Berry v Haynes Robinson
[2009] WASCA 41
•17 FEBRUARY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BERRY -v- HAYNES ROBINSON [2009] WASCA 41
CORAM: PULLIN JA
BUSS JA
HEARD: 5 DECEMBER 2008
DELIVERED : 17 FEBRUARY 2009
FILE NO/S: CACV 35 of 2008
BETWEEN: ELSPETH BERRY
Appellant
AND
HAYNES ROBINSON
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
Citation :ROBINSON -v- BERRY [2008] WADC 44
File No :CIV 5 of 2006
Catchwords:
Solicitor and client - Solicitor terminated retainer - Claim by solicitor for fees - Counterclaim by client for damages - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr M F Holler
Solicitors:
Appellant: In person
Respondent: Haynes Robinson
Case(s) referred to in judgment(s):
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
PULLIN JA: I agree with Buss JA.
BUSS JA: On 30 January 2003, the appellant (Mrs Berry) signed a contract to sell her home at 77 Adelaide Crescent, Middleton Beach in Albany. The due date for settlement stated in the contract was 28 March 2003.
It was a condition of the contract that, relevantly, a report be obtained within the period specified in the contract from a recognised and reputable pest control company, certifying that all structural improvements on the property were free from termite activity on the date of inspection, and stating also whether such inspection disclosed damage occasioned by previous termite activity and, if so, the nature and extent of the damage.
Mrs Berry refused to settle on the due date. The purchaser under the contract commenced proceedings in the Supreme Court for specific performance. Mrs Berry defended the action.
On 8 May 2003, Mrs Berry retained the respondent (Haynes Robinson) to act for her. Haynes Robinson advised Mrs Berry to compromise the Supreme Court proceedings and settle the sale of the property.
Haynes Robinson negotiated with the purchaser and, on 23 May 2003, a compromise was agreed. It provided, relevantly, for settlement under the contract to occur on or as soon as possible after 26 May 2003.
Mrs Berry repudiated the compromise negotiated by Haynes Robinson and again refused to settle.
Between 23 and 29 May 2003, Haynes Robinson were unable to contact Mrs Berry. Her telephone had been disconnected and she did not respond to correspondence sent to her known addresses. Haynes Robinson were unable to obtain instructions and, in consequence, on 29 May 2003 they ceased to act for her. (Mrs Berry sent Haynes Robinson a letter dated 28 May 2003, but this referred to her conversation with Mr Wallis of Haynes Robinson on 13 May 2003 and set out her view that the contract was at an end.)
In September 2003, Mrs Berry settled the sale of the property. She paid about $30,000 to the purchaser as compensation for her delay in settling.
On 9 September 2003, Haynes Robinson commenced proceedings against Mrs Berry in the Local Court at Albany. They claimed $9,140.84, being the cost of legal services allegedly provided to Mrs Berry, together with interest thereon at the rate of 6% per annum pursuant to s 32 of the Supreme Court Act 1935 (WA) and costs. At the commencement of the trial, counsel for Haynes Robinson reduced the amount of their claim to $4,930, being the total of Haynes Robinson's accounts dated 7 May 2003 and 27 May 2003, less a deposit of $2,000 which had been paid by Mrs Berry. The balance of the original claim was abandoned.
On 29 November 2004, Mrs Berry filed a notice of counterclaim in the Local Court. In the counterclaim, Mrs Berry originally claimed, in total, the sum of $100,000 and interest on that amount at the rate of 7% per annum 'on account of [Haynes Robinson's] collusion with the illegal and forced sale' of her property. Later she increased the rate of interest claimed.
Mrs Berry did not defend or put in issue the amount of Haynes Robinson's claim. Rather, she sought to set off that amount against the damages claimed in the counterclaim. Accordingly, Mrs Berry did not contend that Haynes Robinson had not performed the work in respect of which they raised the accounts, and did not contest the reasonableness of the amounts charged.
In 2006, the proceedings were transferred from the Local Court to the District Court.
On 4 and 5 March 2008, the action was tried before Stevenson DCJ. On 31 March 2008, his Honour entered judgment for Haynes Robinson in the sum of $4,930, together with interest. Mrs Berry's counterclaim was dismissed. His Honour ordered Mrs Berry to pay Haynes Robinson's costs.
Mrs Berry has appealed to this court against the learned trial judge's judgment.
Mrs Berry's counterclaim
Mrs Berry's counterclaim alleged, relevantly:
5.On 19 May 2003 the purchaser's inaction caused the Contract of Sale of 77 Adelaide Crescent of 13 [sic] January 2003 to effectively lapse. Documentary evidence will be referred to at trial.
6.After business hours on 23 May 2003 the Plaintiff renegotiated the terms of the Contract of 30 January 2003 without drawing up another document and without the Defendant's knowledge or consent. Therefore the Defendant claims that the Plaintiff officially ceased to act in her interests at that time and that the Plaintiff had never intended to act in her interests at any time. Documentary evidence will be referred to at trial.
7.On 27 May 2003 the Plaintiff notified the Defendant via a redirected mail service that she was obliged to sign the transfer documents of 77 Adelaide Crescent within 24 hours pending the Plaintiff's resignation.
8.The Defendant received the notice of 27 May 2003 on 4 June 2003 by which time the Plaintiff had ceased to act on her behalf. Supporting documentary evidence will be referred to at trial.
9.The Plaintiff was on the Supreme Court list as the Defendant's solicitor until 23 June 2003. In an affidavit sworn in support of an Application to Withdraw of 17 June 2003 the Plaintiff claimed to have no knowledge of the Defendant's whereabouts. A copy of the Plaintiff's Application was not served on the Defendant. The affidavit of 17 June 2003 will be referred to at trial.
10.The Defendant has been unable to obtain legal advice or representation in the matter since 23 May 2003. This matter will be referred to at trial.
