Fu v Carmody

[2013] NSWCA 172

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Fu v Carmody [2013] NSWCA 172

Hearing dates:

7 June 2013

Decision date:

07 June 2013

Before:

Macfarlan JA at [1]; [9]; [10] and [11]
Leeming JA at [8]

Decision:

(1) The application for leave to appeal is dismissed with costs.

(2) The costs to which the respondent is entitled are assessed at the amount of $8,000.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave to appeal - no issue of principle

Legislation Cited:

Legal Profession Act 2004

Category:

Procedural and other rulings

Parties:

Quen Fu (Applicant)
John Edward Carmody trading as Carmody & Co Solicitors (Respondent)

Representation:

Counsel:
C de Robilliard (Applicant)
M Pesman (Respondent)
Solicitors:
Kent Attorneys (Applicant)
John Carmody & Co Solicitors (Respondent)

File Number(s):

CA 2012/347360

 Decision under appeal 

Jurisdiction:

9111

Citation:

Fu v Carmody [2012] NSWSC 1362

Date of Decision:

2012-10-11 00:00:00

Before:

Adams J

File Number(s):

2012/164207

Judgment

1. MACFARLAN JA: This is an application for leave to appeal against a judgment of Adams J, sitting in the Common Law Division of the Court, dismissing an appeal by Ms Quen Fu from a decision of the Local Court at Burwood. By that decision, the Local Court gave judgment for the present respondent, Mr John Carmody, a solicitor, in the amount of $48,566.50, representing professional costs, plus interest.

1. Ms Fu's draft Notice of Appeal to this Court relies on two grounds.

1. The first ground is:

"His Honour failed to properly determine the Appellant's arguments based upon the Appellant's common law rights which arguably remain independently of the provisions of the Legal Profession Act 2004".

1. This appears to be a reference to an argument dealt with by Adams J that Ms Fu had a right to prevent Mr Carmody suing for his professional fees prior to the assessment of his bill of costs. Adams J held that Ms Fu had no such right, either under statute or at common law. In particular, he held that even if s 355 of the Legal Profession Act 2004 were otherwise applicable, it did not assist Ms Fu because she did not apply for assessment of Mr Carmody's bill within 12 months of him delivering it to her. The magistrate, on discretionary grounds, rejected Ms Fu's application for a stay of proceedings until assessment occurred. Adams J discerned no error in the magistrate's decision and none has been identified in this Court.

1. The second ground in Ms Fu's draft Notice of Appeal complains, on the basis of solicitor-client privilege, of Mr Carmody's reliance in the Local Court on a statement of Ms Fu's assets and liabilities prepared by her. The affidavit to which this document was annexed was read in the Local Court without objection by Ms Fu and no argument was put either to the Local Court or to Adams J that Mr Carmody's reliance upon the document was impermissible. Any privilege that was applicable was therefore clearly waived and the ground could not form a basis for a grant of leave to appeal to this Court.

1. Ms Fu's Summary of Argument raises other matters that are not the subject of proposed grounds of appeal. However, none of them has any merit. The principal argument is a contention that the magistrate erred in finding that Mr Carmody's bill was properly served and in his finding as to the date upon which it was served. These are purely factual issues not warranting a grant of leave to appeal, particularly as no reason to doubt their correctness has been shown.

1. In my view, no issue of principle is raised by Ms Fu's application for leave to appeal and none of her arguments in support of it or in her draft Notice of Appeal have any merit. In these circumstances, the application for leave to appeal should be dismissed with costs.

1. LEEMING JA: I agree.

1. MACFARLAN JA: The order of the Court is that the application for leave to appeal is dismissed with costs.

[Discussion with counsel then ensued]

1. MACFARLAN JA: The Court further orders that the costs to which the respondent is entitled are assessed at the amount of $8,000.

[Counsel for the applicant then requested the Court to explain why his client did not have the common law right, for which she contended, to have the respondent's bill assessed]

1. MACFARLAN JA: You haven't provided any basis for the existence of that right, Mr de Robilliard, but even if one assumes it exists, you haven't pointed to any rule or law which would inhibit or impair Mr Carmody's right to sue for his fees pending assessment. The magistrate apparently entertained an application for a stay, which is available on a discretionary basis, and in his or her discretion decided not to order a stay. That meant that the action for recovery of the fees was able to proceed, as it did. Each party, as I understood it, recognised that it was open to your client to dispute the amount of the fees in those proceedings in the Local Court, but there was no dispute of any significance that occurred and not surprisingly the magistrate found that Mr Carmody's entitlement to the fees had been proved.

[Following further discussion the Court declined to make an order sought by MR DE ROBILLIARD CONCERNING AN UNDERTAKING GIVEN TO THE FEDERAL MAGISTRATE'S COURT]

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Decision last updated: 12 June 2013