| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : COGIN & ANOR -v- COGIN & ANOR [2003] WADC 282 CORAM : O'SULLIVAN DCJ HEARD : 4-7 MARCH & 4 JULY 2003 DELIVERED : 18 DECEMBER 2003 FILE NO/S : CIV 2709 of 1997 Consolidated by Order dated 15 May 2002
BETWEEN : NICHOLAS ROBERT COGIN WILHELM LOFFELMANN
First Plaintiffs
AND
JENNIFER HELEN COGIN
Second Plaintiff
RAYMOND NASSIB SAID
Defendant
FILE NO/S : CIV 648 of 2002
Consolidated by Order dated 15 May 2002 BETWEEN : NICHOLAS ROBERT COGIN WILHELM LOFFELMANN
Plaintiffs
AND
DONABRAY PTY LTD
Defendant
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FILE NO/S : CIV 649 of 2002
Consolidated by Order dated 15 May 2002 BETWEEN : NICHOLAS ROBERT COGIN WILHELM LOFFELMANN
Plaintiffs
AND
DONABRAY PTY LTD
Defendant
Catchwords: Contract - Claim for solicitors' fees capped by agreement - Terms of the agreement - Matter turns on own facts - Judgment for $42,000 plus interest - Trespass to land - Damages - Claim dismissed
Legislation: Nil
Result: Judgment for first plaintiffs in the sum of $42,000 plus interest
Second plaintiff's claim dismissed Representation: CIV 2709 of 1997 Consolidated by Order dated 15 May 2002
Counsel:
First Plaintiffs : Ms L G Rafferty
Second Plaintiff : Ms L G Rafferty
Defendant : Dr P R Macmillan
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Solicitors:
First Plaintiffs : Greenland Brooksby
Second Plaintiff : Greenland Brooksby
Defendant : Swaran Ludher
CIV 648 of 2002 Consolidated by Order dated 15 May 2002
Counsel:
Plaintiffs : Ms L G Rafferty
Defendant : Dr P R Macmillan
Solicitors:
Plaintiffs : Greenland Brooksby
Defendant : Swaran Ludher
CIV 649 of 2002 Consolidated by Order dated 15 May 2002
Counsel:
Plaintiffs : Ms L G Rafferty
Defendant : Dr P R Macmillan
Solicitors:
Plaintiffs : Greenland Brooksby
Defendant : Swaran Ludher
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
ABB Power Generation Ltd v Chapple (2001) 25 WAR 158
Caldwell v Treloar & Ors (1982) 30 SASR 202
Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256
Commonwealth v Verwayen (1990) 170 CLR 394
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Di Lione v Turco [1982] Qd R 224
Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215
Foran v Wight (1989) 168 CLR 385
Pryles & Defteros (a firm) v Green (1999) 20 WAR 541
R v Clarke (1927) 40 CLR 227
Re Neal & Anor; Ex parte Neal & Anor v Duncan Properties Pty Ltd (1993) 114 ALR 659
Shatin Bernstein (a firm) v Dickinson & Anor, unreported; SCt of Vic; BC9801756; 12 May 1998
Thorby v Goldberg (1964) 112 CLR 597
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Wentworth v Rogers [2002] NSWSC 709
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1 O'SULLIVAN DCJ: The first plaintiffs in the first of these actions and the plaintiffs in the other actions are a firm of solicitors.
2 The second plaintiff in the first action is the wife of the firstnamed of the first plaintiffs ("Cogin") and the owner of their family home. 3 The defendant, Raymond Said ("Said"), is a director of Donabray Pty Ltd ("Donabray"), a company engaged in the business of building and renovating concrete swimming pools and trading as Phoenician Pools. 4 The claim of the first plaintiffs in each case is for monies owing for professional services rendered to Said and Donabray. 5 The claim of the second plaintiff is for damages said to have been caused by Said in the process of carrying out unauthorised work upon her property.
Background 6 Cogin has acted as a solicitor for Said and Donabray since about 1991, taking instructions from Said and personally attending to some matters while referring others to his partner. The instructions related to matters involving litigation as well commercial and other activities. 7 In 1992 and 1993, Cogin acted for Said personally in proceedings in the Family Court which were ultimately settled. After this, an account was rendered and duly paid. 8 In August 1995, solicitors for Said's wife wrote to the first plaintiffs alleging that there were grounds upon which their client could successfully apply to set aside a property settlement agreement registered under s 86 of the Family Law Act. Cogin took Said's instructions in relation to the matter and acted on his behalf until the dispute was ultimately settled in September 1996. 9 The principal claim in these proceedings is for fees said to be owing for so acting.
