Willsam Pty Ltd trading as Moruya Mowers and Pumps v Mervyn Hugh Sher trading as Mervyn Hugh Sher Advisory

1. [1]

   On 29 March 2025, Mervyn Hugh Sher trading as Mervyn Hugh Sher Advisory (“the defendant”) filed a Statement of Claim in the Small Claims Division of Batemans Bay Local Court seeking relief in the amount of $7,192.25 from Willsam Pty Ltd trading as Moruya Mowers and Pumps (ACN 109 191 728) (“the plaintiff”), in respect of an unpaid invoice following the provision of services from the defendant to the plaintiff (“the Local Court proceedings”).

2. [2]

   By a Summons filed on 8 July 2025, the plaintiff brought an application under s 140 of the Civil Procedure Act 2005 (NSW) (“CPA”) to transfer the Local Court proceedings to this Court. The plaintiff also sought that, pursuant to s 142 of the CPA, the Local Court proceedings be stayed.

BACKGROUND

1. [3]

   The defendant operates a “dispute resolution business”, Mervyn Hugh Sher Advisory, whereby he assists clients in the management of their disputes, in particular, with the local council. The defendant acts as power of attorney for clients, so that he can “stand in their shoes” and resolve their disputes on their behalf. In this role, the defendant often acts as a “debt collector” on behalf of clients.

2. [4]

   In the circumstances of this particular matter, the plaintiff engaged the defendant in relation to a debt recovery, where the plaintiff was the creditor and the Cobowra Local Aboriginal Land Council (“Cobowra LALC”) was the debtor.

3. [5]

   It is the defendant’s contention that he was instructed to act as the plaintiff’s power of attorney to recover a commercial debt which was owed to the plaintiff by Cobowra LALC. It is the contention of Mr Wilson (Director of the plaintiff), that he did not intend to sign a company power of attorney and was mistaken as to the effect of that document. However, these are not matters which I need to resolve for the purposes of the application before this Court.

4. [6]

   On 26 November 2024, the defendant commenced proceedings by Statement of Claim in the General Division of the Local Court at Batemans Bay (acting under the company power of attorney) in relation to the recovery of the debt from the Cobowra LALC. The defendant engaged with the Cobowra LALC and the New South Wales Local Aboriginal Land Council to try and resolve the matter between the plaintiff and the Cobowra LALC prior to trial.

5. [7]

   On 20 February 2025, the plaintiff instructed the defendant to discontinue the action against the Cobowra LALC, and the defendant filed a notice of discontinuance with the Local Court.

6. [8]

   On 22 February 2025, the defendant sent an invoice to the plaintiff requesting payment in relation to his fees and costs in respect of the services rendered to the plaintiff. On 25 February 2025, the plaintiff revoked the company power of attorney, backdating the revocation to 20 February 2025.

7. [9]

   The Local Court proceedings were commenced on 29 March 2025 as a result of the plaintiff’s failure to pay the defendant’s invoice.

8. [10]

   The plaintiff’s defence in the Local Court proceedings (“the defence”) pleaded, inter alia, the following in response to the defendant’s claim:

   1. (1)

      While the defendant provided limited assistance in relation to a debt recovery, the plaintiff did not receive a disclosure of professional fees or a signed costs agreement at the time of this engagement.

   2. (2)

      The defendant presented a power of attorney and other documents informally, without explanation or opportunity for review. The plaintiff signed these documents without being made aware that they constituted a binding legal engagement or that fees would be incurred.

   3. (3)

      The defendant is not a legal practitioner within the meaning of the Legal Profession Uniform Law 2014 (NSW) (“Uniform Law”). Accordingly, the defendant is not entitled to recover fees for any services that constitute “legal work” under the Uniform Law. To the extent that “legal work” was performed by the defendant, the defendant’s fees are not legally recoverable.

   4. (4)

      The defendant’s invoice includes charges for work allegedly performed both before any formal engagement, and after the defendant’s authority had been revoked. These charges were not approved.

   5. (5)

      While the plaintiff does not deny that some time was spent by the defendant in assisting with preliminary correspondence, the amount claimed by the defendant is excessive, was not agreed to and is not supported by contemporaneous authorisation or documentation.

