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Leung v Fordyce

Leung v Fordyce

Case [2019] NSWSC 18 29 January 2019

Admissibility of Evidence

Declaratory Relief

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Claudia Leung in her capacity as Executrix of the Estate of the late Robert Ho v Paul Mervyn Fordyce t/as Pmf Legal Trading [2019] NSWSC 18
Hearing dates: 11, 12, 13, 14 December 2017;Written submissions: 6, 7, 14, 19 December 2017, 22 January 2018 and 6 February 2018
Decision date: 29 January 2019
Jurisdiction: Equity
Before: Kunc J
Decision:
Plaintiffs entitled to declarations that costs agreements not sent and to consequential relief

Catchwords: EVIDENCE — onus of proof when a declaration is sought in relation to a negative fact — plaintiffs seek declaration that defendant solicitor did not send costs agreements
DECLARATIONS — onus of proof when a declaration is sought in relation to a negative fact — plaintiffs seek declaration that defendant solicitor did not send costs agreements
Legislation Cited: Evidence Act 1995 (NSW)
Legal Profession Act 2004 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542
Amirbeaggi v Business in Focus (Australia) Pty Ltd [2008] NSWSC 421
Application of Ferdinando Scali [2010] NSWSC 1254
Armagas Ltd v Mundogas S.A. (The Ocean Frost) [1985] 1 Lloyd’s Rep 1
Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044
Bater v Bater [1951] P 35
BCI Finances Pty Ltd (in liq) v Binetter (No 4) (2016) 348 ALR 227; [2016] FCA 1351
Blacket v Barnett [2017] NSWSC 1032
Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Connor v Blacktown District Hospital (1971) 1 NSWLR 713
Darkinjung Local Aboriginal Land Council v Darkinjung Pty Ltd [2010] NSWSC 132
Department of Health v Arumugam [1988] VR 319
Elayoubi v Zipser [2008] NSWCA 335
Ex parte Ferguson; Re Alexander (1944) 45 SR (NSW) 64; (1944) 62 WN (NSW) 15
Fordyce v Ho [2015] NSWCA 240
Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39
Fulton v Fulton [2014] NSWSC 619
Gray v Guardian Trust Australia [2003] NSWSC 704
Ho v Fordyce (ex parte) [2014] NSWSC 1404
Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168
Hutchison Construction Services Pty Ltd v Fogg; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2016] NSWCA 135
In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547
Jones v Dunkel (1959) 101 CLR 298
Juul v Northey [2010] NSWCA 211
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; [1995] HCA 68
Krstic v Brindley [2006] NSWSC 1414
Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34
Maguire v Makaronis (1997) 188 CLR 449; [1997] HCA 23
Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450; [1992] HCA 66
Palmer v Dolman [2005] NSWCA 361
Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd…

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.

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Details

AGLC: Claudia Leung in her capacity as Executrix of the Estate of the late Robert Ho v Paul Mervyn Fordyce t/as Pmf Legal Trading [2019] NSWSC 18
Case: [2019] NSWSC 18
Decision Date: 29 January 2019

CaseChat Overview and Summary

The matter before the court involved plaintiffs who sought a declaration that a defendant solicitor had not sent them certain costs agreements. The dispute was heard in the Supreme Court of New South Wales. The plaintiffs argued that the defendant solicitor had failed to send the costs agreements as required, and they sought a declaration to that effect.

The primary legal issue the court had to address was the onus of proof when seeking a declaration in relation to a negative fact. The plaintiffs contended that the onus was on the defendant to prove that the costs agreements were sent, while the defendant argued that the onus remained on the plaintiffs to establish that the agreements were not sent. The court had to determine the correct allocation of the onus of proof in this context.

The court examined the applicable principles of law and concluded that the onus of proof in seeking a declaration in relation to a negative fact typically rests with the party making the assertion. In this case, the plaintiffs sought a declaration that the costs agreements were not sent, and therefore, the onus was on them to establish this fact. The court held that the plaintiffs had not discharged this onus on the balance of probabilities. Consequently, the court declined to make the declaration sought by the plaintiffs. The court's decision was based on the plaintiffs' inability to provide sufficient evidence to prove that the costs agreements were not sent by the defendant solicitor.

Orders