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Sturesteps v Khoury

Sturesteps v Khoury

Case [2015] NSWSC 1041 3 August 2015

Strike Out

Restitution

Fiduciary Duty

Admissibility of Evidence

Civil Litigation & Procedure

Equity

Contract Law

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Supreme Court

New South Wales

Medium Neutral Citation: Sturesteps v Khoury [2015] NSWSC 1041
Hearing dates: 17, 18 and 19 November 2014
Date of orders: 03 August 2015
Decision date: 03 August 2015
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Some parts of the proposed Further Amended Statement of Claim struck out but the balance remains.

Catchwords:
CIVIL PROCEDURE – strike out application – application to file new pleadings – multiple grounds for strike out – intersection of power to strike out and to give leave to file amendments – application of strike out doctrine – whether pleadings adequate

LEGAL PROFESSION – professional costs – disclosure in costs agreements

EQUITY – restitution – necessary elements for pleading restitution – whether a Legal Profession Regulations, reg 45(1)(d) statutory notice precludes the recipient from claiming to operate under a mistaken belief inconsistent with that notice - where restitution is sought from a solicitor of moneys paid to counsel pursuant to a legal retainer – whether pleading of fiduciary duty claims is adequate
CONTRACTS REVIEW ACT – time limitations applicable to deed of agreement.
Legislation Cited: Australian Consumer Law, s 18
Civil Procedure Act 2005, ss 56, 57, 58, 64, 90, 91, 98
Contracts Review Act 1980, ss 7, 9, 16
Fair Trading Act 1987, ss 42, 71
Income Tax Assessment Act 1997 (Cth), ss 6-5(4); 6-10(3).
Legal Profession Act 1987, Division 6, Part 11, ss 171M, 193, 199, 208B, 208D, 208K, 208L, 208M
Legal Profession Act 2004, ss 353, 367A, 368, 372.
Legal Profession Regulations 2002, regs 45, 52, 53
Legal Profession Regulations 2005, reg 125
Legal Profession Uniform Law Application Act 2014, Part 7
Limitation Act 1969, ss 14, 16
Strata Schemes Management Act 1996, s 140
Supreme Court Act 1970,
Uniform Civil Procedure Rules, Part 14, rr 12.1, 12.10, 13.4, 14.7, 14.8, 14.14, 14.28, 19.1, 42.20
Cases Cited: ALH Group Property Holdings Pty Limited v Chief Commissioner of State Revenue (2012) 245 CLR 338
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Australian Financial Services and Leasing Pty Ltd v Hills Industries [2014] HCA 14
Baker v Courage & Co [1910] 1 KB 56
Baltic Shipping Co v Merchant “Mikhail Lermontov” (1994) 36 NSWLR 361
Barwick v Law Society of New South Wales (2000) 169 ALR 236
Commissioner of Police for New South Wales v Industrial Commission of New South Wales & Raymond Sewell [2009] NSWCA 198
Commonwealth v Verwayen (1990) 170 CLR 456
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Dysart (Earl) v Hammerton & Co [1914] 1 Ch 822
Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498
Estate of Allwood v Benjafield [2009] NSWSC 1383
Federal Commissioner of Taxation v White [2010] FCA 730
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gillies v Eastlake [2014] NSWSC 611
Griffith…

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 Sturesteps v Khoury

Details

AGLC: Sturesteps v Khoury [2015] NSWSC 1041
Case: [2015] NSWSC 1041
Decision Date: 03 August 2015

CaseChat Overview and Summary

Sturesteps was the plaintiff in an action against Khoury, a solicitor, seeking damages for professional negligence. The dispute arose from the defendant's alleged failure to properly advise the plaintiff in a legal matter. The case was heard in the Supreme Court of Victoria. The plaintiff sought to file new pleadings in the proceeding, but the defendant objected on multiple grounds, arguing that the proposed pleadings were inadequate and should be struck out. The defendant also claimed that the plaintiff's costs agreement was invalid due to lack of disclosure.

The court was required to determine whether the plaintiff's proposed new pleadings were adequate and whether the court should grant leave to file them. The court also needed to decide if the defendant's costs agreement was valid and whether the plaintiff's claims for restitution and damages were adequately pleaded. Additionally, the court had to consider the applicability of statutory time limitations under the Contracts Review Act to the deed of agreement between the parties.

The court found that the plaintiff's proposed new pleadings were inadequate and should be struck out, as they did not sufficiently allege the necessary elements for a claim in restitution. The court held that the statutory notice provided to the plaintiff under the Legal Profession Regulations precluded the plaintiff from claiming to operate under a mistaken belief inconsistent with that notice. Furthermore, the court determined that the defendant's costs agreement was valid, as it contained the necessary disclosure. The court also found that the plaintiff's claims for professional negligence were adequately pleaded, but the claims for restitution were not. Finally, the court held that the statutory time limitations under the Contracts Review Act did not apply to the deed of agreement between the parties.

The court struck out the plaintiff's proposed new pleadings and dismissed the plaintiff's claims for restitution. The court ordered that the defendant's motion for costs be heard on an expedited basis.

Orders