Hwoma v Pawlak

[2008] NSWSC 1324

CITATION:	HWOMA & ANOR v PAWLAK [2008] NSWSC 1324
HEARING DATE(S):	Wednesday 10 December 2008
JUDGMENT DATE :	10 December 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	Grant leave to appeal. Order that the costs orders made by the Magistrate on 6 August 2007 in the Local Court proceedings be set aside. Defendant to pay the second plaintiff's costs of this appeal.
LEGISLATION CITED:	Legal Profession Act 2004 Local Courts Act 1982
CASES CITED:	Lemoto v Able Technical Pty Limited (2005) 63 NSWLR 300
PARTIES:	Somar HWOMA & ANOR v Krzyszpof PAWLAK
FILE NUMBER(S):	SC No 14493 of 2007
COUNSEL:	1P: No appearance 2P: J Raime D: M Preece
SOLICITORS:	1P: No appearance 2P: de Mestre & Company D: Wells Yates & Associates
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	5879/06
LOWER COURT JUDICIAL OFFICER :	M Price
LOWER COURT DATE OF DECISION:	2 and 6 August 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

WEDNESDAY 10 DECEMBER 2008

No 14493 of 2007

SOMAR HWOMA & ANOR v KRZYSZPOF PAWLAK

JUDGMENT

1 HIS HONOUR: In these proceedings, the second plaintiff to the amended summons seeks leave to appeal, pursuant to s.74(1) and s.74(2)(c) of the Local Courts Act 1982, against an order made in Local Court proceedings No 5879 of 2006, namely, that he pay the costs of the proceedings on an indemnity basis.

2 The second plaintiff seeks an order that the costs orders made by the Magistrate, his Honour Magistrate Price, on 6 August 2007 in those Local Court proceedings be set aside.

3 The proceedings by way of appeal to this Court were initiated by summons filed on 31 August 2007 and, pursuant to leave granted by Kirby J on 23 June 2008, an amended summons was filed on 8 July 2008. In the amended summons, a number of asserted errors are relied upon as the appeal grounds. The court constituted by the Magistrate made the challenged costs order on the basis that the second plaintiff had failed to comply with his obligations under the Legal Profession Act 2004 and I will say more about the order made and the basis for it.

4 In order to understand the present proceedings and the relief claimed, I will briefly provide some context in terms of the proceedings that were originally brought in the Local Court by the second plaintiff's client.

5 The first plaintiff, Somar Hwoma, was the unsuccessful plaintiff in the Local Court proceedings. Ms Hwoma had brought a claim against the defendant, Mr Pawlak, seeking damages said to have arisen out of a motor vehicle accident concerning a vehicle driven by her and another vehicle driven by Mr Pawlak on 11 February 2005.

6 The second plaintiff's firm acted on behalf of the first plaintiff in those proceedings. It appears that the matter was handled in his firm from time to time by employed solicitors and, at the time of the hearing of the proceedings in the Local Court, by Mr Lum, solicitor.

7 The second plaintiff, Mr de Mestre, is a principal of the firm of solicitors, de Mestre & Co. He was on the record as the solicitor for the first plaintiff.

8 The accident is said to have occurred on 11 February 2005, in circumstances that suggest the driver of the other vehicle was at fault. The dispute between the parties to a large extent focussed upon the components of the claim and the quantum of the claim brought by Ms Hwoma against Mr Pawlak.

9 On 9 January 2006, Mr de Mestre's firm sent a letter of demand to Mr Pawlak claiming the sum of $36,767.50. The letter of demand prompted an exchange of correspondence between the solicitors who then acted for the parties, in particular, Mr de Mestre's firm, and the legal representatives for the defendant. The plaintiff's claim was put on the basis that she was the owner of the vehicle in question that was damaged in the accident. Miss Hwoma claimed that she had purchased the vehicle that she was driving for the amount of $22,000 from a friend a few years earlier. She had sought damages in respect of the car that she was claiming on the basis that it had sustained significant damage rendering it, in effect, a write-off and resulting in expenses for towing and storage of the vehicle.

10 The solicitors for the defendant made requests for further and better particulars.

11 In the course of correspondence, the solicitors for the defendant alerted Mr de Mestre's firm to some matters that I will refer to as factual irregularities in Ms Hwoma's claim.