Nicholas Robert Cogin 10 Cogin said that upon receiving instructions from Said in relation to his former wife's threatened application to set aside the property settlement, he wrote to her solicitors on 21 September 1995 stating that
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Said could not afford legal representation and that, accordingly, the plaintiffs would not be acting for him. However, on 23 October 1995, Said engaged him telling him that he had attempted to negotiate a settlement with his wife's solicitors but had been unsuccessful. By this time proceedings to have the property settlement set aside had been commenced. 11 Cogin said that his advice to Said was to make an offer to settle the wife's claim and this was done. Said subsequently reported to him that his wife had accepted the offer but when Cogin attempted to confirm that fact with the wife's solicitors a counter offer was made. Said became angry and frustrated and instructed him that he was not prepared to negotiate further and wanted to let the matter go to court. 12 On 31 January 1996, Cogin wrote to Said advising him of the plaintiffs' fees and disbursements already owing and estimated future costs. He wrote: | 1.1 | Professional fees and disbursements billed and paid | 1,968.76 | | 1.2 | Professional fees and disbursements billed and outstanding | 2,034.40 | | 1.3 | Professional fees and disbursements yet to be billed | 3,445.47 | | 2. | Estimated future cost of the preparation for trial including: | | 2.1 | affidavits as to Evidence in Chief | 5,000.00 | | 2.2 | cost of first day of trial | 1,500.00 | | TOTAL | $13,938.63 | Yours faithfully
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13 A conciliation conference was held in the Family Court on 1 February 1996. No settlement was reached and, after it, Cogin suggested to Said that counsel be briefed to provide an opinion. The suggestion was not immediately taken up but, on 12 April 1996, he was instructed to brief Dr Anthony Dickey QC. At that time, he told Said that he thought that Dr Dickey would charge $200 per hour but he in fact charged $250.
14 On 22 April 1996, Cogin met with Said to take a proof of evidence from him. He said that during that meeting, Said expressed great concern about the mounting legal costs and the next morning he received a facsimile from Said as follows (spelling mistakes included): "Good morning Nick Folowing our meating last night a fuew thing re family law Jean Said concerns me. Wen you recomended to use extra halp on this meter from Q.C. I strest my concern re cost & askt to how mach extra cost this will be. You ashord me that he was resnabel & that it will not cost ove $200-00 per hour. I now see by your leter that his cas well obve your astemet and astemets given yesterday for valuas & acountent are fars beon my cabebelty to pay. I conferm your advic that it is not posibel for me to optian leagel aid. As I manshend last night I do not have an open cheq boock & that I have never conteplated on any of this problam as I have all ways ander stood tha the deed was finel perticaly from Jean wen she said that if I give to her dead at that time as statet in this deed I signnd she will be happy the cost of all this proplams is beond me and for this reason I ask you prosed negosiasion with other party and avoid any … ." 15 Cogin replied to Said's facsimile, stating as follows:
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Senior Counsel's Fees We agree with your recollection of our conversation about this matter. Mr Cogin did estimate Senior Counsel's fees at approximately $200.00 per hour. At the time of discussing this with you we did not have Senior Counsel's precise costs, that is the reason we have sent you a copy of Senior Counsel's fees. If you no longer wish us to instruct Senior Counsel, please advise us immediately so that we can terminate his instructions and not incur any added fees. We will assume responsibility for the difference between $200.00 an hour and $250.00 an hour for all work done to date. Please note we will not assume responsibility for the difference between the estimated fees and the actual fees for Senior Counsel after today. We enclose a draft letter to Dr Dickey QC dated 23 April 1996. We await your instructions concerning this letter. Legal Aid With the ordinary mail copy of this letter we enclose an application for Legal Aid form. Your recollection of our discussion is not consistent with Mr Cogin's recollection. Mr Cogin told you that you could apply for legal aid but he personally doubted whether your application would be successful. Mr Cogin did not advise you that it is not possible for you to obtain legal aid; it is possible for you to obtain legal aid but we doubt whether you will be granted legal aid in your circumstances. We recommend that you complete the legal aid application form and submit it to Legal Aid for assessment. If you receive legal aid we will be happy to continue to accept your instructions. Property Valuations We confirm you will make enquiries to obtain your own sworn valuations of your property and Mrs Said's property. Mr Cogin has told you that Mr Pickup estimated his costs for a valuation of Donabray Pty Ltd t/as Phoenician Pools as being between $3,000.00 and $5,000.00. We confirm you have
