Slipper v Berry Buddle Wilkins Lawyers - [2015] NSWSC 810

Supreme Court

New South Wales

Medium Neutral Citation: Slipper v Berry Buddle Wilkins Lawyers [2015] NSWSC 810
Hearing dates: 20 May 2015
Date of orders: 24 June 2015
Decision date: 24 June 2015
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.
(3) The decision of his Honour Magistrate Pierce made on 4 November 2014 is affirmed.
(4) The summons filed 2 December 2014 is dismissed.
(5) The plaintiff is to pay the defendant’s costs on an ordinary basis as agreed or assessed.
Catchwords: APPEAL FROM LOCAL COURT – Local Court Act 2007 (NSW) – whether the construction of a contract is question of law – whether variation of agreement entered into by solicitor and client for deferral of payment – whether Magistrate erred in finding that any variation of the agreement was void for want of consideration – general rule that to perform an existing duty is not fresh consideration
Legislation Cited: Local Court Act 2007 (NSW)
Cases Cited: Australian Broadcasting Commission v Australian Performing Right Association Ltd (1973) 129 CLR 99; (1973) 47 ALJR 526
Australian Woollen Mills v Commonwealth (1944) 69 CLR 476; [1945] ALR 16
Disability Services Australia Limited v Gollop & SafeAs Australian Pty Ltd [2015] NSWSC 147
SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56
Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517
Vanbergen v St Edmunds Properties Limited [1933] 2 KB 223
Wigan v Edwards (1973) 1 ALR 497; (1973) 47 ALJR 586
Williams v Roffey Bros & Nicholls (Contractors) Ltd [1990] 1 All ER 512; [1990] 2 WLR 1153
Texts Cited: J W Carter, Contract Law in Australia, (6th ed 2013, LexisNexis)
Category: Principal judgment
Parties: Peter Slipper (Plaintiff)
Berry Buddle Wilkins Lawyers Pty Limited (Defendant)
Representation:
Counsel:
T Hall (Plaintiff)
V Bedrossian (Defendant)
Solicitors:
Hall Partners (Plaintiff)
BBW Lawyers (Defendant)

File Number(s): 2014/355263
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court, Downing Centre

Jurisdiction:

General Division

Date of Decision:

04 November 2014

Before:

Pierce LCM

File Number(s):

2014/355263

Judgment

HER HONOUR: By summons filed 2 December 2014, the plaintiff seeks firstly, an order, to the extent required, that leave to appeal be granted; secondly, that the order of his Honour Magistrate Pierce made on 4 November 2014, in which judgment was entered for the plaintiff, be set aside; and thirdly, that this appeal be allowed and that the verdict and judgment entered below be set aside.
The plaintiff in this Court is Peter Slipper (“Mr Slipper”) who was the defendant in the Local Court proceedings. The defendant in this Court is Berry Buddle Wilkins Lawyers (“Berry Buddle Wilkins”) who was the plaintiff in the Local Court proceedings. For convenience, I shall refer to the parties by name.
The parties handed up a court book containing the Local Court file (Ex A). Berry Buddle Wilkins relied on the affidavit of Luke Buddle dated 12 February 2015, which…

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: [2015] NSWSC 810
Decision Date: 24 June 2015

CaseChat Overview and Summary

The case involved Slipper as the appellant and Berry Buddle Wilkins Lawyers as the respondents. The dispute arose from an agreement between the parties regarding the deferral of payment for legal services rendered. The matter was heard in the Supreme Court of New South Wales, which was exercising its appellate jurisdiction over the Local Court. The appellant contested the Local Court's decision that any variation of the original agreement for deferring payment was void for want of consideration.

The primary legal issue the court had to decide was whether the construction of the contract between the solicitor and the client was a question of law or fact. A further issue was whether the variation of the agreement for the deferral of payment was valid, given that the court had to determine if the performance of an existing duty could constitute fresh consideration. The court had to examine whether the Local Court was correct in its finding that any variation of the agreement was void due to the absence of fresh consideration.

The court held that the construction of the contract was indeed a question of law, and thus the Supreme Court had the jurisdiction to review the decision of the Local Court. In determining the validity of the variation of the agreement, the court referred to the general principle that performing an existing duty does not amount to fresh consideration. The court concluded that the Local Court did not err in finding that the variation of the agreement was void because it lacked fresh consideration. The reasoning was that the appellant did not provide anything new in return for the deferral of payment, as it was already bound to pay for the services rendered.

The final orders of the court were that the appeal be dismissed, and the decision of the Local Court was upheld. The variation of the agreement for the deferral of payment was found to be void due to the absence of fresh consideration.

Orders