Cachia v Grech - [2008] NSWDC 288

CITATION: Cachia v Grech [2008] NSWDC 288

HEARING DATE(S): 05/12/2008

JUDGMENT DATE:
9 December 2008

JURISDICTION: Civil

JUDGMENT OF: Murrell SC DCJ at 33

DECISION: Decision of the Consumer Trader and Tenancy Tribunal affirmed.

CATCHWORDS: TRADE AND COMMERCE - Consumer Trader and Tenancy Tribunal decision - APPEAL AND NEW TRIAL - appeal on a question decided "with respect to a matter of law"- CLAIM AGAINST FORMER SOLICITORS - termination of retainer -

LEGISLATION CITED: Consumer Claims Act 1998
Consumer Trader and Tenancy Tribunal Act 2001
Legal Profession Act 2004
Solicitors Rules
Uniform Civil Procedure Rules

CASES CITED: Bechara v Atie [2005] NSWCA 268.
Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312
Ormes v Louis [2006] NSWSC 659

PARTIES: Laurence Cachia (Plaintiff)
Henry Grech t/as Grech Partners Solicitors (Defendant)

FILE NUMBER(S): 04319/08

COUNSEL: S Dawson (for the defendant)

SOLICITORS: R Everingham (for the defendant)
Plaintiff self-represented

JUDGMENT

1. Mr Cachia appealed against a decision of the Consumer Trader and Tenancy Tribunal (CTTT) dismissing a claim against his former solicitors.

Background Proceedings

2. Mr Cachia leased premises through a real estate agent. The tenant damaged the premises. Mr Cachia instructed Grech Partners, solicitors, to bring Local Court proceedings against the agent. Mr Cachia had not wanted a self-employed tenant. He claimed that the agent had failed to provide proper information regarding the employment status of the tenant.

3. Mr Cachia declined to accept his solicitors’ advice, inter alia that he should sue the tenant as well as the agent. Grech Partners terminated the retainer. Thereafter, Mr Cachia represented himself.

4. Mr Cachia lost the proceedings. The Local Court determined that the tenant was solely responsible for the damage and that the damage was not caused by any act or omission of the agent.

5. Mr Cachia sought relief in the Supreme Court. Justice Hall agreed with the Local Court that there had been no breach of contract or misrepresentation, and that the agent was not responsible for the damage.

6. Mr Cachia brought proceedings in the CTTT, claiming that Grech Partners should not have terminated the retainer and that their work was unsatisfactory. The CTTT dismissed the claim with costs.

7. Reasons for the Tribunal's decisions were given on 20 December 2007 and 11 July 2008 (Exhibit B).

These Proceedings

8. I granted Mr Cachia an extension of time within which to appeal: Part 50 rule 3 Uniform Civil Procedure Rules (UCPR).

9. Part 50 rule 14 of the UCPR required that Mr Cachia file and serve an affidavit annexing or exhibiting the Tribunal's reasons, the transcript and any relevant exhibit. He failed to do so, seeking to rely upon a more voluminous affidavit. Grech Partners provided an affidavit annexing the Part 50 rule 14 documents, including all the exhibits tendered in the CTTT.

10. Pursuant to section 67 (1) of the Consumer Trader and Tenancy Tribunal Act 2001, this appeal is confined to “question/s” decided by the Tribunal "with respect to a matter of law". Mr Cachia bears…

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 Cachia v Grech

Details

AGLC: Cachia v Grech [2008] NSWDC 288
Case: [2008] NSWDC 288
Decision Date: 9 December 2008

CaseChat Overview and Summary

The case of Cachia v Grech involved an appeal by the respondent against a decision made by the Consumer Trader and Tenancy Tribunal. The primary dispute centred around the termination of a retainer between the respondent and his former solicitors. The appeal was heard by the Supreme Court of Victoria.

The key legal issues before the court revolved around the circumstances under which the retainer could be lawfully terminated. The respondent argued that the termination was improper and sought a new trial on this matter. The appeal was framed specifically on a question of law concerning the grounds upon which the solicitors could validly terminate the retainer. The court had to determine whether the termination was justified and whether the tribunal's decision was correct in law.

The court reviewed the reasoning and findings of the tribunal, considering the principles governing the termination of legal retainers. It was determined that the tribunal's analysis was sound and that the termination of the retainer was justified under the circumstances presented. The court found no error in the tribunal's decision and affirmed its ruling. Consequently, the appeal was dismissed, and the original decision of the tribunal was upheld.

In affirming the tribunal's decision, the court ordered that the respondent's appeal be dismissed and that the decision of the Consumer Trader and Tenancy Tribunal be maintained in its entirety.

Orders

Orders of the court

Decision of the Consumer Trader and Tenancy Tribunal affirmed.

Background

Background to the litigation

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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

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CITATION:	Cachia v Grech [2008] NSWDC 288
HEARING DATE(S):	05/12/2008
JUDGMENT DATE:	9 December 2008
JURISDICTION:	Civil
JUDGMENT OF:	Murrell SC DCJ at 33
DECISION:	Decision of the Consumer Trader and Tenancy Tribunal affirmed.
CATCHWORDS:	TRADE AND COMMERCE - Consumer Trader and Tenancy Tribunal decision - APPEAL AND NEW TRIAL - appeal on a question decided "with respect to a matter of law"- CLAIM AGAINST FORMER SOLICITORS - termination of retainer -
LEGISLATION CITED:	Consumer Claims Act 1998 Consumer Trader and Tenancy Tribunal Act 2001 Legal Profession Act 2004 Solicitors Rules Uniform Civil Procedure Rules
CASES CITED:	Bechara v Atie [2005] NSWCA 268. Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 Ormes v Louis [2006] NSWSC 659
PARTIES:	Laurence Cachia (Plaintiff) Henry Grech t/as Grech Partners Solicitors (Defendant)
FILE NUMBER(S):	04319/08
COUNSEL:	S Dawson (for the defendant)
SOLICITORS:	R Everingham (for the defendant) Plaintiff self-represented