Muc (t/as G H Healey & Co Solicitors) v Monaco
[2007] NSWSC 326
•17 April 2007
CITATION: Muc (trading as G H Healey & Co Solicitors) v Monaco [2007] NSWSC 326 HEARING DATE(S): 10/04/2007
JUDGMENT DATE :
17 April 2007JUDGMENT OF: Associate Justice Malpass DECISION: The Summons is dismissed. The appellant is to pay the costs of the proceedings. CATCHWORDS: Appeal - interest and costs - discretionary powers - leave CASES CITED: Hungerfords v Walker (1989) 171 CLR 125 PARTIES: Katarina Muc (t/as G H Healey & Co Solicitors)
Coral Lo MonacoFILE NUMBER(S): SC 12671/06 COUNSEL: Mr G. H. Healey (Solicitor) (Appellant)
Mr M. Gilbert (Respondent)SOLICITORS: G. H. Healey & Co Solicitors (Appellant)
Byrnes Lawyers (Respondent)LOWER COURT JURISDICTION: Local Court LOWER COURT JUDICIAL OFFICER : Evans LCM LOWER COURT DATE OF DECISION: 05/05/06
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ASSOCIATE JUSTICE MALPASS
17 APRIL 2007
JUDGMENT12671/06 Katarina Muc t/as G H Healey & Co Solicitors v Coral Lo Monaco
1 HIS HONOUR: The appellant is a solicitor. She came to conduct the practice that acted on behalf of the respondent in respect of personal injury proceedings (the practice).
2 The respondent was injured in a motor vehicle accident which took place on 23 December 1986. She recovered judgment in this Court on 18 October 1996(in the sum of $462,366 plus costs).
3 On or before 13 December 1996, the practice came to be holding $412,741.50.
4 On 24 December 1996, a payment in the sum of $248,741.50 was made to the respondent. The practice retained a sum in the order of $128,000 in its trust account.
5 Thereafter there was much correspondence and complaints to the Law Society concerning payment of the balance held in trust.
6 On 21 October 2005, the respondent brought proceedings in the Local Court at Port Macquarie. At that time, the practice was holding the sum of $35,699.30 in its trust account. The respondent sought the recovery of those monies, together with interest and costs.
7 In those proceedings, the practice filed a defence and also made application for relief by way of interpleader.
8 The defence pleaded, inter alia, the following:-
- “The Defendant disputes that the Plaintiff has provided appropriate or any or satisfactory clarification of payments made by her personally to treatment providers so that the Defendant is not at personal financial risk or professional risk upon distribution of the monies held in Trust”.
It presented as the real issue raised therein.
9 The proceedings came before a Magistrate on 27 January 2006. The parties had filed affidavits. Submissions were made by the legal representatives of the parties. There came to be no issue between the parties as to the inappropriateness of the interpleader procedure. The legal representative for the practice came to concede that no other party had made any claim on the monies and that there was no reason why they should not be paid to the respondent. An issue concerning a deed of release was raised by the legal representative for the practice.
10 The Magistrate came to order that the respondent provide an indemnity and that the practice pay the monies held in trust to the respondent. The proceedings were then stood over for mention until 23 March 2006 to enable the parties to pursue agreement on the questions of interest and costs.
11 Ultimately, the proceedings came back before the Magistrate on 5 May 2006. By then, the respondent had provided the deed of indemnity and the monies had been paid to her.
12 Further evidence was placed before the Magistrate. The Magistrate heard further submissions from the legal representatives. Orders were then made for the payment of interest for the period 19 February 2001 to 17 February 2006 and for the practice to pay the costs of the proceedings.
13 Subsequent to that decision, the appellant brought proceedings in this Court. She now proceeds on an Amended Summons which contains six appeal grounds. The Summons brought a challenge against the decisions made on the questions of interest and costs.
14 There is an appeal as of right where there has been error in point of law. Leave to appeal may be sought where there is error involving a mixed question of law and fact. A challenge by way of leave is also available in respect of certain other matters (including interlocutory decisions and decisions on questions of costs).
15 The proceedings were heard on 10 April 2007. Mr Healey appeared on behalf of the appellant. Mr Gilbert, of Counsel, appeared on behalf of the respondent. After some preliminary skirmishing, there was an agreement as to evidence and submissions were made.
16 I shall first return to what happened before the Magistrate. The parties were represented by solicitors. The Magistrate delivered an ex tempore judgment.
17 What was litigated fell within a narrow compass. He appears to have determined the matters put in issue by the parties.
18 He came to the view that the appellant was withholding monies to ensure that no liability attached to the practice in relation to any outstanding monies owed to treatment providers.
19 There had been an earlier concession that no other claim had been made in respect of the monies then held in trust and that there was no reason why those monies should not be paid to the respondent.
20 Whilst it does not seem to have been agitated before the Magistrate, it was obvious that by that time any claims then made would have been statute barred. It seems that the relevant limitation period may have expired in about September 2002.
21 The Magistrate then looked at the question of an indemnity. He was of the view that it was the function of the appellant to provide such a document. The Magistrate appeared to accept that one that had been earlier provided by the appellant was inappropriate. He found that the respondent did not reject the issue of an indemnity. It appears that the matter of indemnity thereafter was not pursued until after the commencement of proceedings.
22 The Magistrate also accepted that the monies were held in accordance with the rules and regulations governing the appellant and that she did not obtain any personal benefit by way of interest.
23 How the Magistrate came to accept that they were held in accordance with such rules and regulations is unclear. It would seem that nothing was put before the Magistrate to demonstrate that matter and repeated requests in this Court for any relevant material failed to produce any helpful response. This matter need not be pursued as the appellant does not challenge these findings.
24 The Magistrate then correctly identified that he had a discretion to award interest. Generally speaking, it is an unfettered discretion (there are restrictions which have no application in the present case).
25 It seemed to be common ground that the Magistrate was exercising the discretionary power confirmed by s100 of the Civil Procedure Act 2005(NSW). He purported to award interest for the period from the date of the first demand to the date of payment.
26 Whilst Mr Healey addressed at some length, it seemed to me that he failed to identify either any error in point of law or any error in respect of a mixed question of law and fact. Certainly, nothing was shown that would justify the disturbing of the decisions of the Magistrate.
27 It is well established that the purpose of the discretion to award interest is to permit a successful party to be properly compensated for any practical loss that has been suffered. This was the basis of the award made by the Magistrate (the respondent had been kept out of part of the proceeds of her judgment over a period in the order of nine years).
28 From time to time, Mr Healey took the Court to passages in Hungerfords v Walker (1989) 171 CLR 125. In my view, what was done did not assist the Court in dealing with this appeal.
29 On the question of costs, Mr Healey did little more than submit that the appropriate order should have been that each party should pay their own costs. No alleged error in the exercise of the discretionary power to award costs was identified.
30 The respondent was the successful party before the Magistrate. He appears to have dealt with the question on the basis that the general rule should have application (the successful party should have his or her costs). In my view, there was no error in so doing.
31 It may be added that the question of costs was dealt with in a perfunctory fashion. The Magistrate was not asked to consider the making of any other decision on the question. Indeed, both representatives expressly confirmed that no other order was necessary.
32 In addition to these problems, it was not suggested by the appellant that there was any basis for the granting of leave. The granting of leave usually requires the demonstration of manifest error. Leaving that matter aside, the Court may need to be convinced that there is a question of public interest or importance (a consideration that was thoroughly lacking in this case).
33 The Summons is dismissed. The appellant is to pay the costs of the proceedings. The exhibits may be returned.
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