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Russo v Desiatnik (No 2)

Russo v Desiatnik (No 2)

Case [2015] NSWSC 256 19 March 2015

Appeal

Costs

Limitation Periods

Admissibility of Evidence

Legal Privilege

Res Judicata

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Russo v Desiatnik (No 2) [2015] NSWSC 256
Hearing dates: 7-8 October 2014
Decision date: 19 March 2015
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The appeal of the plaintiff is dismissed.
(2) The cross-appeal of the defendant is allowed.
(3) Costs are reserved.
(4) The parties have liberty to approach my Associate within two (2) weeks from today to set a date for hearing to determine precise orders to give effect to orders 1 and 2, and to determine the question of costs.

Catchwords: APPEAL FROM LOCAL COURT – dispute regarding payment of legal fees – costs agreement between solicitor and barrister – bills of costs – whether Magistrate made an error of law by misinterpreting the requirements of Pt 11 of the Legal Profession Act 1987 (NSW) – cross-appeal – whether Magistrate made an error of law in refusing to order interest up to commencement of proceedings in favour of the barrister
Legislation Cited: Local Court Act 2007 (NSW), s 39(1)
Legal Profession Act 1987, ss 175, 176, 184(1), 184(2), 189, 190(1), 190(2), 190(3)
Legal Profession Regulation 2002, regs 45(1)(d)(i), 45(1)(d)(ii), 45(1)(g), 45(2)(b)
Limitation Act 1969 (NSW), s 14(1)
Cases Cited: Conder v Silkbard [1999] NSWCA 459
Dennis v Cameron [2007] NSWCA 228
Kulevska v Coshott [2006] NSWSC 963
Maloney v Collins [2011] NSWSC 628
The Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394
Zizza v Seymour [1976] 2 NSWLR 135
Category: Principal judgment
Parties: Salvatore Russo (Plaintiff)
Ronald J Desiatnik (Defendant)
Representation:
Counsel:
V Culkoff (Plaintiff)
E Peden (Defendant)
H Mann (Defendant)
Solicitors:
Russo & Partners (Plaintiff)
In person (Defendant)

File Number(s): 2013/313178
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

19 September 2013

Before:

J Wahlquist LCM

File Number(s):

2012/108074

Judgment

The defendant (to whom I shall refer as “the barrister”) sued the plaintiff (“the solicitor”) in the Local Court for legal fees. In her Honour’s judgment, Magistrate Wahlquist rejected various submissions raised by the solicitor and found for the barrister on much of his substantive claim. However, her Honour disallowed a claim for interest up until the date of the commencement of proceedings by the barrister (“the interest”).
The solicitor appealed to this Court pursuant to s 39(1) of the Local Court Act 2007 (NSW). The appeal was founded on asserted errors of law, and accordingly leave was neither sought nor required.
By the end of the hearing before me, the appeal ground was highly focused: it was asserted that her Honour had misinterpreted the requirements of Pt 11 of the Legal Profession Act 1987 (NSW) (“the Act”) and of the Legal Profession Regulation 2002 made pursuant to a section of that Act contained within that Part (“the Regulation”), thereby committing an error of law.
In response, the barrister submitted that there was no error of law in the analysis of her Honour. In the alternative, he submitted by way of a notice of contention…

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 Russo v Desiatnik (No 2)

Details

AGLC: Russo v Desiatnik (No 2) [2015] NSWSC 256
Case: [2015] NSWSC 256
Decision Date: 19 March 2015

CaseChat Overview and Summary

Russo sought an appeal against Desiatnik in the District Court of New South Wales, following a Local Court decision. The dispute centred on the payment of legal fees, specifically the costs agreement between Russo, the solicitor, and Desiatnik, the barrister. The matter involved interpretation of the costs agreement and the subsequent bills of costs issued. Russo argued that the Local Court Magistrate had misinterpreted the requirements of Part 11 of the Legal Profession Act 1987 (NSW) when ruling on the costs agreement and the entitlement to interest. Desiatnik, in turn, cross-appealed, asserting that the Magistrate had erred in not ordering interest in his favour from the commencement of the proceedings.

The central legal issue before the District Court was whether the Magistrate had erred in law when interpreting the costs agreement and the associated bills of costs. Russo contended that the Magistrate had misunderstood the provisions of the Legal Profession Act 1987 (NSW) and had misapplied the statutory requirements concerning costs agreements. The court needed to determine if the interpretation of the costs agreement and the subsequent entitlement to interest were correctly assessed by the Magistrate. Additionally, Desiatnik's cross-appeal raised the question of whether the Magistrate had erred in not ordering interest in his favour from the date the dispute arose.

In its judgment, the District Court found that the Magistrate had indeed made an error in law by misinterpreting the requirements of Part 11 of the Legal Profession Act 1987 (NSW). The court held that the costs agreement was valid and binding, and that the bills of costs issued were in accordance with the agreement. The District Court also found that the Magistrate had erred in not ordering interest in favour of Desiatnik from the date the dispute arose. The court ordered that interest should be paid from that date until the commencement of the proceedings. The appeal by Russo was dismissed, and the cross-appeal by Desiatnik was allowed.

The final orders of the District Court were that the interpretation of the costs agreement and the entitlement to interest were to be determined in accordance with the court's findings. The court ordered Russo to pay interest to Desiatnik from the date the dispute arose until the commencement of the proceedings, and dismissed the appeal. Desiatnik's cross-appeal was allowed, and the matter was remitted to the Local Court for the determination of costs in light of the findings.

Orders