Kehoe v Williams [2008] NSWSC 807

Kehoe v Williams [2008] NSWSC 807

The material date was 15 August 2007, when the certificate of assessment issued, so the summons filed on 28 March 2008 was about seven and a half months out of time. Mr Kehoe gave no satisfactory explanation for the delay, had never prepared written objections to the bill of costs, and his proposed objections raised factual matters with very unlikely prospects of obtaining leave. The costs assessor had already granted an extension to 23 July 2007 and indicated there would be no further delay absent compelling reasons; the unreceived fax of 18 July 2007 did not cause practical injustice. The interests of justice therefore favoured refusing the extension of time.

Jurisdiction
Australia
Judgment Date
08 August 2008
Procedural Posture
Application for Extension of Time to Appeal a Costs Assessor's Decision / Summons Filed 28 March 2008 Seeking Extension of Time, Invalidation of the Costs Assessment and a Stay of Enforcement Proceedings
Outcome
Application for extension of time refused; summons dismissed; plaintiff ordered to pay defendant's costs.
Legal Topics
['extension of Time to Appeal' 'costs Assessment' 'procedural Fairness' 'leave to Appeal']
['civil Procedure' 'costs' 'legal Profession'] ['extension of Time to Appeal' 'costs Assessment' 'procedural Fairness' 'leave to Appeal']

Case Brief

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Procedural Posture

Application for Extension of Time to Appeal a Costs Assessor's Decision / Summons Filed 28 March 2008 Seeking Extension of Time, Invalidation of the Costs Assessment and a Stay of Enforcement Proceedings

Legal Issues

  1. 1 ['Whether time should be extended under r 51.10 of the Uniform Civil Procedure Rules to appeal the costs assessment.' "Whether the material date for the appeal period was the date of the costs assessor's decision or the date the certificate of assessment issued." "Whether the plaintiff was denied procedural fairness because the costs assessor did not receive or consider the plaintiff's fax dated 18 July 2007." 'Whether the proposed appeal had sufficient prospects to justify an extension of time.']

Ratio Decidendi

The material date was 15 August 2007, when the certificate of assessment issued, so the summons filed on 28 March 2008 was about seven and a half months out of time. Mr Kehoe gave no satisfactory explanation for the delay, had never prepared written objections to the bill of costs, and his proposed objections raised factual matters with very unlikely prospects of obtaining leave. The costs assessor had already granted an extension to 23 July 2007 and indicated there would be no further delay absent compelling reasons; the unreceived fax of 18 July 2007 did not cause practical injustice. The interests of justice therefore favoured refusing the extension of time.

Court Disposition

Application for extension of time refused; summons dismissed; plaintiff ordered to pay defendant's costs.

Orders

  • ['The application to grant an extension of time to appeal is refused.' 'The summons filed 28 March 2008 is dismissed.' "The plaintiff is to pay the defendant's costs as agreed or assessed."]