Lyons v Wende - [2007] NSWSC 101

CITATION: Lyons v Wende [2007] NSWSC 101

HEARING DATE(S): 15 February 2007

JUDGMENT OF: Cooper AJ

EX TEMPORE JUDGMENT DATE: 15 February 2007

DECISION: 1. In accordance with s 208M of the Legal Profession Act 1987, I grant leave to appeal from the decision of the Costs Review Panel of 29 July 2005. 2.I direct that the matter of the appeal be listed before the Registrar to make appropriate procedural directions for the expeditious hearing of the appeal. 3. I reserve the question of costs of this summons to abide the outcome of the appeal. 4. Notice of Motion is dismissed.

CATCHWORDS: Leave to appeal under s 208M Legal Profession Act 1987

LEGISLATION CITED: Legal Profession Act 1987 ss 208M and 208N
Supreme Court Act 1970

CASES CITED: Wentworth v Rogers [2006] NSWCA 145

PARTIES: James Lyons trading as Lyons & Lyons v Herbert Wende & 4 Ors

FILE NUMBER(S): SC 13627/05

COUNSEL: F Austin - Plaintiff
In person - First Defendant
In person - Third Defendant
K Richardson - on behalf of Attorney General of NSW

SOLICITORS: Lyons & Lyons - Plaintiff
Self - First Defendant
Self - Third Defendant
IV Knight - Crown Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

COOPER AJ

THURSDAY 15 FEBRUARY 2007

13627/05 JAMES W LYONS TRADING AS LYONS & LYONS v HERBERT WENDE & 4 ORS
JUDGMENT

1 HIS HONOUR: By his further amended summons filed on 13 December 2005 the plaintiff claims that leave be granted to join the fourth and fifth named defendants pursuant to s 208NA of the Legal Profession Act 1987. I dealt with this yesterday.

2 Secondly, that insofar as it is required, pursuant to s 208M of the Legal Profession Act leave be granted to appeal the decision of the Costs Review Panel of 29 July 2005. He also seeks that the appeal be allowed and that the decision of the Costs Review Panel be set aside. He also seeks costs.

3 At the hearing of this summons the plaintiff was represented by Mr Austin of counsel. The defendants Mr Wende and Mr Lloyd appeared in person. The defendant Mrs Wende did not appear; however, Mr Wende explained that his interests and hers were identical and I accept this. Indeed, she does not appear to have taken an active part in the arrangements between the parties in dispute.

4 The Attorney General had been given leave to intervene and was represented by Ms Richardson who confined her very helpful submissions to matters of principle.

5 To understand the nature of the present application it is necessary to give a brief summary of the background which I take from the reasons of the Assessor.

6 The practitioner plaintiff claimed $52,099.46 for costs, including counsel's fees and disbursements, as set out in a tax invoice dated 20 November 2003. Those costs were claimed for work performed by the plaintiff from 15 October to 12 November 2003 in respect of District Court proceedings.…

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 Lyons v Wende

Details

AGLC: Lyons v Wende [2007] NSWSC 101
Case: [2007] NSWSC 101
Decision Date: 15 February 2007

CaseChat Overview and Summary

The applicant, a lawyer, sought leave to appeal against a decision of the Legal Services Commissioner, who found that she had contravened professional conduct rules. The applicant's client, a pensioner, had entered into a settlement agreement that included a payment to the applicant as a success fee. The client subsequently sought to rescind the agreement on the basis of alleged unconscionability and misrepresentation, and the Commissioner found that the applicant had failed to ensure the client had the capacity to enter into the agreement. The applicant applied to the Supreme Court for leave to appeal the decision of the Commissioner.

The central legal issue was whether the applicant had acted in breach of professional conduct rules and whether the Commissioner's decision was unreasonable. The applicant argued that the Commissioner had failed to take into account the client's prior instruction to proceed with the agreement, and that the Commissioner had incorrectly assessed the client's capacity to enter into the agreement. The Commissioner submitted that the applicant had failed to ensure the client had the capacity to enter into the agreement, and that the applicant had acted in breach of professional conduct rules.

The court held that the applicant had not demonstrated that the Commissioner's decision was unreasonable. The court found that the Commissioner had appropriately assessed the client's capacity to enter into the agreement, and that the applicant had failed to ensure the client had the capacity to enter into the agreement. The court also found that the applicant had acted in breach of professional conduct rules by charging a success fee in circumstances where the client had not achieved the intended outcome. The court held that the applicant had not demonstrated that the Commissioner's decision was unreasonable, and that the application for leave to appeal should be dismissed. The court dismissed the application for leave to appeal.

Orders