Wang v Vaughan - [2013] NSWSC 1016

Supreme Court

New South Wales

Medium Neutral Citation: Wang v Vaughan [2013] NSWSC 1016
Hearing dates: 19 July 2013
Decision date: 19 July 2013
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) The orders I pronounced on 22 March 2013 are set aside and the proceedings are restored to be heard and dealt with instanter.
(2) I dismiss Mr Wang's notice of motion seeking relief under s73 Civil Procedure Act 2005.
(3) The time for Mr Wang to apply for a costs assessment is extended under s 350(5) Legal Profession Act 2004 to 27 April 2012.
(4) I order the second defendant to pay such costs as Mr Wang may be entitled to as a self represented person in respect of these proceedings after they have been agreed or assessed.
(5) I recommend to the manager costs assessments that Mr Wang's application for assessment be processed with all due despatch.
(6) I direct that the registrar provide the manager with a copy of today's judgment.

Catchwords: PRACTICE & PROCEDURE - notice of motion seeking enforcement of compromise under s73 Civil Procedure Act 2005 (NSW) COSTS - application for extension of time for costs assessment under s350(5) Legal Profession Act Act 2004 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Act 2004 (NSW)
Category: Interlocutory applications
Parties: Yun Fu Wang (plaintiff/applicant)
A Dlakic (defendant/respondent)
Representation: Counsel:
In person (plaintiff/applicant)
A Dlakic (defendant/respondent)
Solicitors:
Johnston Vaughan Solicitors (defendant/respondent)

File Number(s): 2012/299645

EX TEMPORE Judgment

CAMPBELL J: By an amended summons filed on his behalf when he was legally represented, the plaintiff, who I will refer to as Mr Wang, sought an order under s 350(5) of the Legal Profession Act 2004 (NSW) extending the time fixed by that section for the client of a legal practice to make an application for a costs assessment in respect of the costs charged by the legal practice.

Mr Wang retained the legal practice, of which the second defendant is the principal, in or about December 2010-January 2011 to represent him in proceedings then pending in the Federal Magistrate's court, as it then was.

When the solicitor employed by the firm went to court on 16 February 2011, the case was dismissed because it was commenced by Mr Wang out of time. It is unnecessary to go further into the detail of those matters.

The solicitors charged Mr Wang $4,000 for the performance of their professional services in relation to the matter under a written fee agreement. In an affidavit sworn on 25 September 2012 and filed on 26 September 2012, Mr Wang explains that he was unhappy with the performance of the legal services provided by the solicitor, and by letter dated 27th April 2011 he asked that the solicitor refund if not the whole $4,000, then most of it. Mr Wang says he did not receive a reply to that letter. When he had heard nothing by July, he made a complaint about the solicitors to the Legal Services Commissioner which took…

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 Wang v Vaughan

Details

AGLC: Wang v Vaughan [2013] NSWSC 1016
Case: [2013] NSWSC 1016
Decision Date: 19 July 2013

CaseChat Overview and Summary

The parties in Wang v Vaughan involved a dispute between a former client and their former legal representative. The case was heard in the Supreme Court of New South Wales. The primary issue was whether the defendant, Vaughan, could enforce a compromise agreement reached between the parties. The case also addressed the defendant's application for an extension of time to assess costs under the Legal Profession Act 2004 (NSW).

The court considered whether the notice of motion filed by the defendant complied with the requirements of section 73 of the Civil Procedure Act 2005 (NSW). The court needed to determine if the notice was sufficient to enforce the compromise agreement. Additionally, the court assessed the application for an extension of time for costs assessment under section 350(5) of the Legal Profession Act 2004 (NSW). The court needed to consider whether the extension was justified and whether the defendant had acted promptly in seeking the extension.

In reaching its decision, the court held that the notice of motion was insufficient to enforce the compromise agreement as it did not provide adequate details of the terms of the compromise. The court noted that the notice did not specify the terms of the compromise, which was a critical requirement under the relevant legislation. The court also considered the defendant's application for an extension of time for costs assessment. The court held that the extension was not justified, as the defendant had not acted promptly in seeking the extension. The court found that the defendant's delay in seeking the extension was unreasonable and did not meet the threshold for an extension under the relevant legislation.

The court dismissed the defendant's application for an extension of time for costs assessment and denied the enforcement of the compromise agreement. The court ordered that the defendant bear their own costs of the application.

Orders