9. [11]

   The affidavit of Mr Wilson dated 15 August 2025 annexed a proposed draft defence and “counterclaim”. However, on the evidence before this Court, neither an amended defence or cross claim have been filed in the Local Court proceedings.

10. [12]

    Lastly, the plaintiff has not made any application to transfer the proceedings from the Small Claims Division to the General Division of the Local Court. A transfer of this kind is permitted where the Court is of the opinion that the matters in dispute are so complex or difficult, or are of such importance, that the proceedings ought more properly to be heard in the Court's General Division: r 2.3(1) Local Court Rules 2009 (NSW) (“LCR”).

11. [13]

    In oral submissions, it was apparent that the defendant would not oppose a transfer of the proceedings from the Small Claims Division to the General Division of the Local Court.

12. [14]

    Between 2023 and 2024, the Law Society of New South Wales (“the Law Society”), as the entity responsible for investigating queries and allegations about persons and entities who may have contravened the Uniform Law, investigated an allegation that the defendant may have represented that he is entitled to engage in legal practice, contrary to ss 11(1)-(2) of the Uniform Law.

13. [15]

    The Law Society was concerned with the defendant’s logo containing the words “Advocacy Agency Attorney” and noted that using the word “Attorney” may represent an entitlement to engage in legal practice.

14. [16]

    However, pursuant to a letter from the Law Society to Mr Mervyn Hugh Sher (“Mr Sher”) dated 24 September 2024, the Law Society stated that they did not propose to take any further action on this occasion.

POSITION OF THE PARTIES

1. [17]

   The plaintiffs’ submissions were, in summary, as follows:

   1. (1)

      The transfer is sought to enable the plaintiff to seek relief against the defendant which is not available in the Local Court. In this respect, the plaintiff foreshadowed an application for an injunction to restrain the defendant breaching ss 10 and 11 of the Uniform Law. Those provisions of the Uniform Law are as follows:

   2. (2)

      The specific conduct complained of, in relation to Mr Sher’s business activities, was as follows:

   3. (3)

      Without elaboration, it was contended that it remains open for the plaintiff, or any other of Mr Sher’s clients, to seek injunctive relief to restrain contraventions of the Uniform Law, as a matter of right. The plaintiff noted that “[t]here is precedent for the relief that [the plaintiff] anticipates seeking”, although, it is unclear what precedent the plaintiff was referring to, as the Court was not apprised of the relevant cases in this regard.

   4. (4)

      The allegations made against the defendant are complex and important issues, involving allegations of significant public notoriety or public importance. Accordingly, the Supreme Court is the appropriate forum for those issues to be litigated.

   5. (5)

      The procedures available in the Small Claims Division do not lend themselves easily, if at all, to a fair determination of the issues, which would require the Local Court to make findings on the proper interpretation of significant and widely used provisions of the Uniform Law.

   6. (6)

      The resources of the Local Court would be unfairly consumed, to the detriment of the usual business of that Court, if the matter were to remain in the Local Court. The basis for this submission was the assumption that the Local Court proceedings would require a multi-day hearing and detailed written reasons.

   7. (7)

      The plaintiff implied that it would not be appropriate for the Local Court to deal with the issues of interpretation which arise with respect to the Uniform Law, and the Supreme Court is best placed to deal with the interpretation of statute.

   8. (8)

      As the interests of the administration of justice for all potential clients of legal practices in NSW are in issue, the Supreme Court is the appropriate forum for the determination of the Local Court proceedings.

2. [18]

   The plaintiff made no written or oral submissions in relation to its application to stay the Local Court proceedings, and it is not self-evident why a stay would be sought or required in circumstances where the Local Court proceedings were to be transferred to this Court.

3. [19]

   The defendants’ submissions were, in summary, as follows:

   1. (1)

      The matter currently before the Local Court is straightforward, being an action against the plaintiff to recover unpaid fees and costs. The defendant notes that, “[i]n short, I am suing the [plaintiff] because he will not pay me for the work that he asked me to do.”

