Cachia v Grech

[2008] NSWDC 288

CITATION:	Cachia v Grech [2008] NSWDC 288
HEARING DATE(S):	05/12/2008
JUDGMENT DATE:	9 December 2008
JURISDICTION:	Civil
JUDGMENT OF:	Murrell SC DCJ at 33
DECISION:	Decision of the Consumer Trader and Tenancy Tribunal affirmed.
CATCHWORDS:	TRADE AND COMMERCE - Consumer Trader and Tenancy Tribunal decision - APPEAL AND NEW TRIAL - appeal on a question decided "with respect to a matter of law"- CLAIM AGAINST FORMER SOLICITORS - termination of retainer -
LEGISLATION CITED:	Consumer Claims Act 1998 Consumer Trader and Tenancy Tribunal Act 2001 Legal Profession Act 2004 Solicitors Rules Uniform Civil Procedure Rules
CASES CITED:	Bechara v Atie [2005] NSWCA 268. Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 Ormes v Louis [2006] NSWSC 659
PARTIES:	Laurence Cachia (Plaintiff) Henry Grech t/as Grech Partners Solicitors (Defendant)
FILE NUMBER(S):	04319/08
COUNSEL:	S Dawson (for the defendant)
SOLICITORS:	R Everingham (for the defendant) Plaintiff self-represented

JUDGMENT

1. Mr Cachia appealed against a decision of the Consumer Trader and Tenancy Tribunal (CTTT) dismissing a claim against his former solicitors.

Background Proceedings

2. Mr Cachia leased premises through a real estate agent. The tenant damaged the premises. Mr Cachia instructed Grech Partners, solicitors, to bring Local Court proceedings against the agent. Mr Cachia had not wanted a self-employed tenant. He claimed that the agent had failed to provide proper information regarding the employment status of the tenant.

3. Mr Cachia declined to accept his solicitors’ advice, inter alia that he should sue the tenant as well as the agent. Grech Partners terminated the retainer. Thereafter, Mr Cachia represented himself.

4. Mr Cachia lost the proceedings. The Local Court determined that the tenant was solely responsible for the damage and that the damage was not caused by any act or omission of the agent.

5. Mr Cachia sought relief in the Supreme Court. Justice Hall agreed with the Local Court that there had been no breach of contract or misrepresentation, and that the agent was not responsible for the damage.

6. Mr Cachia brought proceedings in the CTTT, claiming that Grech Partners should not have terminated the retainer and that their work was unsatisfactory. The CTTT dismissed the claim with costs.

7. Reasons for the Tribunal's decisions were given on 20 December 2007 and 11 July 2008 (Exhibit B).

These Proceedings

8. I granted Mr Cachia an extension of time within which to appeal: Part 50 rule 3 Uniform Civil Procedure Rules (UCPR).

9. Part 50 rule 14 of the UCPR required that Mr Cachia file and serve an affidavit annexing or exhibiting the Tribunal's reasons, the transcript and any relevant exhibit. He failed to do so, seeking to rely upon a more voluminous affidavit. Grech Partners provided an affidavit annexing the Part 50 rule 14 documents, including all the exhibits tendered in the CTTT.

10. Pursuant to section 67 (1) of the Consumer Trader and Tenancy Tribunal Act 2001, this appeal is confined to “question/s” decided by the Tribunal "with respect to a matter of law". Mr Cachia bears the onus of demonstrating an error as to a pure question of law (not merely a mixed question of fact and law): Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [39] - [47], Ormes v Louis [2006] NSWSC 659 at [14].

11. The alleged errors are not clearly apparent from the summons. However, Mr Cachia's oral and written submissions suggest errors in the following areas:
(a) The CTTT should have found that Grech Partners was negligent in its conduct of the Local Court proceedings.
(b) The CTTT should have found that Grech Partners had terminated its retainer without good cause.
(c) The CTTT should not have struck out the claim for recovery of fees paid to Grech Partners.
(d) The CTTT should have found that Grech Partners breached its fiduciary duty to Mr Cachia.
(e) The CTTT gave inadequate reasons for its decisions.
(f) The CTTT failed to accord procedural fairness.
(g) The CTTT should not have allowed Grech Partners to be legally represented.

Negligence

12. I agree with the CTTT that Mr Cachia was adequately advised. The only critical defect in the conduct of the Local Court proceedings was the failure to join the tenant. Grech Partners recommended that the tenant be joined and the agent consented, but Mr Cachia “declined this easy exit ramp from a forensic traffic jam”.

13. Further, I agree with the CTTT that Mr Cachia could succeed against Grech Partners only if he could show that the Local Court action was lost because of their incompetence. Mr Cachia established neither negligence nor loss.

Termination of Retainer

14. There is a well-recognised right to terminate a retainer for just cause and on reasonable notice. The right is recognised in the Solicitors Rules, which are binding on solicitors: section 57D(1) Legal Profession Act 2004; Bechara v Atie [2005] NSWCA 268.

15. Based on Mr Cachia’s persistent refusal to follow considered professional advice, the CTTT found that Grech Partners was entitled to withdraw because Mr Cachia had constructively terminated the retainer and/or was entitled to terminate the retainer.

