Brown v Baskin Rooney - [2001] NSWSC 156

CITATION: Brown v Baskin Rooney [2001] NSWSC 156

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 11803 of 2000

HEARING DATE(S): 13/11/00

JUDGMENT DATE:
16 March 2001

PARTIES :

Charlotte Anne Brown (Appellant)
Baskin Rooney & Co. Pty Limited T/AS Baskin Rooney & Co.(Respondent)

JUDGMENT OF: Carruthers AJ at 1

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : 11648/98

LOWER COURT
JUDICIAL OFFICER : Hugh Dillon LCM

COUNSEL : A. McInerney (Appellant)
G. Segal (Respondent)

SOLICITORS:
Charles G. Roth & Co (Appellant)
Carneys Lawyers (Respondent)

CATCHWORDS: Contract - Appeal from Local Court on a question of law - Claim by Chartered Accountants for outstanding professional fees - Whether any evidence to support a finding that the fees were fair and reasonable - Whether parties entered into an agreement to vary the original contract - Alternatively, whether there was a voluntary forbearance by the plaintiff.

LEGISLATION CITED: Justices Act 1902
Justices Legislation Amendment (Appeals) Act 1998
Local Courts (Civil Claims) Act 1970

CASES CITED: Anderson Stuart v Treleavan [2000] NSWSC 283
Bessler Waechter Glover v South Derwent Coal (1938) 1 KB 408
Canvas Graphics v Kodak (Australasia) [1998] 23 FCA
Carr v Neil [1999] NSWSC 1263
Electronic Industries v David Jones (1954) 54 SR 102
Gray v Lang (1956) 56 SR 7
Hickman v Haynes (1875) LR 10 CP 598
Payne v Wilson (1827) 108 ER 781
Short v Murchison Services (Unreported, NSWSC 14662/96, 13 August 1997)
Tristan Head v Credit Corp [2000] NSWSC 488

DECISION: See Paragraph 53

- 28 -

1 HIS HONOUR: This is an appeal by Charlotte Anne Brown pursuant to the provisions of s 69 of the Local Courts (Civil Claims) Act 1970 and ss 101-115 of the Justices Act 1902, as amended by the Justices Legislation Amendment (Appeals) Act 1998, against a judgment of his Worship Hugh Dillon LCM dated 16 June 2000.

2 Baskin Rooney & Co Pty Limited t/as Baskin Rooney & Co Chartered Accountants of Woollahra in this State (to whom I shall refer for the sake of convenience as the plaintiff) commenced proceedings in the Downing Street Local Court against Ms Brown (to whom I shall refer as the defendant) to recover accountancy fees allegedly owing to it.

3 The plaintiff was wholly successful in its claim and judgment was awarded against the defendant in the sum of $17,661.36 with costs.

4 Section 104(1) of the Justices Act 1902 provides that there is an appeal to this Court from a Local Court on a point of law. By leave, an appeal lies with regard to a mixed question of fact and law (ss (2)). No such leave was sought in this case. This section was discussed by Sully J in Carr v Neill [1999] NSWSC 1263, and by O’Keefe J in Tristan Head v Credit Corp [2000] NSWSC 488

5 To appreciate the grounds of appeal it is necessary to consider the pleadings in the Local Court. The plaintiff’s claim was ultimately enshrined in its Further…

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.

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Details

Case: [2001] NSWSC 156
Decision Date: 16 March 2001

CaseChat Overview and Summary

In the case of Brown v Baskin Rooney, the appellant, a firm of chartered accountants, sought to recover outstanding professional fees from the respondent, Baskin Rooney, a confectionery business. The dispute originated in the Local Court, where the appellant's claim for unpaid fees was dismissed. The appellant then appealed this decision to a higher court, arguing that the original judgment was flawed. The central issue before the court was whether there was any evidence to support a finding that the fees claimed were fair and reasonable. Additionally, the court had to determine if the parties had entered into an agreement to vary the original contract or if there was a voluntary forbearance by the appellant.

The court examined the evidence presented and found that there was insufficient evidence to support a finding that the fees were fair and reasonable. The appellant had not provided adequate documentation to justify the claimed fees, and the respondent had not acknowledged the reasonableness of the fees. The court also considered whether there had been an agreement to vary the original contract or a voluntary forbearance by the appellant. However, the court found no evidence to support these claims, as there was no formal agreement to vary the contract, and the appellant had not voluntarily forborne from collecting the fees. The appeal was therefore dismissed, and the original judgment of the Local Court was upheld.

The court's reasoning was based on the principle that a party seeking to recover unpaid fees must demonstrate that the fees are fair and reasonable, and that there is a binding agreement in place. In this case, the appellant had failed to provide sufficient evidence to support these claims, and the court found no other grounds for the appellant's appeal. The final orders of the court were that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal.

Orders