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advised us that you cannot afford to have Donabray Pty Ltd valued by Harvey Pickup & Co. We have still not received a valuation of Donabray Pty Ltd from Mr Egan. At this stage we will not pursue this aspect until you have clarified your instructions. Open Cheque Book We are concerned that you appear to think we consider you have 'an open cheque book'. Nothing could be further from the truth; you will recall we have been trying to devise a way where we can alleviate the impact of our legal fees on your cash flow problems. We had hoped you would have appreciated that we understood your predicament and we were trying to accommodate you. Your Instructions The last part of the page was chopped off on the facsimile transmission. Would you therefore please answer the following questions by return facsimile: 1. do you want us to continue to engage Dr Anthony Dickey QC any longer? If so, you acknowledge that you are liable to pay his fees at the rate of $250.00 per hour from tomorrow; 2. do you want us to write to Mrs Said's solicitor or do you want Dr Dickey to write to Mrs Said's solicitor? We enclose a draft letter which we propose to send to Mrs Said's solicitor as soon as we receive your instructions to do so. Please consider the letter and advise us of your instructions as soon as possible; and 3. do you want us to continue preparing for trial at this stage? Or do you want us to delay our preparation for trial until we receive a response from Mrs Said's solicitor? Please note this is a dangerous strategy given that we may run out of time. Please give us your faxed response to the above as soon as possible."
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16 Cogin said that when he wrote this letter he was aware that Said had skills as a builder and was prepared to consider allowing him to do some work in lieu of paying the first plaintiffs' fees. That is why he wrote, under the paragraph entitled "Open Cheque Book", "you will recall we have been trying to devise a way where you can alleviate the impact of our legal fees on your cash flow problems."
17 Said replied to Cogin's letter of 23 April 1996 on 24 April 1996, stating: "Thank you for your promp reply to my fax this morning. Pleas let me explain my position bit beter. It apears by your leter to have mis understood my meaning. It is the QC, valuas and company valuas I am wareed about not your fees. I am gratfull as you now for your help to date in evry way its just as explay yesterday that this extra fees for Q.C. & valuars that have throun me out and the fact of bills & leagel cost to deal with this meter I cant seem to control any moor and I am feeling lost wit. It as my bills contonu to acumilat it macks feal more and more inscue a I dont belev neathe me or donerbray be in a position to by for this. This is the reson wy I askt if it is posibel to obtian leagel aid and wether the goverment cold help me with bills and I am dowing evrythink in my power to reduse my over heads in evry way in order to be abel to pay your bills to date and to catch up on company suplyer bills I now & can do this and I am abel to do this if I stop spending mony on leagel bill. How ever it is not your fult wat so ever I am in this prodicemet and I am verry gratfull for your help only our conversation last night has rely shown that I may be still up for lotes more biells at the end after the cuort proceeding & that ther is no winers hear so for this reason (am lost and I have thurnd to nigasoations after all as I explx in my leter this morning I did not conte on any of this. As for Dr Dickey QC as much as I respect your advic totaly I dont think I can aford his service. I wold lick to hold of untill we sea wat negosation with othe party brings first. Howe ever I respect and apprecat your advice and Dr Dickey QC halp & proply it is proplay to get him back and do not wish for him to leav all together shold nigosation with the other party fale. As for company valuation no I do not want this tacu place at this time untill nigosation or feedback is given. Hopfully in not to diston futher meen will I have an appoint tomorow at 3pm. Hopfully he could help me to sout out the finenshel side of thinks or may be he could recomend away to deal with it pleas
