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Moloney v Collins

Moloney v Collins

Case [2011] NSWSC 628 28 June 2011

Appeal

Costs

Limitation Periods

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Moloney v Collins [2011] NSWSC 628
Hearing dates: 8 June 2011
Decision date: 28 June 2011
Jurisdiction: Common Law
Before: Johnson J
Decision:
1. Appeal dismissed.
2. The Plaintiff is ordered to pay the Defendant's costs in the form of a gross sum costs under s.98(4)(c) Civil Procedure Act 2005 in the sum of $4,000.00.

Catchwords: APPEAL - Local Court civil claim and judgment - claim by barrister against solicitor for fees - requirements for costs agreement and bill of costs under Legal Profession Act 1987 - appeal on question of law - whether compliance with statutory scheme - whether failure to provide adequate reasons - reasons not adequate but correct result - desirability of use of gross sum costs order for costs of appeal
Legislation Cited: Local Court Act 2007
Legal Profession Act 1987
Supreme Court Act 1970
Civil Procedure Act 2005
Legal Profession Regulation 2002
Supreme Court Rules 1970
Cases Cited: Burbidge v Wolf [2008] NSWSC 60
Conder v Silkbard [1999] NSWCA 459
Robinson v Becata Pty Limited [2004] NSWSC 310
Ford Motor Company of Australia Limited v Arrowcrest Group Pty Limited [2002] FCA 115
First East Auction Holdings Pty Limited v Ange [2010] VSC 72
Giliberto v Kenney (1983) 48 ALR 620
Dennis v Cameron [2007] NSWCA 228
Pettitt v Dunkley [1971] 1 NSWLR 376
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Pollard v RRR Corporation Pty Limited [2009] NSWCA 110
Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449
Director of Public Prosecutions v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402
Qushair v Raffoul [2009] NSWCA 329
Sun v Hatoum [2011] NSWSC 516
Motel Federation of Australia Limited trading as Best Western Australia v Lenarbo Pty Limited [2010] NSWSC 806
Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738
Sherborne Estate (No. 2) [2005] NSWSC 1003; 65 NSWLR 268
Category: Principal judgment
Parties: Patrick John Moloney (Plaintiff)
Jeffrey David Collins (Defendant)
Representation: Mr JM Ireland QC (Plaintiff)
Mr D Moujalli (Defendant)
Moloney Lawyers (Plaintiff)
Micah Legal Services (Defendant)

File Number(s): 2010/392839

Judgment

JOHNSON J : The Plaintiff, Patrick John Moloney, appeals under s.39 Local Court Act 2007 from a judgment in civil proceedings in favour of the Defendant, Jeffrey David Collins, in a total amount of $16,011.06 inclusive of interest and costs.

Factual Background

Mr Moloney is a solicitor. In March 2004, Mr Collins practised as a barrister in Sydney.

In March 2004, Mr Collins was retained by Ms Vidakovic, a solicitor employed by Mr Moloney, to act for a client in proceedings then pending before the Family Court of Australia sitting in Sydney. On 18 March 2004, Mr Collins provided a written costs agreement dated 15 March 2004 to Ms Vidakovic.

As counsel, Mr Collins carried out certain work under the instructions delivered. Mr Collins' instructions related to three Notices of Motion fixed to be heard on 18 March 2004 in the Family 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 Moloney v Collins

Details

AGLC: Moloney v Collins [2011] NSWSC 628
Case: [2011] NSWSC 628
Decision Date: 28 June 2011

CaseChat Overview and Summary

The appeal was brought by a solicitor against a barrister in the Local Court of New South Wales. The barrister had commenced a civil claim against the solicitor for unpaid fees. The dispute centred on whether the solicitor was liable for the fees in question, given the terms of their costs agreement and the provisions of the Legal Profession Act 1987. The appeal questioned whether the Local Court correctly interpreted and applied the statutory scheme regarding costs agreements and bills of costs, and whether the reasons provided for the judgment were adequate.

The court had to determine whether the costs agreement between the parties complied with the statutory requirements outlined in the Legal Profession Act 1987. It also needed to consider whether the solicitor's failure to provide adequate reasons for non-payment constituted a breach of the statutory obligations, and whether the Local Court's reasons, though not fully adequate, led to a correct outcome. Additionally, the court had to decide on the appropriateness of using a gross sum costs order to determine the costs of the appeal.

The appeal was dismissed by the court. The reasons provided by the Local Court, while not entirely satisfactory, were deemed sufficient to support the judgment reached. The court held that the costs agreement was in compliance with the statutory requirements, and that the Local Court's judgment was correct. The court also found that it was appropriate to use a gross sum costs order to determine the costs of the appeal, given the nature of the proceedings and the simplicity of the issues involved.

Orders