11.On the 18 September 2003 there was a discrepancy of at least seventy thousand dollars between the market value of 77 Adelaide Crescent and the purchase price of the Contract of Sale of 30 January 2003. Relevant Valuation Reports will be referred to at trial.
12.On 12 September 2003 the Defendant hand-delivered a statement of claim to the Plaintiff in response to the Plaintiff's allegations of debt. The Plaintiff did not dispute any of this claim. This claim will be referred to at trial.
13.On 18 September 2003 a settlement agent employed by the Plaintiff's Company deducted thirty thousand dollars from the purchase price of the Contract of Sale of 30 January 2003. This transaction took place without the Defendant's written authority. It will be referred to at trial.
14.The Defendant hand-delivered written requests for an account of the transaction of 18 September 2003 on 3, 11, and 26 November and 22 December 2003. These requests were denied and they will be referred to at trial.
15.On account of the Plaintiff's collusion with the illegal and forced sale of 77 Adelaide Crescent the Defendant claims:
(a)18 September 2003 $70,000
(b)18 September 2003 $30,000
TOTAL$100,000
16.The Plaintiff has not disputed the Defendant's claims of 12 September, 3, 11 and 26 November, and 22nd December 2003 and 27 September 2004. The Plaintiff has neglected or refused to pay the Defendant the sum of $100,000.
Also, Mrs Berry claimed interest on the sum of $100,000 at the rate of 7% per annum, being 'the rate of real estate appreciation in the Albany area since 18 September 2003'.
Haynes Robinson's reply and defence to counterclaim
Haynes Robinson, in its reply and defence to counterclaim, denied the allegations in pars 5, 6, 8, 10, 11, 12, 13 and 14 of the counterclaim. Paragraphs 7 and 9 of the counterclaim were admitted. Haynes Robinson also pleaded:
3.On 23 May 2003 the Defendant agreed by telephone discussion with solicitor, Mathew [sic] Wallis of the Plaintiff, to compromise a breach of contract and specific performance claim made against her as vendor of a property for damages for delayed settlement by agreeing to pay $8,974.30 and settle the sale on or as soon as possible after 26 May 2003.
PARTICULARS
The Defendant as vendor was party to a contract of sale made 30 January 2003 for 77 Adelaide Crescent with settlement date agreed for 28 March 2003. The Defendant refused to allow a white ant inspection to take place and refused to go to settlement. The purchaser took Supreme Court proceedings to compel performance of the contract of sale. The compromise is evidenced by contemporaneous telephone call file note by Mathew [sic] Wallis, confirming letter of 23 May 2003 by him to the Defendant and by facsimile letter of 23 May 2003 from him to the solicitor for the purchaser which letter was copied to the Defendant that day by post.
4.The Defendant in breach of the compromise agreement failed to allow a white ant inspection and failed to settle the property on or as soon as possible after 26 May 2003.
5.The Plaintiff ceased to act for the Defendant on 29 May 2003.
6.On or about 5 September 2003 the Defendant agreed with the purchaser to pay him $30,000 in settlement of his claim for legal costs, interest for delayed settlement and damages.
PARTICULARS
The agreement was reached in a telephone conversation between Lee Panotidis of Cocks Macnish for the purchaser and the Defendant and confirmed by email later that day from Cocks Macnish to the Defendant.
7.Accordingly the Defendant has no counterclaim against the Plaintiff as she was contractually obliged to settle the purchase of 77 Adelaide Crescent and by failing to comply with the terms of the compromise agreement lost the opportunity to settle the claim with the purchaser for $8,974.30 and by her own conduct in further delaying settlement paid $30,000 to the purchaser on 18 September 2003 pursuant to the agreement she reached with the purchaser on 5 September 2003.
The learned trial judge's findings
On 31 March 2008, the learned trial judge published his reasons for judgment. His Honour made findings, relevantly, as follows:
1.On 30 January 2003 Mrs Berry executed a contract for the sale of her property at 77 Adelaide Crescent, Albany whereby she agreed to sell the property to Mr Bairstow for $275,000 with settlement to occur on 28 March 2003.
2.The contract of sale was conditional on the purchaser obtaining finance, which he did. Thereafter the contract was unconditional and Mr Bairstow, the purchaser, was entitled to obtain specific performance of the contract at any time until settlement was completed on 18 September 2003.
3.Clause 5 of the contract of sale in respect of 'termite clearance' was operative and, on its proper construction, applied for the benefit of the purchaser.
4.Within 24 hours of signing the contract of sale Mrs Berry changed her mind and thereafter embarked on a course of action to try to frustrate the contract with a view to persuading the purchaser not to proceed with settlement. Her conduct in this regard included preventing the purchaser's pest control inspector from having access to inspect the property on the erroneous assumption that the purchaser's failure to obtain such a report would cause the contract to 'lapse' because the opening words of cl 5 state: 'The contract is conditional upon a report being obtained'.
5.Mrs Berry was advised consistently and constantly by her solicitors, the plaintiff, that the contract did not 'lapse' for the reason she contended, especially as the reason for the purchaser not being able to obtain the termite report was because at the relevant times before 13 May 2003 she had prevented the purchaser obtaining access for this purpose. It is trite law that a party to a contract cannot take the benefit of a deliberate act which is intended to prevent the other party from complying with a contractual obligation.
6.On 13 May 2003 and thereafter until 23 May 2003, the plaintiff, and in particular Mr Wallis, with the full authority and instructions of Mrs Berry negotiated a compromise agreement whereby Mrs Berry agreed:
(1)she would pay the purchaser $8,974.30 on account of his costs incurred as a result of the two Supreme Court proceedings which it had been necessary to institute to obtain specific performance of the contract of sale;
(2)settlement would proceed on or as soon after 26 May 2003 as possible;
(3)the Supreme Court actions would be discontinued against her on the basis there would be no order as to costs; and
(4)to grant 'immediate access' to the property to enable the purchaser to arrange for a pest control company to inspect the property, and to the extent it might be necessary to waive any time limit in cl 5, thereby preserving the full operation of the clause for the benefit of the purchaser;
7.Through no fault of Mrs Berry's, the purchaser's pest control inspector did not attend the property until Monday, 26 May 2003 and, again, on 27 May 2003.
