Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Young v Annis-Brown trading as Lincoln Smith & Co [2012] NSWCA 11 Hearing dates: 3 February 2012 Decision date: 03 February 2012 Before: McColl JA at 12; Basten JA at 1 Decision: (1) Application dismissed. (2) Applicant to pay the respondent's costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - civil - leave to appeal - costs assessment - whether consent orders raise an issue estoppel to preclude right of appeal under Legal Profession Act 1987 (NSW), s 208L APPEAL - civil - discretionary orders - application for leave to appeal from decision refusing to exercise discretion not to apply issue estoppel - whether any real prospect of success COSTS - assessment - solicitor-client - conditional costs agreement - entitlement of solicitor to recover costs in circumstances where solicitor terminates retainer - whether entitlement subject to a requirement of termination for just cause or on reasonable grounds Legislation Cited: Legal Profession Act 1987 (NSW), s 208L Supreme Court Act 1970 (NSW), s 101(2)(c), (r) Category: Procedural and other rulings Parties: Maureen Mary Young - Applicant Wayne Vincent Annis-Brown trading as Lincoln Smith & Co - Respondent Representation: Counsel: Mr A Blank - Applicant Mr M J Stevens - Respondent Solicitor: Beazley Singleton- Applicant Lincoln Smith & Co - Respondent File Number(s): 2011/94912 Decision under appeal Jurisdiction: 9111 Citation: Young v Annis-Brown t/as Lincoln Smith & Co [2011] NSWSC 890 Date of Decision: 2011-08-17 00:00:00 Before: Black J File Number(s): 2011/94912 Judgment 1BASTEN JA : In 2000, the applicant, Ms Maureen Mary Young, commenced proceedings against the Waterways Authority of New South Wales in the Supreme Court (No. 2806 of 2000). In March 2001 she retained the respondent to act on her behalf in those proceedings. She entered into a retainer with the respondent which entitled the respondent to fees on a contingency basis. The contingency permitted recovery "from either any settlement which might be reached with [Waterways] or any order or orders for costs made in your favour against [Waterways]". 2In September 2009 the applicant settled the proceedings against the Waterways Authority and her then solicitors received an amount of some $700,000 as proceeds of that settlement into their trust account. In 2010, the respondent commenced proceedings seeking payment of its fees in an amount which was subsequently assessed (in March 2011) at a little over $76,000. 3For reasons which were not explained, the applicant commenced her own proceedings in 2010 seeking a declaration that no moneys were owed by her to the respondent pursuant to the costs agreement (No 214241 of 2010). 4Again for reasons which do not appear from the papers, on 7 October 2010 both the sets of proceedings brought by the applicant and by the respondent were settled by consent order which provided for the respondent to submit a bill of costs for assessment. As already noted, that happened and the costs were assessed. In the course of the assessment, the applicant raised an objection based on the contention that the condition had not been fulfilled because the proceedings with Waterways had not in fact been "settled". That argument was apparently rejected by the costs assessor and the applicant commenced fresh proceedings (No 94912 of 2011) in which she sought to agitate that claim in the Equity Division. 5Black J rejected the claim: Young v Annis-Brown t/as Lincoln Smith & Co [2011] NSWSC 890. He concluded that the right to recover costs had been determined by the consent order dismissing the proceedings in which that issue had been raised. The applicant now seeks leave to appeal from that judgment. Leave is required because the amount in issue is less than $100,000 and is, in any event, solely concerned with the recovery of costs: Supreme Court Act 1970 (NSW), s 101(2)(c) and (r). 6The applicant's claim before Black J was based, not on the fact that she did not receive the settlement sum from Waterways, but on the basis that the settlement was conditional (namely subject to obtaining a relevant consent for the applicant's proposed use of a houseboat) and that consent had not been obtained when the money was paid. 7As the applicant acknowledged, Black J struck out her appeal against the decision of the costs assessor, not only on the basis that the issue was res judicata, but also, in the alternative, on the basis that there was an issue estoppel and, furthermore, on the basis that, if he had a discretion in relation to the fresh proceedings, he would not have exercised it in favour of the applicant. The applicant argued that the issue should have been addressed as effectively an attempt to withdraw an admission. Even if it had it been so regarded, as his Honour noted, the matters on which Ms Young sought to rely included matters of which she had been aware at the time she entered into the consent agreement: at [14]. Further, for the reasons set out by his Honour at [16], there is no real prospect of success in dealing with the matter in that way as opposed to any other way. 8The applicant seeks to contend that the issue of whether the conditions of settlement had been fulfilled were specific to the recovery proceedings, that the consent orders did not preclude her right of appeal under s 208L of the Legal Profession Act 1987 (NSW) in relation to the costs assessment and that if there were an issue estoppel, the primary judge ought to have exercised a discretion to permit the proceedings to go ahead. 9In addition, the applicant had sought to raise before the costs assessor an issue as to the entitlement of the respondent to recover fees in circumstances in which it had terminated the retainer. The applicant wished to argue that the conditional term (cl 10) was (in respect of the solicitor) subject to a requirement that termination be for just cause or on reasonable grounds; she wished to submit that the solicitor had terminated without good cause, and thus lost his right to recover any costs. 10This, however, is merely an alternative basis to attack the finding of res judicata. As such it has no real prospects. 11All of the issues sought to be raised were dealt with in a careful judgment of the primary judge. The applicant has not demonstrated any arguable error on his part. Nor is any issue of legal principle sought to be raised in respect of a matter as to which she would have reasonable prospects of success. Accordingly, it is not a case warranting a grant of leave to appeal. The application should be dismissed; the applicant should pay the respondent's costs of the proceedings in this Court. 12McCOLL JA : I agree. The orders of the Court therefore are as Justice Basten proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 February 2012