Dupree v Russo t/as Russo & Partners [2016] NSWLC 8

Local Court New South Wales

Medium Neutral Citation: Dupree v Russo t/as Russo & Partners [2016] NSWLC 8 Hearing dates: 6 April 2016 Decision date: 13 May 2016 Jurisdiction: Civil Before: Assessor Olischlager - Small Claims Division Decision: Verdict for the defendant. Plaintiff to pay defendant's costs of $729 within 28 days. Catchwords: CIVIL PROCEEDINGS - statute of limitations - part payment of debt - acknowledgement of debt - legal profession - contract Legislation Cited: Legal Profession Act 2004, ss 309, 310, 315, 321 Limitation Act 1969, ss 14, 54 Limitation of Actions Act 1958 (Vic), s 24 Cases Cited: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 Chethams v Remington & Co [1999] VSC 150 James Dupree v Salvatore Russo trading as Russo and Partners and Carlos Anuncibay (unreported, Local Court, 2 December 2015) Nunzio Berardi v Salvatore Russo t/as Russo & Partners [2015] NSWSC 1520 Surrendra Overseas Limited v Government of Sri Lanka (The Apjakash) [1977] 2 All ER 481 Category: Principal judgment Parties: James Dupree (plaintiff) Salvatore Rosso (defendant) Representation: Counsel: Mr Pullinger (for the plaintiff) Mr Eardley (for the defendant) File Number(s): 2015/90547 Publication restriction: None

Judgment 1. The plaintiff, Mr Dupree, is a barrister at law and sues Mr Russo, a solicitor, for legal fees incurred in proceedings in the Supreme Court involving Mr Russo's client, Mr Mura. 2. Mr Dupree states that on or about 29 April 2008 he entered into a costs agreement with both Mr Russo and Mr Mura, jointly and severally, to be retained to advise and appear in respect of the proceedings on behalf of Mr Mura. The offer of legal services is contained in a letter dated 29 April 2008 directed to Russo & Partners. The final paragraph of that letter states: "Your further instructions in the matter will constitute an acceptance of this offer by you and your client". 3. Mr Dupree states that he subsequently provided legal services based on instructions provided to him by Mr Russo. Mr Dupree attaches email communications between himself and Mr Russo's office in early May 2008 as evidence of the provision of instructions. 4. On 19 May 2008 Mr Dupree sent to Mr Russo his memorandum of fees seeking payment of the sum of $5,775.00 for the legal services provided. 5. On 26 May 2008 an employee of Mr Russo forwarded an email seeking confirmation of the amount on the invoice. A further email from Mr Russo's employee dated 28 July 2008 states: "Sal said that Mario Mura has paid you $2500 direct – can you confirm this?" 6. Mr Dupree responded stating no payment had been received. On 19 September 2008 Mr Dupree made a further inquiry as to when Mr Russo's client would be making payment. 7. On 31 March 2010 Mr Russo forwarded to Mr Dupree a draft statement of claim naming Mr Dupree as the plaintiff and Mr Russo as the defendant pleading the recovery of the legal cost of $5775.00 related to these proceedings. The covering email from Russo Partners to Mr Dupree states "Please find enclosed Statement of Claim for settling". 8. Despite the peculiarity of a solicitor apparently drafting a statement of claim against himself, the statement of claim was not filed at that time. 9. On 3 June 2010 the bookkeeper employed by Mr Russo emailed Mr Dupree stating "Mura has deposited $500 into the Trust Account today. When these funds are clear we'll organize the transfer." On 16 June 2010 the employee of Mr Russo emailed Mr Dupree to confirm payment of $500 being banked into Mr Dupree's account. 10. No further payments were made to Mr Dupree. On 2 May 2012 a spreadsheet referred to as a summary reconciliation listing numerous clients including Mr Mura showing a balance of $5275 was forwarded to Mr Dupree by email from Mr Russo's employee. 11. A further email dated 23 May 2013 referring to the reconciliation states "There were a number of accounts that were on the list that Sal believes are unrecoverable." 12. Mr Dupree subsequently commenced these proceedings seeking to recover the balance due of $5275 against Mr Russo by statement of claim filed in the Local Court on 25 March 2015. 13. Mr Russo disputes liability on three grounds: 1. Firstly, that he is not personally liable for payment of Mr Dupree's fees. 2. Secondly, that Mr Dupree has failed to comply with his obligations to disclose costs under the Legal Profession Act 2004, and 3. Thirdly, that Mr Dupree is statute barred from commencing these proceedings.