8.On 27 May 2003 Mrs Berry did not permit the pest control inspector to undertake an inspection because in her opinion 'he was too late' and, in any event, she considered she had a right to be notified first and asked to set a time that was convenient to her.
9.On 23 May 2003, and certainly by 27 May 2003, Mrs Berry considered that the purchaser had lost the legal right to enforce the contract of sale, and the compromise agreement. This is because he had not obtained a termite report in the time stipulated in the contract or, alternatively, by 26 May 2003.
10.By her conduct Mrs Berry deliberately put the plaintiff in a position where after at least from 26 May 2003 (probably immediately following her telephone conversation with Mr Wallis on Friday, 23 May 2003 at 8.30 am) the plaintiff could not obtain her instructions thereby causing the plaintiff to adopt the position as stated in its letter of 29 May 2003 that it had 'no option but to immediately cease acting'.
11.Further, that it was open at all material times for Mrs Berry if she had chosen to, to properly instruct the plaintiff by attending its office, but that she on her own volition decided not to.
12.That in advising the defendant on and after 23 May 2003, the plaintiff acted properly and in accordance with its solicitor-client duty. It acted properly and appropriately in obtaining orders from the Supreme Court to cease acting for Mrs Berry in those two proceedings.
13.The sale of the property settled with the full consent and agreement of Mrs Berry on 18 September 2003, which included the deduction of $30,000 in favour of the purchaser. The sum of $30,000 was in substitution and to the same effect as the sum of $8,974.30 which had been negotiated by the plaintiff on behalf of Mrs Berry pursuant to the compromise agreement, that the settlement would occur 'on or as soon after 26 May 2003 as possible'.
14.The plaintiff has proved that it is entitled to recover from Mrs Berry the sum of $4,930.00 in respect of legal fees pursuant to the retainer agreement signed by Mrs Berry on 8 May 2003 for services provided to her to 27 May 2003. In my opinion, the plaintiff should be limited to interest at the rate of 6 per cent per annum pursuant to s 32 of the Supreme Court Act for a period of 18 months, being a reasonable period within which the claim should have been resolved if the plaintiff had sought to press its claim to a hearing with reasonable expedition.
15.The defendant has not established how any loss, on whatever basis it is claimed and calculated (which is not entirely clear), was caused or contributed to by the conduct of the plaintiff. Unfortunately, in this case the defendant can only look to herself for the loss of $30,000 deducted at settlement by the purchaser because it was her conduct by refusing to settle the contract of sale which was the direct cause of the loss, notwithstanding the clear and consistent legal advice she obtained to the contrary. Her own conduct was causative of the loss [77].
Mrs Berry's grounds of appeal to this court
Mrs Berry's grounds of appeal to this court read:
1) Law and Fact: The Decision of 31 March 2008 does not acknowledge Rule 43 of the District Court Rules
WRITTEN RULE:*District Court Rules 2005 (W.A.) R.43(4)
WRITTEN LAW:
District Court of Western Australia Act 1969: S.87
2) Law and Fact: Trial dates were not allocated according to Court Rules
WRITTEN RULE:*District Court Rules 2005 (W.A.) R.37(3)(a)
*WRITTEN LAW: District Court of Western Australia Act 1969: S.87
3) Fact: The decision confuses the key issues
4) Law and Fact: The Decision Statement is not based on evidence or testimony
*WRITTEN LAW: Evidence Act 1906 (W.A.) S.79C
5) Law and Fact: The Decision does not acknowledge legal obligation or liability
WRITTEN LAW:*District Court Rules 2005 (W.A.) R.37(3)(c)
WRITTEN RULE:
*Legal Practice Code of Conduct
6) Law and Fact: The Decision Statement indicates an interest in the case
WRITTEN LAW:*District Court of Western Australia Act 1969 (W.A.): Schedule 1
7) Fact: The Decision Statement misrepresents the history of the case (White AB 4).
The merits of ground 1 of the appeal
Ground 1 of the appeal contends that the learned trial judge's decision 'does not acknowledge Rule 43 of the District Court Rules'. The ground appears to rely on r 43(4), which provides:
At a listing conference the presiding officer must list the case for trial only if any order or direction previously made has been complied with or, if not, if appropriate orders in default have been made.
Mrs Berry's written submissions in relation to ground 1 read, relevantly:
(3)On 20 August 2004 [Haynes Robinson] was ordered to file further and better particulars of claim within 21 days. Non‑compliance with that order remains outstanding (White AB 5).
Also see pars (1), (2), (4) and (5) of those submissions.
As I have mentioned, the proceedings were commenced in the Local Court in 2003, and transferred to the District Court in 2006.
Haynes Robinson's summons in the Local Court is dated 9 September 2003 (Blue AB 33). The particulars of claim endorsed on the summons read:
The plaintiff claims from the defendant the sum of $9,140.84 being the amount owed by the defendant to the plaintiff for legal services provided by the plaintiff to the defendant at the request of the defendant, particulars whereof have been rendered, and the plaintiff claims:
1.The sum of $9,140.84;
2.Interest on the amount of $9,140.84 at the rate of 6% per annum pursuant to the [sic] section 32 of the Supreme Court Act, 1935 until judgment or final payment; and
3.Costs.
On 9 August 2006, Kennedy CJDC heard and dismissed an application by Mrs Berry for summary judgment on her counterclaim. During the hearing before her Honour, reference was made to Haynes Robinson's failure to comply with the order that they file further and better particulars of their claim within 21 days. That order was made in the Local Court on 20 August 2004. It appears the order was made after the Local Court dismissed an application by Mrs Berry to strike out Haynes Robinson's claim. Although further and better particulars of Haynes Robinson's claim were not filed within 21 days after 20 August 2004, Haynes Robinson did file those further and better particulars on 9 November 2004 (Blue AB 35 ‑ 36).