12 On 20 June 2006, Ms Hwoma commenced proceedings by way of statement of claim in the Local Court against Mr Pawlak and Rick Damelian Pty Limited who is apparently said to be the employer of Mr Pawlak. The amount claimed totalled $35,115.62 of which $22,000 in damages was said to be for the cost of the car and $8,616.30 for towing fees. Mr de Mestre's signature appears on the statement of claim certifying, pursuant to s.347 of the Legal Profession Act, his belief as to the reasonable prospects of success in the matter.

13 The terms of the certificate dated 19 June 2006 were-

“I certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success."

14 It would appear from some of the correspondence that from November 2006 onward Mr Pawlak had concerns about the claim and that there was reference in the correspondence to him instructing his solicitors to refer the claim to the New South Wales Police for investigation. There was correspondence between the police and the defendant's solicitors indicating the interest of the people investigating the matter should any witnesses commit perjury during the forthcoming hearing.

15 On this appeal, the plaintiff relied upon the evidence being the affidavit of Bruce Lum sworn on 8 October 2008. The defendant relied upon the affidavit of Margaret Wells, solicitor, sworn on 23 October 2008.

16 Miss Wells' affidavit contains a detailed chronology and history of the matter and annexed to her affidavit are the statement of claim and correspondence. Exhibited to the affidavit is a substantial body of material being exhibits to that affidavit numbered MGW 1 to MGW 38.

17 On the hearing of this appeal, the second plaintiff was represented by Mr J Raime of counsel and the defendant was represented by Mr M Preece of counsel. I am indebted to both counsel for their very helpful written submissions that identified the relevant facts for the purpose of this appeal and the issues and points of law that are germane to it. I have also had the benefit of oral submissions from both counsel.

18 I will say something about the history of the proceedings on the property damage claim and to the proceedings concerning the order made against the second plaintiff.

19 In support of Ms Hwoma’s case that the vehicle was owned by her at the time of the accident, she called evidence from a Mr Archi. The plaintiff relied upon a document said to have been signed by Mr Archi in which he purported to certify that the Toyota vehicle, XPM 225, had been sold by him to her for $22,000 on 24 January 2005. It bore a signature and it became an issue in the proceedings as to whether he had written that document or not. Attention was also given to the document written by the plaintiff which, like the certificate referred to by Mr Archi, formed part of Exhibit MGW 2 of Miss Wells's affidavit. In that document addressed to "To whom it may concern", she, in her own handwriting, set out a request amongst other things for her compensation injury claim to be, as it were, held in suspension.

20 The significance of that letter became obvious in the hearing in that the handwriting on it was said to be similar to the handwriting on the purported certificate attributed to Mr Archi. In due course, the plaintiff, Ms Hwoma, was cross-examined upon the basis that the certificate of ownership was a fraudulent document and that she had sought to claim ownership of the vehicle fraudulently in support of her claim.

21 A number of other issues arose in the course of the hearing about components of the claim said to have been inflated or otherwise fraudulent in various aspects.

22 The hearing was conducted before the Magistrate on 24 July. On that date a submission was made on behalf of the defendant that, in effect, there was no case to answer. At page 40 of the transcript of 24 July 2007, the learned magistrate gave his reasons and his Honour stated that he was not satisfied that the plaintiff had discharged her evidentiary onus and, accordingly, gave a verdict in favour of the defendant. His Honour indicated that he would give further reasons because of concern about the evidence that had been given in the first plaintiff's case. He gave those reasons on 2 August 2007. Again the transcript is an exhibit to Ms Wells' affidavit, MGW 30, and at pages 10 to 13 of the transcript his Honour set out what he describes as “fuller reasons”.

23 In the course of those reasons, his Honour gave considerable attention to the issue of ownership and the circumstances in which the plaintiff was said to have begged Mr Archi to provide the document about purchase, or to confirm purchase of the vehicle, and that he freely acknowledged the handwriting on the document was not his. To quote the magistrate "as was becoming glaringly obvious when he was asked to write the same document in the witness box and make a direct comparison".

24 His Honour then concluded his reasons by saying, based upon the evidence and other material and on demeanour, "the court was very comfortable in determining the plaintiff had no standing to bring the proceedings as owner of the vehicle and as an owner who could substantiate any loss".

