McIlraith v Ilkin

[2008] NSWCA 11

NEW SOUTH WALES COURT OF APPEAL

CITATION:
McILRAITH v ILKIN [2008] NSWCA 11

FILE NUMBER(S):
40637/07

HEARING DATE(S):
18 February 2008

JUDGMENT DATE:
21 February 2008

PARTIES:
John Howard McIlraith - Claimant
Alexander Leon (Alex) Ilkin - Opponent

JUDGMENT OF:
Basten JA Bell JA    

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 11667/07

LOWER COURT JUDICIAL OFFICER:
Brereton J

LOWER COURT DATE OF DECISION:
23 August 2007; 21 September 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
[2007] NSWSC 911; [2007] NSWSC 1052

COUNSEL:
Claimant - Self-represented
M A Bradford - Opponent

SOLICITORS:
Claimant - Self-represented
Yeldham Price O'Brien Lusk - Opponent

CATCHWORDS:
LEAVE TO APPEAL – exercise of supervisory jurisdiction – claim not pleaded before primary judge – appeal against costs order – costs of solicitor acting for himself – application for leave without real prospects of success

LEGISLATION CITED:
[<i>Legal Profession Act</i>] 2004

CATEGORY:
Principal judgment

CASES CITED:
[<i>Atlas Corporation Pty Ltd v Kalyk</i>] [2001] NSWCA 10
[<i>Garcia v National Australia Bank Ltd</i>] (1998) 194 CLR 395
[<i>Gundry v Sainsbury</i>] [1910] 1 KB 645
[<i>Guss v Veenhuizen [No. 2]</i>] (1976) 136 CLR 47
[<i>Khera v Jones</i>] [2006] NSWCA 85
[<i>Ohn v Walton</i>] (1995) 36 NSWLR 77
[<i>Ritter v Godfrey</i>] [1920] 2 KB 47

TEXTS CITED:

DECISION:
1.  Leave to appeal is refused.[<br>][<br>]2.  The applicant is to pay the respondent’s costs on an indemnity basis.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 040637/07
SC 11667/07

BASTEN JA
BELL JA

21 February 2008

John Howard McILRAITH v Alexander Leon ILKIN

Judgment

1. THE COURT:  The applicant seeks leave to appeal against the orders made on 23 August 2007 by Brereton J summarily dismissing the proceedings: McIlraith v Ilkin [2007] NSWSC 911.

2. The applicant appeared in person and supported his application with written submissions to which he spoke, which were in addition to his outline of argument that had been filed with his summons for leave to appeal.

The substantive claim

1. The proceedings were commenced by summons. Subsequently Hidden J ordered that the applicant articulate his claim in a statement of claim. This was done. Thereafter the respondent moved on notice for summary dismissal of the proceedings.  The amended statement of claim sought to invoke the inherent supervisory jurisdiction of the Court to obtain declaratory and compensatory relief against the respondent, who is a solicitor, arising out of the latter’s asserted professional misconduct.

2. The circumstances that give rise to the applicant’s claim occurred on 16 February 1998. On that date the respondent wrote to his client, the managing agent of the body corporate of a strata plan, giving legal advice concerning the powers of the agent under its agency agreement (the letter). The advice was conveyed to the members of the body corporate in the course of the annual general meeting which was held on 16 February 1998. The applicant was the Chairman of the body corporate at the time. Parts of the advice were wrong. The applicant claims to have suffered loss…