Stojanovski v Willis & Bowring [2002] NSWSC 392 | Case summary

JUDGMENT (Extension of time to appeal decision of cost assessor - leave to appeal) 1 MASTER: By notice of motion filed 3 May 2001 the plaintiff seeks leave to appeal against the determination of costs by cost assessor Mr Neville Menlove dated 16 May 2000. The appeal sought is by way of a new hearing with fresh evidence in regard to costs claimed by the defendant. The plaintiff seeks an order that the amount of costs in dispute are not owing by the plaintiff to the defendant. The plaintiff relied on his affidavit sworn 30 November 2001 and the affidavit of Ilce Musarevski sworn 14 September 2001. The defendant relied on two affidavits of Adrian Mattiussi sworn 21 December 2001. The plaintiff was represented by Mr Matters, a law student. Both the plaintiff and his former solicitor were cross examined. 2 The plaintiff submitted that firstly, there was an agreement that the solicitor would act for him on the basis that he (the solicitor) would not charge a fee; secondly, that the costs assessor's assessment was inadequate because he was not provided with adequate explanation as to when Mr Kencevski became a client; and thirdly, the costs assessor attributed most of the work as being done in the plaintiff's matter and not Mr Kencevski's matter. 3 The plaintiff was the president of Illawarra Lions Football Club in 1996 and 1997. He represented the club in negotiations concerning monies owing with the State Bank. Prior to October 1997 the club had been represented by Harrison & Associates in those negotiations. At this time there was litigation on foot. The State Bank was suing the Wollongong Macedonia United Soccer Club (the club) as the first defendant, Peter Kencevski as second defendant and the plaintiff as third defendant. The bank had filed proceedings in this court. In addition to seeking the sum of $344,045.68 being moneys lent to the club, both the plaintiff and Mr Kencevski were sued personally pursuant to guarantees they had given. Ultimately, on 8 May 1998 consent orders were filed in court in those proceedings. 4 In 1997 the plaintiff was introduced to Mr Adrian Mattiussi and Mr Greg Harris of Willis and Bowring at a lunch at the Capri restaurant, Port Kembla. The fact that this meeting took place is not in dispute. According to the plaintiff, Mr Mattiussi proposed that Willis and Bowring act for the club, including in the negotiations with the State Bank on a no fees basis. This offer was accepted by the plaintiff on behalf of the club. According to the plaintiff the offer was made because in return for that firm of solicitors doing the legal work for free, the members of the club would recommend them to their community. Mr Musarevski also attended the lunch. He deposed that he was introduced to Adrian Mattiussi and at the end of the lunch Mr Mattiussi said to George and himself "We will do your work as the other solicitor is doing for free" (Aff 30 November 2001). Even if Mr Mattiussi's version is correct, the former solicitors, Harrison & Associates requested payment for their costs and disbursements before they would release the file to Willis and Bowring (letter dated 31 October 1997). 5 Prior to this explanation being given to this court, the plaintiff had given two prior versions by way of affidavit filed in the local court. On 6 July 2000 the plaintiff deposed that he had been in dispute with the plaintiff in this matter for the past two years. The debt in question, if any, was incurred by the Illawarra Lions Football Club and not by him as the president of the organisation (Ex 1). Later in the affidavit of 29 August 2000 the plaintiff deposed that in 1997 he was introduced to Mr Adrian Mattiussi and Mr Greg Harris of Willis and Bowring at a lunch at the Capri restaurant, Port Kembla, who proposed that Willis and Bowring act for the club, including in the negotiations with the State Bank on a no fees basis. This offer was accepted by the plaintiff on behalf of the club (Also Ex 1). Both of these versions indicate that any agreement that no fee would be charged related to the club only and did not extend to the personal guarantees. 6 Mr Mattiussi solicitor disagrees with the plaintiff's version. Mr Mattiussi's version of events is that at the lunch he recalled the plaintiff saying to him words to the effect: "I want you to act for me. There have been negotiations going on with the State Bank about settling and I want you to get involved in those negotiations. The other guarantor, Kencevski, is represented by another solicitor at the moment, but I will talk to him about coming over to you as well. The fact is the club has no money and the bank knows that. That's why Kencevski and I have been joined because of our guarantees so you will be acting for me. I have been appointed president of the club to try and get it out of its financial problems. I had been president once before. The Macedonian community would like to save the club and make it strong again." 7 Mr Mattiussi then deposes that he took detailed instructions from the plaintiff in relation to the proceedings and at the end of their conference he said words to the effect, "I'll put on a notice of change of solicitor for you and the club although in the circumstances you appreciate that I am acting for you in this matter on the question of your guarantee." A notice of appearance for the club and the plaintiff was duly filed. After Mr Mattiussi accepted instructions for the plaintiff, he also acted for the other guarantor Mr Kencevski. 8 On 22 December 1997 Mr Mattiussi forwarded a letter to the plaintiff confirming his instructions and enclosing a cost agreement. The costs agreement is one between the plaintiff personally and the solicitor. The costs agreement was never signed nor returned to the solicitor. 9 Before the issue of whether leave to appeal should be granted and hence which version of the conversations should be accepted, there is a threshold issue to be determined namely whether an extension of time to appeal should be granted.

