Pentelow v Bell Lawyers Pty Ltd trading as Bell Lawyers (No 2)

[2013] NSWSC 288

Supreme Court

New South Wales

Medium Neutral Citation:

Pentelow v Bell Lawyers Pty Ltd trading as Bell Lawyers (No 2) [2013] NSWSC 288

Hearing dates:

On papers

Decision date:

04 April 2013

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

1. Appeal allowed.

2. Order that the judgment of the Local Court be varied by deleting the orders made by the learned Magistrate and substituting the following:

(1) Judgment for the Plaintiff against the Defendant in the sum of $23,760 for claim and $4343.16 for interest to 22 February 2013, a total of $28,103.16, plus interest of $3.28 per day from 22 February 2013 to the date of judgment.

(2) Order that the Defendant pay the Plaintiff's costs.

3. Order the Defendant to pay the Plaintiff's costs of and incidental to the appeal.

4. The Defendant to have a certificate under the Suitor's Fund Act 1951 in relation to the said costs of appeal if otherwise qualified.

Catchwords:

APPEAL - judgment and orders - orders sought made

COSTS - Suitors' Fund Act 1951 - certificate granted

Legislation Cited:

Civil Procedure Act 2005
Legal Profession Act 2004
Local Court Act 2007
Suitors Fund Act 1951
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

Cases Cited:

Owners Strata Plan 4003 v Mustafa [2012] NSWSC 780
Pacific Asia Express Pty Ltd v Renegade Gas Pty Ltd [2010] NSWSC 1188
Pentelow v Bell Lawyers Pty Ltd trading as Bell Lawyers [2013] NSWSC 111
Pool Data Systems Pty Ltd v Bayliss [2011] NSWSC 224
Robinson v Zhang [2005] NSWCA 439 (2005) 158 A Crim R 575
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300;
(2007) 71 NSWLR 230

Category:

Costs

Parties:

Janet Pentelow (Plaintiff)
Bell Lawyers Pty Ltd (Defendant)

Representation:

Counsel:
Mr M L Brabazon SC (Plaintiff)
Ms M Castle (Defendant)
Solicitors:
Auslegal Solicitors (Plaintiff)
Bell Lawyers (Defendant)

File Number(s):

2012/174095

Publication restriction:

None

Judgment

1. Judgment was given in favour of the plaintiff, Ms Pentelow, and the parties were directed to provide short minutes of the order to be made (see Pentelow v Bell Lawyers Pty Ltd trading as Bell Lawyers [2013] NSWSC 111). Rather than seeking orders returning the matter to the Local Court, as s 41 of Local Court Act 2007 envisages, they have agreed on orders finally disposing of the first instance proceedings. The defendant also seeks an order under the Suitors Fund Act 1951.

1. The just, quick and cheap course envisaged be taken by s 56 of the Civil Procedure Act 2005, is certainly to make orders in the terms which the parties have agreed. I was referred to a number of cases where the view was taken that such orders could be made, given the provisions of s 75A of the Supreme Court Act 1970 and Rule 50.16 of the Uniform Civil Procedure Rules 2005 (see Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230; Pacific Asia Express Pty Ltd v Renegade Gas Pty Ltd [2010] NSWSC 1188 at [33] - [41]; Pool Data Systems Pty Ltd v Bayliss [2011] NSWSC 224 at [144] - [145] and Owners Strata Plan 4003 v Mustafa [2012] NSWSC 780).

1. In this case, the appeal having resolved various questions of law lying between the parties, they have been able to agree on the orders which should be made in relation to the underpinning factual controversy between them which was not addressed in the Local Court. In Thaina Town (On Goulburn) Pty Ltd it was observed at [103]:

"103 This Court must be concerned that the course of administration of justice in this State does not impose unnecessary cost burdens on parties by adopting a narrow interpretation of statutory powers conferred upon the Court to ensure the just and efficient administration of justice. Where no new findings of primary fact are required to be made, this Court should exercise a power conferred upon it in wide terms so as to ensure that the costs of legal disputation is minimised and thereby apply the guiding principle in s56 of the Civil Procedure Act 2005 to the exercise of powers conferred by an Act other than that Act or by Rules of Court, so as to facilitate the just, quick and cheap resolution of the issues in dispute in civil proceedings."

1. There the issue was an order for costs. The view taken was that this Court "is usually in as good a position as a first instance judge, even in a specialist tribunal, to make the relevant judgment, where there is no gap in the factual findings." Here there is now no need for any factual findings to be made and the parties have agreed on the appropriate orders to resolve the dispute lying between them, the disputed questions of law having been resolved. In those circumstances, it seems to me that the Court has the necessary jurisdiction to make the proposed orders under s 75A(10) of the Supreme Court Act 1970, which provides:

"(10) The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires."

1. Here what is required is an order to give effect to the agreement which the parties have reached as to how the dispute should now be resolved by way of appropriate order. I propose, in the circumstances, to make the order which gives effect to that agreement.

1. As to the claim for an order under the Suitors Fund Act, it is relevant to note that the requirements of s 6 are here satisfied. They are as discussed in Robinson v Zhang [2005] NSWCA 439 (2005) 158 A Crim R 575 at [37] - [38]. Here the appeal turned in part on a question of law resolved by the Court of Appeal after the decision appealed against was given and partly on the proper construction of other aspects of the Legal Profession Act 2004, not previously considered.

1. In the circumstances I propose to make the order sought.

Order

1. For the reasons given, I make the following orders sought:

1. Appeal allowed.

2. Order that the judgment of the Local Court be varied by deleting the orders made by the learned Magistrate and substituting the following:

(1) Judgment for the Plaintiff against the Defendant in the sum of $23,760 for claim and $4343.16 for interest to 22 February 2013, a total of $28,103.16, plus interest of $3.28 per day from 22 February 2013 to the date of judgment.

(2) Order that the Defendant pay the Plaintiff's costs.

3. Order the Defendant to pay the Plaintiff's costs of and incidental to the appeal.

4. The Defendant to have a certificate under the Suitor's Fund Act 1951 in relation to the said costs of appeal if otherwise qualified.

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