During argument before Kennedy CJDC, the following exchange occurred between her Honour and Haynes Robinson's counsel, Mr Holler:
HOLLER, MR: It started in the Local Court and went to the District Court. There were judgments entered and set aside and warrants of execution stayed and all the rest of it. Just going through the material now, what seems to have happened is there was a default judgment, warrant of execution in February 2004. The defendant applied to set aside the default judgment. This is in the Local Court. The defendant then filed an application against the plaintiff for the plaintiff's claim to be struck out.
KENNEDY CJDC: Yes.
HOLLER, MR: That application was dismissed and leave was granted to the plaintiff to file and serve particulars of claim.
KENNEDY CJDC: Yes.
HOLLER, MR: That doesn't appear to have happened and a pre‑trial conference was listed in the Magistrates Court and attended by both parties on 9 November last year.
KENNEDY CJDC: Yes.
HOLLER, MR: The defendant then listed a listing conference on 6 January 2006 and that is when this whole issue of jurisdiction arose and the Local Court saying, 'Well, actually it should be in the District Court.'
KENNEDY CJDC: Yes.
HOLLER, MR: The Magistrates Court made orders in January of this year giving the defendant leave to apply to the District Court to transfer the matter to the District Court in order to try the counterclaim.
KENNEDY CJDC: Yes.
HOLLER, MR: The last thing I have on the document then is a memorandum of appearance on 10 April 2006 in the District Court. I think there has then been an assumption - or at least I have made the assumption I'm happy to go with that it somehow transposed the pleadings from the Magistrates Court to the District Court. This thing really needs to go to a pre‑trial conference or to trial as soon as possible.
KENNEDY CJDC: There is no point in going to a pre‑trial conference, I wouldn’t think. This is a matter that if Mrs Berry is not successful on her application for summary judgment, I will make programming orders and this matter will go to trial as quickly as possible (Green AB 44 ‑ 45).
On 9 August 2006, Kennedy CJDC, after dismissing Mrs Berry's application for summary judgment, ordered that Haynes Robinson file a reply and defence to counterclaim within 7 days. No other programming orders appear to have been made. On 14 August 2006, in compliance with her Honour's order, Haynes Robinson filed a reply and defence to counterclaim (Blue AB 69 ‑ 70).
The appellant did not suggest that she had been prejudiced because of any misunderstanding or lack of notice as to the case advanced by Haynes Robinson at trial in relation to their claim or their reply and defence to counterclaim. On the material before this court, any such suggestion would have been without merit.
The failure of a party to comply with an order or direction before a case is listed for trial and the failure to make appropriate orders in default do not, at least of themselves, necessarily create a miscarriage of justice or vitiate a subsequent trial or judgment following trial. As I have mentioned, the appellant has not suffered any relevant prejudice in consequence of Haynes Robinson's non‑compliance with the order made on 20 August 2004 or, if it be the case, any non‑compliance with r 43(4).
Some of the appellant's submissions (for example, pars (6) ‑ (9) of her written submissions) do not appear to relate to ground 1. In any event, those submissions do not make out any material error by the learned trial judge.
Ground 1 fails.
The merits of ground 2 of the appeal
Ground 2 of the appeal contends that 'trial dates were not allocated according to Court Rules'. Mrs Berry appears to rely on r 37(3)(a) of the District Court Rules which, at material times, provided:
To enter a case for trial the plaintiff must file and serve -
(a)a Form 1 (Entry for trial) which must state the dates, within 40 days after the date of the form, when the parties are not available to attend a pre‑trial conference;
The essence of Mrs Berry's complaint, as set out in par (14) of her written submissions, is this:
Registrar Kingsley appears to have called a private conference with [Haynes Robinson] on or about 14 August 2007. Trial dates of 4, 5, 6 and 7 March 2008 appear to have been allocated accordingly. I was not consulted about these dates. I was simply sent a copy of a letter to [Haynes Robinson] (White AB 6).
By letter dated 29 January 2008, Mrs Berry informed Registrar Kingsley that she was unable 'to appear during March 2008'. Then, by letter dated 8 February 2008, she informed the registrar that she was required to appear in the Magistrates Court on 4 March 2008 in connection with an unrelated matter. By letter dated 8 February 2008, Registrar Kingsley said
I advise that should you not appear at the trial of the action beginning 4 March 2008 it is open for the trial Judge to enter Judgment against you on Haynes Robinson's claim and to dismiss you [sic] counterclaim against Haynes Robinson, notwithstanding your absence.
On the material before this court, Mrs Berry did not contend, before the learned trial judge, that she was prejudiced as a result of the trial of the action having been listed on 4, 5, 6 and 7 March 2008. For example, on the material before this court, Mrs Berry did not suggest that, as a result of the allocation of those dates, she was unable to call any evidence that she would otherwise have sought to adduce.
Mrs Berry has not established, on the material before this court, that the trial dates were not allocated in accordance with the District Court Rules. However, even if the trial dates were allocated in breach of the rules, Mrs Berry has not made out that any breach caused her relevant prejudice.
The allocation of trial dates in breach of the District Court Rules does not, at least of itself, occasion a miscarriage of justice or vitiate the trial or any judgment entered after the action has been tried.
Ground 2 fails.
The merits of ground 3 of the appeal
Ground 3 of the appeal contends that the decision of the learned trial judge 'confuses the key issues'.
Mrs Berry's written submissions in relation to ground 3 are, relevantly:
(17)The Decision Statement confuses the contractual agreement I entered on 13 May 2003 with the 'compromise agreement' alleged in no.3 of the Respondent's Reply and Defence to Counterclaim.
(18)There is no reference to the fact that, during cross‑examination I asked the Respondent's key witness to specify the agreement referenced in no.3, and that he referred back to the Agreement of 13/5/03.
