Spitzer v Ward & Anor [2004] NSWSC 100

New South Wales Supreme Court

CITATION : Spitzer v Ward & Anor [2004] NSWSC 100 HEARING DATE(S) : 10 February 2004 JUDGMENT DATE : 27 February 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : The decision made by the learned Magistrate on 29 November 2002 is set aside. The matter is remitted to the Local Court for determination according to law. The defendants are to pay the costs of the Summons. Exhibits may be returned. If so entitled, the defendants are to have a certificate under the Suitors' Fund Act 1951.

CATCHWORDS : Appeal - misdirection - failure to give reasons. LEGISLATION CITED : Fair Trading Act 1987. Suitors' Fund Act 1951. CASES CITED : Daniel Gerard Fitzgibbon v The Waterways Authority & Ors [2003] NSWCA 294. George Spitzer (Plaintiff) PARTIES : v John Ward (First Defendant) Permgate Pty Limited (Second Defendant) FILE NUMBER(S) : SC 13383 of 2002 COUNSEL : Mr M L D Einfeld QC/Mr M W Hadley (Plaintiff) Mr M D Broun QC/Mr I Latham (Defendants) SOLICITORS : Milne Berry & Berger (Plaintiff) N/A (Defendants)

LOWER COURT Local Court JURISDICTION : LOWER COURT 13665 of 2000 Sydney FILE NUMBER(S) : LOWER COURT P Gould LCM JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

Friday 27 February 2004

13383 of 2002 George Spitzer v John Ward & Anor

JUDGMENT 1 MASTER: The plaintiff is a Chartered Accountant. The first defendant is a Real Estate Agent. The second defendant is his company. 2 In 1991, the first defendant retained the plaintiff to perform accountancy services. Work was done. An account was rendered and paid. Thereafter, until the issue of a final account in February 2000, the plaintiff continued to provide services. During this period, not only were services provided for the first defendant but also for the second defendant and the children of the first defendant. 3 There was no letter of retainer. There was no agreement as to the rate of remuneration. Prior to the final account, the plaintiff had not rendered accounts. Payments were made from time to time. 4 Following the issue of the final account, the retainer was terminated. The final account claimed fees for work done during the preceding years less the amounts paid. It was in the sum of $32,000. 5 Subsequently a further account was issued for the sum of $1,800. It was for work done during 1999 and 2000. The plaintiff adopted the position that the product of that work should not be made available until payment of the final account was first made. The defendants refused to pay the accounts. 6 It seems to be common ground that this is a most unusual case. On behalf of the plaintiff, it is said that his evidence provides the explanation for what took place. It is his contention that this situation arose because of the financial position of the defendants. The financial documents showed that modest profits only were being made. They were having cash flow problems and he was helping them out. Payments would be made when he needed money. There was dispute as to who nominated the amount payable. Payments were made from time to time in rounded sums. There were post dated cheques. There seemed to be no discernible pattern in the payments. The plaintiff said that he did not render accounts because of his tax position (he was required to pay tax on accounts rendered). 7 In 2000, the plaintiff commenced proceedings in the Local Court. The proceedings were defended. The Notice of Grounds of Defence raised various matters. The defences included the following;- 1. That there was no agreement as to the rate at which the plaintiff was to be remunerated;