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Slattery v Fordyce; Fordyce v Slattery

Slattery v Fordyce; Fordyce v Slattery

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Case Copied 28 February 2019 76 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Slattery v Fordyce; Fordyce v Slattery [2019] NSWSC 173
Hearing dates: 13 June 2018
Date of orders: 28 February 2019
Decision date: 28 February 2019
Jurisdiction: Common Law
Before: Walton J
Decision:
The Court makes the following orders:

(1) The first defendant shall file and serve short minutes of order reflecting this judgment within 14 days of the publication of this judgment.

(2) The plaintiff shall file and serve within a further 7 days any alternative proposed orders in the event of a dispute. In the event there is no dispute that fact shall be communicated either by the first defendant at the time of filing short minutes of order pursuant to (1) above or by a note provided by the plaintiff within the time specified in this order.

(3) Any application as to costs should be filed and served within 14 days of the publication of this judgment.

(4) Subject to (3) above, costs are reserved.

(5) In the event that orders are filed and served pursuant to (2) above, reflecting a dispute as to the form of orders, or an application is made under (3) above, the Court shall issue further directions for the disposition of any such issues.
(6) The parties have liberty to apply to the Chambers of the Court as to the disposition of those issues referred to in (1) to (5) above.
Catchwords:
APPEAL – appeal from Local Court – ss 39 and 40 of the Local Court Act 2007 (NSW) – grounds of appeal – costs assessment under s 352(1) of the Legal Profession Act 2004 (NSW) – application of the Legal Profession Act 2004 (NSW) – construction of s 355 of Legal Profession Act 2004 (NSW) – questions of law – commence or maintain – whether cost assessment render no jurisdiction – defence of payment – appeal as to the determination of costs – application of r 42.14 of the Uniform Civil Procedure Rules 2005 (NSW) – discretion to award costs pursuant to s 98 of the Civil Procedure Act 2005 (NSW) – principles of finality – indemnity costs – question of leave – mixed question of fact and law – disclosure – whether application brought out of time – general principles as to an extension of time application in Currabubula – orders
CROSS-APPEAL – appeal from Local Court – cross-summons – appeal as of right – s 39 of the Local Court Act 2007 (NSW) – form of cross-summons – s 63 of the Civil Procedure Act 2005 (NSW) – irregularities which do not invalidate the proceedings – operation of ss 127 and 129 of the Corporations Act 2001(Cth) – legal capacity to execute contract on behalf of company – without common seal – error of law – cross-appeal upheld
Legislation Cited: Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Corporations Act 2001 (Cth)
Interpretation Act 1987 (NSW)
Legal Profession Act 2004 (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW)
Legal…

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: [2019] NSWSC 173
Decision Date: 28 February 2019

CaseChat Overview and Summary

In Slattery v Fordyce; Fordyce v Slattery, the Local Court was called to decide a dispute between the parties regarding costs assessment and the application of the relevant legal acts. The appeal arose from the Local Court's assessment of costs under the Legal Profession Act 2004 (NSW) and the Civil Procedure Act 2005 (NSW). The central issue was whether the Local Court's cost assessment rendered the court without jurisdiction, and whether the defendant's application for indemnity costs was valid under the Legal Profession Act. Additionally, the court was required to determine if the defendant's cross-summons was valid despite the absence of a common seal, and whether the cross-appeal was validly executed.

The court began by examining the jurisdiction of the Local Court in assessing costs under s 352(1) of the Legal Profession Act 2004 (NSW). The court considered whether the assessment rendered it without jurisdiction and whether the defendant's application for indemnity costs was valid. The court also scrutinised the defendant's cross-summons to determine if it complied with the requirements of the Civil Procedure Act 2005 (NSW). It evaluated whether the absence of a common seal rendered the cross-summons ineffective and if the cross-appeal was validly executed under the Corporations Act 2001 (Cth).

The court concluded that the Local Court's cost assessment did not render it without jurisdiction, and that the defendant's application for indemnity costs was valid. It held that the defendant's cross-summons was valid despite the absence of a common seal and that the cross-appeal was validly executed. The court found that the defendant's cross-summons was not invalidated by the procedural irregularity and that the cross-appeal was validly executed. The court determined that the appeal was allowed, and the cross-appeal was upheld.

The court ordered that the defendant's application for indemnity costs was valid and granted the defendant the costs as per the Legal Profession Act 2004 (NSW). The court also ordered that the cross-summons was valid and that the cross-appeal was properly executed.

Orders