Koutsourais v Metledge & Associates

Case [2004] NSWCA 313
CITATION: KOUTSOURAIS & ANOR v METLEDGE & ASSOCIATES [2004] NSWCA 313
HEARING DATE(S): 07/09/2004
JUDGMENT DATE:
23 November 2004
JUDGMENT OF: Beazley JA at 1; Hodgson JA at 12; Bryson JA at 13
DECISION: Appeal allowed: costs orders: see [12]
CATCHWORDS: LEGAL PROFESSION - Costs - solicitors Legal Profession Act 1987 s.192 requires Bill of Costs to be given to client at least 30 days before action to recover - solicitor made informal claims without complying bills against 2 clients, one a company and one who was principal of the company - after disputes and service of Statutory Demand on company, parties agreed that the company (not the individual) would pay all the costs by instalments and solicitor would not proceed with winding-up - later the solicitor sued the company for money payable under that agreement - HELD (by majority) the claim retained character of claim for costs and ws barred by s.192.
LEGISLATION CITED: Legal Profession Act 1987 s.192, s.209C
Legal Practitioners Act 1898 s.21
Local Courts (Civil Claims) Act 1970 s.69
Solicitors Act 1891 (Queensland) s.3
Supreme Court Act 1970 s.101(1)(a), s.118(4)
Supreme Court Rules 1970
CASES CITED: British Russian Gazette Ltd v. Associated Newspapers Ltd (1933) 2KB 616
Callisher v Bischoffsheim (1870) LR 5 QB 449
Conder v Silkbard Pty Ltd [1999] NSWCA 459
Connolly Suthers v Frost [1995] 2 Qd R 117
Dodd v Gillis (1989) 16 NSWLR 623
McDermott v. Black (1940) 63 CLR 161
Mitchell (1997) 160 ALR 161
Morris v. Baron [1918] AC 35
Udovenko v. Mitchell (1997) 160 ALR 161

PARTIES :

 Manuel Koutsourais - 1st Appellant
Bambakit Pty Ltd - 2nd Appellant
Mary Metledge t/as Mary Metledge & Associates - Respondent
FILE NUMBER(S): CA 40500/2003
COUNSEL: T. Tzovaras (Sol) - Appellant
A. Blank - Respondent
SOLICITORS: Tzovaras Legal, Sydney - Appellant
M.R. Barbar & Associates, Marrickville - Respondent
LOWER COURTJURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S): 12925 of 2002
LOWER COURT
JUDICIAL OFFICER : 		Grove J and Master Malpass


                          40500/2003

                          BEAZLEY JA
                          HODGSON JA
                          BRYSON JA

                          TUESDAY 23 November 2004
KOUTSOURAIS & ANOR v. MARY METLEDGE & ASSOCIATES
Judgment

1 BEAZLEY JA: I agree with the Orders proposed by Hodgson JA and with his reasons save that I do not consider it necessary to express an opinion as to when proceedings might not be proceedings for recovery of costs: see para 11.

2 HODGSON JA: The circumstances of this appeal and the issues are set out in the judgment of Bryson JA, and I will not repeat them. However, I respectfully disagree with Bryson JA's conclusion, for the following reasons.

3 The question before the Magistrate was whether the proceedings were "proceedings for the recovery of costs by a solicitor" within s.192 of the Legal Profession Act 1987. If they were, it was common ground that a bill of costs had not been given to Bambakit Pty. Limited (Bambakit), so that the proceedings were not maintainable.

4 Before the Magistrate, the solicitor claimed that the contract sued…

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AGLC
Koutsourais v Metledge & Associates [2004] NSWCA 313
Case
[2004] NSWCA 313
Decision Date

CaseChat Overview and Summary

The dispute before the New South Wales Court of Appeal involved a solicitor, Metledge & Associates, and two clients, a company and its principal. The solicitor had made informal claims for costs against both clients. Following a dispute and the service of a statutory demand on the company, the parties entered into an agreement whereby the company would pay all outstanding costs by instalments, and the solicitor would refrain from pursuing winding-up proceedings. Subsequently, the solicitor initiated legal action against the company to recover money allegedly due under this agreement.

The central legal issue before the Court of Appeal was whether the solicitor's claim for money payable under the subsequent agreement was a claim for "costs" within the meaning of section 192 of the *Legal Profession Act 1987* (NSW). Section 192 mandates that a bill of costs must be provided to a client at least 30 days before any legal action can be commenced to recover those costs. The court was required to determine if the agreement to pay costs by instalments altered the fundamental nature of the claim, thereby circumventing the statutory requirement for a formal bill of costs.

By majority, the Court of Appeal held that the claim retained its character as a claim for costs, notwithstanding the subsequent agreement. The court reasoned that the agreement was a direct consequence of the solicitor's entitlement to costs and did not fundamentally change the nature of the debt. Therefore, the solicitor's failure to provide a compliant bill of costs at least 30 days prior to commencing proceedings meant that the claim was barred by section 192 of the *Legal Profession Act 1987*. The appeal was allowed, and the costs orders were set aside.

Orders

Orders of the court

Appeal allowed: costs orders: see [12]

Background

Background to the litigation

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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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