25 The proceedings were then listed on 6 August 2007.

26 I should however observe that on 24 July 2007 Mr Preece of counsel said:-

"… The reason I foreshadow that is that there would be an application for costs on an indemnity basis and an application for those costs to be met by the plaintiff's solicitor for reasons that I will fully set out on the next occasion.”

27 The transcript then refers to discussion as to a suitable date.

28 On 2 August 2007, Mr Lum appeared for the plaintiff and Mr Preece of counsel appeared for the defendant. Submissions were made at some length by Mr Preece in support of the application. Page 4 of the transcript of that day sets out the submissions made on the basis of the two documents that I have earlier referred to supporting what was referred to as an overwhelming suspicion that they were penned by one and the same person. Submissions were made about the question of ownership and the question of fraud, including the matters concerning quantum that I earlier referred to.

29 Mr Lum is recorded as commencing submissions at page 7. The submissions appear to be fairly brief. He, in effect, opposed the making of the order. It is accepted that Mr de Mestre was not present on that occasion. There had been no affidavit evidence filed by Mr de Mestre in respect of the application being made against him.

30 At page 10 it is noted that the proceedings were adjourned for judgment to Monday 6 August 2007 at 9.30 am. On that date, his Honour delivered reasons. They are comprised within two pages of transcript of that date. His Honour referred to the provisions of s.345 and s.347 of the Legal Profession Act and that specifically his Honour said “… the applicant or the defendant relies upon an exchange of correspondence, specifically..." and his Honour then refers to a number of letters by date and then continues a little later, "...more tellingly on 12 June 2006 a letter or a document headed ‘without prejudice’, that communication disclosing what I might describe as some disquiet at the integrity of the vehicle and/or its history...".

31 I note that the reference to 12 June appears to be an error. Apparently his Honour was referring to the letter of 13 June 2006 to which I have earlier referred. His Honour refers briefly to submissions made and essentially his reasoning for the orders made are in the two paragraphs on page 2 commencing at line 20.

32 His Honour again in the second last paragraph refers to material relied upon by the defendant as applicant. The fundamental reason for the order appears in the last paragraph where his Honour said:-

“This is certainly a case where the court would take the view that a reasonable practitioner, having been put on notice prior to the filing of a statement of claim of all of those matters set out in the defendant's letter of 12 [sic] June 2006, should have been on notice that there were a number of matters requiring further investigation and/or clarification with their client. Against that background, the court is prepared to make an order for costs. Those costs will be on an indemnity basis. That indemnity basis will be payable by the solicitor on the record. They shall commence from the day that the statement of claim was filed which is 19 June 2006.”

Consideration

33 The correspondence relied upon which was said to have alerted the solicitor, Mr de Mestre, has been the subject of submissions in the present proceedings. In particular, reliance was placed upon the letter of 13 June 2006, a copy of which is Annexure A to the affidavit of Margaret Wells sworn 23 October 2008. It is a without prejudice letter dated 13 June 2006 and it was addressed to de Mestre & Company:-

“We refer to the above and advise that we have reviewed the matter and the documents that your client has provided in support of her claim.
We have conducted a series of searches with the relevant NSW Motor Vehicle Bodies, the Australia Securities Investment Commission and the Motor Vehicle Repair Industry Authority that has revealed the following information:
1. The vehicle has never been registered in your client’s name.
2. Your letter dated 11 April advises that the vehicle was deemed a statutory write-off and that Dynamic Towing took possession of the vehicle with out reimbursing your client. We are yet to receive any comprehensive documentation to support that allegation. Our enquiries with the RTA and REVS have revealed that their records do not indicate that the vehicle is a statutory write-off or repairable write-off as required by NSW motor vehicle laws.
3. A vehicle that is deemed a statutory write-off is not to be re-registered again. REVS have advised us that the vehicle with VIN JTEYH20V600025449 is currently ‘on the road’ with different registration plate details than the one provided by your client. We are currently obtaining a vehicle history report from REVS and upon receipt a copy will be forwarded to you.
4. Our enquiries with the RTA have revealed that the vehicle was re-registered on 7 April 2005, 5 different people have owned the vehicle in the past year and that the registration on the vehicle expires on 7 April 2007. We advise that steps are currently being taken to retrieve the vehicle history for the past 18 months from the RTA and a copy will be forwarded to you upon receipt.
5. We note that your client is claiming 135 days worth of storage with Dynamic Towing. We are of the opinion that this is not sustainable given that the vehicle was re-registered on 7 April 2005, some 65 days after the accident. Further, a fee of $55.00 a day is an unreasonably excessive amount.
6. Our enquiries with the Motor Vehicle Repairers Authority reveal that the licence on record for Dynamic Towing is 05024, whereas the licence number shown on the copy of the invoice that you have provided us with discloses the licence number as 03044.
7. In relation to the copy of the invoice from SNV Motor Body Repairs provided by your client, we note that ASIC searches have revealed that 2 corporations with this business name, both of which do not have the same ABN or address as indicated on the invoice provided by your client. Further, one of these entities ceased operation prior to the accident and another 6 days after the date of your client’s invoice. In addition to this, our searches indicate that the ABN on the invoice correlates to an entity known as ‘TMS Investment Group Pty Limited trading as Five Dock Smash Repairs’ which began operating on 30 December 2003, and has with [sic] a business address of 37 Hillcrest Avenue, Greenacre. The licence number listed on the SNV invoice also belongs to TMS Investment Group.
In light of the discrepancies raised above we [sic] instructed to seek access to original documentation including the voices and photographs which your client holds in relation to this matter.
…”

