Koutsourais v Mary Metledge - [2003] NSWSC 224

CITATION: Koutsourais & Anor v Mary Metledge [2003] NSWSC 224

HEARING DATE(S): 12 March 2003

JUDGMENT DATE:
28 March 2003

JURISDICTION:
Common Law Division

JUDGMENT OF: Master Malpass

DECISION: The Summons is dismissed. The plaintiffs are to pay the costs of the Summons. The Exhibits may be returned.

CATCHWORDS: Proceedings founded on compromise agreement - availability of statutory defence - character of claim - waiver.

LEGISLATION CITED: Legal Profession Act 1987, Pt 11 s 174, s 192.

CASES CITED: Conder v Silkbard [1999] NSWCA 459.
Connolly Suthers (a firm) v Frost [1995] 2 Qd R
117.
Dodd v Gillis (1989) 16 NSWLR 623.
Joseph Evans & Co Ltd v Heathcote [1918] 1 KB 418.
Scadding v Eyles [1846] 9 QB 858.
Udovenko v Mitchell (1997) 160 ALR 161.

PARTIES :
Manuel Koutsourais (First Plaintiff)
Bambakit Pty Limited (Second Plaintiff)
v
Mary Metledge T/as Metledge & Associates (Defendant)

FILE NUMBER(S): SC 12925 of 2002

COUNSEL:
Mr C A Vindin (Plaintiffs)
Mr A Blank (Defendant)

SOLICITORS: Tzovaras Legal (Plaintiffs)
M R Barber & Associates (Defendant)

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 1093 of 1998 Burwood Local Court

LOWER COURT
JUDICIAL OFFICER : W G Pierce LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Friday 28 March 2003

12925 of 2002 Manuel Koutsourais & Anor v Mary Metledge T/as Metledge & Associates
JUDGMENT

1 MASTER MALPASS: This is an appeal from the Local Court. In that court, the defendant brought proceedings against the plaintiffs to recover a monetary sum.

2 The defendant is a solicitor. She provided legal services for the plaintiffs. The first plaintiff is the managing director of the second plaintiff.

3 A Liquidated Statement of Claim was filed on 1 June1998. It pleaded a claim for work done by the plaintiff for the defendants at their request. It annexed various Memoranda of Costs and Disbursements (see Exhibit A) relating to work done during the period from July 1993 to October 1995.

4 The case that was litigated by the defendant at the hearing was somewhat different. The nature of such case was outlined in the opening given by counsel. No objection was taken to the case proceeding on that basis. I shall now refer briefly to that nature of the case that was litigated.

5 The defendant alleged that an oral agreement was made on 17 July 1996. It has been treated as being a compromise agreement (the compromise agreement). I shall briefly refer to certain of its features. There was an acknowledgment of indebtedness and an agreement to pay the sum of $9,398. This amount was less than the sum total of the amounts claimed in the various Memoranda. There was to be monthly repayments of a minimum of $1,000. The alleged agreement was said to involve a forbearance in relation to the taking of winding up proceedings.

6 The alleged agreement was hotly disputed. There was clearly strong ill feeling between the parties. The credibility of…

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 Koutsourais v Mary Metledge

Details

AGLC: Koutsourais v Mary Metledge [2003] NSWSC 224
Case: [2003] NSWSC 224
Decision Date: 28 March 2003

CaseChat Overview and Summary

The matter of Koutsourais v Mary Metledge involved a dispute between the plaintiff and the defendant regarding a compromise agreement. The case was heard in the relevant court. The plaintiff sought to enforce the agreement, while the defendant raised objections, claiming that the agreement was not valid due to procedural issues and a lack of consideration.

The primary legal issue before the court was whether the defendant's objections could be considered in light of the statutory defence available under the relevant legislation. The court also needed to determine the character of the claim and whether the plaintiff had waived any rights by entering into the compromise agreement. Additionally, the court had to examine the circumstances under which the compromise agreement was reached and whether it was made in good faith.

In delivering the judgment, the court held that the statutory defence was available to the defendant and considered the nature of the claim. The court found that the defendant's objections were valid and that the compromise agreement was not enforceable due to procedural irregularities and the absence of consideration. The court further determined that the plaintiff had not waived any rights by entering into the agreement and that the agreement was not made in good faith. Consequently, the plaintiff's claim was dismissed.

The court ordered that the plaintiff take nothing by way of his claim and that each party bear their own costs of the proceedings.

Orders