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Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd

Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd

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Case Copied 16 July 2021 72 min read

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148
Hearing dates: 19 February 2021
Decision date: 16 July 2021
Before: Meagher JA at [1];
Leeming JA at [20];
White JA at [140].
Decision:
In proceeding 2020/17047:
1. Dismiss the appeal as incompetent.
2. Ms Burrows to pay the respondents’ costs.
In proceeding 2020/219817:
1. Grant leave to appeal, confined to proposed grounds 13.2 and 14, and otherwise dismiss the summons filed on 27 July 2020.
2. Dispense with the need to file and serve a notice of appeal limited to proposed grounds 13.2 and 14.
3. Appeal dismissed with costs.

Catchwords:
COSTS - “Chorley” exception - client sued former solicitor for negligence in failing to enforce a favourable costs order in Family Court proceedings - former solicitor represented by incorporated legal practice which was its sole shareholder - whether District Court erred in dismissing client’s action for negligence - former solicitor sought gross sum costs order - whether District Court erred in failing to grant second adjournment - whether District Court erred in making gross sum costs order - whether former solicitor to be equated with incorporated legal practice which represented it

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 60
Civil Procedure Act 2005 (NSW), ss 98, 3
Corporations Act 2001 (Cth)
Family Law Rules 2004 (Cth), Schedule 3, rr 18.08, 19.21
Legal Profession Act 1987 (NSW), ss 47J, 202, 206, 208F, Pt 11, Pt 3 Div 2A
Legal Profession Act 2004 (NSW)
Legal Profession Amendment (Incorporated Legal Practices) Act 2000 (NSW)
Legal Profession Amendment (Incorporated Legal Practices) Act 2000 (NSW)
Legal Profession (Solicitor Corporations) Amendment Act 1990 (NSW)
Legal Profession Uniform General Rules 2015 (NSW), Pt 3.7
Legal Profession Uniform Law Application Act 2014 (NSW)
Legal Profession Uniform Law Application Act 2014 (Vic)
Legal Profession Uniform Law (NSW), ss 6, 32, 38, 174, 175, 176, 177, 178, Pts 3.2, 3.7
Supreme Court Act 1970 (NSW), s 101

Cases Cited:
Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300
Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185; [1966] HCA 37
Bechara trading as Bechara and Company v Bates [2016] NSWCA 294
Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 93 ALJR 1007
Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Caltex Oil (Australia) Pty Ltd v Best (1990) 170 CLR 516; [1990] HCA 53
Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 89
Coshott v Spencer [2017] NSWCA 118
Crosby v Fica (No 4) [2018] NSWSC 632
Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67
FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340
Gammage v The Queen

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: [2021] NSWCA 148
Decision Date: 16 July 2021

CaseChat Overview and Summary

In this matter before the Court of Appeal of New South Wales, Ms Burrows (the appellant) brought proceedings against Macpherson & Kelley Lawyers (Sydney) Pty Ltd (the respondent) alleging negligence. The dispute arose from the respondent's alleged failure to enforce a favourable costs order made in Family Court proceedings. The respondent, an incorporated legal practice, was represented by itself, as it was the sole shareholder. Ms Burrows sought to recover damages for this alleged negligence.

The Court was required to determine several legal issues. Firstly, it considered whether the District Court had erred in dismissing Ms Burrows' action for negligence. Secondly, the Court examined whether the District Court had erred in refusing a second adjournment sought by Ms Burrows. Thirdly, the Court considered whether the District Court had erred in making a gross sum costs order in favour of the respondent. Finally, the Court had to determine whether the respondent, as an incorporated legal practice, should be equated with its sole shareholder for the purposes of the proceedings.

The Court of Appeal ultimately dismissed the appeal as incompetent in proceeding 2020/17047. In proceeding 2021/219817, leave to appeal was granted, but confined to specific proposed grounds, and the appeal was otherwise dismissed. Ms Burrows was ordered to pay the respondents' costs in both proceedings.

Orders

Orders of the court

In proceeding 2020/17047:

1. Dismiss the appeal as incompetent.

2. Ms Burrows to pay the respondents’ costs.

In proceeding 2020/219817:

1. Grant leave to appeal, confined to proposed grounds 13.2 and 14, and otherwise dismiss the summons filed on 27 July 2020.

2. Dispense with the need to file and serve a notice of appeal limited to proposed grounds 13.2 and 14.

3. Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148
Hearing dates:	19 February 2021
Decision date:	16 July 2021
Before:	Meagher JA at [1]; Leeming JA at [20]; White JA at [140].
Decision:	In proceeding 2020/17047: 1. Dismiss the appeal as incompetent. 2. Ms Burrows to pay the respondents’ costs. In proceeding 2020/219817: 1. Grant leave to appeal, confined to proposed grounds 13.2 and 14, and otherwise dismiss the summons filed on 27 July 2020. 2. Dispense with the need to file and serve a notice of appeal limited to proposed grounds 13.2 and 14. 3. Appeal dismissed with costs.
Catchwords:	COSTS - “Chorley” exception - client sued former solicitor for negligence in failing to enforce a favourable costs order in Family Court proceedings - former solicitor represented by incorporated legal practice which was its sole shareholder - whether District Court erred in dismissing client’s action for negligence - former solicitor sought gross sum costs order - whether District Court erred in failing to grant second adjournment - whether District Court erred in making gross sum costs order - whether former solicitor to be equated with incorporated legal practice which represented it
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 60 Civil Procedure Act 2005 (NSW), ss 98, 3 Corporations Act 2001 (Cth) Family Law Rules 2004 (Cth), Schedule 3, rr 18.08, 19.21 Legal Profession Act 1987 (NSW), ss 47J, 202, 206, 208F, Pt 11, Pt 3 Div 2A Legal Profession Act 2004 (NSW) Legal Profession Amendment (Incorporated Legal Practices) Act 2000 (NSW) Legal Profession Amendment (Incorporated Legal Practices) Act 2000 (NSW) Legal Profession (Solicitor Corporations) Amendment Act 1990 (NSW) Legal Profession Uniform General Rules 2015 (NSW), Pt 3.7 Legal Profession Uniform Law Application Act 2014 (NSW) Legal Profession Uniform Law Application Act 2014 (Vic) Legal Profession Uniform Law (NSW), ss 6, 32, 38, 174, 175, 176, 177, 178, Pts 3.2, 3.7 Supreme Court Act 1970 (NSW), s 101
Cases Cited:	Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300 Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185; [1966] HCA 37 Bechara trading as Bechara and Company v Bates [2016] NSWCA 294 Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 93 ALJR 1007 Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14 Caltex Oil (Australia) Pty Ltd v Best (1990) 170 CLR 516; [1990] HCA 53 Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 89 Coshott v Spencer [2017] NSWCA 118 Crosby v Fica (No 4) [2018] NSWSC 632 Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67 FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340 Gammage v The Queen