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except my sensear apolges if I have seem to have affended you Nick. It is not my intanshen to do so. I will ring you tomorow to inform of wat happen with acountant mean will I do not want for you to pay the difrenc in Dr Dickey QC bill and I will athurise you to do wat you think is best wether to send the leter to Jeans silestor or for Dr Dickey QC. to send it and I will exapt charges for this. Thank you for your servic and many regards." 18 Following receipt of this facsimile, Cogin wrote to Dr Dickey, asking him to take no further action on the brief until instructions were received from Said. Dr Dickey was also requested to render an account and he sent one for $700. This was forwarded to Said with a covering letter dated 30 April 1996, requesting that he attend to payment. Cogin wrote in the letter: "We confirm Mr Cogin agreed to pay the difference between the rate of $250.00 per hour and $200.00 per hour. Accordingly, would you please send us your cheque payable to Dr Anthony Dickey QC in the amount of $560.00; we will pay the balance." 19 On 4 May 1996, Said gave Cogin a cheque for Dr Dickey in the sum of $560 and Dr Dickey's account of $700 was ultimately paid in full on 13 June 1996. 20 In the meantime, the Family Court proceedings continued on. On 24 May 1996, a pre-hearing conference was held and before it took place, Cogin provided Said with a document entitled "Memorandum as to Costs Pursuant to Practice Direction No 35". It read: | 1.1 | Bills to date | $12,378.61 | | 1.2 | Estimated work in progress as at 24 May 1996 | 8,000.00 | | 1.3 | Estimated cost of attendance at pre-hearing conference | 500.00 | | 2 | The estimated future cost of three day trial | 4,500.00 | | TOTAL | $25,378.61 | 21 Cogin said that the estimate of fees contained in the memorandum was made upon the basis that he would act as solicitor and counsel at trial and that Dr Dickey would not be re-instructed.
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22 It was also necessary to instruct valuers and chartered accountants, and accordingly firms known as "Property Valuations and Consulting Services" and "Low & Co" were engaged. Invoices from the former in an amount of $1,859.50 and from the latter in the sum of $3,837.95 were received and these were sent to Said by Cogin with a covering letter dated 13 June 1996 requesting a cheque payable to each firm "as soon as possible". No reply was received from Said and on 11 July 1996 Cogin wrote again, requesting payment.
23 On 13 July 1996, Cogin sent an account in the sum of $3,881.93 detailing work done from 1 June 1996 until 28 June 1996. It also specified a previous balance owing of $28,742.75 in respect of earlier work making a total due of $32,624.68. Cogin gave evidence that of this amount $25,088.54 was in respect of work done on Said's Family Court case. The balance related to work done for Donabray in relation to other matters. No part of the amount of $32,624.68 related to monies owed to Low & Co and Property Valuation and Consulting Services. 24 Cogin said that following the sending of this account he received a telephone call from Said on 19 July 1996. Said told him that he was not going to be able to pay the account, nor the costs incurred in respect of Low & Co and Property Valuation and Consulting Services. Cogin responded that the account was reasonable, that most of the trial preparation had been done and that he (Cogin) did not envisage too much more work had to be done because the case was ready to go to trial. He said: "I told him I thought my fees for the Family Court trial would be about $27,000.00 and I was prepared to stick by that amount if my fees went higher. Said told me that he thought that this was satisfactory and he at least knew how much my costs would be." 25 Cogin said that he was concerned about the phone call from Said on 19 July 1996 "because Said's tone was different from usual". Accordingly, on 2 August 1996 he sent Said a letter confirming the discussion. The letter reads as follows:
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We enclose a schedule of your costs. We confirm: 1. Mr Cogin agreed to cap your Family Law costs at $27,000.00 through to and including the conclusion of the Family Court trial. This does not include Dr Dickey's fees or any other expert witness fees such as Ms Low; 2. the total fees to date for your Family Court matter are $25,088.54. You have an outstanding balance of $7,536.14 for other Phoenician Pool matters. These fees are not included in Mr Cogin's agreement to cap fees at $27,000.00. Accordingly we do not consider there has been a cost blow out and in fact we are still within the estimated budget." 26 Said replied to this letter by letter dated 5 August 1996 stating: "Dear Mr Cogin, Re- your letter dated 2nd of August 1996 and your fees. We disagree with your claim that your total fees of $27.000 as a cap of figure did not include Ms Low total fees or Phoenician Pools fees. At our recent discussions on this matter concerning your fees I bring to your attention once again that prior to 26th of June trial and after consulting Dr Dickey at that time you have assured me that in no way your total fees will exceed $27,000.00 this was including Phoenician Pools, all parties involved and allowing for you and Dr Dickey's 3 days in Court I specifically remember this as you were almost argumentative with me that I was exaggerating when I stated that the fees are getting out of hand your comments were that after your recent look at the accounts this was not the case and that in no way my total bills will exceed $27,000.00 At our recent discussions I agreed with you upon your offer of capping your total fees at $27,000.00 and I will take care of Dr Dickey's time in Court this was the agreement reached at our recent discussions.
