Bevan v Carmody [2010] NSWSC 356

New South Wales Supreme Court

CITATION : Bevan v Carmody [2010] NSWSC 356

HEARING DATE(S) : 15 April 2010

JUDGMENT DATE : 19 April 2010

JUDGMENT OF : Ball J

DECISION : The Defendant's motion filed on 25 July 2008 dismissed with costs.

CATCHWORDS : PRACTICE AND PROCEDURE - Determination of Separate Questions - Where there is an overlap of facts between issues

Legal Profession Act 1987 LEGISLATION CITED : Legal Profession Act 2004 Supreme Court Rules 1970 (NSW) Uniform Civil Procedures (UCPR) r 28.2

CATEGORY : Procedural and other rulings

Amirbeaggi v Business in Focus (Australia) Pty Ltd [2008] NSWSC 421 Burbidge v Wolf [2008] NSWSC 60 CASES CITED : Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 Tepko Pty Ltd and Others v Water Board (2001) 206 CLR 1 Tudor Developments Pty Ltd v Makeig (2008) 72 NSWLR 624; [2008] NSWCA 263

PARTIES : Christopher John Bevan (Plaintiff) John Edward Carmody (Defendant)

FILE NUMBER(S) : SC 2006/262554

G Lindsey (Plaintiff) COUNSEL : D Rofe SC (Defendant) A Tudehope (Defendant)

SOLICITORS : Evangelos Patakas & Associates (Plaintiff)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BALL J

MONDAY 19 APRIL 2010

2006/262554 CHRISTOPHER JOHN BEVAN V JOHN EDWARD CARMODY

JUDGMENT 1 HIS HONOUR: The Plaintiff in these proceedings is a barrister who claims from the Defendant, his Instructing Solicitor, fees totalling approximately $500,000 together with interest on that amount. It is alleged that the fees were incurred at various times between 1999 and 2006 in respect of work done for a number of clients of the solicitor. The Defendant has filed a Cross Claim in the proceedings seeking to recover certain amounts from his clients in the event that the Plaintiff is successful in recovering those amounts from him. 2 There are provisions in both the Legal Profession Act 1987 (the 1987 Act) (which is now repealed but which is relevant to the earlier fees claimed by the Plaintiff) and the Legal Profession Act 2004 (the 2004 Act) (which is relevant to the later fees charged by the Plaintiff) which prevent a legal practitioner from maintaining proceedings to recover costs if the legal practitioner fails to meet certain disclosure obligations set out in the Acts until the costs the legal practitioner is seeking to recover have been assessed. In addition, s 192 of the 1987 Act prevents a legal practitioner from commencing or maintaining legal proceedings unless at least 30 days have passed since a Bill of Costs was supplied by the legal practitioner in accordance with that Act. The Acts also prevent a legal practitioner from charging interest unless certain disclosures are made. 3 The Plaintiff pleads that he has complied with the provisions of both Acts so as to permit him to maintain these proceedings and to claim interest. 4 In the alternative, the Plaintiff alleges that, even if he failed to comply with the requirements of the Acts, the Defendant is estopped from asserting that the Plaintiff has not complied with the legislative requirements or that the Defendant has elected not to rely on his rights under the Acts or waived his rights to do so or, finally, is liable to make restitution to the Plaintiff for fees he (the Defendant) has recovered from his clients in respect of the Plaintiff's fees. 5 The Defendant says that these alternative claims cannot be maintained in the face of the provisions which prevent a barrister from maintaining proceedings where he has failed to comply with the disclosure requirements of the 1987 and 2004 Acts. He relies, in particular, on the decisions of Nicholas J in Burbidge v Wolf [2008] NSWSC 60, the decision of Brereton J in Amirbeaggi v Business in Focus (Australia) Pty Ltd [2008] NSWSC 421 and the decision of the Court of Appeal in Tudor Developments Pty Ltd v Makeig (2008) 72 NSWLR 624; [2008] NSWCA 263. He has filed a Motion seeking orders to the effect that those alternative claims be determined separately pursuant to the Uniform Civil Procedure Rules (UCPR) rule 28.2. A number of separate questions are identified. The general form of a number of them is to ask whether the Plaintiff is barred from maintaining these proceedings or claiming interest by the relevant provisions of the Acts. Two more general questions (questions 5 and 6) are also identified. One of those asks whether any acquiescence, waiver, election or estoppel said to have occurred on the part of the Defendant relieve the Plaintiff from complying with the requirements of the 1987 Act. The other asks whether the Plaintiff is entitled to rely on principles of unjust enrichment where he would be otherwise barred from commencing or maintaining these proceedings by the provisions of the 1987 and 2004 Acts. 6 The Defendant's Motion is opposed by the Plaintiff. Originally, it was also opposed by the Second Cross Defendant. However, there was no appearance for the Second Cross Defendant at the hearing of this application and I was informed that the Second Cross Defendant neither supported nor opposed the application. 7 The application first came before James J on 19 December 2008. His Honour indicated at that time that he was not prepared to make an order for separate determination. However, His Honour stood the application over until the question of discovery and inspection had been resolved. 8 The principles which are to be applied when considering whether such an order should be made were set out by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7]: (1) The power of the Court to order the separate determination of an issue is a discretionary power which must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VR 699 at 670 per Young CJ and Jenkinson J.