Adamson v Miller - [2005] NSWSC 971

CITATION:
Adamson v Miller [2005] NSWSC 971

HEARING DATE(S): 27 September 2005

JUDGMENT DATE :

6 October 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Associate Justice Malpass at 1

DECISION:
The summons is dismissed; the plaintiff is to pay the costs of the summons; the exhibits may be returned.

CATCHWORDS:
Appeal from costs assessor - ambit of appeal - natural justice - deed relied on as costs agreement - executed by others as purported agents for defendant - plaintiff performs legal services - costs assessor finds that defendant did not agree to pay plaintiff's costs - no legal liability because of expiry of relevant limitation period - assessment is not an action in a court.

LEGISLATION CITED:
Conveyancing Act 1919 s38
Legal Profession Act 1987 s208L

CASES CITED:
Baker v Kearney [2002] NSWSC 746

PARTIES:
Christopher Michael Adamson (Plaintiff)
Adrian Haigh Miller (Defendant)

FILE NUMBER(S):
SC 11813/05

COUNSEL:
Mr C Adamson (Solicitor, in person) (Plaintiff)
Mr J Bartos (Defendant)

SOLICITORS:
In person (Plaintiff)
Vladimir Gazdik & Co (Defendant)

LOWER COURT JURISDICTION:
Costs Assessor

LOWER COURT FILE NUMBER(S):
91947 of 2004

LOWER COURT JUDICIAL OFFICER :
Mr T Stern

- 9 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

6 October 2005

11813 of 2005 Christopher Michael Adamson v Adrian Haigh Miller

JUDGMENT

1 His Honour: The plaintiff is a solicitor. He provided legal services for the defendant and others.

2 The defendant was an employee of Possam Holdings Pty Limited (Possam). His brother (Peter Miller) was the principal of Possam. Possam operated a restaurant and nightclub in Darlinghurst.

3 In or about February 1998, the defendant and others were convicted of offences under the Liquor Act 1982. Appeals were brought against the substantial monetary penalties imposed. The plaintiff was retained in or about March 1998.

4 Peter Miller and his de facto wife (Adelene Liu) executed a document which took the form of a deed poll (the document). It was headed “Deed: Solicitor Client Retainer; Mortgage Agreement and Assignment of Choses in Action and Authority to Deposit Monies into General Account”. Both the defendant and the plaintiff were named as parties to the document. It was not executed by either of them. It contained the following provision:-

2. “Paclaw” shall communicate with and to receive instructions from all or any of the “client” from Peter James Miller and/or Adelene Liu (or their nominee) who warrant and guarantee “Paclaw” that they have the authority of each of the other “client” to enter into this agreement of their behalf and to issue the instructions on behalf of the “client”.

5 The document purports to have been signed sealed and delivered on 13 March 1998. It also contained a provision that deemed it to have retrospective operation from 6 March 1998. All of the entities named as parties to the deed, save for the plaintiff, are described as “client”.

6 The legal services provided for the defendant were completed by 1 April 1999. Since the…

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 Miller

Details

AGLC: Adamson v Miller [2005] NSWSC 971
Case: [2005] NSWSC 971
Decision Date: 6 October 2005

CaseChat Overview and Summary

The appeal in Adamson v Miller was brought by the plaintiff, seeking to overturn a costs assessor’s decision regarding the costs incurred during the legal proceedings. The primary dispute centred on the enforceability of a deed, which was purportedly executed as a costs agreement. The deed, however, was executed by individuals claiming to be agents for the defendant, and not by the defendant himself. Despite this, the plaintiff proceeded to perform legal services on the basis of this document. The costs assessor determined that the defendant had not agreed to pay the plaintiff's costs, and further ruled that no legal liability existed due to the expiry of the relevant limitation period.

The central legal issues that the court needed to resolve included whether the deed could be considered a valid costs agreement given it was signed by purported agents rather than the defendant, and whether the costs assessor’s decision could be reviewed for errors of law. Additionally, the court had to consider the applicability of the natural justice principle in the context of the costs assessor’s decision-making process, particularly given the absence of the defendant in the execution of the deed. The plaintiff argued that the costs assessor had failed to observe natural justice by not allowing the defendant to be heard on the issue of the deed's validity.

The court concluded that the costs assessor had not acted outside the scope of their authority by refusing to enforce the costs agreement. The reasoning was based on the principle that the costs assessment process is not a court action, and therefore, the strict rules of natural justice do not apply in the same manner. The court found that the costs assessor correctly identified that the deed was not binding on the defendant, as it was executed by individuals purporting to act as agents, but without actual authority. Furthermore, the court upheld the costs assessor's finding that the defendant had no legal liability due to the limitation period, reinforcing that the assessment was not a judicial proceeding where limitation defences could be raised. Consequently, the appeal was dismissed, and the costs assessor's decision was upheld.

Orders