APPLICATION TO REVIEW COST ASSESSOR’S CERTIFICATE

PROCEDURE – APPLICATION TO REVIEW COST ASSESSOR’S CERTIFICATE – EXTENSION OF TIME – where the applicant sought an extension of time to file and to serve application to review cost assessor’s certificate – delay in seeking assessor’s reasons – fault of applicant – failure to file application within 14 days of receiving reasons – failure to serve application within 14 days of filing – reasons for such failure – overall conduct of applicant – condition attached to order to extend time

Cartwright & Anor v Rapp Law [2016] QDC 11

This matter involved an application brought by Rapp Law to review a costs assessor’s certificate. The matter was listed for hearing on 3 February 2016, but was adjourned to 12 February 2016. The issue to be determined on that date related to the application for orders extending the time allowed by r 742(2)(a) of the Uniform Civil Procedure Rules 1999 for Rapp Law to file the application to review the costs assessor’s certificate and to extend the time under r 742(4) for serving the application on the respondents, Mr and Mrs Cartwright.

By way of history, the costs assessor filed a certificate on 2 December 2014 assessing costs in the sum of $84,783.60. The sum of $204,250.68 had been paid by Mr and Mrs Cartwright to Rapp Law so the difference in the amounts was payable by Rapp Law to Mr and Mrs Cartwright.

When the matter was heard before McGill SC DCJ on 1 April 2015, the judge commented that Rapp Law was still in time for the review because requests for reasons of the assessor had not been acted on - Rapp Law had not paid for the reasons because the principal had insufficient funds, so the assessor had not provided the reasons. Counsel for Rapp Law submitted that it had 14 days after receiving the reasons to file an application for review and that right was not curtailed because it was the delay of Rapp Law in paying the assessor the caused delay of the provision of the reasons. McGill SCJ DCJ raised his concerns with this in the judgment of 1 April 2015.

The reasons were not paid for until late 2015 and Rapp Law received them on 16 November 2015. The due date for filing of an application for review was 30 November 2015, however it was not filed until 3 December 2015. Accordingly, Rapp Law sought an extension of time under r 7 of the UCPR to file the application. Issues also arose in relation to the 14 day period for serving the application. Reid DCJ extended the time for service to 18 December 2015.

In the judge’s view, the critical question was “whether I should, in the exercise of my discretion, extend the time for filing the application to 3 December 2015 and extend the time for service of it to whenever it was actually served, whether that was 18 December 2015 or 3 February 2016 and, if so, on what terms.” (at [15]). Reid DCJ noted the problems and disorganisation in relation to the filing of material for service. His Honour considered that “Mr Rapp did not pay the assessor for these reasons, using the rules to effectively delay this matter and so avoided payment of money due under the judgment of McGill SC DCJ to Mr and Mrs Cartwright and avoided a timely determination of the review”. (at [18]).

After considering the circumstances and taking into account the interests of Mr and Mrs Cartwright, it was concluded that such orders should be made necessary to relieve against injustice, subject to giving the firm an opportunity to make submissions in relation to the timeframe for payment. Orders were made in relation to the time for payment, the time to file the application for review and service of same was extended, and any money paid into the trust account of Quinn & Scattini Lawyers should abide the outcome of the review of the cost assessor’s certificate. It was further ordered that Rapp Law pay Mr and Mrs Cartwright’s costs of and incidental to the application fixed in the sum of $3,520.