ALMAN -v- MACDONALD RUDDER [2001] WASC 65

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 65
Case No:	CIV:2245/2000	Heard:	22 FEBRUARY 2001
Coram:	WHEELER J	Delivered:	16/03/01
No of pages:	13	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	WARREN STANLEY ALMAN MACDONALD RUDDER
Catchwords:	Costs Written agreement Unreasonableness Statutory discretion to cancel agreement Law Society of Western Australia Litigation Retainer Agreement 1992 Standard of professional conduct Disclosure and explanation to client of costs agreement Costs Written agreement Unreasonableness Circumstances surrounding entry into costs agreement Fairness Costs Written agreement Settlement of court proceedings for entitlement to costs Taxation
Legislation:	Legal Practitioners Act 1893 (WA) s 59
Case References:	Barfield v Friedman & Lurie, unreported; SCt of WA; Library No 970441; 5 September 1997 Brown v Talbot & Olivier (1993) 9 WAR 70 Harrison v Hocking [2000] WASC 188 Jovetic v Stoddart & Co (1992) 7 WAR 208 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Dissidomino v Mossensons, unreported; SCt of WA; Library No 990019; 22 January 1999 Stobbart v Mocnaj & Ors [1999] WASC 252

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : ALMAN -v- MACDONALD RUDDER [2001] WASC 65 CORAM : WHEELER J HEARD : 22 FEBRUARY 2001 DELIVERED : 16 MARCH 2001 FILE NO/S : CIV 2245 of 2000 BETWEEN : WARREN STANLEY ALMAN

Plaintiff

AND

MACDONALD RUDDER

Defendant

Catchwords:

Costs - Written agreement - Unreasonableness - Statutory discretion to cancel agreement - Law Society of Western Australia Litigation Retainer Agreement 1992 - Standard of professional conduct - Disclosure and explanation to client of costs agreement

Costs - Written agreement - Unreasonableness - Circumstances surrounding entry into costs agreement - Fairness

Costs - Written agreement - Settlement of court proceedings for entitlement to costs - Taxation

Legislation:

Legal Practitioners Act 1893 (WA) s 59

(Page 2)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff : Mr S V Forbes

Defendant : Mr I A Morison

Solicitors:

Plaintiff : Paiker & Overmeire

Defendant : Macdonald Rudder

Case(s) referred to in judgment(s):

Barfield v Friedman & Lurie, unreported; SCt of WA; Library No 970441; 5 September 1997
Brown v Talbot & Olivier (1993) 9 WAR 70
Harrison v Hocking [2000] WASC 188
Jovetic v Stoddart & Co (1992) 7 WAR 208
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Case(s) also cited:

Dissidomino v Mossensons, unreported; SCt of WA; Library No 990019; 22 January 1999
Stobbart v Mocnaj & Ors [1999] WASC 252

(Page 3)

WHEELER J

The Application

1 The plaintiff, who I will call "the client" seeks review of a costs agreement pursuant to s 59 of the Legal Practitioners Act, or certain alternative relief. The background to the matter is that the client suffered an accident on 23 June 1993 in circumstances suggesting that he might have a claim for damages. He consulted the defendant ("the firm"). The circumstances of his entering into a written retainer agreement are the…

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.

Continue reading Alman v Macdonald Rudder

Details

AGLC: Alman v Macdonald Rudder [2001] WASC 65
Case: [2001] WASC 65
Decision Date

CaseChat Overview and Summary

In the matter of Alman v Macdonald Rudder, the Supreme Court of Western Australia was tasked with determining whether a costs agreement between a client and a law firm was unreasonable and could be set aside. The plaintiff, Warren Stanley Alman, sought to challenge a written costs agreement made with the defendant law firm, Macdonald Rudder, under section 59 of the Legal Practitioners Act 1893 (WA). The court was required to consider the circumstances under which the agreement was entered into, the disclosure and explanation provided to the client, the reasonableness of the agreement, and the effect of a prior settlement agreement on the current application. The court found that while the costs agreement might arguably be unreasonable in its effect on the client, the client had entered into a compromise agreement with the firm, which appeared to settle the issue of the costs agreement. The court concluded that it would be unfair to the firm to now set aside the costs agreement, despite its potential unreasonableness, as the firm had conceded a right in the course of the compromise agreement. Therefore, the court dismissed the client's application to set aside the costs agreement.

Orders