Cartwright & Anor v Rapp Law [2016] QDC 11

DISTRICT COURT OF QUEENSLAND CITATION: Cartwright & Anor v Rapp Law [2016] QDC 11 PARTIES: ROGER CARTWRIGHT and KAREN CARTWRIGHT (respondents) v RAPP LAW (applicant) FILE NO/S: 4166/2012 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 16 February 2016 DELIVERED AT: Brisbane HEARING DATE: 12 February 2016 JUDGE: Reid DCJ ORDER: 1. Provided the respondent, Rapp Law, deposits into the trust account of Quinn & Scattini Lawyers the sum of $119,467.08 on or before 31 March 2016, or such other date as I on application made before me, before that date, shall order, on account of the judgment of his Honour Judge McGill of 1 April 2015: (a) The time within which the respondent, Rapp Law, was required by r 742(2)(a) of UCPR to file its application to review the cost assessor’s certificate of 2 December 2014 be extended from 30 November 2015 to 3 December 2015; and (b) The time within which Rapp Law was required by UCPR r 742(4) to serve the said application on Roger and Karen Cartwright also be extended from 17 December 2015 to 18 December 2015 and further order that the said service has been effected by the posting of the said application by or on behalf of Rapp Law on 17 December 2015 as deposed to in the -- 1 of 10 -- 2 affidavit of Kevin Carey filed 12 February 2016. 2. Any money paid into the trust account of Quinn & Scattini Lawyers shall abide the outcome of the review of the cost assessor’s certificate. 3. That Rapp Law pay the costs of Roger and Karen Cartwright, of and incidental to the application before me, fixed in the sum of $3520.00. CATCHWORDS: 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 Uniform Civil Procedure Rules 1999 (Qld), rr 7, 742 COUNSEL: N.P. Hiscox for the respondents (direct brief) D.J. Topp for the applicant SOLICITORS: Rapp Law for the applicant [1] The application formally before me relates to an application by a firm of solicitors, Rapp Law, to review a costs assessor’s certificate of 17 October 2014 and for related orders. The application was filed 3 December 2015 and was originally listed for hearing on 3 February 2016. On that day Richards DCJ ordered that the matter be adjourned to 12 February 2016. When the matter came before me on that day the parties indicated the immediate issue to be determined by me related to an application by Rapp Law for orders, pursuant to r 7 of the Uniform Civil Procedure Rules 1999 (“UCPR”), extending the time allowed by UCPR r 742(2)(a) for Rapp law to file the application to review the assessor’s certificate and a for a further order also extending -- 2 of 10 -- 3 the time allowed by UCPR r 742(4) for serving the application on Mr and Mrs Cartwright. [2] The matter has a long and unfortunate history. I shall refer to the parties by name to avoid confusion, since the respondent to the application before me is the applicant in the originating proceedings, for a costs assessment, and the applicant before me is the respondent in those proceedings. [3] On 19 June 2013, Horneman-Wren SC DCJ made an order for assessment of the relevant costs under the Legal Profession Act 2007. There were further orders subsequently made. Ultimately, the assessor conducted the assessment and on 2 December 2014 filed a certificate that costs had been assessed in the sum of $84,783.60. [4] It appears from a judgment in the matter of McGill SC DCJ of 1 April 2015, that a far greater sum, namely $204,250.68, had been paid by Mr and Mrs Cartwright to Rapp Law on account of fees. The difference, some $119,467.08, was, having regard to the costs certificate, payable by Rapp Law to Mr and Mrs Cartwright. [5] Before McGill SC DCJ, Rapp Law indicated that it wished to have the assessor’s certificate reviewed under r 742 of the UCPR. The certificate, as I have said, had been filed in December 2014. Despite the significant passage in time between then and 1 April 2015, when the matter was before him, McGill SC DCJ commented that Rapp Law was still in time for that review because requests for reasons of the assessor, made within time, had not been acted on. The assessor had not provided those reasons because Rapp Law had not paid him the costs for those reasons, some $3,960. Rapp Law, according to McGill SC DCJ, had not done so because it, or Mr Rapp the principal, had insufficient funds. In interpose that I find that assertion -- 3 of 10 -- 4 extraordinary, especially when Rapp Law has been able to instruct counsel before both McGill DCJ and before me. [6] Rule 742(2) of the UCPR provides that an application for review must be made 14 days after a party who requested reasons under UCPR r 738(1), receives those reasons. It is accepted that Rapp Law requested those reasons under UCPR r 738(1). Counsel for Rapp Law submitted to me that it therefore had 14 days after receiving those reasons to file an application for review of the costs assessor’s certificate. He submitted that right was not curtailed by the fact that it was the delay of Rapp Law in paying the assessor that caused the delay in receipt by it of those written reasons. That was not disputed. It was a matter that concerned McGill SC DCJ. His Honour said in his judgment: “However, the concern about his financial position does suggest that there may well be difficulties in his pursuing any review. I accept that the rules particularly provide that judgment on the certificate may be delayed or stayed, pending a review. In