Bateman v Evans - [2004] NSWSC 626

CITATION: Bateman v Evans [2004] NSWSC 626

HEARING DATE(S): 15 July 2004

JUDGMENT DATE:
16 July 2004

JURISDICTION:
Common Law Division

JUDGMENT OF: Master Malpass at 1

DECISION: The summons is dismissed. The plaintiff is to pay the costs of the summons.

CATCHWORDS: Appeal from Local Court on question of costs - extension of time - leave to appeal - lack of merit

LEGISLATION CITED: Local Courts (Civil Claims) Act 1970

CASES CITED: Bullock v London & General Omnibus Co (1907) 1 KB 264
House v The King (1936) 55 CLR 499
Ranieri v Nominal Defendant & Ors [2001] NSWSC 125
Sanderson v Blyth Theatre Co (1903) 2 KB 533
Schipp v Cameron & Ors (NSWSC, 12 October 1998, unreported)

PARTIES :
Michael Bateman
Mark Evans

FILE NUMBER(S): SC 11940/03

COUNSEL: Plaintiff: Mr M Bateman (in person)
Defendant: Mr A M Gruzman

SOLICITORS: Plaintiff: Meyer Pigdon Family Lawyers
Defendant: Mark Evans

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 5/2002

LOWER COURT
JUDICIAL OFFICER : P M Russell DCM

- 5 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

16 July 2004

11940/03 Michael Bateman v Mark Evans

1 Master: The plaintiff is a barrister. The defendant is a solicitor. A dispute arose concerning unpaid counsel’s fees.

2 The plaintiff commenced proceedings in the Local Court. He sued both the defendant (who was the second defendant in the proceedings) and another solicitor (who was the first defendant therein). The amount involved was in the order of $6,000. The proceedings were removed from the Small Claims Division.

3 The issue between the plaintiff and the defendant was whether or not the plaintiff had contracted directly with the client.

4 The other solicitor was sued either as a partner or upon a representation (said to have been made by both defendants) that he was a partner.

5 There was a contested hearing (it lasted five days). The plaintiff was successful in recovering a judgment as against the defendant. His claim against the other solicitor failed.

6 There were also disputes concerning the costs of the proceedings. The plaintiff was unsuccessful in obtaining an order for costs against the other solicitor. He was also unsuccessful in obtaining a Bullock order (Bullock v London & General Omnibus Co (1907) 1 KB 264) against the defendant. He was ordered to pay the costs of the other solicitor.

7 On 25 August 2003, the plaintiff filed a summons in this court. In these proceedings, he seeks to appeal against the refusal to make a Bullock order against the defendant.

8 An appeal is available from the Local Court where it is shown that the decision under challenge is erroneous in point of law.

9 The appeal is presently incompetent. The decision of the Local Court was given on 24 June 2003. The appeal has been brought out of time. It is only maintainable if an extension of time is first granted.

10 The court has a discretionary…

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 Bateman v Evans

Details

AGLC: Bateman v Evans [2004] NSWSC 626
Case: [2004] NSWSC 626
Decision Date: 16 July 2004

CaseChat Overview and Summary

Bateman v Evans was an appeal from the Local Court concerning an order for costs. The appellant, Bateman, sought to challenge the costs awarded to the respondent, Evans, in a previous proceeding. The case focused on whether Bateman's appeal had sufficient merit to warrant an extension of time to file the appeal documents and whether the court should grant leave to appeal.

The central legal issues were whether Bateman's appeal had merit and whether the Local Court's decision to deny an extension of time and leave to appeal was justified. The court had to determine whether the appeal presented a substantial question of law or fact that warranted consideration and whether Bateman had a valid reason for the delay in filing the appeal.

The court considered the principles governing appeals in civil matters, particularly the requirement that an appellant demonstrate a substantial question of law or fact. It examined Bateman's reasons for the delay in filing the appeal and the likelihood of success on the merits. The court concluded that Bateman had not demonstrated a substantial question of law or fact that warranted an extension of time or leave to appeal. The court also found that the Local Court's decision was not an error of law and was based on a proper assessment of the circumstances. Consequently, the appeal was dismissed, and Bateman was ordered to pay Evans' costs of the appeal.

Orders