District Court
New South Wales
Medium Neutral Citation: Schuler v Stern [2014] NSWDC 85 Hearing dates: 26 June 2014 Decision date: 01 July 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Extend time for the bringing of this appeal.
(2) Appeal dismissed.
(3) Plaintiff pay defendant's costs.
Catchwords: LEGAL PRACTITIONERS - client in "no win no fee" costs agreement appeals under s 384 Legal Profession Act 2004 (NSW) from Review Panel assessment of costs in favour of her previous solicitor - whether the condition precedent in that costs agreement (that counsel accept a brief to both advise and appear at the hearing) had been fulfilled - junior counsel briefed for eight years, hearing set down one year in advance and briefs on hearing delivered - whether return of brief by senior and junior counsel two months prior to hearing meant that the brief had not been "accepted" and no fees were payable - plaintiff subsequently settled proceedings for an undisclosed sum - whether Review Panel erred in stating that "successful outcome" was not in dispute - whether the plaintiff's former solicitor had, or needed to, establish that any "successful outcome" related to work that he had carried out - adequacy of Review Panel's reasons - appeal dismissed Legislation Cited: Legal Profession Act 2004 (NSW), s 384(1) Cases Cited: Antaios Compania Naviera S A v Salen Rederierna A B [1985] A C 191
Artahs Pty Ltd v Gall Stanfield & Smith [2013] 2 Qd R 202
Australian Broadcasting Commission v Australasian Performing Right Assn Ltd (1973) 129 CLR 99
Carradine Properties Ltd v D J Freeman & Co [1999] Lloyd's Rep PN 483
Frumar v Owners of Strata Plan 36957 (2006) 67 NSWLR 321
Gardiner v Agricultural and Rural Finance Pty Ltd [2007] NSWCA 235
Levy v Bergseng (2008) 72 NSWLR 178
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
The Owners - Strata Plan No 45205 v Andreones Pty Ltd [2009] NSWSC 1189
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429Texts Cited: - Category: Principal judgment Parties: Plaintiff: Karen Linda Schuler
Defendant: Terence SternRepresentation: Plaintiff: Mr S Hughes
Defendant: Ms M Castle
Plaintiff: Boyd House & Partners
Defendant: Terence Stern Solicitors and Attorney
File Number(s): 2013/382763 Publication restriction: None
Judgment
The plaintiff by Summons Commencing an Appeal (Part 50) filed on 20 December 2013 brings an appeal under s 384(1) Legal Profession Act 2004 (NSW) ("the Act") from a decision of the Costs Review Panel of 10 October 2013. The defendant does not oppose the plaintiff's application for extension of time and accordingly an extension of time has been granted.
In response to an inquiry I made, the parties tell me they have agreed that although the costs agreement and work carried out predate the Act, the Savings Provisions permit the bringing of this application under s 384(1) instead of the repealed legislation…
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Details
- AGLC
- Schuler v Stern [2014] NSWDC 85
- Case
- [2014] NSWDC 85
- Decision Date
CaseChat Overview and Summary
The case of Schuler v Stern involved a client, Schuler, who had entered into a "no win no fee" costs agreement with her former solicitor, Stern. Schuler sought to appeal a decision by the Review Panel under s 384 of the Legal Profession Act 2004 (NSW) that found in favour of Stern. The primary dispute centred around the interpretation of the costs agreement, specifically whether the condition precedent that counsel accept a brief to both advise and appear at the hearing had been met. Schuler contended that because the senior and junior counsel returned their briefs two months before the hearing, they had not accepted the brief as required, and thus, no fees were payable.
The court had to determine the meaning of "accepting a brief" within the context of the costs agreement and whether the client's settlement of the proceedings affected the outcome. Additionally, the court examined whether the Review Panel erred in its interpretation of a "successful outcome" not being in dispute and whether Stern needed to establish that any successful outcome related to the work he had carried out. The adequacy of the Review Panel's reasons for its decision was also scrutinized.
The court found that the condition precedent in the costs agreement had indeed been fulfilled, as the junior counsel had been briefed for eight years, the hearing was set down one year in advance, and briefs were delivered on the hearing. The return of the briefs two months before the hearing did not negate the acceptance of the brief. The court further held that the Review Panel did not err in stating that a successful outcome was not in dispute and that Stern did not need to establish a direct link between the successful outcome and the work he had performed. The court concluded that the Review Panel's reasons were adequate and dismissed the appeal. The plaintiff was ordered to pay the defendant's costs.
The court had to determine the meaning of "accepting a brief" within the context of the costs agreement and whether the client's settlement of the proceedings affected the outcome. Additionally, the court examined whether the Review Panel erred in its interpretation of a "successful outcome" not being in dispute and whether Stern needed to establish that any successful outcome related to the work he had carried out. The adequacy of the Review Panel's reasons for its decision was also scrutinized.
The court found that the condition precedent in the costs agreement had indeed been fulfilled, as the junior counsel had been briefed for eight years, the hearing was set down one year in advance, and briefs were delivered on the hearing. The return of the briefs two months before the hearing did not negate the acceptance of the brief. The court further held that the Review Panel did not err in stating that a successful outcome was not in dispute and that Stern did not need to establish a direct link between the successful outcome and the work he had performed. The court concluded that the Review Panel's reasons were adequate and dismissed the appeal. The plaintiff was ordered to pay the defendant's costs.
Orders
Orders of the court
(1) Extend time for the bringing of this appeal.
(2) Appeal dismissed.
(3) Plaintiff pay defendant's costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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