Conder v Silkbard

[1999] NSWCA 459

CITATION:	Conder v Silkbard [1999] NSWCA 459
FILE NUMBER(S):	CA 40344/98
HEARING DATE(S):	04/11/99
JUDGMENT DATE:	10 December 1999
PARTIES :	Michael James CONDER & Ors Silkbard Pty Limited
JUDGMENT OF:	Meagher JA at 1; Beazley JA at 2; Fitzgerald JA at 40

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	12013/95
LOWER COURT JUDICIAL OFFICER:	Bruce J

COUNSEL:	Appellant: M Orlov Respondent: J C Campbell QC/ S W Climpson
SOLICITORS:	Appellant: Messrs Gray & Perkins Respondent: Anne Finerty
CATCHWORDS:	Legal Profession Act; Claim of costs; delivery of a Bill of Costs prior to recovery proceedings; stay of proceedings pending delivery; trial judge's discretion; adequate reasons for decision
ACTS CITED:	Legal Profession Act 1987 (NSW) Bankruptcy Act 1966 (Cth)
CASES CITED:	Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Dodd v Gillis (1989) 16 NSWLR 623 Zizza v Seymour [1976] 2 NSWLR 135 Udovenko v Mitchell (1997) 160 ALR 161
DECISION:	Appeal allowed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40344/98
CL 12013/95

MEAGHER JA
BEAZLEY JA
FITZGERALD JA

Friday, 10 December 1999


CONDER v SILKBARD





FACTS

The appellants, a firm of solicitors commenced proceedings in the Local Court against the respondent, a former client, claiming costs for work performed for the respondent in 1990 and 1991 (the 1990/91 accounts). The respondent defended the proceedings on the basis that the appellants had not given it a bill of costs at least thirty days prior to the commencement of the recovery proceedings as required by the Legal Profession Act 1987 (NSW) (LPA). It also challenged the reasonableness of the charges.

Prior to the determination of the Local Court proceedings, the respondent brought proceedings in the Common Law Division of the Supreme Court seeking an order under s 209C of the LPA, that the appellants give it a bill of costs for the 1990/91 accounts. It also sought a stay of the Local Court proceedings pending delivery of a bill.

Bruce J ordered the appellants to provide a bill of costs and stayed the Local Court proceedings in the meantime.

The appellants alleged that Bruce J failed to give them adequate reasons for decision and that he wrongly exercised his discretion in ordering them to deliver a bill.

HELD

(i) The trial judge did not give adequate reasons for his decision. He failed to make critical findings of fact, failed to consider the essential bases upon which the parties sought to have the discretion under s 209C exercised, and failed to explain why he had exercised his discretion in the manner he did.

(ii) (a) Section 192(1) was mandatory in terms and required that a bill be given at least thirty days prior to the commencement of proceedings to recover costs.

(b) Section 192(1) was a defence to the Local Court proceedings and should have been determined by that court. The application for a stay in the Supreme Court was therefore misconceived and a stay should not have been ordered.

(iii) An order under…