Extension of time to appeal 10 In Donnelly & Anor v Ross Mining NL [1999] NSWSC 960, 23 September 1999 at para 33, Sully J held that the time within which an application for leave to appeal under s 208M of the Act be filed is 14 days. 11 In Chapmans Ltd v Yandell [1999] NSWCA 361, Fitzgerald JA (with whom Mason P and Davies AJA agreed) stated that it is important to keep in mind that the purpose of a requirement of leave to appeal is that it is intended to act as a filter to ensure that unsuitable appellant proceedings are not able to be brought with the demands which that places upon the resources of the court and the burden which it places upon other parties and the delays which it causes to other litigants. - see Coulter v The Queen (1988) 164 CLR 350 at 359. Fitzgerald JA also stated that if leave to appeal should be granted where there is some other matter which in justice required that leave to appeal be granted to allow that matter to be relitigated, the party seeking leave to appeal obviously bears the burden of establishing that justice does require that leave to appeal be granted. 12 Further, the Master when considering whether to grant leave to appeal obviously has a very wide discretion - see CDJ v VAJ (1998) 197 CLR 172 (per McHugh, Gummow and Callinan JJ). 13 The costs assessor issued a determination on 16 May 2000. An application for leave to appeal under s 208M of the Act should have been filed by 30 May 2000. The summons was filed on 30 August 2000 which is over 12 months late. The catalyst for its filing was that the solicitor was seeking to enforce the certificate of determination of the costs assessor. 14 The plaintiff gave evidence that he was seriously assaulted in February 1999 and this affected his standing in the Macedonian community, the relationship with his family and his ability to conduct this litigation. Further he was unable to afford legal representation. It is for these reasons that the plaintiff asserts an extension of time should be granted. 15 On 13 July 2000, after a visit from the Sheriff, the plaintiff attended the chamber magistrate at Wollongong. The plaintiff swore an affidavit and sought a stay of the local court proceedings on the basis he was intending to review the decision of the costs assessor. On 29 August 2000 the plaintiff swore a further affidavit in relation to the local court proceedings to which I have made reference earlier in this judgment. In this later affidavit the plaintiff deposed that he had not received a certificate of the assessment from the costs assessor and that he only became aware that a judgment had been obtained or that the certificate had issued, when the Sheriff attended pursuant to a writ (aff 29 August 2000). 16 Nevertheless, the plaintiff knew that the costs assessment had taken place. The plaintiff acknowledged that he received the letter from the Supreme Court advising him that an assessment would take place, and he gave evidence that he was aware when the assessment was taking place. Further on 3 November 1999 the costs assessor, Neville Menlove wrote to both the plaintiff and his former solicitor. He advised them that he had received an application for assessment of practitioner/client costs dated 30 September 1999 and the solicitor's bill of costs dated 25 August 1999. The costs assessor invited the plaintiff to make written submissions in relation to the assessment of costs. He advised that such submissions and any correspondence were to be served on the solicitor and any further submissions were to be made within 14 days. 17 On 3 December 1999, the plaintiff replied to the costs assessor. He wrote: "… I wish to inform you that the fees relating to the legal matter carried out by Willis and Bowing (sic) solicitors should have been addressed to Illawarra Lions Soccer Club Incorporated rather than myself personally. When Mr Adrian Mattiussi was engaged to act for the soccer club he had been aware that it was the soccer club that he was representing and not myself. A letter had been sent to the soccer club requesting for payment and as it has denied liability Willis and Bowing (sic) then decided to redirect the liability to myself. Also the original account for fees had been for the amount of $5,861.00 (Please refer to the attached copy of the letter). However the costs assessment letter has stated the amount to be over $10,000. Before you proceed with further assessment and incurring further costs I wish to request for an extension of time to have the opportunity to approach the management committee of the soccer club and attempt to resolve the matter." 18 The costs assessor took the matters raised by the plaintiff into account when reaching his decision. In his letter addressed to the plaintiff and dated 16 May 2000 the costs assessor stated: "In this matter the client claims that the account should have been directed to Wollongong Macedonian United Soccer Club rather than himself. However, I am satisfied that the solicitors acted for Mr George Stojanovski since he was personally named as the third cross defendant in the Supreme Court proceedings. The solicitors also acted for Mr Peter Kencevski and Wollongong Macedonian United Soccer Club in the Supreme Court proceedings. The client claims that the solicitors original bill was for $5,861.00 and that they should be limited to that amount rather than the present claim for $10,436.93. However, in view of the decision in G H Healy & Co Bondi - Grasso I am satisfied that the solicitors are able to claim the larger amount. I have allowed the solicitors charges on the Supreme Court scale as it existed in 1994 and have allowed the 15% care, skill allowance. The solicitor personally conducted settlement negotiations which were difficult and protracted but which were eventually successful." 19 The costs assessor then gave details of the items on the bill he had disallowed, most of which referred to work done for Mr Kencevski. 20 Even though the plaintiff had suffered an assault he was aware that the costs assessment was taking place and he was able to put in a brief submission to the costs assessor which raised the issue for which leave is now sought. When he realised that the Sheriff was going to execute the writ, he took immediate steps to have those proceedings stayed. He then set about seeking leave to appeal the costs assessor's decision. I am not satisfied that leave for an extension of time should be granted. It is not in the interests of justice to do so. Leave should not be granted for an extension of time to seek leave to appeal. 21 In any event, it is my view there would be little utility in granting such an extension as the application for leave to appeal is most unlikely to succeed. I dismiss the summons and notice of motion. 22 Costs are discretionary. Costs should follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed. 23 The orders I make are:

Stojanovski v Willis & Bowring

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Cases Cited (4)