Baynes & Anor v Kalyk [2003] NSWSC 607

Baynes & Anor v Kalyk [2003] NSWSC 607

Where a solicitor fails to make required disclosure regarding legal costs under the Legal Profession Act 1987, s 182 prevents either an obligation on the client to pay or the maintenance of proceedings for recovery of costs, including on a quantum meruit basis, until an assessment is undertaken. The absence of express words forbidding commencement of proceedings does not matter; the action cannot be maintained and is liable to be struck out as disclosing no reasonable cause of action.

Parties
Plaintiff: Christopher Baynes; Plaintiff: Jill Baynes; Defendant: Frank G Kalyk
Jurisdiction
Australia
Judgment Date
04 July 2003
Procedural Posture
Appeal / Judgment Granting Leave and Allowing Appeal
Outcome
Appeal allowed. Leave granted.
Legal Topics
Costs Recovery, Disclosure by Solicitors, Quantum Meruit, Striking Out Pleadings
Legal Profession Civil Procedure Costs Recovery Disclosure by Solicitors Quantum Meruit Striking Out Pleadings

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2
Sign in to unlock

Parties

Christopher Baynes

Plaintiff

Jill Baynes

Plaintiff

Frank G Kalyk

Defendant

Procedural Posture

Appeal / Judgment Granting Leave and Allowing Appeal

Legal Issues

  1. 1 Whether failure to disclose costs by solicitor bars recovery of costs absent assessment under the Legal Profession Act 1987
  2. 2 Whether proceedings to recover costs can be maintained without statutory disclosure and assessment
  3. 3 Applicability of s 182 Legal Profession Act to quantum meruit claims

Ratio Decidendi

Where a solicitor fails to make required disclosure regarding legal costs under the Legal Profession Act 1987, s 182 prevents either an obligation on the client to pay or the maintenance of proceedings for recovery of costs, including on a quantum meruit basis, until an assessment is undertaken. The absence of express words forbidding commencement of proceedings does not matter; the action cannot be maintained and is liable to be struck out as disclosing no reasonable cause of action.

Court Disposition

Appeal allowed. Leave granted.

Orders

  • Order made on 18 February 2003 set aside.
  • Any order as to costs of the motion is also set aside.