Application for Stay of Judgment Denied Due to Lack of Procedural Fairness

The Court of Appeal dismissed an application for a stay of a District Court judgment, finding no arguable case for procedural fairness. The applicant sought to stay the judgment pending the outcome of a s 69 summons for judicial review. The Court held that the applicant had not demonstrated an arguable case for procedural fairness in the original proceedings.

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME] v [NAME] [2013] NSWCA 138 Hearing dates: 13 May 2013 Decision date: 13 May 2013 Before: Beazley P Decision: Notice of motion filed 1 May 2013 dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - civil - application for stay of District Court judgment, pending hearing of summons pursuant to Supreme Court Act 1970, s 69 - no arguable case - no denial of procedural fairness Legislation Cited: Legal Profession Act 2004 Category: Interlocutory applications Parties: [NAME] (Applicant) [NAME] (Respondent) Representation: Counsel: [redacted] In person (Respondent) Solicitors: [redacted] In person (Respondent) File Number(s): CA 2013/62988 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-09-04 00:00:00 Before: [NAME](s): 2012/130486

Judgment 1HER HONOUR: By notice of motion filed on 1 May 2013 the applicant, [NAME], seeks an order that a judgment dated 4 September 2012 be stayed pending the outcome of the s 69 summons commencing proceedings, filed in the Supreme Court on 28 February 2013 (order 1 in the notice of motion). The applicant also seeks stay orders in respect of an examination notice and an examination order. However, an examination has already been conducted, so that I proceed on the basis that the only order sought before me today is that contained in para (1) of the notice of motion. 2The notice of motion is supported by an affidavit of [NAME] affirmed on 8 April 2013 and an affidavit of [NAME] affirmed on 8 April 2013. In defence of the motion, the respondent, [NAME], has filed an affidavit sworn on 11 May 2013. I note that [NAME] did not read paras 25(c), (e) and (g) of that affidavit for the purposes of this notice of motion. 3The s 69 summons seeks judicial review of the decision of [NAME] dated 20 July 2012. The proceedings before [NAME] involved an application by [NAME] challenging the decision of a costs assessor pursuant to the Legal Profession Act 2004, s 384 on the basis that he was dissatisfied with the decision of the costs assessor as to a matter of law arising on the assessment. Her Honour identified the matter of law in para (3) of her reasons as relating to the construction of the costs agreement between the plaintiff, [NAME], and others. 4Mr [NAME] was successful on that appeal, with the effect that [NAME] was made responsible, as a matter of construction of the costs agreement, for all costs that had relevantly been rendered by [NAME] and assessed by the costs assessor as being payable. Those costs were in the order of $8,000.

Accordingly, her Honour made orders (3) and (4) as sought by [NAME] in his summons commencing the appeal. Those orders as sought were as following: "3 The Certificate of Determination of Costs issued by the Second Defendant in Costs Assessment Number 2011/332946, sent by the Manager, Costs Assessment on 5 April 2012, be set aside. 4 In lieu thereof, a Certificate of Determination of Costs issue certifying that the sum of $8,246.53 is the fair and reasonable amount of costs to be paid to the Plaintiff in Costs Assessment Number 2011/332946 and, after credit is given for the sum of $1,697.53 paid on account of the said sum of $8,246.53, that the First Defendant is to pay to the Plaintiff the sum of $6,549.00." 5Ms [NAME] contends that [NAME] erred in law in not affording her procedural fairness. [NAME] submitted that that error is apparent from para (5) of her Honour's reasons in which her Honour noted that much of the evidence of [NAME] in the proceedings before her had been objected to by [NAME] on the grounds of relevance, largely because [NAME] sought to agitate a number of issues arising out of the substantive proceedings. By this, I understand her Honour to be referring to the costs assessor's assessment. Her Honour stated that the scope of the appeal "is the narrow one which I have identified". That narrow scope was the construction of the costs agreement to which I have referred. 6In the course of [NAME] making her submissions to me, she confirmed that the matters that she had sought to agitate in her affidavit evidence before [NAME] were challenges to the costs assessor's assessment of certain of the costs claimed by [NAME]. Those matters were not before her Honour, as [NAME] had not filed an appeal from the costs assessor's determination, either directly or by way of a cross appeal to [NAME]'s appeal, pursuant to s 384, or at all. It is to be noted that the only appeal to the District Court from a costs assessor's determination is pursuant to s 384 and is limited to an appeal as to a matter of law arising from the decision of the costs assessor. A challenge to the assessment in terms of its quantification, either in totality or in respect of certain items would rarely, if ever, give rise to a matter of law. But in any event, no such appeal or cross-appeal was before her Honour at the instance of [NAME]. 7In those circumstances, whatever [NAME]'s concerns may be as to the quantum of the costs ordered by the costs assessor and which now, pursuant to her Honour's orders, she bears responsibility by way of legal liability under the costs agreement, she has not satisfied me that she has an arguable case for a denial of procedural fairness at the instance of [NAME] in the proceedings heard by her Honour. 8Accordingly, I would not grant a stay of the judgment which has been ordered pursuant to the registration of the certificate of determination of costs at the instance of [NAME]. 9Having said that, there are occasions in which a Court will grant a stay on conditions. [NAME] had indicated to the Court that he would consent to a stay on condition that the total amount of the judgment, which he has now had entered in his favour, together with costs, be paid into Court. A stay on that condition had been ordered by [NAME] on 28 March 2013, but the condition was not complied with. [NAME] informed the Court from the bar table that she was not in a financial position to comply with that condition and that is why she had not done so. The stay which she now seeks is one on unconditional terms. 10If I considered that [NAME] had an arguable case on the appeal, I would have given further consideration as to whether it was appropriate to order a stay, either on conditions or not on conditions. There is scant evidence before the Court that would have permitted me to appropriately determine what conditions ought to have been imposed, but that could have been attended to either by oral evidence or by giving [NAME] a further opportunity to file evidence either as to her own financial circumstances or those of [NAME]. The financial circumstances of [NAME] would have been relevant, as the case law indicates that a Court may order a stay if it considered that there was a likelihood that monies could not be repaid by the plaintiff in the proceedings should either an appeal or, as in this case, a s 69 summons, be successful. There was no such evidence before the Court, but as I have said, I have based my determination on the primary consideration that I am not satisfied that [NAME] has an arguable case sufficient to warrant the grant of a stay of the execution of the judgment. 11I would only add one further matter. [NAME] tendered a letter from the [NAME] to her dated 12 April 2013 advising her that a writ for levy of property has been issued in respect of the unpaid judgment debt owing to [NAME]. [NAME] has informed the Court that he personally did not make any application for the writ. I leave that matter to one side, however, for the parties to sort out between themselves. I have not considered it to be a relevant consideration to the determination which I have made. 12Accordingly, the order that I make is that the notice of motion filed on 1 May 2013 is dismissed with costs.

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