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Ada Evans Chambers Pty Ltd v Santisi

Ada Evans Chambers Pty Ltd v Santisi

Case [2014] NSWSC 538 6 May 2014

Costs

Standing

Summary Judgment

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ada Evans Chambers P/L v Santisi [2014] NSWSC 538
Hearing dates: 2 May 2014
Decision date: 06 May 2014
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Dismiss the summons.
(2) Unless any party seeks a different order in writing to my Associate within seven days, order the plaintiff to pay the defendant's costs of the proceedings.

Catchwords: APPLICATION - application to strike out summons for appeal from Local Court costs order - effect of Practice Note - whether a legal practitioner who is a barrister is entitled to costs when also a litigant - no basis to suggest that the Magistrate's discretion to exclude the evidence miscarried - relevance of lack of fee agreement - no arguable ground - summary dismissal appropriate
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56, s 57, s 58, s 59, s 101
Criminal Procedure Act 1986 (NSW), s 215
Legal Profession Act 2004 (NSW), s 317
Local Court Act 2007 (NSW), s 39, s 40
Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Cases Cited: Ciszek v Enterprise Financial Solutions Pty Limited [2010] NSWSC 1265
Farkas v Northcity Financial Services Pty Limited [2006] NSWSC 1036
Murphy v Legal Services Commissioner (No. 2) [2013] QSC 253
Phillips v Tobias Partners Pty Limited [2013] NSWSC 496
Sayed v Deng [2012] NSWSC 851
Soia v Bennett [2014] WASCA 27
Wang v Farkas [2014] NSWCA 29
Winn v Garland Hawthorn Brahe [2007] VSC 360
Texts Cited: Local Court of New South Wales Practice Note Civ 1
Category: Principal judgment
Parties: Ada Evans Chambers Pty Ltd (Plaintiff/Respondent)
Frank Santisi (Defendant/Applicant)
Representation: Counsel:
R Freeman (Plaintiff/Respondent)
SJ Burchett (Defendant/Applicant)
Solicitors:
Adams & Co Lawyers (Plaintiff/Respondent)
Denison Toyer (Defendant/Applicant)

File Number(s): 2014/13789
Publication restriction: Nil

Judgment

Introduction

Frank Santisi applies to strike out a summons for appeal filed by Ada Evans Chambers Pty Limited (the Chambers) in respect of an order as to costs made by the Local Court.

The dispute between Mr Santisi and the Chambers arose when Mr Santisi, a practising barrister, was a licensee of the Chambers. The Chambers commenced proceedings in the Local Court for licence fees alleged to be outstanding. Mr Santisi filed a cross-claim alleging that certain services were not provided to him. The hearing of the matter commenced before Schurr LCM on 1 June 2012. There were then directions on 15 June 2012 before Schurr LCM. The matter then continued before Pierce LCM on 9 August 2012, 26-27 November 2012 and 4 October 2013. Judgment was delivered on 18 December 2013 in favour of Mr Santisi for the sum of $8,000 plus interest and costs.

The summons in this Court was filed on 15 January 2014 and purports to appeal against the costs order. No leave to appeal is sought. An amended summons was filed on 14 March 2014 but it, too, failed to include an application for leave.

Mr Burchett, who appeared on behalf of Mr Santisi, contended that the appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ada Evans Chambers Pty Ltd v Santisi

Details

AGLC: Ada Evans Chambers Pty Ltd v Santisi [2014] NSWSC 538
Case: [2014] NSWSC 538
Decision Date: 06 May 2014

CaseChat Overview and Summary

The case of Ada Evans Chambers Pty Ltd v Santisi involved a summons for appeal from a Local Court costs order. The applicant, Ada Evans Chambers, sought to strike out the summons on the basis that there was no arguable ground for appeal. The respondent, Santisi, argued that the appeal should proceed, particularly in light of the absence of a fee agreement between the parties and the Magistrate's exercise of discretion in relation to evidence. The matter was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the summons for appeal had an arguable ground, particularly considering the effect of the Practice Note on the eligibility of a legal practitioner who is also a litigant to claim costs. Additionally, the court had to determine if there was any basis to suggest that the Magistrate's discretion to exclude evidence miscarried and the relevance of the absence of a fee agreement in the context of the appeal.

The court found that there was no basis to suggest that the Magistrate's discretion to exclude evidence had miscarried, and there was no arguable ground for the appeal. The court also noted that the absence of a fee agreement did not necessarily provide a basis for the appeal. Given the lack of any substantial legal argument or evidence to support the appeal, the court concluded that summary dismissal of the summons was appropriate. Consequently, the court struck out the summons for appeal and dismissed the application.

The court's final order was that the summons for appeal from the Local Court costs order was struck out, and the application by Ada Evans Chambers was dismissed. The court further ordered that the applicant pay the respondent's costs of the application.

Orders