16. There is no error in the CTTT’s approach. Even if there was no constructive termination by Mr Cachia, his failure to take advice in relation to the conduct of the proceedings, including his refusal to join the tenant, redraft a defective affidavit and instruct counsel provided Grech Partners with just cause for terminating the retainer.

Claim for Recovery of Fees Paid

17. The CTTT decided that the only basis upon which Mr Cachia could recover the fees paid were on a taxation of costs or by showing a total failure of consideration. The former claim was barred by section 7(5) of the Consumer Claims Act 1998. The latter was misconceived in law as Mr Cachia conceded that legal services were rendered.

18. Under section 5(2) of the Consumer Trader and Tenancy Tribunal Act 2001, the CTTT has the functions conferred upon it by the Consumer Claims Act1998. Section 7(5) of that Act provides that a matter arising in relation to the fairness or reasonableness of the costs charged by a solicitor for business transacted by the solicitor is not within the jurisdiction of the CTTT if the costs can be the subject of a costs assessment under Part 3.2 of the Legal Profession Act 2004. Under section 350(3) of the Legal Profession Act, an application for costs assessment may be made after the costs have been paid. The CTTT did not err in its approach to section 7(5).

19. Further, I agree with the CTTT that the only possible basis for a claim outside the Legal Profession Act 2004 was for a total failure of consideration but, as there was no dispute that services had been rendered, any such claim was untenable.

20. On the appeal, Mr Cachia sought to argue that documents had been fabricated. The allegation was strenuously denied.

21. The allegaion of fabrication was neither raised nor decided in the CTTT. Therefore, it could not be argued on the appeal.

Breach of Fiduciary Duty

22. In the CTTT, Mr Cachia did not argue breach of fiduciary duty. He has not identified any relevant alleged error by the CTTT.

23. In any event, an action for breach of fiduciary duty does not arise under statute and, under section 5(2) of the Consumer Trader and Tenancy Tribunal Act 2001, the CTTT’s functions are limited to those conferred or imposed by or under statute.

Inadequacy of Reasons

24. One of the objects of the CTTT Act is to enable proceedings to be determined informally, expeditiously and inexpensively: section 3 (c) of the Consumer Trader and Tenancy Tribunal Act 2001. Consistent with that object, s 49 of the Act provides:

“49 (1) The Tribunal must, within the time prescribed by the regulations, give notice of its decision in a matter that is the subject of proceedings to the parties …
(2) Any party may, within 14 days of receiving notice of the decision, request the Tribunal … to provide a statement of reasons for its decision. The statement must be provided within 28 days after the request is made.
(3) The statement may be brief but must:
set out the decision and the reasons for it, and
set out the findings on any material question of fact, and
refer to the evidence or any other material on which the findings of fact were based.”

25. Mr Cachia has not identified any particular respect in which the Tribunal’s reasons fail to comply with s 49, nor is one apparent.

26. It is difficult to envisage a failure to comply with s 49 involving a “decision” on “a question with respect to a matter of law” that would fall within the District Court’s s 67 appellate jurisdiction.

Denial of Procedural Fairness

27. A perusal of the transcript reveals no denial of procedural fairness. During the Tribunal proceedings, Mr Cachia made no complaint. He did not ask the Tribunal member to disqualify himself. As the issue was not raised, the Tribunal member made no relevant decision, let alone a decision revealing an error “with respect to a matter of law” within section 67(1).

28. Generally, the Supreme Court is the appropriate venue in which to ventilate an allegation of denial of procedural fairness: section 65(1) and (3) Consumer Trader and Tenancy Tribunal Act 2001.

29. Section 39 of the Consumer Trader and Tenancy Tribunal Act 2001 provides:

“39(1) Except as provided by this section, a party in any proceedings has the carriage of his or her own case and is not entitled to be represented by any person.
(2) A party may, in accordance with the regulations, apply to the Tribunal for permission to be represented by a person in the proceedings or in part of the proceedings. The Tribunal may approve any such application and make an order permitting the party to be represented.
(3) In any proceedings where an amount is claimed or disputed, a party is not entitled to be represented by an Australian legal practitioner if the amount does not exceed $10,000 (or such other amount as may be prescribed by the regulations) unless the Tribunal is of the opinion that the exceptional circumstances of the case warrant such representation.”

30. On an application by Grech Partners, the CTTT determined that both parties could be legally represented because the case involved significant questions of law, Mr Cachia was claiming a significant sum ($14000) and Mr Cachia was not disadvantaged as Grech Partners were themselves lawyers and entitled to appear.

31. As Mr Cachia’s claim exceeded $10,000, the Tribunal did not need to find “exceptional circumstances” before it permitted legal representation. Although, prima facie, legal representation is not permitted in the CTTT, where the claim exceeds $10,000, the matter is entirely within the discretion of the Tribunal.

32. I doubt that the exercise of a general discretion to permit legal representation can ever involve “a question" decided "with respect to a matter of law”. In any event, in this case, Mr Cachia has failed to identify such an error.

33. Mr Cachia has not established any error on a question decided with respect to a matter of law. The decision of the Tribunal is affirmed.