34 Following the filing and service of the statement of claim, a defence was filed on behalf of the defendant. It was dated 17 July 2006. It was a defence in the form of non-admission of various paragraphs and admission of other paragraphs. It did not plead fraud or particulars of fraud, and nothing was alleged in it which suggested that fraud was going to be an issue relied upon.

35 Mr Preece on this hearing, correctly with respect, accepted that the pleading was defective in that respect and that it ought to have pleaded fraud. It did not. That aspect was raised by the solicitors for the first plaintiff in a letter MGW21 to Ms Wells' affidavit in which it said further:-

“We note that Mr Preece alleged that our client had engaged in fraud in relation to her claim. We further note that no particulars of fraud have been pleaded in your client's defence as required under rule 15.3 of the Uniform Civil Procedure Rules 2005 ...”

36 The magistrate's decision relied, in particular, upon the letter of 13 June as having been sufficient to have put the solicitor, Mr de Mestre, on notice. As earlier stated, he said:-

“... more tellingly on 12 [sic] June 2006 a letter or a document headed ‘without prejudice’, that communication disclosing what I might describe as some disquiet at the integrity of the vehicle ..."

37 The letter of 13 June does not, in my opinion, put the plaintiff’s solicitors on notice that the factual issue would be raised whereby it would be claimed that the first plaintiff had never been the owner of the vehicle, had not been the owner at the time of the subject accident and that a fraudulent claim was being propounded upon the basis that she was alleging a fact as to ownership that was untrue to her knowledge.

38 Mr Preece correctly, if I may say so, accepted that paragraph 1 of the above letter merely went to the fact that the vehicle had not been registered in the plaintiff's name but did not go any further than that and did not put anyone, unless I am mistaken, particularly Mr de Mestre, on notice that ownership was going to be challenged on a particular factual basis, said to have involved fraudulent misrepresentation by the plaintiff.

39 The other matters concerning the damages aspect were elaborated upon in some detail, unlike paragraph 1, but it was the question of ownership, not the question of the components making up the damages claim, that the proceedings were founded on and came to the end that they did with a verdict in favour of the defendant. His Honour referred in the reasons on 6 August 2006 to some of those aspects concerning the damages elements but does not otherwise address the question of ownership, the factual basis upon which the solicitor either knew or ought to have known of particular matters and the time at which he should have initiated further inquiries to check his client's instructions or to check the integrity of the documents.

40 It is clear that Mr de Mestre had instructions from his client that she was the owner. It is also a fact that an affidavit had been put on by Mr Archi about the matter. In effect both Mr Archi and the first plaintiff were telling the solicitor the same story, corroborating each other on the question of ownership.

41 In determining the question as to reasonable prospects of success in terms of s.345, a number of matters needed to be assessed in order for the solicitor to give a certificate. In Mr Raime's helpful submissions he sets out at pp.15 to 16 a number of the factual matters that were available to the solicitor. They can be summarised as follows. The solicitor had instructions as to:-

(1) The fact that Miss Hwoma was the driver of the vehicle which was identified.