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Could you please reconfirm this in writing. Yours sincerely, RAYMOND SAID MANAGING DIRECTOR." 27 On 7 August 1996, Cogin replied to Said as follows: "Dear Mr Said COSTS Thank you for your letter dated 5 August 1996 received by facsimile 6 August 1996. Mr Cogin disagrees with your recollection of the agreement with you concerning costs. We will send you a more detailed response to your allegations by Monday 12 August 1996. We regret that we are unable to respond in more detail until then, however Mr Cogin's commitments will not allow it before then. Mr Cogin is no longer prepared to consider off-setting your legal costs against the proposed building work at his home. We will therefore require that your account is paid. We also will require you to secure Ms Low's fees and you to secure Dr Dickey's fees. This means you must deposit into our trust account sufficient funds to pay these fees. At this stage we are not asking for your fees. If you are unable to secure these disbursements, we will not be able to continue acting for you. You will understand that while we may be able to afford not to receive payment from you, we cannot offer to pay money on your behalf. We understand you have advised Mr Cogin's wife that you will be attending his home this afternoon to 'measure up the pool'. Given the above, there is no need to attend this meeting. We will require you to secure Ms Lowe's fees and Dr Dickey's fees by no later than close of business on 14 August 1996."
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28 Cogin said that he wrote the fourth and sixth paragraphs of this letter because for some time prior to 7 August 1996, there had been discussions with Said about the possibility of him doing work for the plaintiffs to pay off his indebtedness to the plaintiffs. Work had been required on the first plaintiffs' offices at Joondalup. Said had submitted a quote to do it but it had not been accepted. Mr and Mrs Cogin had also had a number of meetings with Said to discuss the possibility of him doing work on their family home and there was a pool which needed repairing. Arrangements had been made for Said to inspect the pool and by this letter Cogin was cancelling them.
29 Said replied to the letter of 7 August 1996 the following day. He wrote: "Dear Mr Cogin, Re- your letter dated 7th of August 1996 markt 'costs.' Rest assured there is nothing wrong with my recollection of the agreement reached with you as Mr Roland Warner and Miss Gilda Achikian were in my office at the time and over heard our conversation. As for your comment re off-setting your legal costs against your proposed building at your home and swimming pool this was your idea when I explained to you that I am not in a position to be able to afford very high legal costs you suggested this as an alternative. I am not in the habit of accumulating bills and I do not expect other people to pay them on my behalf; when I explained to you at your home in the presence of Mrs Cogin that I had received Ms Low's bill from your office and I was unable to pay it and suggested that I would ring Ms Low's and ask if I can pay it in three or four installments you stated that you would take care of it. As for DR Dickey's account I have no idea what I owe him to date. My advise to Mrs Cogin was to measure your boundaries in relation to your existing gardens and swimming pool to unable us to position your proposed rear office, guest room and change room/shower & w.c in relation to existing gardens and swimming pool. I regret that you have a change of heart on this proposal as I genuinely tried hard with Nicholas the architect to put your
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ideas to working drawings and plans to avoid having your additions give the appearance of looking tacked on or as an afterthought and to unable us to give up front quotations prior to your commitment of the proposed work taking place. I was looking forward to working at your home and would have saved you money in the long run and made your home more comfortable for your family and provided more office space for your business. I am grateful for what you have done for me to date and regret your change of heart could you please advise Ms Low and Dr Dickey to forward there invoice statements directly to me so I can make other arrangements to pay for them or forward them to me yourself. I have had a meeting with Dr Dickey concerning this matter today and he advised me that he is willing to wait until December for payment. I have also asked him if he can take over my case and he informed me that he was unable to do so and suggested it will be better if we can work things out between us he also was kind to recommend another solicitor if we are unable to reach an agreement, could you please advise me if this is possible or if not send me your account to date as I am indebted to pay it. However under the circumstances, I propose to get the Family Court advise me on this first. Could you please forward to our office all books, documents and paper work related to Donabray pty ltd and my family law documentation as a matter of urgency or advise us when we can pick them up." 30 Cogin said that he considered Said's request for the files in relation to the work done by the first plaintiffs and responded by letter dated 13 August 1996. In it, he wrote:
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We will transfer your files to your new solicitor provided: 1. we have an agreement with Dr Dickey and your new solicitor that your new solicitor will be liable for payment of all Dr Dickey's fees, both past and future; 2. we have an agreement with Ms Low that she will not hold us liable for her fees, both past and future; and 3. we have an agreement with the land valuer, Mr Peter Kreutzer of Property Valuations and Consulting Services that he will not hold us liable for his fees, both past and future. Once those arrangements have been made we will transfer all of your files to your new solicitor. We note your comment concerning having the Family Court look at our account; in the circumstances we insist that this should be done. We will prepare an account in a form acceptable to the Family Court and if you do not agree with the fees we will ask you to refer the account to the Family Court for assessment (ie taxation). The accounts of Phoenician Pools are not Family Law accounts, and therefore payment of those accounts is immediately due. Please give us your proposal regarding payment. We will not release any of your documents or Donabray's documents until the above arrangements are confirmed in writing. If an agreement cannot be reached with these people concerning releasing us from our obligation to indemnify you for these amounts outstanding, then these accounts will have to be paid before we are prepared to release your files. We do not intend to prejudice your trial, we will make your documents available to your new solicitor upon your solicitor's undertaking to return all your documents to us at the conclusion of the trial." 31 Said replied to Cogin's letter of 13 August 1996 on the same day, stating:
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"Dear Mr Cogin, Thank you for your fax dated 13th of August 1996. It appears by your fax that you do not wish to continue to act on our behalf. We regret your decision on this matter as it has never been our intentions. TRUST; We draw your attention to promises and agreements on this issue. 1- Costs where to be set off against alteration to your home. 2- Capping total cost at $27,000.00. 3- Your fax dated 7th of August 1996. 4- Your promise and commitments made to us on many occasions that you will in no way prejudice our case. 5- Your fax today 13th of August 1996 'new solicitor' We are not in a position to apoint a new solicitor. I will be representing myself if required. Should you continue to refuse to act on our behalf please send our documentations as a matter of urgency to our office no later than 12 noon tomorrow 14th of August 1996 as requested in our fax dated 8th of August 1996. Could you also please note that we hold you personally responsible, should your actions over this issue prejudiced our case or reputation to date in any way, or should your action prejudice our case in time to come. It is our right to question your accounts and promises we do not think your fax dated 7th of August 1996 was professional or appropriate nor going back on our agreement of capping total costs at $27,000.00 which is a lot of money in any case.
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32 Following the exchange of letters on 13 August 1996, Cogin said that he met with Said on 16 August 1996. At that meeting, he said that Said told him that he would pay the accounts of the valuer and chartered accountant and Dr Dickey. Said had already stated in his letter of 8 August 1996 that he had had a meeting with Dr Dickey and that Dr Dickey had advised that he was willing to wait until December for payment of his fees. 33 At the meeting of 16 August 1996, Cogin also said that he informed Said that he was prepared to continue to act for him. Cogin said that he considered that at this point, he had a professional duty to do so. He said: "After Said had informed me he was not in a position to appoint another solicitor I considered I was ethically bound to continue to represent him being so close to trial. I was therefore ethically bound to finish the trial, render my account and then if a dispute still existed have the account taxed in the Family Court." 34 On 22 August 1996, Cogin wrote to Said to confirm his understanding of the discussions of 16 August 1996. He wrote: "Dear Mr Said FAMILY LAW - COSTS We refer to your meeting with Mr Cogin on 16 August 1996. We confirm our understanding of the discussions is as follows: 1. you will contact Ms Low as soon as possible and make an agreement with her concerning payment of her fees; 2. you will contact Mr Kreutzer as soon as possible and make an agreement concerning the payment of his fees; 3. you intend to review all of our accounts (including those accounts sent to you relating to Donabray Pty Ltd) and then you will arrange a meeting with Mr Cogin to discuss
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the accounts. We are prepared to wait until 14 days after the conclusion of your Family Court trial to hold a meeting concerning our fees. We trust this accords with your record of the meeting." 35 Said replied to this letter on 24 August 1996 stating as follows: "Dear Mr Cogin, Thank you for your facsimile dated 22nd August 1996 marked. Family Law - trial 4th September 1996 and refers to my meeting with you on the 16th August 1996 we confirm receiving of your letter dated 13th June 96 and Ms Low's accounts dated 10th June 96 and Mr Kreutzer's accounts dated 20th May 96 however we did not received Dr Dickey's invoice to date. We confirm that our request for the above accounts to be sent again to eliminate misunderstandings. We also confirm our commitments made at your Herdsman office on the 16th August as follows. We will pay Ms Low's and Mr Kreutzer's accounts to date and any future accounts if any. We have contacted Ms Low already and made arrangement to that effect, we tried contacting Mr Kreutzer today we spoke with Mr Gerry J. Brown at his home and made the same arrangements. We are also happy to arrange direct payment with other parties involved if required. We confirm that although we agreed to pay the above accounts direct we still maintain that your agreement to cap cost at $27,000.00 included the above accounts and Phoenician pools accounts we also confirm this issue of 'cost' is not resolved and still in dispute. However, rest assure we do not intend to leave you out of pocket and will be endeavoured to pay your account to a mutually agreed amount, or as agreed by the Family Court.
