Calvo v Ellimark Pty Ltd

Case [2016] NSWCA 136

Court of Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Calvo v Ellimark Pty Ltd [2016] NSWCA 136
Hearing dates:24, 25 May 2016
Decision date: 17 June 2016
Before: Ward JA at [1];
Gleeson JA at [18];
Leeming JA at [19]
Decision:

1. Appeal allowed.

 

2. Set aside orders 1D, 2, 8, 9, 10, 11 and 12 made on 22 October 2015.

 

3. Direct Mrs Calvo to file and serve, within 14 days of today, a copy of such further orders as are sought by her, and brief written submissions in support of such orders, including whether those orders should be determined on the papers.

 

4. Direct Ellimark and Ms Johnson to file and serve, within 28 days of today, a copy of such further orders as are sought by it and her, and brief written submissions in support of such orders, including whether those orders should be determined on the papers.

 5. Direct Mrs Calvo to file and serve, within 35 days of today, a note of any additional matters which, in light of the respondents’ submissions, are agreed, and any submissions in reply on matters which are not agreed.
Catchwords:

CONTRACT – deed entitled but did not oblige shareholder to acquire a parcel of shares at a price determined by a valuation – shareholder obliged to give written notice if it did not want to purchase the shares – dispute over whether valuation valid – exchange of offers at different prices to transfer the shares – proper construction of deed – whether correspondence indicating preparedness to buy shares at different prices amounted to written notice that shareholder did not want to purchase the shares – Contracts Review Act 1980 (NSW) – deed executed at commencement of trial in conjunction with loan to pay for litigation – whether deed unfair because solicitor should have taken steps to obtain alternative representation

 

ESTOPPEL – recovery of legal fees – former solicitor refused to provide tax invoices and bills of costs during party/party assessment – whether former solicitor estopped from subsequently recovering legal fees – whether former solicitor created assumption or expectation that no additional fees would be recovered – whether detrimental reliance by former client – appropriate remedy

  LEGAL PRACTITIONERS – fees – appellant obtained favourable costs order – client had paid fees to former solicitor – former solicitor refused to provide tax invoices and bills of costs to costs assessor – costs order assessed excluding costs of former solicitor – former solicitor subsequently served bill of costs – whether former solicitor estopped from recovering additional fees from former client
Legislation Cited: Contracts Review Act 1980 (NSW), s 7
Legal Practice Act 1996 (Vic)
Legal Profession Act 2004 (NSW), ss 323, 325, 327, 332A, 358
Cases Cited: Calvo v Sweeney [2009] NSWSC 719
Canty v PaperlinX Australia Pty Ltd [2014] NSWCA 309
Coburn v Colledge [1897] 1 QB 702
Cockburn v Shehadie [2013] NSWSC 758
Delaforce v Simpson-Cook [2010] NSWCA 84; 78 NSWLR 483

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AGLC
Calvo v Ellimark Pty Ltd [2016] NSWCA 136
Case
[2016] NSWCA 136
Decision Date

CaseChat Overview and Summary

The dispute in *Calvo v Ellimark Pty Ltd* concerned the proper construction of a deed and the recovery of legal fees. The appellant, Mrs Calvo, was the former client of a solicitor, Ms Johnson, and the respondent, Ellimark Pty Ltd, was a company involved in the underlying litigation. The primary issues before the Court of Appeal of New South Wales were whether a deed governing the acquisition of shares was validly construed and whether Ms Johnson was estopped from recovering legal fees from Mrs Calvo.

The court was required to determine whether correspondence between the parties constituted written notice under the deed that Ellimark did not wish to purchase shares, and whether Ms Johnson was estopped from recovering legal fees due to her refusal to provide tax invoices and bills of costs during a party-party assessment. Additionally, the court considered whether the deed was unfair under the Contracts Review Act 1980 (NSW) due to alleged steps not taken by Ms Johnson to obtain alternative representation.

The Court of Appeal allowed the appeal, setting aside several previous orders. The court reasoned that the correspondence did not amount to the required written notice under the deed. Regarding the legal fees, the court found that Ms Johnson was not estopped from recovering her fees, as the refusal to provide documentation during the party-party assessment did not create an assumption or expectation that no additional fees would be recovered, nor did it lead to detrimental reliance by Mrs Calvo. The court then directed the parties to file further submissions regarding the orders sought.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders 1D, 2, 8, 9, 10, 11 and 12 made on 22 October 2015.

3. Direct Mrs Calvo to file and serve, within 14 days of today, a copy of such further orders as are sought by her, and brief written submissions in support of such orders, including whether those orders should be determined on the papers.

4. Direct Ellimark and Ms Johnson to file and serve, within 28 days of today, a copy of such further orders as are sought by it and her, and brief written submissions in support of such orders, including whether those orders should be determined on the papers.

5. Direct Mrs Calvo to file and serve, within 35 days of today, a note of any additional matters which, in light of the respondents’ submissions, are agreed, and any submissions in reply on matters which are not agreed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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