Fu v Carmody [2012] NSWSC 1362

Supreme Court New South Wales

Medium Neutral Citation: Fu v Carmody [2012] NSWSC 1362 Hearing dates: 11 October 2012 Decision date: 11 October 2012 Jurisdiction: Common Law Before: Adams J Decision: 1. Appeal dismissed. 2. Plaintiff will pay the defendant's costs in the sum of $6,000. Legislation Cited: Contracts Review Act 1980 Fair Trading Act 1987 Legal Profession Act 1987 Legal Profession Act 2004 Legal Profession Regulations 2002 Category: Principal judgment Parties: Quen Fu (Plaintiff) John Edward Carmody trading as Carmody & Co Solicitors (Defendant) Representation: A Kumar (Plaintiff) M Pesman (Defendant) John Carmody & Co Solicitors (Defendant) File Number(s): 2012/164207

EX TEMPORE Judgment 1This is an appeal from the Local Court at Burwood which gave judgment in favour of the defendant in this Court (Mr Carmody) against the plaintiff in this Court (Ms Fu) in respect of a claim made by Mr Carmody for professional costs amounting to $48,566.50 plus interest. 2The proceedings were commenced by statement of claim filed on 29 June 2011 and then amended on 16 December 2011. The statement of claim alleged that Ms Fu retained Mr Carmody's firm to undertake the defence of certain proceedings and to prosecute certain proceedings in the Supreme Court. Those costs agreements, pursuant to Pt 11 of the Legal Profession Act 1987, were tendered. Bills of costs in respect of that work were provided and it was accepted by Ms Fu that work was done pursuant to the retainer. The proceedings were somewhat complicated by the fact that Ms Fu at the time of the litigation, and for some little time thereafter, was in a relationship and gave evidence that much, though not all, of the communications with the solicitor were undertaken by her partner and that she was not aware of all the details of the litigation or the work done. 3In due course Ms Fu filed a defence. That defence, amongst other things, denied compliance with the relevant provisions of the Legal Profession Act 1987 in relation to the cost agreements, asserting that she had not signed the agreements and did not otherwise enter into them. She also denied that she had received the bills of costs tendered by Mr Carmody. She also asserted that Mr Carmody had represented his bill would be assessed and that, relying on this representation, Ms Fu did not have the bills assessed. It is alleged the bills were not assessed, the representation was misleading or deceptive under the Fair Trading Act 1987 and that she is entitled to relief by way of setting aside the agreement. Amounts were also alleged to have been owing by Mr Carmody for goods and services provided to him in the amount of $14,510.90 which Ms Fu claimed as a set-off, made up as follows - 2006 Retention of monies - 1/2 Meredith St Homebush $1,000 2006 Purchased for John's daughter Kiara's Toshiba Lap Top $4,050 5/08/2007 Eastcoast Business Equipment P/L Statement $6,050 5/08/2007 Eastcoast Business Equipment P/L Statement $943.80 6/08/2007 Eastcoast Business Equipment P/L Statement $2467.10 $14,510.90