(2) That the vehicle had been involved in an accident on 11 February 2005.

(3) That the narrative in the COPS reports strongly suggested fault in the driver of the other vehicle.

(4) That the plaintiff was in possession of the vehicle at the time of the accident.

(5) That there was a document verifying that the plaintiff had taken out a loan with the Commonwealth Bank which she said she used to finance the purchase of the vehicle and that there was bank account records showing withdrawals applying to certain monies said to be evidence of purchase.

(6) That Ms Hwoma had committed herself to an affidavit which she swore on 8 December 2006 that established she had purchased the vehicle XPN-225 and that she was the owner of the vehicle.

(7) Mr Archi also committed himself to an affidavit on 30 March 2007 that he was the previous owner and that ownership had passed by means of a sale to the first plaintiff.

42 As I have stated, the letter of 13 June 2006 did not raise the question of ownership, nor any factual matters suggesting that there may have been fraud in relation to the question of ownership and, as Mr Raime has said in his submissions, many of the concerns expressed in the correspondence did not relate to the issue of ownership but primarily went to the issue of quantum.

43 The submissions made in these proceedings essentially assert legal error in the learned Magistrate on a number of bases. Firstly, that the second plaintiff, Mr de Mestre, was denied procedural fairness in the process that was employed for the purpose of making an order against him. Secondly, that the judicial assessment by the learned Magistrate was demonstrably defective in law in failing to assess the statutory preconditions for an order being made and, thirdly, that the reasons given were both deficient and contained factual error. I will deal briefly with these points in order.

44 It is plain that the second plaintiff was entitled to procedural fairness. I need do no more than refer to the very detailed judgment of McColl JA in Lemoto v Able Technical Pty Limited (2005) 63 NSWLR 300, in particular from pages 333 and following. Hodgson and Ipp JJA agreed with her Honour's reasons. It is clear from the analysis of McColl JA that the principles of natural justice are important in the context in which a serious finding is being sought against a solicitor that, in effect, the solicitor has breached the provisions of the Legal Profession Act. Her Honour drew an analogy between the procedures that apply against legal practitioners where allegations are made in disciplinary proceedings, observing that, where an application is made by a party, it should be made by notice of motion and supported by an affidavit. That reference by McColl JA underlines the importance of a proper process whereby the person affected has the opportunity of fully understanding the basis upon which it is sought that he or she has breached the Act and is liable for a personal costs order.

45 Her Honour in her reasons for judgment at [149] placed particular emphasis upon the requirement for, what was described as, "full particulars of the basis of the application", which her Honour said "should be provided". Her Honour indicated that the necessity for full particulars arose, not only at one level, but that a multi-level decision process was required. Her Honour set out in five steps the fundamental propositions that guide applications of this kind. Her Honour indicated that there are a number of steps in the process.

46 The Magistrate in this case was required to address his mind to each of the steps. In my opinion he did not. In Lemoto (supra), McColl JA said, firstly, that it is necessary to consider whether there is a prima facie case that a solicitor or barrister has provided legal services to a party without reasonable prospects of success within the meaning of the provision. A solicitor should be given the opportunity of being heard on that issue.

47 Her Honour goes to the next step, that if the court considers there is a prima facie case, the legal practitioner should be given the opportunity to show cause why an order should not be made, and again the function of sufficient particulars is important at that level of the decision making process.

48 The next step is that after any explanation is provided, the court should then determine a further matter, namely, whether a finding that the legal practitioner has provided legal services to a party without reasonable prospects of success within the meaning of the provision should be made, and in considering that issue the onus of proof may differ, depending upon the issue of presumption.

49 McColl JA then proceeded to the next step, namely, that if the court concludes that the legal practitioner has provided legal services to a party without reasonable prospects of success within the meaning of the provision, then it is necessary for the court to consider whether it is, in all the circumstances, just to make an order. It is clear that therefore there is a process that gives the rules of procedural fairness specific content. That content is elaborated upon in the judgment of McColl JA in Lemoto (supra).

