Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fu v Carmody [2013] NSWCA 172 Hearing dates: 7 June 2013 Decision date: 07 June 2013 Before: Macfarlan JA at [1]; [9]; [10] and [11] Leeming JA at [8] Decision: (1) The application for leave to appeal is dismissed with costs. (2) The costs to which the respondent is entitled are assessed at the amount of $8,000. [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 - application for leave to appeal - no issue of principle Legislation Cited: Legal Profession Act 2004 Category: Procedural and other rulings Parties: Quen Fu (Applicant) John Edward Carmody trading as Carmody & Co Solicitors (Respondent) Representation: Counsel: C de Robilliard (Applicant) M Pesman (Respondent) Solicitors: Kent Attorneys (Applicant) John Carmody & Co Solicitors (Respondent) File Number(s): CA 2012/347360 Decision under appeal Jurisdiction: 9111 Citation: Fu v Carmody [2012] NSWSC 1362 Date of Decision: 2012-10-11 00:00:00 Before: Adams J File Number(s): 2012/164207 Judgment 1MACFARLAN JA: This is an application for leave to appeal against a judgment of Adams J, sitting in the Common Law Division of the Court, dismissing an appeal by Ms Quen Fu from a decision of the Local Court at Burwood. By that decision, the Local Court gave judgment for the present respondent, Mr John Carmody, a solicitor, in the amount of $48,566.50, representing professional costs, plus interest. 2Ms Fu's draft Notice of Appeal to this Court relies on two grounds. 3The first ground is: "His Honour failed to properly determine the Appellant's arguments based upon the Appellant's common law rights which arguably remain independently of the provisions of the Legal Profession Act 2004". 4This appears to be a reference to an argument dealt with by Adams J that Ms Fu had a right to prevent Mr Carmody suing for his professional fees prior to the assessment of his bill of costs. Adams J held that Ms Fu had no such right, either under statute or at common law. In particular, he held that even if s 355 of the Legal Profession Act 2004 were otherwise applicable, it did not assist Ms Fu because she did not apply for assessment of Mr Carmody's bill within 12 months of him delivering it to her. The magistrate, on discretionary grounds, rejected Ms Fu's application for a stay of proceedings until assessment occurred. Adams J discerned no error in the magistrate's decision and none has been identified in this Court. 5The second ground in Ms Fu's draft Notice of Appeal complains, on the basis of solicitor-client privilege, of Mr Carmody's reliance in the Local Court on a statement of Ms Fu's assets and liabilities prepared by her. The affidavit to which this document was annexed was read in the Local Court without objection by Ms Fu and no argument was put either to the Local Court or to Adams J that Mr Carmody's reliance upon the document was impermissible. Any privilege that was applicable was therefore clearly waived and the ground could not form a basis for a grant of leave to appeal to this Court. 6Ms Fu's Summary of Argument raises other matters that are not the subject of proposed grounds of appeal. However, none of them has any merit. The principal argument is a contention that the magistrate erred in finding that Mr Carmody's bill was properly served and in his finding as to the date upon which it was served. These are purely factual issues not warranting a grant of leave to appeal, particularly as no reason to doubt their correctness has been shown. 7In my view, no issue of principle is raised by Ms Fu's application for leave to appeal and none of her arguments in support of it or in her draft Notice of Appeal have any merit. In these circumstances, the application for leave to appeal should be dismissed with costs. 8LEEMING JA: I agree. 9MACFARLAN JA: The order of the Court is that the application for leave to appeal is dismissed with costs. [Discussion with counsel then ensued] 10MACFARLAN JA: The Court further orders that the costs to which the respondent is entitled are assessed at the amount of $8,000. [Counsel for the applicant then requested the Court to explain why his client did not have the common law right, for which she contended, to have the respondent's bill assessed] 11MACFARLAN JA: You haven't provided any basis for the existence of that right, Mr de Robilliard, but even if one assumes it exists, you haven't pointed to any rule or law which would inhibit or impair Mr Carmody's right to sue for his fees pending assessment. The magistrate apparently entertained an application for a stay, which is available on a discretionary basis, and in his or her discretion decided not to order a stay. That meant that the action for recovery of the fees was able to proceed, as it did. Each party, as I understood it, recognised that it was open to your client to dispute the amount of the fees in those proceedings in the Local Court, but there was no dispute of any significance that occurred and not surprisingly the magistrate found that Mr Carmody's entitlement to the fees had been proved. [Following further discussion the Court declined to make an order sought by MR DE ROBILLIARD CONCERNING AN UNDERTAKING GIVEN TO THE FEDERAL MAGISTRATE'S COURT] ********** 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: 12 June 2013