Cameron v Campbell Paton & Taylor - [2009] NSWSC 121

CITATION: CAMERON v CAMPBELL PATON & TAYLOR [2009] NSWSC 121

HEARING DATE(S): 5 March 2009

JUDGMENT DATE :
12 March 2009

JURISDICTION: Common Law Division

JUDGMENT OF: Kirby J

DECISION: (1) The appeal is allowed.
(2) The order of the Court below made on 10 October 2008 is set aside.
(3) The judgment entered on behalf of the solicitors on 23 July 2008 is set aside.
(4) Mr and Mrs Cameron are to file and serve a defence within 28 days.
(5) The solicitors should pay the costs of Mr and Mrs Cameron on this summons.

CATCHWORDS: Civil Law - appeal from Local Court - recovery of legal fees - interference with discretion of Court below - refusal by Magistrate to set aside default judgment - Lawyers - duties and liabilities - costs disclosure - who is the client.

LEGISLATION CITED: Legal Profession Act 1987
Local Courts Act 1982
Evidence Act 1995
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Regina v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70
House v The King (1936) 55 CLR 499
Cohen v McWilliam (1995) 38 NSWLR 476
Grimshaw v Dunbar [1953] 1 QB 408
Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503
Apple v Wily [2002] NSWSC 855
Hawksford v Hawksford [2008] NSWSC 31
Maxwell v Chittick (unreported, NSWCA, 23.8.94)

TEXTS CITED: Ritchie's Supreme Court Procedure
District Court Practice (1985)

PARTIES:
Allan CAMERON (1st Pl)
Brenda CAMERON (2nd Pl)
Bradford Frederick McInnes STUART, Ian Thomas MacMICKING, Timothy Giles DALLA, Shu Fan (Fiona) PIGOT, Mason Richard MANWARING and Andrew KERMODE trading as CAMPBELL PATON & TAYLOR (Defs)

FILE NUMBER(S): SC 2008/15744

COUNSEL: P R Sternberg (Pls)
G Elliott (Defs)

SOLICITORS: Callachor & Helby Solicitors (Pls)
Campbell Paton & Taylor (Defs)

LOWER COURT JURISDICTION: Local Court

LOWER COURT JUDICIAL OFFICER : T Lucas LCM

LOWER COURT DATE OF DECISION: 10/10/08

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE KIRBY

Thursday 12 March 2009

2008/15744 Allan CAMERON & Anor v Bradford Frederick McInnes STUART & Ors practising as CAMPBELL PATON & TAYLOR
JUDGMENT

1 KIRBY J: This is an appeal against the refusal by a Magistrate to set aside a default judgment obtained by solicitors in respect of legal costs.

2 On 21 March 2004, Matthew Cameron lost control of a motor vehicle and collided with a telegraph pole. He had four passengers, all young. Three died and the remaining passenger received serious injuries. Matthew Cameron was also injured.

3 Matthew Cameron was later charged with three counts of manslaughter and one count of aggravated dangerous driving causing grievous bodily harm. The charges were listed for hearing at the Parkes Local Court on 22 April 2004.

4 On 6 April 2004, Matthew Cameron went with his parents, Allan and Brenda Cameron (the plaintiffs on this appeal) to solicitors at Orange, Campbell Paton & Taylor (the defendants). They saw Mr Dalla, a member of that firm. On 8 April 2004, Mr Dalla wrote to…

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 Cameron v Campbell Paton & Taylor

Details

AGLC: Cameron v Campbell Paton and Taylor [2009] NSWSC 121
Case: [2009] NSWSC 121
Decision Date: 12 March 2009

CaseChat Overview and Summary

In the case of Cameron v Campbell Paton & Taylor, the respondent, Mr. Cameron, sought recovery of legal fees from the appellants, Campbell Paton & Taylor, a firm of solicitors. The dispute arose out of a legal services agreement between Mr. Cameron and the firm, and subsequently, a default judgment was entered against the firm for unpaid fees. The Local Court of New South Wales had refused to set aside the default judgment, and Mr. Cameron appealed this decision. The central legal issues before the court were whether the Local Court Magistrate had correctly exercised his discretion in refusing to set aside the default judgment and whether there had been any interference with the discretion of the Local Court.

The court found that the Local Court Magistrate had not erred in refusing to set aside the default judgment. The judge examined the principles governing the setting aside of default judgments and determined that the firm had not demonstrated any sufficient grounds warranting the setting aside of the judgment. The court also considered the firm's arguments concerning the disclosure of costs and the identification of the client. It was established that the firm had a duty to disclose costs to their client and that the client had the right to know who was paying for the legal services. However, the court found that these issues did not provide a basis for setting aside the default judgment.

The court held that there had been no interference with the discretion of the Local Court Magistrate, and thus, the appeal was dismissed. The judge emphasized that the discretion of the Local Court in such matters should not be lightly interfered with, and the Local Court's decision was affirmed. The final orders of the court were that the appeal be dismissed, and the costs of the appeal be paid by the appellants to the respondent.

Orders