Kenna v Lloyd - [2021] NSWSC 1294

Supreme Court

New South Wales

Medium Neutral Citation: Kenna v Lloyd [2021] NSWSC 1294
Hearing dates: 25 March 2021
Date of orders: 13 October 2021
Decision date: 13 October 2021
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1)   Leave to appeal granted.
(2)   Appeal dismissed.
(3)   The plaintiff is to pay the defendant’s costs.

Catchwords:
CIVIL LAW – unpaid barrister’s fees – where Local Court entered summary judgment for barrister – appeal against decision – whether costs agreement valid – where direct agreement between barrister and client – where solicitor also engaged – whether Act required agreement to be between barrister and client
CIVIL LAW – identity of barrister – whether Act required barrister to practice in precise name in which practicing certificate issued – David John Lloyd SC v John Lloyd SC – whether client deceived – whether Magistrate erred in failing to afford right to cross-examine on the issue – no error established – no denial of procedural fairness

Legislation Cited:
Competition and Consumer Act 2010 (Cth), Sch 2
Legal Profession Uniform Law 2014 (NSW), Div 3
Local Court Act 2007 (NSW), ss 39, 40
Uniform Civil Procedure Rules 2005 (NSW), r 13.1

Cases Cited:
Di Biase v Rezek [1971] NSWLR 735
O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Petselis v Tatarka (2019) 57 VR 375; [2019] VSC 8
Rosser v Austral Wine & Spirit Co Pty Ltd [1980] VR 313
Rossiter v Miller (1878) 3 App Cas 1124
Soulemezisv Dudley(Holdings) Pty Ltd (1987) 10 NSWLR 247
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Tooth & Co Ltd v Bryen (No 2) (1922) 22 (SR)NSW 541

Category: Principal judgment
Parties: Patrick Kenna (Plaintiff)
David John Lloyd SC (Defendant)
Representation: Solicitors:
Newnhams Solicitors (Defendant)

File Number(s): 2020/327080
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

5 November 2020

Before:

Magistrate Kennedy

File Number(s):

2020/179371

Judgment

By summons filed 17 November 2020, the plaintiff seeks to appeal from a decision of Magistrate Kennedy in the Local Court of NSW. The decision was to enter summary judgment in favour of the defendant on 5 November 2020. To avoid confusion, I will refer to the plaintiff in this Court (the defendant in the Local Court) as Mr Kenna and the defendant in this Court (the plaintiff in Local Court) as Mr Lloyd.
Mr Kenna, through a law firm called Hamish Cumming Family Lawyers, engaged Mr Lloyd, a barrister, to appear on his behalf in proceedings in the Family Court of Australia. Mr Lloyd practices under the name “John Lloyd SC” although his given name and the name which appears on his practicing certificate is “David John Lloyd SC”. Mr Lloyd issued a costs agreement and disclosure in the amount of $72,000 (excluding GST) to Mr Kenna. This was based on a five-day hearing and three days preparation. Mr Kenna signed the agreement on 16 September 2019. On 18 October…

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 Kenna v Lloyd

Details

AGLC: Kenna v Lloyd [2021] NSWSC 1294
Case: [2021] NSWSC 1294
Decision Date: 13 October 2021

CaseChat Overview and Summary

The case of Kenna v Lloyd involved a dispute over unpaid barrister's fees. The matter was first heard in the Local Court, where a summary judgment was entered in favour of the barrister. The client subsequently appealed the decision, raising questions about the validity of the costs agreement and the identity of the barrister. The appeal centred on whether the agreement was valid when it was a direct agreement between the barrister and the client, despite the involvement of a solicitor. The client also argued that the magistrate erred in not allowing cross-examination regarding the identity of the barrister.

The primary legal issue was whether the costs agreement was valid under the relevant legislation, which required the agreement to be between the barrister and the client. The court had to determine whether the agreement was effective despite the involvement of a solicitor and whether the client's identity was properly established. Additionally, the court examined whether the client had been deceived by the barrister's identity and if the magistrate erred in not allowing cross-examination on this point.

The court found that the costs agreement was valid as it was a direct agreement between the client and the barrister. It held that the involvement of a solicitor did not invalidate the agreement. Regarding the identity of the barrister, the court found no evidence of deception or procedural unfairness, as the client had not been misled about the identity of the barrister. The court concluded that the magistrate did not err in declining to allow cross-examination on this issue.

The appeal was dismissed, and the original judgment of the Local Court was upheld. The court confirmed the validity of the costs agreement and upheld the summary judgment in favour of the barrister.

Orders