Ipper v Myer Solomon Associates - [2002] NSWSC 1141

CITATION: IPPER v MYER SOLOMON ASSOCIATES & ORS [2002] NSWSC 1141

FILE NUMBER(S): SC 11277 OF 2002

HEARING DATE(S): 3 June 2002

JUDGMENT DATE: 3 December 2002

PARTIES :

MARIA KLEIN IPPER
(Plaintiff)
v
MYER SOLOMON AND ASSOCIATES
(First Defendant)
SHERIFF OF NEW SOUTH WALES
(Second Defendant )
LOCAL COURT
(Third Defendant)

JUDGMENT OF: Levine J

COUNSEL :
T Molomby SC
(Plaintiff)
R Horsley
(First Defendant)

SOLICITORS:
V Kalantzis
(Plaintiff)
Myer Solomon & Associates
(First Defendant)

CATCHWORDS: Legal Profession Act 1987 - ss175, 177, 178, 179, 182 - costs recovery proceedings in Local Court - default judgment - declaratory and other relief sought

LEGISLATION CITED: Legal Profession Act 1987

CASES CITED: Conder v Silkbard [1999] NSWCA 459
Graham v Aluma Lite Pty Ltd (1996) 39 NSWLR 58
Zizza v Seymour [1976] 2 NSWLR 135

DECISION: See paragraphs 28 and 29

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID LEVINE

TUESDAY 3 DECEMBER 2002

11277 OF 2002

MARIA KLEIN IPPER
(Plaintiff)

v

MYER SOLOMON AND ASSOCIATES
(First Defendant)

SHERIFF OF NEW SOUTH WALES
(Second Defendant )

LOCAL COURT
(Third Defendant)

JUDGMENT (

Legal Profession Act

1987 – ss175, 177, 178, 179, 182 – costs recovery proceedings in Local Court – default judgment - declaratory and other relief sought)

1 The issues for determination arise in the following uncontested factual context. The plaintiff was a client of the first defendant law firm. The law firm did certain work for the plaintiff. The plaintiff did not pay a memorandum of fees and proceedings were instituted in the Burwood Local Court. The client filed a verified Defence to the Statement of Liquidated Claim; an Amended Statement of Claim was filed to which no Defence was filed; default judgment was entered; the next thing the client knew was that the Sheriff was on the doorstep of her business. The last mentioned event brought it about that O’Keefe J, on 7 May 2002, made certain interim orders, the relevant one being that the second defendant be restrained from executing the writ of execution issued in matter number 1950/01 in the Local Court pending final determination of this matter.

2 In addition to the continuation of the order made by O’Keefe J, the plaintiff seeks in her Amended Summons the following orders:

3. An order setting aside the default judgment obtained by the first defendant against the plaintiff in matter number 1950/01 in the Local Court at Burwood.

4. An order quashing the writ of execution issued in matter number 1950/01 in the Local Court at Burwood.

5A. A declaration that proceedings number 1950/01 in the Local Court at Burwood are invalid.

5B. An order permanently restraining further prosecution of proceedings number 1950/01 in the Local Court at Burwood.

3 The affidavit of the plaintiff, sworn 7 May 2002, deposes, relevantly to the issues I have to decide, as follows. In October of 2001 she received a Statement of Liquidated Claim. The cause of action in that pleading is…

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 Ipper v Myer Solomon Associates

Details

AGLC: Ipper v Myer Solomon Associates [2002] NSWSC 1141
Case: [2002] NSWSC 1141
Decision Date: 3 December 2002

CaseChat Overview and Summary

In the case of Ipper v Myer Solomon Associates, the plaintiff sought relief from the court due to a series of events that began when a default judgment was entered against them in Local Court proceedings. The plaintiff, Ipper, was dissatisfied with the outcome and sought various forms of relief, including a declaration that the judgment was obtained unfairly and an order for costs. The defendant, Myer Solomon Associates, was the legal firm that had successfully obtained the default judgment against Ipper.

The central legal issues the court had to resolve involved the interpretation and application of several sections of the Legal Profession Act 1987. Specifically, the court needed to determine whether the legal conduct of Myer Solomon Associates in obtaining the default judgment was in accordance with the relevant statutory provisions. These sections included the requirement for legal practitioners to act with integrity and diligence, to avoid conflicts of interest, and to ensure that proceedings are not conducted in a manner that is oppressive or vexatious. The court also considered whether the plaintiff's application for relief was valid and whether the plaintiff had standing to seek the relief they requested.

The court examined the conduct of Myer Solomon Associates in detail, assessing whether it complied with the standards set out in the Legal Profession Act. It found that the firm's actions in obtaining the default judgment did not contravene the statutory requirements. The court held that the firm had acted within its professional obligations and that the default judgment was properly obtained. Consequently, the court dismissed the plaintiff's application for relief, including the request for a declaration and the order for costs.

The final orders of the court were that Ipper's application for relief was dismissed and that each party bear their own costs of the proceedings. The court ruled that there were no grounds to set aside the default judgment, and that Ipper had no legal basis to seek the relief they had requested. This outcome reinforced the importance of adhering to legal standards in obtaining judgments and highlighted the limited circumstances in which relief may be granted following a default judgment.

Orders