Baynes v Kalyk - [2003] NSWSC 607

CITATION: Baynes & Anor v Kalyk [2003] NSWSC 607

HEARING DATE(S): 1 July 2003

JUDGMENT DATE:
4 July 2003

JURISDICTION:
Common Law Divsion

JUDGMENT OF: Master Malpass

DECISION: Leave to appeal is granted. The appeal is allowed. The order made on 18 February 2003 is set aside. Any order made as to the costs of the motion is also set aside. The existing originating process is struck out. The defendant is to pay the costs of both proceedings. If so entitled, the defendant is to have a certificate under the Suitors' Fund Act 1951. The Exhibits may be returned.

CATCHWORDS: Leave to appeal - action to recover inter alia costs for legal services - failure to make disclosure required by statute - client not obliged to pay and solicitor not entitled to maintain proceedings to recover costs unless there has been a costs assessment - s 182 applies to quantum meruit claims - distinction between a contract for the provision of legal services and a costs agreement - the action may be summarily struck out.

LEGISLATION CITED: Legal Profession Act 1987, Pt 11, Div 2, s 175,
s 178, s 179 s 182, s 182 (2), Div 3, s 184, s 192, Div 6, s 208C.
Suitors' Fund Act 1951.
Trade Practices Act 1974 (Cth).
Local Court (Civil Claims) Rules 1988, Pt 8 r 3.

CASES CITED: Hereward v State Rail Authority of New South Wales (1989) 17 NSWLR 260.
Ipper v Myer Solomon Associates & Ors [2002] NSWSC 1141.
Wentworth v Rogers [2002] NSWSC 709.

PARTIES :
Christopher Baynes & Jill Baynes (Plaintiffs)
v
Frank G Kalyk (Defendant)

FILE NUMBER(S): SC 10667 of 2003

COUNSEL: Mr R Horsley (Plaintiffs)
Mr A D Justice (Defendant)

SOLICITORS: Anthony Ziade & Associates (Plaintiffs)
In Person (Defendant)

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 7339 of 2002 Local Court NSW Downing Centre Sydney

LOWER COURT
JUDICIAL OFFICER : Mr P S Cloran, LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Friday 4 July 2003

10667 of 2003 Christopher Baynes & Jill Baynes v Frank G Kalyk
JUDGMENT

1 MASTER: The defendant is a solicitor. He had acted for the plaintiffs. He sought to recover an amount of costs in respect of legal services provided to them.

2 He commenced proceedings in the Local Court. The process claimed fees for legal services, the particulars of which were as set out in identified invoices. The Defence pleaded inter alia, non-compliance with various provisions of the Legal Profession Act 1987 (the Act) in answer to the claim.

3 The plaintiffs moved pursuant to Pt 8 r 3 of the Local Court (Civil Claims) Rules 1988 for an order that the Statement of Claim be struck out. The defendant then filed an Amended Statement of Claim (which added a claim for damages under the Trade Practices Act 1974 (Cth) and a claim for detinue founded on an alleged lien). He also offered to consent to a stay of…

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 Baynes v Kalyk

Details

AGLC: Baynes v Kalyk [2003] NSWSC 607
Case: [2003] NSWSC 607
Decision Date: 4 July 2003

CaseChat Overview and Summary

The case of Baynes v Kalyk involved a dispute between the plaintiff, Baynes, and the defendant, Kalyk, over the recovery of costs for legal services provided. The matter was heard in the Federal Circuit Court of Australia. The central issue in the case was whether the plaintiff could recover costs from the defendant under a quantum meruit claim, where there was a failure to make disclosure required by statute. Specifically, the court needed to determine if the plaintiff was entitled to maintain proceedings to recover costs when there had been no costs assessment and if section 182 of the relevant statute applied to such claims.

The court found that the plaintiff could not recover costs under a quantum meruit claim unless there had been a costs assessment. The court held that section 182 of the statute applied to such claims and that the client was not obliged to pay the costs unless a costs assessment had been made. Furthermore, the court clarified the distinction between a contract for the provision of legal services and a costs agreement, stating that the action could be summarily struck out if it did not meet the statutory requirements.

The court concluded that the plaintiff's action should be dismissed as it did not meet the statutory criteria for recovering costs under a quantum meruit claim. The court emphasised that the client was not required to pay the costs unless there had been a costs assessment, and the solicitor was not entitled to maintain proceedings to recover costs without such an assessment. The court held that the failure to make the required disclosure meant that the plaintiff's action was not maintainable.

The final orders of the court were that the plaintiff's action be dismissed with costs. The court made it clear that the plaintiff could not recover the costs for legal services provided unless there had been a costs assessment, and the statutory requirements had been met. The court's decision highlighted the importance of compliance with statutory disclosure requirements in legal services disputes.

Orders