Boutros v Boitano

[2007] NSWSC 27

CITATION:	Boutros v Boitano [2007] NSWSC 27
HEARING DATE(S):	29 January 2007
JUDGMENT DATE :	2 February 2007
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Harrison
DECISION:	(1) The order made on 13 February 2006 is set aside; (2) Costs are reserved; (3) The matter is listed in the Registrar's list at 9.00am on 10 February 2007.
CATCHWORDS:	Review Registrar's Decision
LEGISLATION CITED:	Uniform Civil Procedure Rules - Rules 13.6 & 49.19
PARTIES:	Chalita Boutros (aka Charlita Boutros) - Plaintiff Frank Boitano t/as Barwick Boitano Lawyers - Defendant
FILE NUMBER(S):	SC 13644/2005
COUNSEL:	Mr R Gambi - Defendant
SOLICITORS:	Mr Greg Smith - Plaintiff Barwick Boitano Lawyers - Defendant
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	13644/2005
LOWER COURT JUDICIAL OFFICER :	Assistant Registrar Howe
LOWER COURT DATE OF DECISION:	13 February 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 2 FEBRUARY 2007

13644/2005 - CHALITA BOUTROS (aka Charlita Boutros)
v FRANK BOITANO t/as BARWICK
BOITANO LAWYERS
JUDGMENT (Review Registrar’s Decision)

1 HER HONOUR: On 13 February 2006 the Registrar made an order that these proceedings be dismissed pursuant to Rule 13.6 of the Uniform Civil Procedure Rules (UCPR) 2005 (NSW). On that day there was no appearance on behalf of the plaintiff at Court. Rule 13.6 provides that if the plaintiff has received notice of a Court hearing and does not attend, the Court may dismiss the proceedings.

2 By notice of motion filed 2 August 2006 the plaintiff seeks an order that the orders in these proceedings dated 13 February 2006 and entered on 21 March 2005 be set aside. The plaintiff is Chalita Boutros (Mr Boutros). The defendant if Frank Boitano t/as Barwick Boitano Lawyers (Barwick Boitano) (the solicitors). Mr Boutros relied on his affidavits dated 12 June 2005 and 18 August 2006. Barwick Boitano relied on the affidavit of Frank Boitano dated 8 September 2006.

3 Mr Boutros has appealed from orders made in the Local Court Parramatta in two proceedings namely suits 1172/2005 and 3603/2002. These proceedings arise from two bills of costs rendered by Barwick Boitano Lawyers (the solicitors).

4 In Local Court 3603/2002, the solicitors commenced proceedings at Parramatta for recovery of monies outstanding by way of these legal fees. By defence, Mr Boutros alleges that he was not the client and that he merely acted as a translator for his brother who was overseas. These proceedings were adjourned while the solicitors attended to having the bills of costs assessed by a Costs Assessor.

5 In his reasons dated 22 March 2005 the Costs Assessor D F Castle stated:

“For completeness I should add that although Hanna appears to have been the recipient of the alleged Costs Agreement, and although the file is in the name of Hanna, all instructions were given by the Client and no objection or dispute has been raised by the Client on the basis that he was not the client in relation to Bill1 File No 2000-055.”
(see also the unsigned agreement Ex B)

6 On 21 April 2005 judgment was entered in the Parramatta Local Court against Mr Boutros for the sum of $21,375.71, which represented the amount due under the certificate issued by the Costs Assessor.

7 It appears that the issue of who was the actual client was not canvassed before the Costs Assessor. Throughout the Local Court proceedings and assessment Mr Boutros had retained a solicitor, Mr Andrew Pasternacki of Strathfield Law to act for him.

8 Mr Pasternacki acted for Mr Boutros until 1 November 2005. Mr Boutros then instructed a new solicitor, Mr Smith. A notice of change of solicitor was filed in these proceedings on 12 July 2006. Mr Boutros deposed that he believed that after the assessment of costs had been determined the issue raised in the defence in Parramatta Local Court proceedings 3603/2002 would be determined on its merits.

9 The prior solicitor Mr Pasternacki has a lien over Mr Boutros’s files. The new solicitor Mr Smith wrote to Barwick Boitano seeking details of the outstanding matter in the Local Court. Barwick Boitano never informed Mr Smith of the existence of these appeal proceedings. Hence, Mr Smith was unaware of the appeal. It is my view that the solicitor should have notified Mr Boutros’s solicitor that there was an appeal on foot in this Court.

10 On 12 July 2006, in Local Court 3603/2002, there was no appearance for Mr Boutros. No statements had been filed as directed in a previous timetable. The defence was struck out and judgment entered for the solicitors. There is correspondence between Mr Smith and Barwick Boitano which explained that the reason for Mr Boutros’s non-appearance at Court was due to an oversight by his solicitor.

11 The defendant’s Counsel submitted that to restore the matter to the list would be futile given the way the appeal is framed; and secondly, there is no adequate explanation for the non-attendance at this Court on 13 February 2006.

12 During the hearing of this motion, Mr Boutros gave evidence that he could not remember if he received the notice dated 30 January 2006 issued by this Court advising him that the matter may be dismissed if he did not attend Court on 13 February 2006. Mr Boutros says that he was evicted from his house for four months during 2006 but could not remember the exact months. During the hearing, Mr Boutros produced a bundle of documents in an envelope. When his solicitor inspected the bundle the letter dated 30 January 2006 advising of the Court hearing was not there. While I did not find Mr Boutros’s evidence on this topic to be compelling, I cannot totally disregard it.

13 While the appeal needs to be redrafted, it cannot be said to be futile. In the Local Court Mr Boutros did not have the opportunity to argue his defence as to whether or not he was merely the interpreter and not the client.

14 Rules 49.19 of the UCPR provides:

“49.19 Review of registrar’s directions, orders and acts

If a registrar gives a direction or makes an order or does any other act in any proceedings, the court may, on application by any party, review the direction, order or act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit.”

15 It is my view that the Registrar’s order should be set aside. This matter should be restored to the list so that the appeal can be heard on its merits. I express no view on the ultimate outcome of the appeal. I make order one (1) of the notice of motion filed 2 August 2006. Costs are reserved.

The Court orders that

(1) The order made on 13 February 2006 is set aside.

(2) Costs are reserved.

(3) The matter is listed in the Registrar’s list at 9.00am on 10 February 2007.
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