John Byrnes and Associates (Legal) Pty Ltd v Quinn (No 2)

[2021] NSWSC 874

Supreme Court

New South Wales

Medium Neutral Citation:

John Byrnes & Associates (Legal) Pty Ltd v Quinn (No 2) [2021] NSWSC 874

Hearing dates:

20 July 2021

Date of orders:

20 July 2021

Decision date:

20 July 2021

Jurisdiction:

Common Law

Before:

Rees J

Decision:

Order that monies held by Court be paid to the law firm, on its undertaking to repay in certain circumstances. Client to pay part of the law firm’s costs of the proceedings.

Catchwords:

COSTS

Legislation Cited:

Legal Profession Act 2004 (NSW) ss 331, 333

Cases Cited:

John Byrnes & Associates (Legal) Pty Ltd v Quinn [2020] NSWSC 1840

John Byrnes & Associates (Legal) Pty Ltd v Quinn [2021] NSWSC 834

Category:

Consequential orders

Parties:

John Byrnes & Associates (Legal) Pty Limited (Plaintiff)
Robert Quinn (First Defendant)
New South Wales Land and Housing Corporation (Second Defendant)

Representation:

Counsel:
Mr E White (Plaintiff)
Mr R Quinn (First Defendant in person)
No appearance (Second Defendant)

Solicitors:
John Byrnes & Associates (Legal) Pty Limited (Plaintiff)

File Number(s):

2020/143722

Ex Tempore Judgment

1. HER HONOUR: This matter is listed for hearing today to deal with two issues. First, whether the following order, proposed on 9 July 2021, should be made:

On the undertaking to the Court provided by the plaintiff on 15 June 2021, a copy of which is annexed to these Orders and marked “A”, order that the monies paid into Court by the second defendant be paid to the plaintiff.

2. The second issue is what costs order, if any, should be made in respect of these proceedings.

3. In respect of both issues, the first defendant, Mr Quinn, relied on three primary submissions. First, at the two previous hearings (see John Byrnes & Associates (Legal) Pty Ltd v Quinn [2020] NSWSC 1840 and John Byrnes & Associates (Legal) Pty Ltd v Quinn [2021] NSWSC 834), it was submitted that the Court did not take his evidence and submissions into consideration. The Court should do so at this hearing and revisit the earlier decisions.

4. Mr Quinn’s submissions and evidence were canvassed and considered in my two earlier judgments and I am not going to revisit those judgments on this occasion. That is for another court.

5. Second, Mr Quinn has paid some of the law firm’s costs and thus some of the monies in Court should be paid to him.

6. As I noted in John Byrnes [2021] at [10]:

On 11 September 2018, the law firm rendered its final bill in respect of the District Court proceedings. The law firm’s total fees were $111,822.89. In addition, counsel rendered fees totalling $139,206.05, making a combined total of $251,028.94. Mr Quinn had paid the law firm $14,426.30 in respect of the District Court proceedings, leaving $236,602.64 unpaid.

7. Whilst it is the case that Mr Quinn has paid some of the law firm’s fees, it is but a small portion and much remains unpaid. As I noted in John Byrnes [2021] at [14], Mr Quinn continues to owe the law firm is $104,162.59, being some $30,000 more than the monies since paid by NSW Housing into Court.

8. Third (and related to the second submission), Mr Quinn has made a reasonable offer to the law firm to divide up the monies in Court, which the law firm has unreasonably refused to accept. As I noted in John Byrnes [2021] at [13]:

… NSW Housing held the balance of $73,804.77 in escrow pending agreement between the law firm and Mr Quinn as to how those funds should be remitted. Mr Byrnes was unable to negotiate payment of the law firm’s costs and disbursements with Mr Quinn. In particular, Mr Quinn wanted $30,000 of the monies held by NSW Housing to be paid to him.

Mr Quinn submits that this was a reasonable offer and, in refusing his offer, the law firm should not be entitled to the monies in court, nor its costs of the proceedings.

9. As I noted in John Byrnes [2020] at [32] and John Byrnes [2021] at [48], it is not clear to me why a portion of the monies in Court – paid in by NSW Housing to pay Mr Quinn’s legal costs as assessed – should be paid to Mr Quinn. The purpose of the funds is to pay Mr Quinn’s legal bills, not for Mr Quinn to derive a financial benefit. This position might be different if Mr Quinn had already paid the law firm, but he has not. Further, as I noted in John Byrnes [2021] at [33], if the law firm were to accept even less funds than those paid into Court in payment of its fees, the ‘indemnity principle’ would likely mean any monies not paid to the law firm for Mr Quinn’s legal fees should be repaid to NSW Housing, not to Mr Quinn.

10. Fourth, I should add that Mr Quinn has on this application repeated many of the submissions made at the two earlier hearings.

11. In the result, as to whether the monies held in court should be paid out to the law firm on its undertaking, Mr Quinn’s submissions do not detract from what I had in mind in John Byrnes [2021] at [49]-[52] as to the way forward given the possibility that Mr Quinn may have the law firm’s costs assessed and, perchance, that assessment may result in the law firm being entitled to less than the monies in Court.

12. Turning then to the appropriate order, if any, for the costs of the proceedings, the plaintiff sought their costs be paid by Mr Quinn subject to any discount by reason of the proceedings effectively having been stayed for a period of time so that the law firm could comply with section 333 of the Legal Profession Act2004 (NSW).

13. When the plaintiff commenced these proceedings, four prayers for relief were sought:

1    A Declaration that the plaintiff has an equitable lien over the costs ordered by Taylor DCJ to be paid to the first defendant in the District Court proceedings case no. 2014/232539 between the First and Second Defendants (the Cost Order).

2    An Order that the Second Defendant pay to the Plaintiff any monies due to be paid by reason of the Cost Order.

3    In the alternative to Order 2, an Order that the monies comprising the Cost Order be paid into Court pending resolution of any claim the Plaintiff and First Defendant have to those monies.

4    An order that the First Defendant pay the Plaintiff’s costs.

14. As matters unfolded at the hearing on 14 December 2020, only prayers 1 and 3 were pressed as, shortly before the hearing, Mr Quinn pointed out that the legal bills served by the law firm did not fully comply with the Act. On that occasion, I made a declaration in respect of an equitable lien. The law firm re-served the bills on 21 December 2020 and thereafter pressing it application for summary judgment in respect of the balance of the summons.

15. Having regard to the requirements of section 331 of the Act, considered in John Byrnes [2021] at [41]-[45], I do not consider it appropriate that the law firm have its costs of the proceedings until it had served bills in accordance with the Act and the requisite 30 days prescribed by section 331 had passed. This would not preclude the plaintiff having its costs for seeking, and obtaining, a declaration as to equitable lien on 14 December 2020.

16. For these reasons I make the following orders:

1. On the undertaking to the Court provided by the plaintiff on 15 June 2021, a copy of which is annexed to these orders and marked “A”, order that the monies paid into court by the second defendant be paid to the plaintiff.

2. I order the first defendant to pay the following costs of the plaintiff of these proceedings only:

1. the plaintiff’s filing fee;

2. the plaintiff’s costs of the hearing on 14 December 2020; and

3. the plaintiff’s costs from 22 December 2020 on.

3. In respect of the plaintiff’s application for a specified gross sum under section 98(4) of the Civil Procedure Act 2005 (NSW);

1. I direct the plaintiff to file and serve any affidavits and submissions by 3 August 2021;

2. I direct the first defendant to file and serve any affidavits and submissions in reply by 24 August 2021;

3. This application will be determined on the papers; and

4. Vacate the listing before the registrar on 29 July 2021.

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Decision last updated: 20 July 2021