(19)There is no reference to the fact that when questioned about the turn of events on and after the day specified in 3, the Respondent's key witness consistently relied on the contention that I had jeopardised the 'costs deal' he had negotiated with Cocks Macnish during the previous 10 days.
(20)The contention that I should have secured said deal by signing transfer documents out of turn is taken as evidence that Mathew [sic] Wallis couldn't get my 'instructions' on or after 23/5/03.
(21)The contention that I should have secured said deal by signing transfer documents out of turn appears to have been taken as evidence that Mathew [sic] Wallis was unable to effect service of the applications to withdraw.
(22)The Decision confuses the Respondent's liability re an illegal settlement with the legal status of HR Settlements.
(23)The Decision confuses the difficulties faced by an unrepresented litigant with the substance of my allegations. (references omitted)
Mrs Berry appears to be complaining about the learned trial judge's findings of fact concerning the negotiation and formulation of the compromise agreement. His Honour found that between 13 and 23 May 2003, Haynes Robinson by Mr Wallis, with the full authority and instructions of Mrs Berry, negotiated the compromise agreement [77] item 6. Earlier in his reasons, his Honour explained the background to the negotiation and formation of the compromise agreement, Mrs Berry's misconceived views in relation to the contract and the respective rights and obligations of the parties under it, and her endeavours to avoid performing her contractual obligations:
Central to the issues raised by the defendant in this action and to understanding her course of conduct is cl 5 of the contract of sale. The defendant's desire to avoid the contract of sale and a later compromise agreement in respect of two Supreme Court actions commenced against her by the purchaser to specifically enforce the contract, was premised on an assumption by her that the contract would 'lapse' if the purchaser did not cause a white ant certificate to be obtained within the time stipulated in cl 5, or by 26 May 2003 as contemplated by the compromise agreement.
The defendant's understanding of her legal position (which is contrary to the legal advice she received at the relevant time from the plaintiff) is demonstrated by the fact that in February 2003 the purchaser's settlement agent complained by letter dated 18 February 2003 that the defendant was not allowing the purchaser's pest control company access to inspect the property. This allegation was not disputed by Mrs Berry during the trial. It was also apparent from the objective evidence that Mrs Berry believed on 23 May 2003 that if a white ant certificate was not obtained by the purchaser by 26 May 2003 then he would be unable to legally enforce the contract of sale.
The defendant in the course of the trial and when giving evidence underlined her opinion that the contract of sale and the compromise agreement both lapsed and were no longer legally enforceable, because of the purchaser's failure to obtain a white ant certificate in the stipulated times. It is plain, for the reasons which follow, that Mrs Berry has conducted her affairs on this basis in the hope that the contract would not settle. This is evidenced by her behaviour following 23 May 2003 when she, in effect, made herself uncontactable to her solicitors and evinced a clear intention to frustrate their ability to obtain her instructions and to represent her interests.
In the course of the trial the defendant articulated a conspiracy theory, namely that the plaintiff had conspired with the purchaser's solicitors to force her to settle the contract on 26 May 2003 in accordance with the compromise agreement which the plaintiff had negotiated on her behalf. In her evidence Mrs Berry referred to the plaintiff as 'ruthless and unscrupulous' and described their conduct in advising her and attempting to represent her as constituting 'extortion'. It is disappointing that the defendant is prepared to make these allegations because of the seriousness of their nature, especially when there is nothing in the evidence before me to support any factual foundation or basis for them. This is especially so when Mrs Berry herself, for reasons which are completely understandable, was naturally upset about the nature of the allegations contained in the purchaser's solicitors' letter of 29 May 2003 about herself and her son arising out of an attempt by the purchaser's white ant inspector to inspect the property on 27 May 2003. Simply because the plaintiff forwarded this letter to Mrs Berry, she on her own evidence said this was further confirmation of her conspiracy theory. She had difficulty understanding, and did not accept, that the plaintiff by sending the letter on to her was duty bound to do so, but by doing so was not endorsing or accepting the allegations against her and her son as true. Regrettably Mrs Berry did not take up the opportunity offered by the plaintiff in its letter of 27 May 2003 to provide her instructions on the allegations or the further conduct of the matter (the purchaser's allegation was communicated to the plaintiff before the letter of 29 May 2003 was sent).
By this time Mrs Berry had already decided that she did not trust the plaintiff, which view she said became firm in her mind over the weekend of 24-25 May 2003. She said she decided from this point onwards that she would only communicate with the plaintiff in writing. Mrs Berry also adopted this position, and thereby frustrated the plaintiff's attempts to obtain her instructions so they could represent her interests, because she was upset that Mr Wallis had not sought to renegotiate an extension of the 26 May settlement deadline for one week 'because he knew I needed more time', and because, even though it is inconsistent to the former reason, she believed that the purchaser's failure to obtain a white ant certificate by 26 May 2003 due to 'his disorganisation' put an end to his right to legally settle on the contract of sale [3] ‑ [7].
On 30 January 2003, Mrs Berry agreed to sell the property. By 28 March 2003, the due date for settlement had passed as a result of Mrs Berry having prevented the purchaser's pest control inspector from having access to the property. Thereafter, Mrs Berry defended two Supreme Court actions, one for specific performance and the other for an extension of a caveat lodged by the purchaser to give notice of his interest under the contract for sale. There was evidence before the learned trial judge, which he plainly accepted, that between 13 and 23 May 2003 there were negotiations which culminated in a compromise agreement as to, amongst other things, the amount of costs Mrs Berry would pay to the purchaser. This finding, and the associated finding that Mr Wallis negotiated the compromise agreement with Mrs Berry's full authority and instructions, were reasonably open to him.
In Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273, the duty of a trial judge, in giving reasons, was explained, relevantly, as follows:
Reasons need not be lengthy and elaborate: Re Powter; Ex parte Powter (1945) 46 SR (NSW) 1 at 5; Beale (at 443); nor do they need to refer to all the evidence led in the proceedings: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. However, relevant evidence should be referred to (albeit not necessarily in detail) and, where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to. Where one set of significant evidence is preferred over another, the trial Judge should set out findings sufficient to explain why: Beale (at 443). Similarly, where a dispute involves a form of 'intellectual exchange, with reasons and analysis advanced on either side', the judge 'must enter into the issues canvassed before him and explain why he or she prefers one case over the other': Flannery (at 382) [28].
