Scope Data Systems Pty Ltd v Agostini Jarrett Pty Ltd [2005] NSWSC 691

New South Wales Supreme Court

CITATION : Scope Data Systems Pty Ltd v Agostini Jarrett Pty Ltd [2005] NSWSC 691

HEARING DATE(S) : 30/06/05

JUDGMENT DATE : 19 July 2005

JUDGMENT OF : Patten AJ at 1

DECISION : See paragraph 24

Corporations Act 2001 (Commonwealth) Supreme Court Act 1970 LEGISLATION CITED : Supreme Court Rules 1970 Legal Profession Act 1987

Port of Melbourne Authority v Anshun Pty Ltd (1981) 55 ALJR 621. Ryan v Hansen 2000 NSWSC 354. CASES CITED : Muriniti v Lyons 2004 NSWSC 135. Minerals Corporation Ltd v Abbot 2004 NSWSC 246

Scope Data Pty Ltd - Plaintiff PARTIES : Agostini Jarrett Pty Ltd - Defendant

FILE NUMBER(S) : SC 20138 of 2004

Mr K Andrews - Plaintiff COUNSEL : Mr M Henry - Defendant

Aitken McLachlan Thorpe - Plaintiff SOLICITORS : Middletons Lawyers - Defendant

LOWER COURT JURISDICTION :

- 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATION LAW LIST

Patten AJ

19 July 2005

No 12191 0f 2004

Scope Data Systems Pty Ltd v Agostini Jarrett Pty Ltd.

JUDGMENT 1 His Honour: This is a Notice of Motion filed by the Plaintiff (Scope Data) in proceedings commenced by summons. In its amended form, the Motion seeks the following orders: 1. The Plaintiff have leave to file an Amended Summons in the form of Attachment A. 2. The cost assessment proceedings as detailed in Attachment B be stayed pending the outcome of these proceedings. 3. Such other orders as the Court sees fit. 4. Costs." 2 At the hearing before me, Mr Henry, counsel for the Defendant (Agostini Jarrett), consented to the making of order 1 with the qualification that paragraphs 7, 8, 9 and 10 of the proposed Amended Summons should not be allowed. It will be convenient if I hereafter refer to the draft annexed to the amended Notice of Motion as the Amended Summons. 3 Mr Henry opposed the making of order 2. 4 The proceedings have their genesis in an action in the Local Court at Sydney, which resulted in a Mr David Goman (Mr Goman) as representative partner for B D O Nelson Parkhill, Accountants, securing a judgment against Scope Data for $8,681.15 plus interest (the Local Court judgment). The judgment was given upon a Liquidated Statement of Claim seeking recovery of debt due for the provision of accounting services in litigation in the Supreme Court involving Scope Data. The verdict in the Local Court was given on 23 November 2001 and an order for costs against Scope Data was made subsequently, on 29 July 2002. 5 Agostini Jarrett is a firm of lawyers, apparently first consulted by Scope Data in August 2002, in relation to the possibility of an appeal against the Local Court judgment to the Supreme Court. Such an appeal was launched, purportedly, as of right, on or about 26 August 2002. Mr Goman thereupon sought an order that the appeal be summarily dismissed on the ground that it was commenced out of time. Scope Data, represented by Agostini Jarrett, countered this by moving, on 5 September 2002, for an extension of time to appeal pursuant to SCR Pt 51 B r 6 (2)(a). 6 On 14 March 2003, Master Malpass dismissed the appeal from the Local Court judgment and refused an extension of time. 7 In the meantime, Mr Goman caused a Statutory Demand to be served on Scope Data pursuant to s.459 G of the Corporations Act 2001(Commonwealth). In a judgment delivered on 13 March 2003, Barrett J dismissed, with costs, an application by Scope Data to set aside the demand. In those proceedings, Scope Data was again represented by Agostini Jarrett. 8 There were further proceedings in the Supreme Court between Mr Goman and Scope Data, in that, upon the expiration of the Statutory Demand, Mr Goman made application to wind up Scope Data. The winding up application was contested and there was a hearing before Campbell J. Before His Honour delivered judgment, however, the debt on which the winding up application was based, namely, the amount due under the Local Court judgment, including costs as assessed, was paid. In the result, Campbell J dismissed the application to wind up Scope Data but in a judgment delivered on 23 April 2004 ordered that Scope Data pay Mr Goman's costs. In the proceedings before Campbell J, Scope Data was not represented by Agostini Jarrett but by another firm of solicitors. 9 By the Amended Summons, as it now appears, Scope Data seeks relief against its former solicitors, Agostini Jarrett, in a variety of forms. In respect of the proceedings before Barrett J and before Master Malpass, it seeks declarations and orders pursuant to s198 M and s198 N of the Legal Profession Act, alternatively, pursuant to s76 C of the Supreme Court Act, alternatively, pursuant to Pt 52A r 43(1) of the Supreme Court Rules. All that relief is encompassed by paragraphs 1 to 6 inclusive and, as earlier indicated, Mr Henry does not oppose those paragraphs. I pause to comment that it is not immediately apparent how the proceedings fall within sections 198 M and 198 N, in that, on the face of it, they do not seem to constitute claims for damages or defences to claims for damages. 10 Paragraphs 7,8,9 and 10 of the Amended Summons, however, raise different issues. They are in the following form: