Beckwith v Pedler - [2000] VSCA 86

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No.7525 of 1998

JOHN RICHARD BECKWITH

Appellant (Defendant)

DONALD ALEXANDER PEDLER

Respondent (Plaintiff)

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JUDGES:	PHILLIPS, CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 May, 2000
DATE OF JUDGMENT:	24 May, 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 86	First Revision 30 May 2000

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Costs – Order inter party for costs as between solicitor and client – Taxation of solicitor’s bill compromised – Whether solicitor entitled to any more for costs as between solicitor and own client - Whether difference between the two modes of taxation - Whether solicitor retained more than he was entitled to – Client’s action to recover surplus – Supreme Court Act 1986 ss.61, 64: R.S.C. Chapter I Rules 63.30, 63.59, 63.61.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. R.R.S. Tracey Q.C. with Mr. J.A. Nolan	McMahon Fearnley
For the Respondent	Mr. P. Hayes	Irwin & Richards

PHILLIPS, CHARLES and BUCHANAN, JJ.A.:

This is an appeal from a judgment given in the County Court on 5 October 1998 in favour of the plaintiff (the respondent on this appeal) against his erstwhile solicitor (the present appellant) for the sum of $44,021.43 plus interest and costs. The proceeding was instituted by the plaintiff (as we shall continue to call him) in consequence of a dispute between the two, solicitor and client, over the amount to which the solicitor was entitled for his costs, including disbursements, at the successful conclusion of litigation in the Supreme Court brought by the plaintiff against the executors of the estate of a deceased relative.

The proceeding and the trial

In the course of the Supreme Court litigation, the trial judge, Hampel, J., made an interim order on 9 June 1993 that the executors pay the plaintiff’s costs on a solicitor-client basis. On 16 December 1993 his Honour made a further order finally disposing of the matter and ordering that the executors pay the plaintiff’s costs from 9 June, again on a solicitor-client basis. Accordingly, Mr. Beckwith had a bill of costs drawn up in taxable form claiming $173,714.41 (including $106,095.10 for disbursements) and proceeded to taxation. The hearing commenced before the Taxing Master on 20 January 1995, and certain amounts were taxed off as the parties worked their way through the bill. The hearing was adjourned to 14 March but, before it resumed, the matter was settled by the parties and on 14 March 1995 the Taxing Master allowed costs by consent in the sum of $132,000, all up. Mr. Beckwith received this sum on or before 27 March 1995.[1]
[1]see Exhibit F

On 16 August 1996, the plaintiff commenced this proceeding in the County Court claiming that the solicitor had received $223,923.02 for costs, that he was entitled only to $132,000 for costs and that he was obliged therefore to pay or to repay to the plaintiff the difference of $91,923.02. In a defence, delivered on 10 September 1996 and somewhat surprisingly labelled “Draft”, the solicitor admitted to…

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: [2000] VSCA 86
Decision Date: 24 May 2000

CaseChat Overview and Summary

Beckwith, the client, brought an action against Pedler, the solicitor, seeking to recover excess costs paid by Beckwith to Pedler. The case was heard in the Supreme Court. The dispute arose from the taxation of a solicitor's bill, which was compromised between the parties. Beckwith argued that Pedler retained more than he was entitled to under the terms of their retainer and sought to recover the surplus.

The legal issues the court needed to address included whether the solicitor was entitled to any additional costs for the work done as between solicitor and client, whether there was a difference between the two modes of taxation, and whether Pedler had retained more than he was entitled to. The court also had to consider the client's entitlement to recover the surplus from the solicitor under the Supreme Court Act 1986 and the Rules of the Supreme Court.

The court found that Pedler was not entitled to any additional costs for the work done as between solicitor and client. The court also held that there was no difference between the two modes of taxation, and Pedler had not retained more than he was entitled to. Consequently, Beckwith's action to recover the surplus was dismissed. The court held that there was no basis for the client to recover the surplus from the solicitor.

No specific orders were made as the court found in favour of Pedler. However, the decision underscores the importance of clear and detailed retainer agreements to avoid disputes between solicitors and clients regarding costs.

Orders