the present case, however, I have, understandably enough, no evidence of any particular error on the part of the costs assessor, and, more importantly, I have no basis for thinking that the ordinary ground for staying a judgment pending an appeal, that is, that if the judgment is satisfied pending the appeal it would render the appeal futile, applies in the present case. No argument was advanced on that basis. The position advanced by the respondent is, really, to the effect that he ought not to have to pay until he has had the opportunity of pursuing a review, and that, I think, would have the effect of characterising the assessment that has occurred at the moment as in the nature of a provisional assessment, and something which would not stand until the decision had been confirmed on review. That, in my opinion, is not the status of an assessment by a costs assessor under the rules.” [7] It is clear from the judgment that his Honour’s view was that Mr and Mrs Cartwright had, on his giving judgment for the sum of $119,467.08 (as his Honour did), a then present entitlement to seek to recover that sum from Rapp Law, subject to any order that Rapp Law might seek to obtain staying recovery of that judgment. -- 4 of 10 -- 5 [8] In any case, Rapp Law and Mr Rapp continued to refrain from paying the assessor’s costs until late 2015. After that was eventually paid the assessor sent the written reasons to Rapp Law. Mr Rapp attests to receiving them only on 16 November. That is also not disputed. [9] Because an application for review must be filed within 14 days after the party receives those reasons, Rapp Law therefore needed to file the application by 30 November 2015. It was in fact not filed until 3 December 2015. Rapp Law therefore seeks an extension of time to that date, pursuant to r 7 of the UCPR, to file the application. [10] Rule 742(4) of UCPR requires also that a party must serve the application, in this case on Mr and Mrs Cartwright, within 14 days after the application was filed, that is in this case, by 17 December 2015. [11] In fact, it was posted by express post only on 17 December 2015, according to Mr Rapp and his employee, a Mr Carey. In the ordinary course of such post it would therefore not have been delivered until the following day. Mr Carey’s affidavit exhibits what he says is the postal tracking receipt for the documents which indicates it was so delivered at Burleigh Heads on Friday 18 December 2015 at 12.28pm. [12] Mr and Mrs Cartwright rely on an affidavit of an employee, Melanie Draper, filed by leave before me, to dispute such service. Ms Draper attests that she is the office administrator for Mr and Mrs Cartwright’s business at 1/74 Kortum Drive, Burleigh Heads. That is the address Mr Carey attests that he sent the documents to. Ms Draper says she was at work at that address from 9.30am until 2pm on 18 December 2015 and did not receive any delivery of Australia Post mail or an express post envelope that day. -- 5 of 10 -- 6 [13] It is in such circumstances that Mr Rapp seeks orders that I extend the time for filing the application to 3 December 2015 and that I also extend the time for service of the application to 18 December 2015. [14] With respect to the issue of extending time for service of the application, my view is that the issue of whether or not the documents were in fact received at Mr and Mrs Cartwright’s place of business on 18 December 2015 is not critical. I accept that Mr Carey sent them by express post on 17 December 2015. If they were not in fact delivered – and I do not specifically find that is what occurred – that failure was through no fault of Mr Rapp or Mr Carey. If I was inclined to extend the time for service from 17 December 2015 to 18 December 2015 (if they were so served then) I would similarly extend time beyond 18 December 2015, to the day such documents were later handed to Mr and Mrs Cartwright’s barrister at court, namely 3 February 2016 when the matter was before Judge Richards. [15] The critical question, in my view, is 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. [16] The extension sought might seem inconsequential – a mere matter of days. The problem Rapp Law, and in particular Mr Rapp, had in filing the application are dealt with in the affidavits of he and Mr Carey filed before me with leave. They suggest a significant level of disorganisation and perhaps panic in Mr Rapp’s preparation of the material for service and on his attending court on 30 November 2015 to file the documents. Ultimately, it seems the application was taken by Mr Rapp to the registry for service on Monday 30 November 2015, but very late in that day. Furthermore, it seems his affidavit was not yet signed and doing that took some time to effect. In the -- 6 of 10 -- 7 confusion Mr Rapp failed to ensure that the application itself was filed. When he returned, later on 30 November 2015, to the Gold Coast, where he practices, he realised his error. What occurred on the following day is unknown. In any case it took until Wednesday 2 December 2015 for him to send the application to the court, so that it was filed the following day, 3 December 2015. [17] He swears in his affidavit that for reasons unknown to him he did not receive the sealed application until 16 December 2015. Whether that is true or not is unknown to me, but I accept that it was forwarded by registry staff to his office no earlier than 10 December 