Coshott v Lenin - [2006] NSWDC 139

CITATION: Robert Coshott v Michael Lenin [2006] NSWDC 139

HEARING DATE(S): 01/11/2006 - 02/11/2006

EX TEMPORE JUDGMENT DATE: 11/02/2006

JURISDICTION: Civil

JUDGMENT OF: Neilson DCJ at 1

DECISION: Verdict and Judgment for the defendant; Plaintiff to pay the defendant's costs

CATCHWORDS: Recovery of unpaid professional fees - Any claim in contract (whether express or implied) statute barred - Admitted that any claim formerly in quasi-contract (quantum meruit) was statute barred - Claims barred at the latest on 15 July 1998 - Proceedings commenced 27 September 2005, over 7 years later - Claim barred on restitution for unjust enrichment - Held: (a) restitution for unjust enrichment is not a new right of action. (b) restitution for unjust enrichment is the new legal reasoning governing the set of remedies previously rationalised as quasi-contract. (c) the plainitff's right of action was still quantum meruit and was statute barred. (d) a change of judicial reasoning in that area of law formerly known as quasi-contract does not defeat the parliamentary intention behind Limitation Act 1969 section 14(1)(a)

LEGISLATION CITED: Limitation Act 1969

CASES CITED: Wasada Pty Ltd v State Rail Authority of New South Wales (No 2) [2003] NSWSC 987
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
David Securities Pty Ltd and Others v Commonwealth Bank of Australia (1992) 175 CLR 353
Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516

PARTIES: Robert Coshott (plaintiff)
Michael Lenin (defendant)

FILE NUMBER(S): 4184/05

COUNSEL: Plaintiff in person
Mr J.W. Conomos (for the defendant)

JUDGMENT

1 HIS HONOUR: The plaintiff, Mr Robert Gilbert Coshott, is a former solicitor. The defendant, Mr Michael Petrovic Lenin, is a former client of the plaintiff.

2 The plaintiff acted for the defendant in an action in the Supreme Court of this State known as Lenin v Seneca Insurance Company Ltd. The defendant had an interest in the Great Northern Hotel at Newcastle. On 28 December 1989 there was an earthquake which severely damaged a number of properties in Newcastle. Mr Lenin alleged that his hotel was damaged in the earthquake.

3 Mr Lenin gave instructions to the plaintiff to act for him on 1 January 1990. On 30 June 1991 the plaintiff ceased to act as a solicitor because he did not renew his practising certificate so that he could not from 1 July 1991 practice as a solicitor. Nevertheless in July, August, September, October and November of 1991 the plaintiff did certain work on behalf of the defendant. When the plaintiff ceased to practice as a solicitor he arranged for his file concerning the defendant’s action in the Supreme Court to be transferred to another solicitor, Mr George Vardas, who traded as Gunn Hamilton and Blay.

4 There is a dispute between the plaintiff and Mr Vardas as to when the file was actually transferred to Mr Vardas but nothing presently turns on that. In May 1992 the action of Lenin v Seneca Insurance Company Ltd was settled. The exact terms of settlement are…

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 Coshott v Lenin

Details

AGLC: Coshott v Lenin [2006] NSWDC 139
Case: [2006] NSWDC 139
Decision Date: 2 November 2006

CaseChat Overview and Summary

Coshott initiated legal proceedings against Lenin seeking recovery of unpaid professional fees. The claim was premised on a contract, whether express or implied, and also in quasi-contract for quantum meruit. Lenin admitted that any claim for quantum meruit was statute-barred. The court had to determine whether the claim for restitution for unjust enrichment could still be pursued, despite the statute of limitations having expired for the quantum meruit claim. The proceedings were initiated on 27 September 2005, well beyond the statutory limitation period of 6 years which expired on 15 July 1998. The court had to decide whether the change in legal reasoning concerning restitution for unjust enrichment, which now governs what was previously rationalised as quasi-contract, could revive a claim that had otherwise been extinguished by the statute of limitations.

The court held that restitution for unjust enrichment is not a new right of action but rather the new legal reasoning governing the set of remedies previously rationalised as quasi-contract. This change in judicial reasoning does not alter the parliamentary intention behind the Limitation Act 1969 section 14(1)(a), which provides for the limitation period. As such, the plaintiff's right of action remained quantum meruit, and this claim was statute-barred. The court concluded that the claim for restitution for unjust enrichment was also statute-barred, as it was essentially the same claim rephrased under a different legal rationale. The limitation period had expired, and no new cause of action had been established that could circumvent the statutory bar.

Accordingly, the court dismissed the plaintiff's claims in their entirety. The court found that all claims were time-barred and could not be revived by the rephrasing of the legal basis for the claim. The defendant was therefore awarded judgment and costs.

ORDERS:
1. Verdict and Judgment for the defendant;
2. Plaintiff to pay the defendant's costs.

Orders

Orders of the court

1. Verdict and Judgment for the defendant;

2. Plaintiff to pay the defendant's 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

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CITATION:	Robert Coshott v Michael Lenin [2006] NSWDC 139
HEARING DATE(S):	01/11/2006 - 02/11/2006
EX TEMPORE JUDGMENT DATE:	11/02/2006
JURISDICTION:	Civil
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Verdict and Judgment for the defendant; Plaintiff to pay the defendant's costs
CATCHWORDS:	Recovery of unpaid professional fees - Any claim in contract (whether express or implied) statute barred - Admitted that any claim formerly in quasi-contract (quantum meruit) was statute barred - Claims barred at the latest on 15 July 1998 - Proceedings commenced 27 September 2005, over 7 years later - Claim barred on restitution for unjust enrichment - Held: (a) restitution for unjust enrichment is not a new right of action. (b) restitution for unjust enrichment is the new legal reasoning governing the set of remedies previously rationalised as quasi-contract. (c) the plainitff's right of action was still quantum meruit and was statute barred. (d) a change of judicial reasoning in that area of law formerly known as quasi-contract does not defeat the parliamentary intention behind Limitation Act 1969 section 14(1)(a)
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Wasada Pty Ltd v State Rail Authority of New South Wales (No 2) [2003] NSWSC 987 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 David Securities Pty Ltd and Others v Commonwealth Bank of Australia (1992) 175 CLR 353 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516
PARTIES:	Robert Coshott (plaintiff) Michael Lenin (defendant)
FILE NUMBER(S):	4184/05
COUNSEL:	Plaintiff in person Mr J.W. Conomos (for the defendant)