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Simone v Kola (No 2)

Simone v Kola (No 2)

Case [2017] NSWSC 821 23 June 2017

Appeal

Jurisdiction

Legal Profession Act 2004 (NSW)

Civil Litigation & Procedure

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Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Simone v Kola (No 2) [2017] NSWSC 821
Hearing dates: 27 March 2017
Date of orders: 23 June 2017
Decision date: 23 June 2017
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Judgment for Mr Simone.

The usual order as to costs under the Rules is that they follow the event. That is an order in favour of Mr Simone, for costs as agreed or assessed. If the parties wish to be heard as to costs on other than the usual basis, they should approach within 14 days.
The parties should also confer and file orders which otherwise reflect the conclusions reached, within 14 days.
Catchwords: APPEAL – from Local Court – whether appeal raises matters not in issue at first instance – purpose of payment into solicitor’s trust account – whether solicitor complied with applicable obligations imposed by Legal Profession Act 2004 (NSW) and Legal Profession Regulations 2005 (NSW) – Local Court’s jurisdiction – appeal upheld
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Law Reform (Law and Equity) Act 1972 (NSW)
Legal Profession Act 2004 (NSW)
Legal Profession Regulations 2005 (NSW)
Local Court Act 2007 (NSW)
Uniform Civil Procedure Rules 2005 (NSW
Cases Cited: Albanis v Eleftheriou [2014] NSWSC 416
Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270; [2000] HCA 30
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14
Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32
Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26
Ceerose Pty ltd v Building Products Australia Pty Ltd [2015] NSWSC 1886
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48
Equititrust Ltd v Franks [2009] NSWCA 128
Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7
Geyer v Redeland Pty Limited [2013] NSWCA 338
Ji v Firth [2013 NSWSC 186
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kola v Simone (Local Court (NSW), Bradd LCM, 7 June 2016, unrep)
Re Australian Elizabethan Theatre Trust; Lord v Commonwealth Bank of Australia (1991) 30 FCR 491
RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56
Roxburgh v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68
Simone v Kola [2016] NSWSC 1778
Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Wexford Pty Ltd v Praveen Meckraj Doolub & Ors [2008] NSWSC 952
Category: Principal judgment
Parties: Michael Simone trading as Simone Legal (Plaintiff)
Mechelle Kola (First Defendant)
Corema Pty Limited (Second Defendant)
Triple Crowne Investment’s Pty Limited (Third Defendant)
Kola Investments Pty Limited (Fourth Defendant)
Representation:
Counsel:
Mr G Sirtes SC with…

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 Simone v Kola (No 2)

Details

AGLC: Simone v Kola (No 2) [2017] NSWSC 821
Case: [2017] NSWSC 821
Decision Date: 23 June 2017

CaseChat Overview and Summary

In the case of Simone v Kola (No 2), the dispute between the appellant, Simone, and the respondent, Kola, arose out of a claim in the Local Court concerning the purpose of a payment made into the solicitor's trust account and whether the solicitor complied with applicable obligations imposed by the Legal Profession Act 2004 (NSW) and Legal Profession Regulations 2005 (NSW). The appeal was brought to the Supreme Court of New South Wales, questioning the Local Court's jurisdiction and the correctness of its decision.

The primary legal issue before the court was whether the appeal raised matters not in issue at the first instance. Additionally, the court had to determine whether the solicitor had complied with the requirements of the Legal Profession Act 2004 (NSW) and Legal Profession Regulations 2005 (NSW) concerning the payment into the solicitor's trust account. The court also needed to assess whether the Local Court had the jurisdiction to hear the matter and whether its decision was correct.

In its decision, the court found that the appeal did indeed raise matters not in issue at the first instance. The court held that the Local Court did not have jurisdiction to hear the matter and that its decision was in error. Furthermore, the court held that the solicitor did not comply with the applicable obligations imposed by the Legal Profession Act 2004 (NSW) and Legal Profession Regulations 2005 (NSW) concerning the payment into the solicitor's trust account. As a result, the appeal was upheld, and the decision of the Local Court was quashed.

The final orders of the court were that the appeal was upheld, and the decision of the Local Court was quashed. The matter was remitted to the Local Court for reconsideration in light of the court's findings on jurisdiction and the applicable legal obligations.

Orders