It is unnecessary for a trial judge to deal specifically and in detail with each and every point raised by a party, irrespective of its manifest lack of substance, relevance or merit.
In my opinion, the learned trial judge's reasons refer adequately to the material evidence and any material conflicts between the witnesses. Also, the reasons explain adequately why his Honour preferred some evidence, and why he made the relevant findings.
Ground 3 fails.
The merits of ground 4 of the appeal
Ground 4 of the appeal contends that the reasons of the learned trial judge are 'not based on evidence or testimony'.
Mrs Berry's written submissions in relation to this ground read, relevantly:
(24)The Decision sustains the allegation that I was party to a settlement agreement on 23 May 2003 despite the Respondent's subsequent admission that no such agreement took place at that time.
(25)There is no statement as to what did or did not take place at that time.
(26)Mathew [sic] Wallis' testimony of 4 March 2008 indicates that he withdrew because the settlement proceeds of 77 Adelaide Crescent were not secured on 23 May 2003 and because his firm was not formally authorised to draw on said funds at said time. Read within the context of Cocks Macnish's letters to me of 4, 6, 9 and 10 June 2003, his letters to me of 19, 23, 27, 28 and 29 May 2003 support that position. The Decision Statement upholds the allegation that he withdrew because he was unable to contact me.
(27)The Decision Statement does not count the fact that the above letters were served on me, neither does it count Cocks Macnish' [sic] respective advice to the Plaintiff of 18 June 2003.
(28)The Decision Statement misinterprets my letter to the Respondent of 28 May 2003 and indicts my testimony as inconsistent accordingly. (references omitted)
By letter dated 23 May 2003, Mr Wallis of Haynes Robinson wrote to the purchaser's solicitors, Cocks Macnish, as follows:
We refer to your telephone conversation with our Matthew Wallis on 23 May 2003 and your recent letters.
We confirm:
1.our client has agreed to pay your client an amount of $8,974.30 on account of his costs of the proceedings and the account of Mr Moss;
2.settlement will proceed on or as soon after 26 May 2003 as possible; and
3.once settlement has occurred, you will forward a minute of consent orders for both Supreme Court actions. The agreed orders will be:
a.the plaintiff discontinue his action against the defendant; and
b.no order as to costs.
We understand your client has instructed a pest control inspector to attend the premises on 26 May 2003 (Blue AB 52).
A copy of that letter was sent by Haynes Robinson to Mrs Berry.
The telephone conversation between Mr Wallis and Mrs Berry on 23 May 2003 was referred to by Mrs Berry in a letter dated 12 September 2003 she sent to Mr Wallis:
Between the 13/5/03 and 27/5/03 no one contacted me re the white ant certificate inspection that was to precede settlement. When you rang me on Friday 23/5/03 I mentioned this to you, but you intimated that it did not matter, and that I should submit the title of the property and sign the transfer documents irrespective of the order of the written instructions I had been given, because settlement would occur on the 26/5/03 anyway. This advice not only contradicted the terms and conditions specified on the contract of sale, it also conveyed a subliminal message that the other party was not bound to comply with any written agreement, but was able to demand that I act at it's [sic] convenience without prior written notification. However, there was no consideration that rushed or last minute alterations to instructions might not reach me on time, no allowance made for the practical circumstances of my move, such as my telephone disconnection, the redirection of my mail or my inability to access email messages by way of my computer being packed up (Blue AB 64).
The learned trial judge dealt with Mr Wallis's evidence in detail at [24] ‑ [55] of his reasons. His Honour referred to Mrs Berry's cross‑examination of Mr Wallis as follows:
Mrs Berry cross-examined Mr Wallis at length. One line of questions was to the effect that he knew how pressed for time she was and her complaint appeared to be based on the concern that she had not been given another and later date for settlement because the purchaser had not arranged for the inspection of the property by the pest control company. In response Mr Wallis explained that the plaintiff had been unable to obtain her further instructions but that in any event she had not agreed to do what she had said she would do with respect to signing the transfer of land form and provision of the certificate of title to her settlement agent. For this reason she was not, in his opinion, in a position to take advantage of any possibility of further delay of settlement by reason of the purchaser's failure to obtain an inspection of the property.
In her questions Mrs Berry was focused on the purchaser's 'disorganisation' as the reason for the failure of the settlement to proceed on 26 May 2003. However, in her own evidence she said she had formed the view, following her telephone discussion with Mr Wallis on 23 May 2003 and the fact that she had not been contacted with a view to a time being set for the inspection, that settlement could not proceed on 26 May 2003. Accordingly, she considered the purchaser would be unable to enforce the contract of sale. Although the issues and concerns raised by Mrs Berry in her questions indicated how she felt at the time, it was, in my opinion, no answer in law to the legal position.
Mrs Berry asked Mr Wallis why he did not courier his correspondence to her. His response was that he was not aware at the time of any mail redirection order in place or, in fact, where she was living.
Mr Wallis denied that he had conspired with Cocks Macnish to take her by surprise with respect to the inspection.
Mr Wallis denied in cross-examination by Mrs Berry that by reason of the failure of the purchaser to obtain the white ant inspection by 26 May 2003 the contract had 'lapsed'. Mr Wallis said in cross-examination that another settlement date had not been organised because, in effect, Mrs Berry had frustrated the position by not giving him instructions to continue to act on her behalf. In respect of the telephone discussion on 23 May 2003 Mr Wallis said in cross-examination that he had told Mrs Berry that she could not avoid the contract of sale simply because the white ant certificate had not been obtained at that point in time.
