Jefferis v Gells Pty Ltd - [2018] NSWDC 73

District Court

New South Wales

Medium Neutral Citation: Jefferis v Gells Pty Ltd [2018] NSWDC 73
Hearing dates: 23 March 2018
Date of orders: 29 March 2018
Decision date: 29 March 2018
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1)   Summary judgment for the plaintiff for $2,540 in relation to paragraphs 3-15 of the Further Amended Statement of Claim filed on 1 July 2017.
(2)   Plaintiff’s Notice of Motion filed on 22 December 2017 otherwise dismissed.
(3)   Order the plaintiff to pay 80% of the defendant’s costs of the Motion, as agreed or assessed.

Catchwords:
COSTS – costs assessment – whether the quantum of fees sought was fair and reasonable – whether costs assessor had jurisdiction to determine precise terms of retainer – whether that issue was determined by costs assessor, or was a matter to be determined upon a hearing in the District Court
PRACTICE AND PROCEDURE – summary judgment – whether there was no real question to be tried
Legislation Cited: Uniform Civil Procedure Rules 2005, 13.1
Legal Profession Act 2004, s 268(5)
Cases Cited: Fancourt v Mercantile Credits Limited (1983) 154 CLR 87
Calandra v Murden [2015] NSWCA 231
WKA Legal Pty Ltd v Gleeson [2018] NSWSC 318
Branson v Tucker [2012] NSWCA 310
Category: Procedural and other rulings
Parties: Richard Jefferis (plaintiff)
Gells Pty Ltd (defendant)
Representation:
Counsel:
P Doyle Gray (plaintiff)
M Castle (defendant)
Solicitors:
Kenneth Harrison (plaintiff)
Gells Pty Limited (defendant)

File Number(s): 2016/5874

Judgment

Introduction

By a Notice of Motion filed on 22 December 2017 the plaintiff sought summary judgment for $69,179.05. The application is brought pursuant to Uniform Civil Procedure Rule 13.1 which provides that where there is evidence of the facts on which the claim is based and evidence that the plaintiff or some responsible person has a belief that the defendant has no defence to the claim, the court may give summary judgment.
The principles governing applications of this nature are well known. It has been said that the power to enter summary judgment should be exercised with great care and an order under the Rules should only be made where it is clear that there is no real question to be tried – Fancourt v Mercantile Credits Limited (1983) 154 CLR 87.

The Pleadings

The plaintiff is a barrister and the defendant is a firm of solicitors. The plaintiff alleges that he performed legal services for and at the request of the defendant, and that he has not been paid. The plaintiff says that he entered into written costs agreements in relation to four matters in which he was briefed. The most recent pleading of the plaintiff is the Further Amended Statement of Claim filed on 1 July 2017.
The Defence to that document was filed on 24 August 2017. Three of the matters in which the plaintiff was briefed involved a client named Steiner, and the fourth was a matter of Wong. The defendant pleaded that in the Steiner matters, there was an agreement between barrister and…

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 Jefferis v Gells Pty Ltd

Details

AGLC: Jefferis v Gells Pty Ltd [2018] NSWDC 73
Case: [2018] NSWDC 73
Decision Date: 29 March 2018

CaseChat Overview and Summary

Jefferis v Gells Pty Ltd involved a dispute between the plaintiff, Jefferis, and the defendant, Gells Pty Ltd, over the quantum of fees sought by the plaintiff's solicitors in a legal proceeding. The matter was heard in the District Court of New South Wales. Jefferis sought a summary judgment in relation to specific paragraphs of a Further Amended Statement of Claim, and the defendant opposed this application on the grounds that there were real questions to be tried and that the quantum of fees sought was excessive.

The court was required to determine whether the quantum of fees sought by the plaintiff's solicitors was fair and reasonable, and whether the costs assessor had jurisdiction to determine the precise terms of the retainer. Additionally, the court had to decide whether the issue of the precise terms of the retainer was to be determined by the costs assessor or by the District Court upon a hearing.

The court found that there was no real question to be tried concerning the plaintiff's entitlement to the fees claimed. However, the court held that the costs assessor did not have the jurisdiction to determine the precise terms of the retainer, and that this issue was to be determined by the District Court upon a hearing. The court granted summary judgment in favour of the plaintiff for the amount claimed in relation to the specified paragraphs of the Further Amended Statement of Claim. However, the plaintiff's Notice of Motion was dismissed otherwise. The plaintiff was ordered to pay 80% of the defendant's costs of the Motion, as agreed or assessed.

Orders

Orders of the court

(1) Summary judgment for the plaintiff for $2,540 in relation to paragraphs 3-15 of the Further Amended Statement of Claim filed on 1 July 2017.

(2) Plaintiff’s Notice of Motion filed on 22 December 2017 otherwise dismissed.

(3) Order the plaintiff to pay 80% of the defendant’s costs of the Motion, as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Jefferis v Gells Pty Ltd [2018] NSWDC 73
Hearing dates:	23 March 2018
Date of orders:	29 March 2018
Decision date:	29 March 2018
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Summary judgment for the plaintiff for $2,540 in relation to paragraphs 3-15 of the Further Amended Statement of Claim filed on 1 July 2017. (2) Plaintiff’s Notice of Motion filed on 22 December 2017 otherwise dismissed. (3) Order the plaintiff to pay 80% of the defendant’s costs of the Motion, as agreed or assessed.
Catchwords:	COSTS – costs assessment – whether the quantum of fees sought was fair and reasonable – whether costs assessor had jurisdiction to determine precise terms of retainer – whether that issue was determined by costs assessor, or was a matter to be determined upon a hearing in the District Court PRACTICE AND PROCEDURE – summary judgment – whether there was no real question to be tried
Legislation Cited:	Uniform Civil Procedure Rules 2005, 13.1 Legal Profession Act 2004, s 268(5)
Cases Cited:	Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 Calandra v Murden [2015] NSWCA 231 WKA Legal Pty Ltd v Gleeson [2018] NSWSC 318 Branson v Tucker [2012] NSWCA 310
Category:	Procedural and other rulings
Parties:	Richard Jefferis (plaintiff) Gells Pty Ltd (defendant)
Representation:	Counsel: P Doyle Gray (plaintiff) M Castle (defendant) Solicitors: Kenneth Harrison (plaintiff) Gells Pty Limited (defendant)
File Number(s):	2016/5874