Desanges v Johnson [2006] NSWSC 106

New South Wales Supreme Court

CITATION : Desanges v Johnson [2006] NSWSC 106

HEARING DATE(S) : 27 February 2006

JUDGMENT DATE : 6 March 2006

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Harrison

EX TEMPORE JUDGMENT DATE : 02/26/2006

DECISION : (1) The appeal is dismissed; (2) The judgment and orders of the Magistrate dated 3 April 2003 are affirmed; (3) The amended summons dated 27 August 2004 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS : Appeal decision of Local Court - costs agreement

LEGISLATION CITED : Legal Profession Act 1987 (NSW) s 182 Local Court (Civil Claims) Act 1970 (NSW) - ss 39A(2) & 69

CASES CITED : Kioa v West (1985) 159 CLR 550 Re Minister for Immigration & Multicultural Affairs; exparte Lam (2003) 214 CLR 1

Lionel Desanges (Plaintiff) PARTIES : Leigh Johnson (Defendant)

Mr C R de Robillard (Plaintiff) COUNSEL : Mr T Rickard (Defendant)

SOLICITORS : Leigh Johnson (Plaintiff)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 3029/01

LOWER COURT JUDICIAL OFFICER : Madgwick LCM

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

MONDAY, 6 MARCH 2006

11803/2003 - LIONEL DESANGES v LEIGH JOHNSON

JUDGMENT (Appeal decision of Local Court - costs agreement) 1 HER HONOUR: By amended summons filed 27 August 2004 the plaintiff seeks, firstly, an order that the judgment of Local Court Magistrate Madgwick in proceeding 3029/01 be set aside; secondly, that judgment be entered for the defendant; thirdly, that the plaintiff pay the defendant's costs of both these proceedings and the proceedings in the Local Court; and fourthly, that leave to appeal be granted. 2 The plaintiff is Lionel Desanges (Desanges). The defendant is Leigh Johnson (Johnson), the plaintiff's former solicitor. Desanges relied on his affidavits sworn 21 July 2003, 5 November 2004 and 30 August 2005. Johnson relied on her affidavit sworn 18 November 2005. As Johnson was the plaintiff in the Local Court and the defendant in this Court and likewise Desanges was the defendant in the Local Court and the plaintiff in this Court for convenience I shall refer to the parties by name. 3 Desanges sought leave to appeal on questions of mixed fact and law and also in relation to questions of law alone. Section 69(3) the Local Court (Civil Claims) Act 1970 (NSW) (LCA) provided that a party to proceedings under the LCA who is dissatisfied with the judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court, but only by leave of the Supreme Court. However, if the judgment is erroneous in point of law, the appeal is of right (s 69(2)). 4 Section 69(4) of the LCA provided that the Supreme Court may determine an appeal by either (a) setting the judgment or order aside or (b) by varying the terms of the judgment or order or (c) by setting the judgment or order aside and remitting the matter for determination in accordance with the Court's directions or (d) by dismissing the appeal.