2015. I make that finding because of a reference to that date in a handwritten memo by court staff attached to the documents when they were sent to Rapp Law. In any case, Mr Rapp and Mr Carey ought to have been very aware of the need to serve the application within 14 days of filing and so by 17 December 2015. One would have expected that they might have, in the circumstances, moved heaven and earth to ensure that service was effected. Instead, even though they attest that they received the filed application on 16 December 2015, they did not then post it to Mr and Mrs Cartwright. Nor did they effect personal service. Rather, they posted it to the Cartwrights on 17 December 2015. They must have known that it would not be received until the following day, more than the required 14 days after the filing of the application. There is no explanation why they delayed posting it until 17 December 2015, rather than on 16 December 2015, or why they did not affect personal service on or before 17 December 2015. [18] It seems to me 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. I accept that they could have – and still can – seek to -- 7 of 10 -- 8 enforce that judgment. There may, however, be pitfalls in doing so. Amongst other things, Rapp Law may have sought to stay execution, if the Cartwrights had sought to enforce it, pending the outcome of any review. That would have been likely to result in the Cartwrights spending further money. [19] My finding about Mr Rapp’s motive in not paying the $3,960 to the assessor, namely that he thereby got significant advantage because time did not run pursuant to UCPR r 742(2) until he received those reasons, combined with the fact that the delay in filing of the application was entirely due to his own failings and disorganisation in getting the application ready in an orderly and timely fashion and the lack of any explanation for not serving it on 16 or 17 December 2015, cause me to conclude that it is only appropriate to extend, under r 7 of the UCPR, the time within which those steps should be taken on stringent conditions designed to protect the interests of Mr and Mrs Cartwright from any such further delay. They have been put to expense and denied receipt of money to which they are presently entitled by Mr Rapp’s conduct. [20] In my view, justice is best achieved by ordering that only upon payment of the judgment sum to Mr and Mrs Cartwright, within a required period, should I make orders extending time. Because r 7 is a discretionary provision, I am empowered to make such orders necessary to relieve against injustice. In my view, the conduct of Rapp Law, not confined to the somewhat shambolic period between 30 November 2015 and 17 December 2015, but overall, and its motives for such delay, cause me to conclude that it is in the interest of justice to so order, subject to giving Rapp Law an opportunity to be heard about the timeframe for such payment. [21] In an ordinary case I would have some sympathy for a person – even a solicitor – seeking extensions of the duration here sought. The delay from 30 November 2015 to 3 December 2015 and from 17 to 18 December 2015 appear inconsequential. -- 8 of 10 -- 9 [22] It is however appropriate in the circumstances of this case to examine wider issues of delay. Even after the judgment of Judge McGill SC DCJ in favour of Mr and Mrs Cartwright for the sum of $119,467.08 on 1 April 2015 Rapp Law continued to delay paying the assessor until late that year. Effectively, because of the particular provisions of UCPR r 742(2)(a) Rapp Law was in the positon where, by delaying payment for the assessor’s reasons, it was able to indefinitely delay the time for it to seek a review. I note, as I have said, that they assessor’s fees for those reasons was only $3,960 as mentioned in Judge McGill’s judgment. [23] In my view, those matters are very relevant to the issue of whether or not and on what terms I should extend the time for filing the application and for service of it. For the reasons I have set out, I think the orders I make are fair and in the interests of justice. [24] After hearing submissions from counsel for Rapp Law about time for payment, I order: 1. Provided the respondent, Rapp Law, deposits into the trust account of Quinn & Scattini Lawyers the sum of $119,467.08 on or before 31 March 2016, or such other date as I on application made before me before that date shall order, on account of the judgment of his Honour Judge McGill of 1 April 2015: (a) The time within which the respondent, Rapp Law, was required by r 742(2)(a) of UCPR to file its application to review the cost assessor’s certificate of 2 December 2014 be extended from 30 November 2015 to 3 December 2015; and (b) The time within which Rapp Law was required by UCPR r 742(4) to serve the said application on Roger and Karen Cartwright also be extended from 17 December 2015 to 18 December 2015 and further order that the said service has been effected by the posting of the said -- 9 of 10 -- 10 application by or on behalf of Rapp Law on 17 December 2015 as deposed to in the affidavit of Kevin Carey filed 12 February 2016. 2. Any money paid into the trust account of Quinn & Scattini Lawyers shall abide the outcome of the review of the cost assessor’s certificate. 3. That Rapp Law pay the costs of Roger and Karen Cartwright of and incidental to the application before me, fixed in the sum of $3520.00. -- 10 of 10 --