AJH Lawyers Pty Ltd v Hamo - [2010] VSC 225

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. 10409 of 2009

AJH LAWYERS PTY LTD	Appellant
v
BASIM HAMO	Respondent

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2010
DATE OF JUDGMENT:	31 May 2010
CASE MAY BE CITED AS:	AJH Lawyers Pty Ltd v Hamo
JUDGMENT APPEALED FROM:	Magistrates’ Court (Braun M, 29 October 2009)
MEDIUM NEUTRAL CITATION:	[2010] VSC 225

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APPEAL FROM MAGISTRATES’ COURT ON A QUESTION OF LAW – Legal practitioners – Claim for professional costs – Magistrates’ Court arbitration – Whether legal practitioners were negligent – Whether work valueless – Whether decision open on the evidence – Magistrates’ Court Act 1989, ss 103 and 109 – Magistrates’ Court Civil Procedure Rules 2009, rules 9.02, 21.03 and 21.04.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D.G. Robertson	AJH Lawyers
For the Respondent	In person

HIS HONOUR:

Introduction

AJH Lawyers Pty Ltd, the appellant, is an incorporated legal practice. Mr Basim Hamo, the respondent, is one of its former clients.

On 15 July 2009, AJH sued Mr Hamo in the Magistrates’ Court to recover $7,555.45, which it alleged Mr Hamo owed it in relation to legal services provided by it. The matter was heard by Braun M on 28 and 29 October 2009.

On 29 October 2009, Braun M dismissed AJH’s claim. In dismissing the proceeding, his Honour upheld a submission by Mr Hamo that in acting for him in one of the matters in which it was retained, AJH was negligent.

AJH now appeals to this Court against the Magistrate’s decision. It brings the appeal under s 109 of the Magistrates’ Court Act 1989, which provides for an appeal on a question of law only. For the reasons given below, AJH’s appeal will be dismissed.

The proceeding below

Mr Hamo retained AJH to act on behalf of his company, OTCO Global Pty Ltd. There were four matters in respect of which AJH was retained. The matters were described below as:

(a)“the printers press matter”;
(b)“the haystack matter”;
(c)“the furnace matter”; and
(d)“the Campbell matter”.

The furnace matter was a proceeding in this Court brought by The Melbourne Furnace Pty Ltd against OTCO, seeking to have OTCO wound up. It is not necessary to describe the other three proceedings.

At the commencement of the trial, AJH was given leave to amend its claim to an amount of $7,905.45. The amounts claimed in respect of each proceeding were as follows:

(a)The printers press matter- $ 731.80.
(b)The haystack matter -         $     44.00.
(c)The furnace matter -           $6,821.65.
(d)The Campbell matter -       $   308.00.

Mr Hamo’s defence was set out in a statement of defence as follows:

“1-The plaintiff gave me as the former director of OTCO Global Pty Ltd a negligent advice on 12 March 2009.
They advised that the winding up application and ASIC notice were misfounded, misconceived and were not likely to succeed. See attachment.
2-The plaintiff’s solicitor (Mr Alex…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] VSC 225
Decision Date: 31 May 2010

CaseChat Overview and Summary

AJH Lawyers Pty Ltd sought to recover professional costs from Mr Hamo, who had engaged their services, through an appeal from the Magistrates’ Court of Victoria. The Magistrates’ Court had dismissed the firm’s claim for costs, finding that their work was valueless, and that they had been negligent in their handling of the case. AJH Lawyers sought to overturn this decision, arguing that the Magistrates’ Court had erred in its assessment of the value of their work and in its conclusion that they had been negligent.

The key legal issues before the court were whether the Magistrates’ Court was correct in finding that AJH Lawyers were negligent, and whether the Magistrates’ Court’s finding that the work was valueless was open on the evidence. The court had to consider the evidence presented to the Magistrates’ Court, as well as the relevant statutory and rule provisions governing the recovery of costs in the Magistrates’ Court.

The court found that the Magistrates’ Court had erred in its assessment of the value of the work performed by AJH Lawyers, and in its conclusion that they had been negligent. The court held that the Magistrates’ Court had not properly considered the evidence before it, and that the decision was not open on the evidence. The court found that the work performed by AJH Lawyers was not valueless, and that they had not been negligent in their handling of the case. The appeal was therefore allowed, and the matter was remitted to the Magistrates’ Court for reconsideration in light of the court’s findings.

The final orders of the court were that the appeal be allowed, and that the matter be remitted to the Magistrates’ Court for reconsideration. The court also made orders as to costs, including that AJH Lawyers recover their costs of the appeal from Mr Hamo.

Orders