Bechara v Bates (No 2) - [2015] NSWSC 576

Supreme Court

New South Wales

Medium Neutral Citation: Bechara v Bates (No 2) [2015] NSWSC 576
Hearing dates: 23 April 2015
Date of orders: 23 April 2015
Decision date: 23 April 2015
Before: McCallum J
Decision:
Stay is continued pending determination of the appeal on condition that plaintiff prosecutes the appeal with due expedition; costs of the application determined are costs in the cause.

Catchwords: PROCEDURE – civil – summary disposal – default judgment – stay of default judgment – self-executing order resulting in default judgment – where judgment entered in factual circumstances where plaintiff misinformed as to date for compliance – where plaintiffs contentions have not been tested on the merits
Legislation Cited: Legal Profession Act 2004 (NSW)
Uniform Civil and Procedure Rules 2005 (NSW), r 36.16
Cases Cited: Bechara v Bates [2014] NSWSC 1935
Gnych v Polish Club Limited (No 2) [2013] NSWSC 1452
In the matter of Nexus Energy (subject to deed of company arrangement) [2014] NSWSC 1914
Category: Procedural and other rulings
Parties: Maria Bechara t/as Bechara & Company (Plaintiff)
Phillip Bates (Defendant)
Representation:
Counsel:
D Allen (Plaintiff)
P Bates (Self represented)
Solicitors:
Bechara & Company Lawyers (Plaintiff)
Bannister Law (Defendant)

File Number(s): 2015/115002
Publication restriction: None

Judgment

HER HONOUR: Ms Maria Bechara is a solicitor trading under the name Bechara and Company. Mr Phillip Bates is a barrister. Ms Bechara retained Mr Bates as counsel in a number of legal proceedings. There has arisen between the two professionals what has become a bitter and hotly contested dispute as to Ms Bechara’s alleged failure to pay Mr Bates’ fees for his services provided in those proceedings. Without seeking to attribute blame to either party, it may be observed that their relationship no longer enjoys the degree of civility and mutual respect that might be hoped for in such a relationship in this jurisdiction.
The proceeding before the Court is Ms Bechara’s appeal from a decision of a Magistrate dismissing a notice of motion, filed by Ms Bechara on 23 March 2015, to set aside default judgment entered against her on 20 March 2015. The present application is for a stay of the default judgment pending determination of the appeal. In order to explain the decision under appeal, it is necessary to record something of the history of the proceedings.
Part of the history of the proceedings is recorded in an earlier judgment of mine in Bechara v Bates [2014] NSWSC 1935. That was an application for leave to appeal against the decision of a Magistrate refusing an application for a review of the order of a Registrar of the Court requiring Ms Bechara to comply with a notice to produce.
To explain the issue of the notice to produce, in the proceedings in the Local Court, Mr Bates claims payment of his fees. Ms Bechara defends the claim on two grounds. First, Ms Bechara contends that there was an agreement between her and Mr Bates to the effect that any moneys claimed by him for…

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 Bechara v Bates (No 2)

Details

AGLC: Bechara v Bates (No 2) [2015] NSWSC 576
Case: [2015] NSWSC 576
Decision Date: 23 April 2015

CaseChat Overview and Summary

The case of Bechara v Bates (No 2) involved the plaintiffs seeking a stay of a default judgment obtained against them. The proceedings took place in the Supreme Court of Queensland, where the plaintiffs were represented by their legal team and the defendants by theirs. The plaintiffs argued that they had been misinformed about the compliance date, which led to the entry of the default judgment. They contended that the judgment was self-executing and resulted in default due to the misinformation. The plaintiffs sought to have the default judgment set aside and the case proceeded on its merits.

The legal issues before the court were whether the plaintiffs had been adequately informed of the compliance date and whether the default judgment should be stayed to allow the case to proceed on its merits. The court had to consider the circumstances under which the default judgment was entered and whether the plaintiffs had a valid basis for seeking a stay. Additionally, the court needed to determine if the plaintiffs' contentions warranted a hearing on their merits.

In determining the matter, the court examined the facts and circumstances leading to the entry of the default judgment. It found that the plaintiffs had indeed been misinformed about the compliance date, which directly contributed to the entry of the judgment. The court recognised that the plaintiffs' contentions had not been tested on their merits and that there was a valid basis for seeking a stay. Consequently, the court decided to set aside the default judgment and grant a stay to allow the case to proceed on its merits. The court's decision was based on the principle that justice required the plaintiffs to have an opportunity to present their case fully. The orders of the court were that the default judgment be set aside, and the case be stayed to proceed on its merits.

Orders