50 I sought from Mr Preece an identification of any document or any information that is said to have provided the details or particulars upon which a finding would be sought at the hearing before the Magistrate and which would support a finding that the solicitor was in breach and whether he was given any particulars of the fact that it would be contended that he should have compared handwriting or noted particular signatures and to have determined for himself or made inquiries as to whether the signatures were genuine. Mr Preece, who argued this matter diligently on behalf of his client, fairly conceded that he was unable to identify any document or any information imparted to Mr de Mestre which would have put him on notice that those matters were going to be argued against him at the hearing. In my opinion, Mr de Mestre not only should have been given notice, but it was essential that he be furnished with full particulars of the basis upon which it would be argued that he was in breach of his duty under the Act and he was not.

51 It is plain that in this case, as I have stated, there was no pleading of fraud in the proceedings below. There was no letter sent to him or information imparted in oral discussions as to the basis upon which it would be asserted that ownership was fraudulently being propounded by his client in this case. There were no particulars furnished as to why all the information that he had on the matters I have earlier identified by reference to Mr Raime's submissions would not of itself have indicated that he had sufficient information to provide the certificate. There was no motion filed in this case specifying the orders that would be sought from the Magistrate. There was no affidavit filed and, accordingly, no process followed which would ensure that procedural fairness in this case would be complied with. There was, in my opinion, no procedural fairness accorded in this case and the principles set out in Lemoto's case were not followed. That is sufficient to determine this appeal, but it is necessary, as other matters have been referred to, to briefly refer to them.

52 The Magistrate's decision was brief in the extreme. It was a decision involving grave matters that warranted detailed consideration of the issues that arise on an application of this kind. The issues are multi-stepped, as I have earlier indicated, requiring the Magistrate to apply his mind to each and every step that McColl JA discussed in Lemoto. It is clear that he did not do that.

53 The essential reasoning process that led to the order is to be found in the last paragraph of his reasons for decision. It is clear from a reading of the decision that the Magistrate did not consider the matters he was required to in the sequence which McColl JA said must be addressed. Accordingly, I consider that the Magistrate erred in law in failing to have regard to the particular matters required to be considered in determining whether there had been a failure by the solicitor to consider the question of reasonable prospects of success.

54 His Honour was required to consider whether or not, notwithstanding all the information and instructions the solicitor had, he ought to have been astute enough to pick up the question of handwriting comparisons and signatures. His Honour simply did not address that issue. His Honour seems to have assumed that the letter of what he called the letter of 12 June, but is really 13 June 2006, provided particulars of, what I will refer to as, the main issue, that is, ownership. It did not. His Honour made no reference at all to all of the other information that was available to the solicitor which would have influenced his judgment and formed the basis of his belief. That may be partly explained by the fact that the solicitor had not been put on notice, as I have earlier said, as to what issues he should address.

55 The other remarkable aspect of the judgment is that, in fact, it does not make any finding in terms of what the Act requires. Section 348(1) states that "If it appears to a court in which proceedings are taken on a claim for damages that a law practice has provided legal services to a party without reasonable prospects of success, the court may of its own motion or on the application of any party to the proceedings make either or both of the following orders", and it goes on. It has been contended that it is implicit that his Honour made that finding. In a matter in which the allegation is essentially that the solicitor is derelict in his duty, it is simply not good enough for a judgment of the court to impliedly deal with what is the fundamental issue in the finding as to whether the solicitor did have a foundation for the belief that he expressed in the certificate or not. That is a further basis upon which, in my opinion, the decision given was erroneous in law.

56 Those same matters are relevant to the third category of issue that I have earlier identified, that is, whether the reasons were adequate. They were not. That, too, is an error of law.

57 Any one of the bases I have identified would be sufficient for this appeal to succeed. The plaintiff has established every one of them in my opinion and accordingly an order must be made as sought and I so order.

58 In contemplating whether leave should be granted, I am of the opinion that this is clearly a case in which leave ought to be granted. There has, in my opinion, been demonstrated an error of law. In any event, there is sufficient grounds for the granting of leave to enable the plaintiff to have this matter dealt with by this Court and remedial orders made.

59 Accordingly, I grant leave pursuant to s.74(1) and s.74(2)(c) of the Local Courts Act to appeal the order made by the Magistrate on 6 August 2007. I order that the costs order of Magistrate Price made on 6 August 2007 in the Local Court proceedings be set aside.

60 In relation to the question of costs, the provisions of the rule that costs follow the event should be applied. Accordingly, I order that the defendant pay the second plaintiff's costs of this appeal.

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