The Law
5 Section 199 of the Act relevantly reads:
"(2) An application relating to a bill of costs may be made even if the costs have been wholly or partly paid. If the costs have been wholly or partly paid, the application is to be made within the period prescribed by the regulations for the purposes of this subsection."
6 Regulation 25 of the Legal Profession Regulation 1994 reads as follows:
"For the purposes of section 199(2) of the Act, the prescribed period for making an application for an assessment of a bill of costs is the period of 12 months after the bill was given to the client."
7 It is common ground that the first application for costs assessment was made on 15 January 1999 together with the prescribed fee.
8 The defendant's counsel referred to Tsekouras v Xenos (NSWSC, unreported 5 August 1997 Barr J); Hook v Simpsons Solicitors [1999] NSWSC 667; Ryan v Whitten [1999] NSWSC 865 and Brierley v Reeves t/as Kaplan Reeves & Co [2000] NSWSC 305.
9 In Tsekouras, Barr J stated that although the two bills submitted did not comply with the rules in force at the time about what they should contain, one of the bill contained a substantial amount of detail and they did not put the plaintiff in a false position. In Hook, Master Malpass stated that the intention of the legislature was to impose a prescribed period for the making of an application in those cases where payment has been made. If the payment has been made prior to the giving of a bill the prescribed period runs from any request for payment.
10 In October 1997, the defendant's bill of costs was served on the plaintiff's solicitor. In November 1997 a further bill of costs was served. Section 195 refers to service of documents on a person by document exchange. This tends to suggest that documents can be served on a solicitor. It is my view that by November 1997 at the latest the plaintiff would have been appraised of the amount that he was required to pay to the defendant. The 12 month time period runs from November 1997. Thus the plaintiff's application for costs assessment should have been lodged by 30 November 1998. It was not lodged until 15 January 1999. The application for costs assessment was filed outside the time stipulated by Regulation 25.
11 It is not clear whether the court in its inherent jurisdiction, can extend the 12 month period referred to in s 199 - see Selosse v Whitten Graham AJ, unreported, 26 August 1997, Tsekouras and Ryan.
12 Assuming the court has the power to extend time, the plaintiff submitted that the reason for the delay was the concurrent District Court proceedings and complying with orders made in those proceedings. The defendant submitted that the discretion ought to be refused. Firstly, because the detailed bill was calculated at a lower rate per hour than was set out in the costs agreement, thereby constituting a large concession by the defendant to the plaintiff; secondly, the bill was served originally in October 1997; thirdly, the present plaintiff has rendered the security he gave to the defendant worthless (except for his personal covenant) by disposing of his shares in the relevant home unit company (Darling Point Mews Pty Ltd) to his brother; fourthly, the agreed amount in the mortgage was agreed to be the minimum amount recoverable by the defendant; and sixthly, the history of the proceedings in the District Court and the lengthy delays - the judgment has been entered three times against the present plaintiff.
13 In the exercise of my discretion, I refuse to extend time for the reasons given by the defendant. Further, if the plaintiff disagreed with the proper officer's view that these proceedings could not continue in this court while there was a judgment in the District Court, he should have taken up the invitation to reply within 14 days, or answered the further reminder letter. He cannot now complain about it. It is now five years since the defendant commenced legal work for the plaintiff and over three since he ceased to act for the plaintiff. Further, as the plaintiff signed a costs agreement, it is unlikely that the costs assessor would be empowered to assess the bill of costs - see s 208C of the Act.
14 I decline to extend time to the period in which the plaintiff can file his application for costs assessment. The amended summons is dismissed. Costs are discretionary. Costs should follow the event. The plaintiff should pay the defendant's costs.
15 The orders I make are: