Desanges v Johnson [2006] NSWSC 106

Desanges v Johnson [2006] NSWSC 106

The appeal failed because there was evidence upon which the Magistrate could find that a costs agreement existed and that the memorandum of costs was sent to Desanges, the ordinary civil standard of proof applied, no denial of procedural fairness was established because Desanges had notice and opportunities to participate and seek time for submissions, and the Magistrate was entitled in the exercise of discretion to award interest from 10 May 2000 under s 39A of the Local Court (Civil Claims) Act 1970 (NSW).

Jurisdiction
Australia
Judgment Date
06 March 2006
Procedural Posture
Appeal From Local Court Decision Concerning Legal Fees and Costs Agreement / Supreme Court Appeal From Local Court Judgment; Extension of Time Granted; Appeal Dismissed
Outcome
Appeal dismissed; Local Court judgment and orders affirmed; amended summons dismissed; plaintiff to pay defendant's costs as agreed or assessed.
Legal Topics
['appeal From Local Court' 'costs Agreement' 'legal Fees' 'procedural Fairness' 'interest on Judgment']
['civil Procedure' 'legal Profession' 'costs'] ['appeal From Local Court' 'costs Agreement' 'legal Fees' 'procedural Fairness' 'interest on Judgment']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal From Local Court Decision Concerning Legal Fees and Costs Agreement / Supreme Court Appeal From Local Court Judgment; Extension of Time Granted; Appeal Dismissed

Legal Issues

  1. 1 ['Whether the Magistrate erred in finding that there was a costs agreement between Desanges and Johnson.' 'Whether Johnson failed to comply with the Legal Profession Act 1987 (NSW), including s 182(2).' 'Whether there was evidence of service of the memorandum of fees on Desanges before proceedings commenced.' 'Whether Desanges was denied procedural fairness in the Local Court proceedings.' 'Whether the Magistrate erred in awarding interest under s 39A of the Local Court (Civil Claims) Act 1970 (NSW).']

Ratio Decidendi

The appeal failed because there was evidence upon which the Magistrate could find that a costs agreement existed and that the memorandum of costs was sent to Desanges, the ordinary civil standard of proof applied, no denial of procedural fairness was established because Desanges had notice and opportunities to participate and seek time for submissions, and the Magistrate was entitled in the exercise of discretion to award interest from 10 May 2000 under s 39A of the Local Court (Civil Claims) Act 1970 (NSW).

Court Disposition

Appeal dismissed; Local Court judgment and orders affirmed; amended summons dismissed; plaintiff to pay defendant's costs as agreed or assessed.

Orders

  • ['The appeal is dismissed.' 'The judgment and orders of the Magistrate dated 3 April 2003 are affirmed.' 'The amended summons dated 27 August 2004 is dismissed.' "The plaintiff is to pay the defendant's costs as agreed or assessed."]