Finally, Mrs Berry suggested in cross-examination to Mr Wallis that because the plaintiff had not responded to the contentions in her letter of 12 September 2003 it therefore did not contest the allegations made by her. Mr Wallis disagreed and said that it was not necessary for the plaintiff to attempt to deal with all the issues she had raised. I note this was a common contention by Mrs Berry in the course of the trial, that where a party had not responded to an allegation made by her in writing then so far as she was concerned there was 'no contest'. I endeavoured to explain to her that this was not always necessarily the case and that at some point it was always open to parties not to attempt to deal with everything raised by the other party [48] ‑ [53].
The learned trial judge found that Mr Wallis was an honest and reliable witness and that his evidence should be accepted:
In my assessment, Mr Wallis was a prudent and careful witness. He was careful to understand the questions put to him and gave his answers in an open and professional manner. Notwithstanding the serious nature of the allegations made against him by the defendant, he maintained his calmness and responded to her questions in a respectful and appropriate manner and, as encouraged by me, in a conversational style. When needed he refreshed his memory from his file notes and the correspondence, the events having occurred nearly five years ago. His evidence was clear and I have no hesitation in accepting it [55].
In my opinion, there is no substance in Mrs Berry's contention that the learned trial judge's reasons are not based on the evidence. His Honour's reasons are based on the evidence that he accepted. It was reasonably open to him to accept Mr Wallis's evidence and to prefer his evidence where it was in conflict with Mrs Berry's evidence. Also see my observations at [42] ‑ [43] above in relation to the adequacy of his Honour's reasons.
Ground 4 fails.
The merits of ground 5 of the appeal
Ground 5 of the appeal contends that the learned trial judge's decision 'does not acknowledge legal obligation or liability'.
Mrs Berry's written submissions in relation to ground 5 provide, relevantly:
(29)With respect to allowing the Respondent's claim of 4 March 2008, the Decision Statement does not acknowledge Rule 37(3)(c) of the District Court Rules 2005 (W.A.)
(30)The Decision Statement assumes that I was still contractually obliged to sell my property on and after 29 May 2003, but it also acknowledges the nature of Cocks Macnish' [sic] letter to the Plaintiff of that date.
(31)The Decision alternates between misrepresenting my instructions to the Plaintiff of 28 May 2003, and denying them altogether.
(32)The two precedents cited merely confirm the fact that the Respondent could only be exempted from liability if Mathew [sic] Wallis had acted on my letter of 28 May 2003 and Cocks Macnish' [sic] letters of 29 May and 4, 6, 9, and 10 June 2003 in a way that upheld my interests. (references omitted)
At the material time, r 37(3)(c) of the District Court Rules provided, relevantly, that to enter a case for trial the plaintiff must file and serve a document setting out in detail any amount of money claimed, the justification for claiming it, and how it is calculated.
Haynes Robinson's particulars of claim, filed 9 November 2004, alleged, in par 8, that they had sent accounts to Mrs Berry for the payment of legal fees. Particulars were then set out:
PARTICULARS OF ACCOUNTS
a) 7 May 2003
$2,860.00
Paid $2,000.00 Balance Owing
$ 860.00
b) 27 May 2003
$4,070.00
c) 25 July 2003 $4,210.84
________TOTAL
$9,140.84
These particulars constituted sufficient compliance with r 37(3)(c).
The learned trial judge made findings in relation to Mrs Berry's conduct in avoiding her obligations to settle under the contract, and her decision deliberately to frustrate Haynes Robinson's ability to obtain her instructions and thereby continue to act for her:
Mrs Berry raised a number of concerns which she perceived based on her understanding and interpretation of events. Her conduct and actions are perhaps best understood from her starting point, namely that she did not want to settle on the contract of sale. Consequently, she formed views and took positions without listening to the legal advice she obtained, in the hope she could avoid the contract.
Mrs Berry in her evidence went to some lengths to say that, on 26 May 2003, she had ordered her affairs to move out of the property. She had arranged for her mail to be redirected and had her telephone cut off. Mrs Berry maintained she was preparing to vacate the premises.
However, she said in evidence that she considered that the purchaser had forfeited his legal entitlement to settlement of the contract because of his breach or failure to obtain a white ant certificate before 26 May 2003, the proposed date of settlement pursuant to the compromise agreement. I find during 23-26 May 2003 (notwithstanding her telephone conversation on 23 May 2003 at about 8.30 am with Mr Wallis and his advice to the contrary), Mrs Berry formed the view that the purchaser had forfeited the legal right to enforce settlement of the contract of sale and the compromise agreement because both were 'conditional' on the purchaser obtaining a white ant certificate, and because he had not done so within the stipulated time set out in the contract or alternatively 26 May 2003, he could not settle and was therefore in breach.
If this position was legally correct, then Mrs Berry's proposition was that the purchaser would have to negotiate a new settlement agreement for the purchase of the property, assuming she was a willing seller.
Because Mrs Berry had formed this view and had concluded from her conversation with Mr Wallis on 23 May 2003 that he was no longer acting in her best interests, she said in evidence that she decided she would only communicate with her solicitors in writing.
However, the fact remains that Mrs Berry did not expressly advise Mr Wallis of her changed contact details and she did not attend the plaintiff's premises, when it was obviously open to her to do so if she had wanted to, to enable Mr Wallis to advise her and for her to give him instructions. I find that, by her actions, she deliberately chose to frustrate the plaintiff's ability to obtain her instructions and thereby to continue to represent her [64] ‑ [69].
On the material before this court, all of these findings were reasonably open to his Honour.
By the contract, Mrs Berry was obliged to settle on the due date for settlement, namely 28 March 2003. Her obligation to settle continued to subsist after that date. Her view that the purchaser had 'forfeited his legal entitlement to settlement of the contract because of his breach or failure to obtain a white ant certificate before 26 May 2003' [66] was misconceived. Mrs Berry has not demonstrated that his Honour made any material error.
Ground 5 fails.
The merits of ground 6 of the appeal
Ground 6 of the appeal contends that the learned trial judge's reasons indicate 'an interest in the case'.
