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Retchless & others v Lister[2016] QDC 28

Retchless & others v Lister[2016] QDC 28

DISTRICT COURT OF QUEENSLAND

CITATION:

Retchless & others v Lister [2016] QDC 28

PARTIES:

Retchless & others
(Applicant)

v

Lister
(Respondent)

FILE NO/S:

63/14

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Southport

DELIVERED ON:

22 February 2016 (ex tempore)

DELIVERED AT:

Southport

HEARING DATE:

22 February 2016

JUDGE:

Rackemann DCJ

ORDER:

Time for filing a review of the costs assessor’s certificate is enlarged.

CATCHWORDS:

CIVIL LAW – APPLICATION TO EXTEND THE TIME FOR THE FILING OF A REVIEW OF A COSTS ASSESSOR’S CERTIFICATE – where the application for review was filed late -  where the solicitor for the applicant held an erroneous belief as to the operative date -  where the solicitors held instructions to file an application for review – where there was no material prejudice to the respondent due to the delay – where there was non-compliance with rule 742(3) of the Uniform Civil Procedure Rules

COUNSEL:

M E Pope for the applicant

S Buchanan (solicitor) for the respondent

SOLICITORS:

DGM Lawyers for the applicant

Buchanan Lawyers for the respondent

  1. [1]
    This is an application pursuant to rule 7 of the UCPR to extend the time for the filing of a review of a costs assessor’s certificate. The requirement for an application for review is dealt with in rule 742 of the Uniform Civil Procedure Rules which states relevantly as follows:

742(1).A party dissatisfied with the decision included in a costs assessor’s certificate of assessment may apply to the court to review the decision. The application for review must be filed –

(a)if reasons are requested under rule 738(1) – 14 days after the party receives those reasons…

...

(3)the application must –

(a)state specific and concise grounds for objecting to the certificate;  and

(b)have attached to it a copy of any written reasons for the decision given by the costs assessors;  and

(c)state any other matter required by a practice direction in relation to this rule.

  1. [2]
    It is common ground that the application for review was filed late. The reasons which had been requested under rule 738(1) were provided on the 11th of November, but the application for review was not filed until the 29th of November, some four days late. The affidavit material relied upon by the applicant for relief establishes that was due to an error within the offices of the solicitor for the applicant, of which the applicants themselves were not responsible. It appears that the solicitor with the carriage of the matter did not come to see the reasons until the 14th of November and erroneously believed that that was the operative date from which the 14-day period commenced.
  1. [3]
    In exercising the broad discretion as to whether to extend time it is relevant to have regard to the fact that the error was one of the solicitor, rather than the applicants themselves, that within the time for filing an application for review the solicitors for the applicants communicated to the solicitors for the defendant/respondent that they held instructions to file an application for review, the fact that the application for review, although filed late, was only late by a few days and there is no real basis to contend that there was any material prejudice to the defendant/respondent in being able to meet the application because of that delay of a few days. In the circumstances, I am prepared to extend time.
  1. [4]
    It was also contended, on behalf of the defendant/respondent, that the application for review, when filed, was deficient in that it did not have attached to it a copy of the written reasons for the decision given by the costs assessor. That is true, but the reasons were filed and the parties have access to them.
  1. [5]
    There was also some criticism made of the grounds for objecting which were set out in the grounds for review. The application for review made it clear that there were three respects which which a review was sought. They related to the decision to allow counsel’s fees on what was said to be an indemnity basis (rather than a standard basis), the items for counsel’s fees and the amount for care and consideration allowed for the solicitors. It is true that the application could have - and should have - been more specific in relation to the items for counsel’s fees and could have given greater detail of the ground for objection. However, it is accepted now by the solicitor for the respondent/defendant, that they have been sufficiently apprised of the case they must meet in order to be able to deal with the matter. In the circumstances, I would excuse any non-compliance with the provisions of rule 742 (3).
  1. [6]
    The applicant is ordered to pay the respondent’s costs of that application.
Close

Editorial Notes

  • Published Case Name:

    Retchless & others v Lister

  • Shortened Case Name:

    Retchless & others v Lister

  • MNC:

    [2016] QDC 28

  • Court:

    QDC

  • Judge(s):

    Rackemann DCJ

  • Date:

    22 Feb 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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