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We are very happy with your services and hope to continue to do business with you if and when required for many years to come. Thank you for your time, understanding and support. please do not hesitate to contact me should you need to discuss this matter of 'cost' prior to the trial." 36 Said's dispute with his former wife went to the Family Court on 6 September 1996 and was settled. On 15 September 1996, Said wrote to Cogin, stating, "Could you please finalise our account as soon as possible and let me know when I can meet with you to discuss payments." and on 9 October 1996, Cogin rendered what he called a "final account". The account which is part of Exhibit 36 is 35 pages in length and claims an amount described as "Balance due of $41,049.19". Cogin said that of that sum, $31,251.98 related to work done in representing and advising Said in relation to his Family Court matter and the balance related to work done for Donabray. 37 On 21 October 1996, Said wrote to Cogin as follows: "Dear Mr Cogin, Thank you for your letter dated 9th October 1996 received on 18th October 1996 re your final statement invoice. A- It appears that your totals dose not coincide with our agreement to cap cost at $27,000.00. B- The above invoice was to be off set by work to be carried out by our Company at your Ardross home. C- It was under 'the above understanding and agreement' I gave my consent for you to continue with our work at that time. D- We will need time To go through and examine your account in more detail. We will write to you in about two weeks as to how we can possibly pay your invoice and send in our account for preliminaries work carried out for alterations to your home by our company and Morocchi and Robinson Architects and Engineers.
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38 Cogin said that he did not respond to this letter although he did not agree with the content of it because he understood Said to be saying that he would pay the plaintiffs' fees in due course. He was very concerned to make sure that Dr Dickey and the experts that he had engaged for the Family Court proceedings were paid first. He said: "I therefore did not push for payment of Cogin and Loffelman's account because I wanted Said to pay Dr Dickey and the expert witnesses. I was prepared therefore to wait for Cogin and Loffelman's fees." 39 In or about mid-January 1997, Cogin learnt that Dr Dickey had not been paid and on 29 January 1997, he therefore wrote to Said stating: "Dear Mr Said COSTS We refer to your letter to us dated 20 October 1996. We enclose a copy of a letter from Dr Dickey dated 17 January 1997 (received 21 January 1997). Dr Dickey's Costs Dr Dickey informed us (before your trial commenced in the Family Court) that you and he had agreed that you would pay his fees on or before 31 December 1996. Would you please inform us when you will be able to pay Dr Dickey's fees so that we can advise him of your response. If you prefer to deal directly with Dr Dickey please advise because it is the customary for Barristers to receive their instructions from the instructing solicitor. ie Dr Dickey comes to us for his instructions.
