Application for Costs Assessment to Be Dealt With Out of Time / Supreme Court Determination of Opposed Summons

Legal Issues

  1. 1 ['Whether the plaintiff should be granted an extension of time or dispensation under s 350(5) of the Legal Profession Act 2004 (NSW) to allow a costs assessment after expiry of the statutory period.' "Whether the plaintiff was aware of his rights to challenge, question or have assessed the defendant's memoranda of costs and disbursements." 'Whether the plaintiff gave a satisfactory explanation for delay in seeking costs assessment.' 'Whether oral enquiries or reminders about payment of previously rendered memoranda of costs restarted the time for applying for costs assessment.' 'Whether unsubstantiated allegations of serious misconduct justified indemnity costs.']

Ratio Decidendi

The Court refused the extension because the plaintiff was fully aware, through costs agreements, invoices, notices, correspondence and conversations, of the right to challenge or have assessed the defendant's costs; no satisfactory explanation was given for the substantial delay; there was no arguable case that the fees were unfair or unreasonable; and the allegation that the defendant charged for work funded by Legal Aid was unsupported and contrary to the evidence. The plaintiff failed to satisfy the onus that it was just and fair to grant a dispensation under s 350(5) of the Legal Profession Act 2004 (NSW).

Court Disposition

Summons dismissed; the plaintiff was ordered to pay the defendant's costs of and incidental to the proceedings.

Orders

  • ['Summons dismissed.' "The plaintiff shall pay the defendant's costs of and incidental to these proceedings."]