Mrs Berry's written submissions in relation to ground 6 read, relevantly:
(44)The Decision Statement deems the advent of the Contract lapsing due to the Purchaser's disorganisation 'unlikely' on the pretext of my being an unwilling vendor.
(45)Mathew [sic] Wallis' contention that a white ant inspection could have been undertaken on the settlement day is accepted without question.
(46)There is no acknowledgement of the fact that Cocks Macnish letters to me of 4, 6, 9, and 10 June 2003 centre entirely on rescheduling the agreement of 13 May 2003. There is no acknowledgement of the fact that once the fallacious report of 28 May 2003 was foiled, the acting solicitor did not suggest that settlement could or should occur on the same day as a white ant inspection.
(47)Accordingly the gist of Mathew [sic] Wallis' remarks on page 59‑60 of the transcript is not acknowledged.
(48)There is no acknowledgement that contractual obligation on my behalf was negated by virtue of the other party's failure to deal with the situation that presented on and after 23 May 2003 in all honestly [sic] and integrity.
(49)There is no acknowledgment that the Respondent has confused issues as a means of shifting the onus of the consequent damages I sustained.
(50)The Decision Statement equates my cross‑examination of Mr Wallis with Cocks Macnish' untested report of 28 May 2003.
(51)The Plaintiff's Reply and Defence to Counterclaim acknowledges liability re the settlement of 18 September 2003, however the Decision Statement makes an arbitrary ruling.
(52)My claim concerning the nature of the respective transaction was primarily set out in letters dated 3, 11, 26 November and 22 December 2003. The Decision Statement does not acknowledge the last two of those letters.
(53)The Decision Statement justifies the transaction at length but claims that it is irrelevant.
(54)The Decision Statement discredits Helayne Short's affidavit of 21 September 2006 and her testimony of 5 March 2008 on an arbitrary basis.
(55)The Decision Statement refers to civil obligation, but the Respondent's failure to respond to my letter of 12 September 2003 appears to be dismissed on the basis that there must have been a good reason to not respond and that said reason need not be disclosed.
(56)The Decision Statement assesses the likelihood of my relocating without notice without reference to the available evidence.
(57)No mention is made as to what matters, if any, could only be discussed/disclosed by way of an 'in person' meeting between me and the Plaintiff 26‑29 May 2003.
(58)No mention is made of the fact that the Respondent's failure to act on my instructions of 28 May 2003 caused the other party's solicitor to approach me directly re another Contract. No mention is made of the fact that that contact took place before Mathew [sic] Wallis' applications to withdraw were filed.
(59)The Decision Statement denies the fact that the Respondent was obliged to keep acting on my behalf prior to the acceptance of his applications to withdraw. There is no mention of the fact that service was never attempted.
(60)There is no mention of the fact that 2 letters written on behalf of the other party to the Contract discredit the contention that Mathew [sic] Wallis was unable to effect service of his applications to withdraw. (references omitted)
Ground 6, in the context of the submissions in support of it, is unintelligible.
On the material before this court, the learned trial judge's findings were reasonably open to him. See my observations at [42] ‑ [43] above in relation to the adequacy of his Honour's reasons. Mrs Berry has not established that the reasons contain any material error of law or fact.
Ground 6 fails.
The merits of ground 7 of the appeal
Ground 7 of the appeal contends that the learned trial judge's reasons 'misrepresent the history of the case'.
Mrs Berry's written submissions in relation to ground 7 read, relevantly:
(33)The Decision Statement gives an inaccurate account of the circumstances under which I signed a Contract of Sale on 30 January 2003. Critical facts are withheld, speculation superimposed on my testimony. My testimony is then dismissed as irrelevant.
(34)With respect to the claim of 9 September 2003, no mention is made of the fact that a warrant of execution for $10341.35 was issued against my sole asset on 20 February 2004 in the absence of proof that the Respondent had ever attempted service of the claim.
(35)No mention is made of the fact the Respondent prepared a summons for the above claim on 22 May 2003.
(36)No mention is made of the fact that that [sic] between 5 November 2003 and 13 August 2007 the case progressed entirely on my initiative.
(37)No mention is made of the fact that that [sic] I booked the pre‑trial conference of 9 November 2005 and the listings conference of 6 January 2006.
(38)No mention is made of the fact that the Respondent's Notice of Objection was filed on the second to last day before that appointment. No mention is made of the fact that the acceptance of said notice was based on denying that the Respondent was 15 months in default of the Order of 20 August 2004 and 12 months in default of defence to my counter‑claim.
(39)There is no mention of the fact that, by the time my application to transfer the case to the District Court was accepted on 29 May 2006, the Respondent was 20 months in default of the Order of 20 August 2004 and 17 months in default of defence to my counterclaim of 29 November 2004. There is no reference of the fact that the Respondent's application to file an out of time defence was refused at that time.
(40)There is no mention of the fact that the Respondent attempted to file an out of time defence on 13 July 2006, that it was not accepted by the court, but that Sergeant Scott, a local police officer, was directed to serve a copy on me.
(41)There is no reference to the fact that I asked the Respondent to specify the circumstances corresponding to no.3 of the Reply and Defence to Counterclaim during the listings conference of 6 October 2006, and that the request went unheeded.
(42)There is no reference to the fact that on 13/12/06 my application to administer interrogatories was subsequently dismissed.
(43)There is no acknowledgement of the contradiction between the Respondent's plea of 14 August 2006 and the Council's admission that Mathew [sic] Wallis only agreed to one settlement timeframe on my behalf. (references omitted)
The learned trial judge was not obliged, in his reasons, to refer to each and every item of evidence or each and every occurrence in the history of the dispute between the parties and the proceedings between them. See [42] above. I am satisfied that his Honour did not 'misrepresent', in any material respect, 'the history of the case'. No material error of law or fact has been made out.
Ground 7 fails.
Conclusion
I would dismiss the appeal.
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