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Ryan v Hansen t/as Hansens Solicitors

Ryan v Hansen t/as Hansens Solicitors

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Case Copied 4 May 2000 40 min read

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Reported Decision: 49 NSWLR 184

New South Wales

Supreme Court

CITATION: Ryan v Hansen [2000] NSWSC 354

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 12931/99

HEARING DATE(S): 03/04/2000

JUDGMENT DATE: 4 May 2000

PARTIES :

Peter John Ryan (Pl)
Bruce William Hansen t/as Hansens Solicitors (Def)

JUDGMENT OF: Kirby J

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : 223/97

LOWER COURT
JUDICIAL OFFICER : S V Jackson LCM

COUNSEL : M J Walsh (Pl)
P Cummings (Def)

SOLICITORS: Wood Roberts Solicitors (Pl)
Hansens Solicitors (Def)

CATCHWORDS: Stated Case - appeal against Magistrate's decision - Legal Profession Act 1987 - power of costs assessors - whether negligence of solicitors can be raised before costs assessor - Anshun principle in context of a cross claim

LEGISLATION CITED: Legal Profession Act 1987 - ss 175, 182, 199, 203, 204, 206, 207, 208
Supreme Court Rules - Pt52
Hansard, 26 September 1993 at p3276
Butterworths Costs Service - para 266
Oaths Act 1900 - Pt 5
Evidence Act 1995 - ss 4(1), 21
Contracts Review Act 1980
"Anshun Today" - 71 ALJ 934

CASES CITED: Port of Melbourne Authority v Anshun Pty Ltd (1980-81) 147 CLR 589
Anthony Developments Pty Ltd v Marsden [1999] NSWSC 472
Attorney General for NSW v Kennedy Miller Television (1998) 43 NSWLR 729
Faustin Epeabaka v Minister for Immigration & Multicultural Affairs (1997) 150 ALR 397
Bryant v Commonwealth Bank of Australia (1995) 130 ALR 129
Tanning Research Laboratories v O'Brien (1989-90) 169 CLR 332
R v Brynes & Hopwood (1995) 183 CLR 501
Willers v The Queen (1995) 125 FLR 221
Kennedy v Council of the Incorporated Law Institute of NSW (1939)13 ALJ 563
Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 297
Re Massey & Carey (1884) 24 Ch D 459
Re Windeyer, Fawl & Co: Ex parte Foley (1930) 31 SR 145
Silver v Consumer Claims Tribunal (1978) 2 NSWLR 313
Mason-Jones v Jones (1987) 11 NSWLR 583
Cachia v Isaacs (1985) 3 NSWLR 366

DECISION: Ref Para 85

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Thursday 4 May 2000

12931/99 - Peter John RYAN -v- Bruce William HANSEN t/as HANSENS SOLICITORS

JUDGMENT

1   HIS HONOUR: This is an appeal by Mr Peter Ryan against a decision of Mr Stephen Jackson, Local Court Magistrate at Newcastle. Mr Jackson determined that a cross claim, which Mr Ryan wished to pursue against his former solicitors, Hansens Solicitors (“Hansens”), should be struck out.

The Land and Environment Court Proceedings

2   Mr Ryan is a director of RFT Investments Pty Limited (“RFT Investments”). In late 1995 he approached Hansens in respect of a conveyancing transaction. An option had been acquired over land known as Lot 3, Tingara Drive, Whitebridge. A development application to the Lake Macquarie City Council was then lodged, seeking the Council’s approval to subdivide the land.
3   The Council, however, did not deal with the application. Its failure to give approval within…

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.

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Details

Case: [2000] NSWSC 354
Decision Date: 4 May 2000

CaseChat Overview and Summary

The case involved Ryan, who had engaged Hansens Solicitors for legal services. After the conclusion of the proceedings, Ryan sought to appeal the decision of the Magistrate, who had ordered him to pay costs to Hansens. The appeal centred on the power of costs assessors under the Legal Profession Act 1987 and whether negligence of the solicitors could be raised before the costs assessor. Ryan argued that the Magistrate had erred in permitting the cross-claim for costs without allowing him to first address the issue of negligence in the proceedings.

The court was required to determine whether the Anshun principle, which dictates that certain issues must be determined before a court in the course of a proceeding, applied in this context. The court needed to clarify the extent to which a party could raise issues of negligence against a solicitor in the context of a cross-claim for costs. This involved interpreting the relevant provisions of the Legal Profession Act and considering the nature of the cross-claim for costs.

The court held that the Anshun principle did not apply in this context. The court found that the Magistrate had not erred in permitting the cross-claim for costs without first addressing the issue of negligence. The court held that the negligence of the solicitors could be raised in the course of the costs assessment, and that the Anshun principle did not prevent the Magistrate from considering the cross-claim for costs. The court found that the Magistrate had the power to determine the issue of negligence in the context of the cross-claim for costs, and that this did not constitute an error of law.

The appeal was dismissed, and the costs order of the Magistrate was upheld. The court found that the Magistrate had not erred in his approach to the cross-claim for costs and that the issue of negligence could be raised in the course of the costs assessment. The court held that the Anshun principle did not apply in this context, and that the Magistrate had the power to determine the issue of negligence in the context of the cross-claim for costs. The costs order of the Magistrate was therefore affirmed.

Orders