Adamson v EDE - [2008] NSWSC 767

CITATION: Adamson v Ede [2008] NSWSC 767

HEARING DATE(S): 27 June 2008

JUDGMENT DATE :
30 July 2008

JUDGMENT OF: Smart AJ at 1

DECISION: See paragraph 70

CATCHWORDS: Local Court Appeal - Oral 'tit for tat' agreement between solicitor and builder - void costs agreement - builder engaged to do clerical work for solicitor and sues on quantum meruit - rate of remuneration - question of fact - builder engaged by solicitor as expert witness in unusual circumstances where he assumes liability for payment of fees - quantum meruit claim - indifferently drafted amended statement of claim - case conducted and decided on particular basis - GST payable on amounts awarded

LEGISLATION CITED: Clerical And Administrative Employees Legal Industry (State) Award
Frustrated Contracts Act (NSW)
Legal Profession Act
Local Courts Act 1982

CATEGORY: Principal judgment

CASES CITED: Banque Commercial S.A, En Liquidation v Akhill Holdings Limited (1989-1990) 169 CLR at 286
Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221
Foran v Wight (1989) 168 CLR 385
Leading Edge Events Australia Pty Ltd v Kiri Ti Kanawa [2007] NSWSC 228
Port of Melbourne Authority v Anshun Pty Ltd (1980-1981) 147 CLR 189
Pavey and Matthews v Paul 162 CLR 221
Robbins v Bridge (1837) M & W 114
Wentworth v Rogers [2005] NSWSC 143

TEXTS CITED: Expert Evidence Freckleton & Selby

PARTIES: Christopher Michael Adamson v Kenneth John Ede

FILE NUMBER(S): SC 30007/2008

COUNSEL: Mr C Adamson (In person)
M.J. Horowitz (for Mr Ede)

SOLICITORS: Mr C Adamson (In person)
Horowitz & Bilinsky (for Mr Ede)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 4271/2006

LOWER COURT JUDICIAL OFFICER : Magistrate B A Lulham

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

SMART AJ

Wednesday, 30 July 2008
30007/2008:

CHRISTOPHER MICHAEL ADAMSON v KENNETH JOHN EDE

JUDGMENT

1 On 19 December 2007 magistrate B A Lulham delivered a judgment in favour of Mr Ede against Mr Adamson in the sum of $18,160 with interest to be calculated from 28 April 2005. The Magistrate also ordered Mr Adamson to pay Mr Ede's costs of the Local Court proceedings heard on 14 and 15 February 2007 and 1 November 2007.

2 By his Further Amended Summons (FAS) filed in Court on 11 April 2008 Mr Adamson appealed from the whole of the Magistrate's decision except as to liability to pay a reasonable sum for clerical services rendered by Mr Ede in respect of the Adamson v Liu proceedings. To the extent that a ground of appeal involves a question of mixed law and fact Mr Adamson sought leave to appeal on that ground.

3 Section 73(1) of the Local Courts Act 1982 permits a party to appeal on a point of law and s 74(1) provides that a party may appeal on a ground that involves a question of mixed law and fact but only by leave of the Supreme Court.

4 The FAS advances many grounds of appeal.

5 (a) In…

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 Adamson v EDE

Details

AGLC: Adamson v EDE [2008] NSWSC 767
Case: [2008] NSWSC 767
Decision Date: 30 July 2008

CaseChat Overview and Summary

The Local Court appeal involved a dispute between a solicitor and a builder over the terms of an oral agreement and a subsequent claim for payment. The parties were engaged in a series of tit-for-tat agreements, with the builder undertaking clerical work for the solicitor. The builder sought to recover the costs of the work on the basis of a quantum meruit. The primary legal issues before the court were whether the costs agreement was valid and, if not, what the appropriate rate of remuneration was for the work carried out. Additionally, the court had to determine if the builder was entitled to recover costs under a quantum meruit claim and, if so, at what rate.

The court found that the costs agreement between the solicitor and the builder was void. It was not in writing and thus did not comply with statutory requirements. The court then considered whether the builder was entitled to recover on a quantum meruit basis. The court determined that the builder had acted as an expert witness in unusual circumstances, where he assumed liability for the payment of fees. Given the nature of the engagement and the lack of a formal agreement, the court found that a quantum meruit claim was appropriate. The court considered the rate of remuneration to be a question of fact, taking into account the nature of the work, the expertise required, and the circumstances under which it was performed. The court also addressed the issue of GST, ruling that it was payable on the amounts awarded.

The court found in favour of the builder, awarding him a quantum meruit for the work performed. The court determined the appropriate rate of remuneration based on the evidence presented, which included the nature of the work and the expertise required. The court ordered that GST be paid on the amounts awarded. The court's decision was based on the particular circumstances of the case, including the nature of the engagement and the lack of a formal agreement. The builder was awarded costs for the work carried out, and the court ordered that GST be payable on the amounts awarded.

Orders