Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd

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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

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Details
Case
[2021] NSWCA 148
Decision Date

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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