Baynes & Anor v Kalyk [2003] NSWSC 607

New South Wales Supreme Court

CITATION : Baynes & Anor v Kalyk [2003] NSWSC 607 HEARING DATE(S) : 1 July 2003 JUDGMENT DATE : 4 July 2003 JURISDICTION: Common Law Divsion JUDGMENT OF : Master Malpass DECISION : Leave to appeal is granted. The appeal is allowed. The order made on 18 February 2003 is set aside. Any order made as to the costs of the motion is also set aside. The existing originating process is struck out. The defendant is to pay the costs of both proceedings. If so entitled, the defendant is to have a certificate under the Suitors' Fund Act 1951. The Exhibits may be returned.

CATCHWORDS : Leave to appeal - action to recover inter alia costs for legal services - failure to make disclosure required by statute - client not obliged to pay and solicitor not entitled to maintain proceedings to recover costs unless there has been a costs assessment - s 182 applies to quantum meruit claims - distinction between a contract for the provision of legal services and a costs agreement - the action may be summarily struck out. Legal Profession Act 1987, Pt 11, Div 2, s 175, s 178, s 179 s 182, s 182 (2), Div 3, s 184, s 192, Div 6, s 208C. LEGISLATION CITED : Suitors' Fund Act 1951. Trade Practices Act 1974 (Cth). Local Court (Civil Claims) Rules 1988, Pt 8 r 3. Hereward v State Rail Authority of New South Wales (1989) 17 NSWLR 260. CASES CITED : Ipper v Myer Solomon Associates & Ors [2002] NSWSC 1141. Wentworth v Rogers [2002] NSWSC 709. Christopher Baynes & Jill Baynes (Plaintiffs) PARTIES : v Frank G Kalyk (Defendant) FILE NUMBER(S) : SC 10667 of 2003 COUNSEL : Mr R Horsley (Plaintiffs) Mr A D Justice (Defendant) SOLICITORS : Anthony Ziade & Associates (Plaintiffs) In Person (Defendant)