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Decisions of the Superior Courts of New South Wales, 1788-1899

Solomon v Hammond (1830) NSW Sel Cas (Dowling) 855; [1830] NSWSupC 54

replevin, costs, legal, waiver

Supreme Court of New South Wales

Dowling J., 19 July 1830

Source: Dowling, Select Cases, Archives Office of New South Wales, 2/3466

[p. 2]

[Where in replevin against a landlord a verdict was found for deft. and the Atty taxed single instead of double costs, by mistake, the Master was directed to review his taxation and allow double costs, notwithstanding a demand of single costs only.]

19 July 1830

Coram Dowling J

At Chambers

Solomon v Hammond

This was an action of replevin and a verdict was found for the Defendant the Defendant got his Costs taxed, and the Attorney for Defendant, served the Allocatur[1 ]  upon the opposing Attorney.  He afterwards discovered that he was entitled to double costs and made a fresh demand on the Plaintiffs Attorney which was refused.

Keith took out a summons for the Master to review his taxation and have double costs allowed.

S Stephen opposed the application Contending that the opposite attorney must be considered as waiving the double costs, by demanding single costs only but

[p.3]Dowling J was of opinion that as the Attorney had demanded single costs in ignorance of his right to double costs this did not amount to a waiver.  A waiver must have as the foundation of it, knowledge of the party of what he was waiving.

The Master to review his Taxation.

 

Notes

[1 ] It is allowed.   A certificate of taxation of costs issued by the taxing master.

Published by the Division of Law, Macquarie University