Warne v Chandlers International Lawyers (No 2)

[2024] NSWCA 261

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Warne v Chandlers International Lawyers (No 2) [2024] NSWCA 261

Hearing dates:

28 October 2024

Date of orders:

28 October 2024

Decision date:

28 October 2024

Before:

Basten AJA

Decision:

(1)   Dismiss the respondent’s notice of motion.

(2)   Order that costs of the motion be costs in the appeal.

Catchwords:

CIVIL PROCEDURE – appeal – strike out application – failure to state orders sought – failure to comply with rules as to statement of grounds of appeal – notice of appeal repleaded – unrepresented appellant – sufficient clarity achieved

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 51.18

Category:

Procedural rulings

Parties:

Colin Philip Warne (Appellant) (unrepresented)
Chandlers International Lawyers (Respondent)

Representation:

Counsel:
S Steinhoff (Respondent)

Solicitors:
HT Law Pty Ltd (Respondent)

File Number(s):

2024/282252

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2024] NSWDC 284

Date of Decision:

2 July 2024

Before:

Newlinds SC DCJ

File Number(s):

2023/438935

JUDGMENT

1. BASTEN AJA: This matter involves an appeal from a judgment of Judge Newlinds SC in the District Court, delivered on 2 July 2024. [1] His Honour delivered judgment ex tempore in relation to a claim by Chandlers International Lawyers for payment of an amount of $121,724. The judge found that the debt had been made out and gave judgment for that amount with costs. On 1 August 2024 the defendant in the District Court, Colin Philip Warne, filed a notice of appeal in this Court, seeking to challenge that judgment. He has been unrepresented in this Court.

   1. ACN 603 541 411 Pty Ltd t/as Chandlers International Lawyers v Colin Philip Warne [2024] NSWDC 284.

2. On 23 August 2024 Chandlers filed a notice of motion, seeking to have the notice of appeal struck out on the basis that it failed to comply with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.18. It also sought to have the notice of appeal struck out on the basis that it was incompetent, having been filed two days after the expiration of the relevant time period. On 9 October 2024, Kirk JA declined to dismiss the notice of appeal as incompetent, but directed that the appellant file an application for extension of time with a supporting affidavit. However, the notice of appeal was struck out with liberty to replead. On 22 October 2024, the appellant filed an amended notice of appeal.

3. Ms Steinhoff, who appeared for Chandlers, indicated that the incompetency ground was no longer pursued, but she did pursue the pleading challenge in relation to the amended notice of appeal.

4. Ms Steinhoff said, with some justification, that the orders sought in the new amended notice of appeal are difficult to follow, and that the grounds do not comply with the rules, although they have been summarised in a form which is now one and a half pages and, therefore, within the parameters indicated by Kirk JA when striking out the original notice of appeal on 9 October 2024.

5. I am satisfied that the document prepared by Mr Warne does sufficiently state the orders sought; some of them are in the form of the template (“appeal allowed”, “judgment of the court below be set aside”), but they are none the worse for that.

6. In relation to the handwritten orders, they may or may not be orders which are appropriate in the circumstances, but it is possible to read those orders and make sense of them. The orders in dispute appear to read:

“Complete refund of my legal fees paid, as well as other Court costs eliminated. Plus payment of $150,000 previously offered.”

7. The context for those orders is not clear from the notice of appeal, but no doubt would be clear from written submissions to be filed in due course. I am satisfied that there is compliance with the rules so far as that is necessary. Secondly, in relation to the amended grounds of appeal, they are now set out in typed format and signed by Mr Warne, and dated. The grounds are numbered one to three, and although there are paragraphs under each which are not simply statements of errors on the part of the primary judge, one can understand the basis of the complaints made when one understands the orders made in the District Court.

8. The judgment debt was for unpaid legal fees. The grounds appear to indicate the defence, to be repeated on appeal, that the initial costs estimate was deficient and that the lawyers proceeded on a contingency basis. In my view, the amended notice of appeal, though by no means of a standard which would be expected if drafted by a legal representative, sufficiently complies with the rules to allow that document to stand.

9. Accordingly, I dismiss the motion to the extent that it seeks to challenge the amended notice of appeal. Costs of the motion today can be the costs in the appeal.

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Endnote

Decision last updated: 31 October 2024