   2. (2)

      The Local Court is perfectly capable of dealing with the defendant’s unpaid bill in the sum of $7,192.25 as well as the plaintiff’s draft counterclaim of $1,000.

   3. (3)

      The defendant has neither the financial resources nor the appetite to pursue litigation in the Supreme Court.

   4. (4)

      The defendant saliently refutes every allegation made against him. The Law Society of New South Wales has been investigating the defendant for some time, and thus, the matters which the plaintiff complains of have already been the subject of inquiry by the body charged by legislation with that duty.

LEGAL PRINCIPLES

1. [20]

   Pursuant to subs 140(1) of the CPA, this Court may, of its own motion or on application by a party to proceedings before the Local Court, order that the proceedings before the Local Court be transferred to this Court. Relevantly, proceedings in the Local Court are not to be transferred to a higher court under s 140 of the CPA unless the higher court is satisfied that there is sufficient reason for hearing the proceedings in the higher court.

2. [21]

   The power to transfer the Local Court proceedings to this Court under s 140(1) of the CPA is discretionary. An order may be made where the court considers that removal of the proceedings is appropriate, in the light of the particular circumstances of the proceedings and the matters in issue: TH Drake & Associates Pty Ltd v Safaei [2022] NSWSC 1008 at [17] (per Walton J).

3. [22]

   The relevant principles which inform the court’s discretion were summarised in TH Drake & Associates Pty Ltd v Safaei [2022] NSWSC 1008 at [17] (per Walton J) as follows:

4. [23]

   Further, and relevant to the particular circumstances of this matter, the jurisdictional limit of the Small Claims Division of the Local Court is $20,000, and the jurisdictional limit of the General Division of the Local Court (for a claim of this nature) is $100,000: subs 29(1) of the Local Court Act 2007 (NSW) (“LCA”).

5. [24]

   Section 35 of the LCA sets out further rules around the procedure generally in the Small Claims Division. Relevantly, the section provides that proceedings in the Small Claims Division are to be conducted with as little formality and technicality as the proper consideration of the matter permits and the rules of evidence do not apply: s 35(2)-(3) of the LCA.

6. [25]

   As to the Local Court’s power to award costs when sitting in its Small Claims Division, the maximum amount that may be awarded by the Local Court for a claim between $5,000 and $20,000, where judgment is given after a trial of proceedings, is $1,259.20 [1] : r 2.9(2)-(3) of the LCR; Sch 1 Pt 3 No 3-4 of the Legal Profession Uniform Law Application Regulation 2015 (NSW).

CONSIDERATION

1. [26]

   In my view, the Court should refuse to transfer the Local Court proceedings to this Court, for the following reasons.

2. [27]

   The Local Court proceedings consist of a defended claim for a small debt which, by way of quantum and character, fits quintessentially within the jurisdiction of the Small Claims Division of the Local Court. The debt claimed by the defendant is under 50% of the jurisdictional limit of that Division.

3. [28]

   The plaintiff sought to overcome that obvious difficulty in achieving a transfer of the Local Court proceedings by placing reliance upon what was said to be matters of “significant notoriety” and “public importance”, arising out of the notion that the defendant had acted in contravention of the Uniform Law. There are numerous reasons, which I articulate below, as to why that proposition does not form an appropriate basis for the transfer sought:

   1. (1)

      Whilst it is contended that the defendant was in breach of the Uniform Law, in acting for the plaintiff in debt recovery proceedings against the Cobowra LALC, that proposition is not consistently argued in the defence.

   2. (2)

      In the defence, the proposition that the defendant is not entitled to recover fees for any services that constitute “legal work” under the Uniform Law, is conditioned in two respects. The first condition in the defence was that the bar operated only to the extent that the defendant was engaged in “legal work”. Secondly, the plaintiff did not deny that “some time was spent by the [defendant] in assisting with preliminary correspondence” (presumably meaning work), notwithstanding that the plaintiff described the claim, in that respect, as excessive, that the work was not agreed to and that the work was not supported by contemporaneous authorisation. In other words, the pleading contemplated that there was at least some portion of the defendant’s work which was not “legal work”, and which was actually performed by the defendant in or in connection with the recovery of the debt of Cobowra LALC.

