Jones v The Owners Strata Plan No. 69008

District Court

New South Wales

Medium Neutral Citation:

Jones v The Owners Strata Plan No. 69008 [2017] NSWDC 430

Hearing dates:

17 November 2017

Date of orders:

17 November 2017

Decision date:

17 November 2017

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

(1) As no fee agreement governed work done prior to 9 July 2010, and costs had not been assessed by a costs assessor, action in respect of work done prior to 9 July 2010 was not maintainable: Legal Profession Act 2004 s 317;

 

(2) Costs agreement delivered on 9 July 2010 did not govern relationship between the solicitor and his client prior to 9 July 2010: Baynes & Anor v Kalyk [2003] NSWSC 607 applied;

(3) Coburn v Colledge [1897] 1 QB 702 (C.A) distinguished

Catchwords:

COSTS – Action by a solicitor to recover costs – Solicitor did work for defendant from February 2009 to 8 July 2010 and rendered a bill – No costs agreement in existence until 9 July 2010 when solicitor commenced doing further work for defendant, after having delivered a costs agreement which could be accepted by conduct – Defendant paid for work covered by fee agreement for work done after 9 July 2010 – Application by defendant for dismissal of claim

Legislation Cited:

Interpretation Act 1987
Legal Profession Act 2004

Cases Cited:

Baynes & Anor v Kalyk [2003] NSWSC 607
Coburn v Colledge [1897] 1 QB 702 (C.A)

Category:

Procedural and other rulings

Parties:

Ian Jones (Plaintiff)
The Owners Strata Plan No. 69008 (Defendant)

Representation:

Solicitors:
In person (Plaintiff)
Adrian Batterby Lawyer (Defendant)

File Number(s):

2016/327009

Publication restriction:

Nil

Judgment

1. HIS HONOUR: This is the 23rd year in which I shall have intoned the mantra that nothing excites the zeal, the ardour and the passion of the legal profession more than an argument about costs. The plaintiff is a solicitor. He previously acted for the defendant. He first appears to have acted for the defendant in February 2009. On 9 July 2010 the plaintiff rendered to the defendant a memorandum of costs and a tax invoice which he said was "interim". The short statement of work done at the commencement of the memorandum of costs is this.

"To our fees for acting for you in the above matter since about February 2009, including taking instructions, advising you and the strata managing agent (SMA) on many occasions, including particularly about the need to prepare your experts' report asap, preparation of your Application to the CTTT, and several appearances at the CTTT at Parramatta to adjourn the Application, recently having it transferred to the Sydney Supreme Court, attending meetings at the property, many letters and telephone attendances on you, the SMA, your expert Mr Dessaix, the respondents' prior and current solicitors and other, reporting to you, at related attendances, correspondence and work."

The total of the bill including GST was $23,256.82. A detailed breakdown of the work done is set out in an eight-page document which is conveniently annexed to the affidavit of Mr Adrian Batterby,…