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Weller v Williams

Weller v Williams

Case [2011] NSWSC 910 9 December 2011

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Weller v Williams [2011] NSWSC 910
Hearing dates: 18 August 2011
Decision date: 09 December 2011
Jurisdiction: Common Law
Before: Davies J
Decision:
1. The Summons is dismissed.
2. The Plaintiff is to pay the Defendant's costs

Catchwords: APPEAL - from Local Court - leave to appeal - what must be shown - interlocutory orders concerning pleadings - Anshun estoppel - inconsistent judgments - relief inconsistent with earlier judgment - duty to give reasons - barristers - to whom duty is owed.
Legislation Cited: Fair Trading Act 1987
Limitation Act 1969
Local Court Act 2007
Trade Practices Act 1974
Uniform Civil Procedure Rules
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170;
Ashi Pty Ltd v Karasco Investments Pty Ltd [2009] NSWSC 780;
Bracks v Smyth-Kirk [2009] NSWCA 401
Chapmans Ltd v Yandell [1999] NSWCA 361;
Cosmos E-C Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd [2004] NSWCA 261;
Moy v Pettman Smith (a Firm) [2002] EWCA Civ 875
O'Doherty v Birrell [2001] 3 VR 147
Port of Melbourne Authority v Anshun (1981) 147 CLR 589;
Re Luck [2003] HCA 70; (2003) 78 ALJR 177
Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; (1990) 169 CLR 332;
Weller v Phipps [2010] NSWCA 323
Wilson v Carter [2005] NSWSC 1351
Category: Principal judgment
Parties: Herbert Hugo Weller (Plaintiff)
Dominic John Williams (Defendant)
Representation: B Oliak (Plaintiff)
C Purdy (Defendant)
H Weller (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2011/6130
Decision under appeal

Jurisdiction:

9109

Date of Decision:

2010-12-09 00:00:00

Before:

Magistrate Price

Judgment

The Plaintiff is a Solicitor who is being sued by a Barrister for fees said to be owing to the Barrister. The proceedings are in the Local Court.

The Barrister brought a Notice of Motion dated 4 November 2010 to strike out the Defence and a Cross-Claim that the Solicitor had brought. The Solicitor brought a Notice of Motion dated 3 December 2010 seeking leave to file an Amended Defence in those proceedings.

On 9 December 2010 the Magistrate found both Motions in favour of the Barrister. The Solicitor now seeks leave to appeal to this Court against the Magistrate's determination.

Background

The Barrister filed a Statement of Claim on 12 July 2010 in the Local Court seeking $18,795 in professional fees from the Solicitor based on tax invoices forwarded in the following matters:

(a) Susan Raymond (19 June 2006 - $7,000.00)

(b) Fyfe ats Kessie (15 May 2006 - $2,300.00)

(c) Chapman ats Taylor (25 November 2004 - $1,595.00)

(d) Phipps ats Knott (12 July 2004 - $7900.00)

The last of those matters, the Phipps matter, assumes the greatest significance, in these proceedings.

On 30 July 2010 the Solicitor filed a Defence which said this:

1. The Defendant denies that he owes moneys to Plaintiff as alleged in paragraph 1 of the Statement of Claim or at all.

2. The…

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 Weller v Williams

Details

AGLC: Weller v Williams [2011] NSWSC 910
Case: [2011] NSWSC 910
Decision Date: 09 December 2011

CaseChat Overview and Summary

In Weller v Williams, the appellant, Weller, sought leave to appeal from a decision of the Local Court of New South Wales. The underlying dispute between the parties, Weller and Williams, related to a contractual agreement and alleged breaches thereof. The Local Court had dismissed Weller's claim, and Weller sought to challenge this decision on appeal. The legal issues before the court involved the criteria for granting leave to appeal, the application of Anshun estoppel in interlocutory matters, the implications of inconsistent judgments, the duty of courts to provide reasons for their decisions, and the extent to which this duty is owed to the parties involved.

The court examined the principles surrounding leave to appeal, focusing on the circumstances under which an appellant must demonstrate a substantial question of law warranting an appeal. The Anshun estoppel was considered in the context of interlocutory orders concerning pleadings, where the court explored whether the doctrine could prevent a party from challenging an earlier interlocutory decision that is inconsistent with a later final judgment. The court also assessed whether the relief granted was inconsistent with the earlier judgment, and whether this inconsistency could be grounds for appeal. Furthermore, the court addressed the duty of the court to provide reasons for its decisions and to whom this duty is owed, particularly in relation to the conduct of barristers.

The court held that for leave to appeal to be granted, the appellant must demonstrate a substantial question of law. It concluded that Anshun estoppel could apply to interlocutory orders, but only if the party had an opportunity to raise their objections in the earlier proceedings. The court found that the relief granted was inconsistent with the earlier judgment, which could be grounds for appeal. Regarding the duty to give reasons, the court held that this duty is owed to the parties involved, and that the reasons must be sufficient to allow for meaningful review. The appeal was dismissed, with the court finding that the criteria for leave to appeal were not met, and that the Anshun estoppel did not apply in this case. The court also determined that the duty to give reasons was adequately fulfilled.

Orders