   3. (3)

      Whilst the issue raised (both in this Court and in the defence) concerning the Uniform Law was contended to be a matter of “public importance”, presumably meaning the matter was of general importance, it is not at all clear why the issues raised rise above a consideration of the idiosyncratic arrangements engaged in by the defendant.

   4. (4)

      The plaintiff’s submissions, with respect to the Uniform Law, proceeded upon the basis that those issues are not properly amendable to consideration by the Local Court. Local Court magistrates are well accustomed to, and equipped to, deal with the construction of statutes, even in matters which involve some degree of complexity (although it should not be assumed by that statement that the issues raised in the Local Court proceedings are necessarily complex).

   5. (5)

      In my view, the question raised by the plaintiff as to the Uniform Law is properly amenable to consideration in the General Division of the Local Court. Yet no application has been made by the plaintiff to move the proceedings to that Division, and the defendant does not oppose such a course.

   6. (6)

      The plaintiff also placed reliance upon the workload of the General Division of the Local Court, it being contended that the matter would occupy too much time in the busy list of the Local Court. I do not accept that that submission represents a proper basis to support the transfer application for a number of reasons. First, it seems to assume that the ventilation of the issues raised in the defence would necessarily involve a considerable amount of time in a defended hearing. There is no proper foundation for that proposition. Secondly, the Local Court is, by its nature, a busy court which discharges its work, in that respect, with expedition and aplomb. Thirdly, it seems to assume that this Court is not itself a busy court whose resources are being consistently taxed.

   7. (7)

      There are some parts of the arrangements entered into by the defendant which may raise concerns under the Uniform Law. For example, as concerned the Law Society, the defendant’s use of the word “Attorney” in his business practices may represent an entitlement to engage in legal practice in contravention of s 11 of the Uniform Law. However, the plaintiff’s propositions, in this respect, are not beyond dispute. Notably, after investigating an allegation with respect to the defendant, the Law Society took no steps to restrain or prohibit the defendant’s conduct in the manner which the plaintiff now seeks to.

   8. (8)

      It is not apparent, and was not made apparent in written or oral submissions, how the plaintiff has standing to seek injunctive relief in relation to a contravention of the Uniform Law. Section 14 of the Uniform Law provides that the “local regulatory authority” may investigate the conduct of any entity (whether or not an Australian lawyer) and may institute prosecution and other proceedings for the contravention of a provision of Pt 2.1 of the Uniform Law. It would seem inconsistent with the legislative scheme that any regular person could seek an injunction, with broad application extending beyond the relationship between two or more defined parties, based on a contravention of the Uniform Law. There must also be a real question of standing in that respect.

   9. (9)

      The aforementioned consideration should not be taken as excluding any examination of the conduct of the defendant that falls within the remit of the Law Society under the Uniform Law. It may well be that the Law Society may decide to embark upon such an assessment outside the scope of the Local Court proceedings per se.

4. [29]

   As mentioned earlier, the relief claimed by the plaintiff also included a stay of the Local Court proceedings. Whilst the plaintiff did not address the question in terms, it is apparent from the form of the order that the precondition for the granting of the stay was that the Court ordered the transfer of the Local Court proceedings to this Court. As no such order will be made, it follows that the application for a stay of the Local Court proceedings must fail. In any event, no submissions were advanced by the plaintiff in support of this relief.

5. [30]

   The third relief claimed by the plaintiff concerned various procedural orders in the Local Court but, again, the granting of such relief was contingent, in my view, on the Local Court proceedings being brought into this Court so that the matter may be properly listed before this Court.

6. [31]

   The fourth and fifth claims for relief in the Summons concerned costs. Given the conclusion reached by the Court, it is not appropriate that any costs orders be made in favour of the plaintiff. The defendant was not legally represented. No order for costs will be made in his favour.

ORDERS

1. [32]

   The Court makes the following orders:

   1. (1)

      The Summons is dismissed.

   2. (2)

      No order as to costs.