Young v Annis-Brown trading as Lincoln Smith and Co

The applicant, Young, sought leave to appeal from a decision of the primary judge concerning a costs assessment. The respondent was Annis-Brown, trading as Lincoln Smith and Co. The dispute arose from a conditional costs agreement between the parties, and the applicant sought to challenge the solicitor's entitlement to recover costs after the solicitor terminated the retainer.

The Court of Appeal was required to determine two primary legal issues. First, whether consent orders previously made in the proceedings gave rise to an issue estoppel that precluded the applicant's right of appeal under section 208L of the *Legal Profession Act 1987* (NSW). Second, if the primary judge erred in refusing to exercise discretion not to apply issue estoppel, whether there was any real prospect of success on appeal. A further issue concerned the solicitor's entitlement to recover costs under a conditional costs agreement where the solicitor terminated the retainer, and whether such entitlement was contingent on termination for just cause or on reasonable grounds.

McColl and Basten JJA dismissed the application for leave to appeal. Their Honours reasoned that the consent orders did create an issue estoppel, preventing the applicant from raising the grounds of appeal. The Court found that the applicant had not demonstrated any error in the primary judge's refusal to exercise discretion to set aside the consent orders, nor had they shown any real prospect of success on appeal. Consequently, the application was dismissed, and the applicant was ordered to pay the respondent's costs.