THORPE -v- NK CEILINGS (1992) PTY LTD [2007] WADC 41

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 41
Case No:	CIV:1994/2006	Heard:	23 FEBRUARY 2007
Coram:	DEPUTY REGISTRAR HARMAN	Delivered:	3/04/07
Location:	PERTH
No of pages:	6	Judgment Part:	1 of 1
Result:	Application unsuccessful
PDF Version

Parties:	ANDREW CECIL THORPE NK CEILINGS (1992) PTY LTD (ACN 057 779 978)
Catchwords:	Practice Western Australia Practice under the Rules of the Supreme Court of Western Australia Application of defendant for summary judgment and to strike out statement of claim Whether suspended practitioner may recover for services previously rendered Legal Practice Act 2003, s 3 and s 230
Legislation:	Legal Practice Act 2003
Case References:	Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62 Lashansky v Legal Practice Board [2006] WASC 247 Thorpe v Sizer Developments Pty Ltd & Anor [2006] WASC 151 Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : THORPE -v- NK CEILINGS (1992) PTY LTD [2007] WADC 41 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 23 FEBRUARY 2007 DELIVERED : 3 APRIL 2007 FILE NO/S : CIV 1994 of 2006 BETWEEN : ANDREW CECIL THORPE

Plaintiff

AND

NK CEILINGS (1992) PTY LTD (ACN 057 779 978)

Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application of defendant for summary judgment and to strike out statement of claim - Whether suspended practitioner may recover for services previously rendered - Legal Practice Act 2003, s 3 and s 230

Legislation:

Legal Practice Act 2003

Result:

Application unsuccessful

(Page 2)

Representation:

Counsel:

Plaintiff : Mr J Curthoys

Defendant : Mr D J Garnsworthy

Solicitors:

Plaintiff : B W Duckham & Co

Defendant : Hotchkin Hanly

Case(s) referred to in judgment(s):

Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62
Lashansky v Legal Practice Board [2006] WASC 247
Thorpe v Sizer Developments Pty Ltd & Anor [2006] WASC 151

(Page 3)

1 DEPUTY REGISTRAR HARMAN: By the plaintiff's claim in the action he seeks to recover the cost of legal services provided to the defendant together with an agreed sum for his costs of the defendant's application for an extension of time within which to request itemisation of the plaintiff's account.

2 The defendant seeks summary judgment, alternatively to strike out the statement of claim. The applicant carries the onus of persuasion. The standard set by Dixon J in Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62 at 90 when speaking of the Victorian equivalent of O 16 of the Supreme Court Rules1971 was that it

"… is the counterpart for defendants of O X1V. It confers a power of summary dealing with an action which …. should be reserved for exercise as to actions that are absolutely hopeless."

3 At p 91 his Honour went on to say:

"A case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff…

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: [2007] WADC 41
Decision Date: 3 APRIL 2007

CaseChat Overview and Summary

In the matter of Thorpe v NK Ceilings (1992) Pty Ltd, the court was asked to determine the enforceability of a contract for services between the plaintiff, a suspended legal practitioner, and the defendant, a corporation. The plaintiff sought to recover fees for legal services rendered prior to the suspension of their practising certificate. The defendant applied for summary judgment and to strike out the statement of claim, arguing that the plaintiff's suspension rendered the contract unenforceable.

The court considered whether the suspension of the plaintiff's practising certificate under the Legal Practice Act 2003 precluded them from recovering fees for services rendered before the suspension. The key legal issue was whether the suspension had a retroactive effect on the validity of the contract. The court examined relevant statutory provisions and case law to determine the implications of the suspension on the contract.

The court held that the suspension of the plaintiff's practising certificate did not render the contract for services unenforceable. The suspension did not have a retroactive effect, and the plaintiff was entitled to recover fees for services rendered prior to the suspension. The court rejected the defendant's application for summary judgment and to strike out the statement of claim, finding that the matter required a trial on the merits.

The court ordered that the defendant's application for summary judgment and to strike out the statement of claim be dismissed. The matter was to proceed to a trial to determine the quantum of the plaintiff's entitlement to fees.

Orders

Orders of the court

Application unsuccessful

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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