Simms v Gallande Pty Ltd - [2018] NSWSC 701

Supreme Court

New South Wales

Medium Neutral Citation: Simms v Gallande Pty Ltd [2018] NSWSC 701
Hearing dates: 28 November 2017
Date of orders: 18 May 2018
Decision date: 18 May 2018
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) Leave is granted to extend the time to commence these proceedings under UCPR r 59.10(2).

(2) The summons is dismissed.
(3) The plaintiff is to pay the defendant’s costs of these proceedings.
Catchwords: ADMINISTRATIVE LAW – Judicial review – Where a legal firm sought costs assessment under the Legal Profession Act 2004 (NSW) and filed the resulting certificate in the Local Court to obtain judgment against the client – Where the company to which the firm provided legal services was not the company nominated in the costs agreement – Whether legal error on the face of the record –Whether there was a failure to give reasons – Whether there was procedural unfairness
Legislation Cited: Corporation Act 2001 (Cth), s 50
Legal Profession Act 2004 (NSW), ss 312, 317, 352, 356, 367, 368, 370, 371
Legal Profession Uniform Application Act 2014 (Vic), Sch 1.
Legal Profession Uniform Law Application Act 2014 (NSW), s 4
Legal Profession Uniform Law (NSW), Sch 4
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Cases Cited: Boyce v Allianz Australia Insurance Ltd and Another [2018] NSWCA 22
Coshott v Barry [2017] NSWSC 1220
Dyason v Butterworth [2015] NSWCA 52
Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWCA 262
Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWSC 338
Minister for Immigration and Multicultural Affairs v George (2004) 139 FCR 127; [2004] FCAFC 276
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Category: Principal judgment
Parties: Sonia Simms (Plaintiff)
Gallande Pty Ltd (First Defendant)
Local Court of New South Wales (Second Defendant)
Clear Position Pty Ltd (Third Defendant)
John McGruther (Fourth Defendant)
Representation:
Counsel:
J Ireland (solicitor) (Plaintiff)
M R Pesman SC (First Defendant)
Solicitors:
Mavrakis & Associates (Plaintiff)
ERA Legal (First Defendant)
Crown Solicitor’s Office (Second and Fourth Defendants – Submitting Appearance)

File Number(s): 2017/79790
Publication restriction: Nil

Judgment

These proceedings for judicial review concern a dispute over legal costs in the amount of $32,231.65.
Sonia Simms is the plaintiff in these proceedings. Until early 2017, she was a practising solicitor. She was also the sole director of Clear Position Pty Ltd (“Clear Position”) until 15 February 2015. Clear Position is the third defendant in these proceedings. That company was de-registered on 20 March 2017. The Australian Securities and Investments Commission has indicated that it does not wish to be heard in this matter.
In 2013, Ms Simms engaged the legal services of Gallande Pty Ltd, trading as ERA Legal. That firm is the first defendant in these proceedings and will hereafter be referred to as “ERA Legal”. The dispute which gives rise to these proceedings arises from a costs agreement between Ms Simms (and another…

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: [2018] NSWSC 701
Decision Date: 18 May 2018

CaseChat Overview and Summary

The case of Simms v Gallande Pty Ltd involved a dispute between a legal firm and its former client, Gallande Pty Ltd, regarding the assessment of costs under the Legal Profession Act 2004 (NSW). The legal firm had filed a certificate of costs in the Local Court to obtain a judgment against the client, despite the fact that the company to which the legal services were provided was not the company nominated in the costs agreement. The client contested the legality of the certificate and sought judicial review on the grounds of legal error, failure to give reasons, and procedural unfairness.

The primary legal issues the court needed to address were whether the certificate of costs contained a legal error on its face, whether the firm failed to give reasons for its actions, and whether the process was procedurally unfair. The court examined the statutory provisions and relevant case law to determine if the legal firm's actions were in line with the requirements of the Legal Profession Act. The firm argued that the certificate of costs was valid as it was based on a costs agreement, albeit with a slight discrepancy in the company names.

The court found that the certificate of costs contained a legal error on its face because the company named in the costs agreement did not match the company to which the services were provided. The court held that this discrepancy was significant and amounted to a legal error. Additionally, the court concluded that the firm failed to give reasons for its actions, which contributed to the procedural unfairness. The court found that the firm's actions did not adhere to the statutory requirements and that the process lacked transparency and fairness. As a result, the court quashed the certificate of costs and remitted the matter for reconsideration.

The final orders of the court were to quash the certificate of costs and remit the matter back to the Local Court for reconsideration in accordance with the Legal Profession Act 2004 (NSW). The court's decision emphasised the importance of strict compliance with statutory requirements and the necessity for legal firms to provide clear and transparent reasons for their actions. This case serves as a reminder to legal practitioners of the need for accuracy in documenting costs agreements and the importance of procedural fairness in the administration of justice.

Orders