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40 Following correspondence between Cogin and Dr Dickey in which the latter agreed to await payment of his fee until 1 July 1997, Cogin and Said met at Cogin's home on 3 March 1997. The meeting had been arranged by Cogin in an effort to settle the matter. Cogin said that at it Said refused to make an agreement about the quantum of fees, but suggested that he should provide a quote for work on the pool or for building work on the house. 41 On 8 June 1997 Cogin said that he received a telephone call from Said. In it Said informed him that he would not be able to pay Dr Dickey's fees by 1 July and that he would be writing to Dr Dickey to request an extension of time until Christmas. Said also told him that he had paid the valuer and that Ms Low had been in contact with him demanding payment of her fees by the end of June 1997. 42 On 12 June 1997, Said wrote to Cogin as follows: "Dear Mr Cogin, As promised over our phone conversation at your home last Sunday 8th of June 1997. I have spoken with Dr Dickey re-his bill Dr Dickey re-iterated that it was up to you to settle his account and indicated to me that he wants payment by the end of this month and told me that he will be in touch with you. Could you please inform me of the out come and as a friendly reminder could you please confirm our verbal agreement to re-pay your account by way of work at your home 24 Mitchell Street, Ardross. Thank you." 43 Cogin responded to this letter by letter dated 17 June 1997 stating:
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"Dear Mr Said YOUR OUTSTANDING ACCOUNT Thank you for your fax dated 12 June 1997. We enclose for your information a copy of a letter from Dr Dickey dated 9 June 1997. Mr Cogin is concerned about this matter as Dr Dickey's obvious annoyance about this situation reflects on this firm's professional reputation. It has always been our understanding of the negotiations to date that you would pay Dr Dickey's fees within the agreed time frame. All arrangements to date have proceeded on the basis that you would pay Dr Dickey's account. Mr Cogin is very concerned that we are now in a position where we may have to pay your barrister's fees. This is not a situation we can easily agree to as it puts enormous financial pressure on Mr Cogin. Further, we have now received a letter from your brother demanding the original copy of the Lee -v- Said file to be delivered to him by courier. The letter indicates he wants to review our accounts for this file as well as any agreement you have entered into regarding fees. You have in the past stated to Mr Cogin that you agree to pay all our fees; we therefore wonder what is going on. You have throughout the conduct of all your matters received itemised accounts for the work done; we are extremely surprised that this still may be an issue for you. If you are disputing any of the accounts on any of your files please immediately inform us of your dispute. You have provided a quotation for the work to be done on Mr Cogin's pool. It is acceptable for you to do that work as per your quote and the cost of your work will be deducted from your Family Law account. This offer is conditional on your agreement that you do not dispute fees. If there is a dispute on any of our accounts then that matter will have to be resolved before we are prepared to make any agreement with you about paying off the account by providing your services in return. Mr Cogin cannot commit to any further work on his house because it appears he may be forced to find finance for
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44 On 25 June 1997, Said wrote to Mr and Mrs Cogin as follows: "Good morning Nick & Jenny RE: OUR CURRENT IMPASSE: This letter is to touch base and to see where we stand with your pool renovations It is not our intention to cease working for you, as our legal problems are not with you but with Mr Alan Lee. However, we must resolve our differences to enable me to complete the renovation on your pool which I have already commenced and do not wish to leave it in its current unsightly state, unless you do not wish me to continue, I look forward to completing this task amicably. It is most unfortunate there has been a breakdown in our communication and my brother assured me that he was neither abusive nor aggressive towards your receptionist and rejects all your allegations against him in your letter to him dated 19th June, 1997. Michael will be writing to you in due course regarding this and other matters. In order to restore a harmonious working relationship to complete your pool and other additions to your property as previously agreed, so that we may settle all accounts with you amicably, We need your cooperation towards this by firstly indicating in writing to me whether or not you wish me to continue working on your property. I respectfully request that you arrange a site meeting between you, Jenny, myself and my brother Michael, so we may discuss possible and reasonable solutions to all outstanding issues
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regarding your accounts and your current and envisaged future work I am willing to do all your home improvements, as promised, to the best of my ability and to your satisfaction at competitive prices to meet your outstanding accounts. Please also find an enclosed copy of my letter of even date to Mr Anthony Dickey Q.C. which is self explanatory. I look forward to hearing from you at your earliest opportunity." 45 Following this letter, Cogin said that he received a phone call from Said's brother, Michael, and he decided to seek independent legal advice and representation.
Raymond Nassib Said 46 Said gave evidence that in October 1995 he had a meeting with Cogin to discuss his former wife's application to set aside the property settlement. At that time, the first plaintiffs were acting for Donabray and Said told Cogin that he would not be able to pay future fees on those two matters let alone for representation and advice in relation to Family Court proceedings. 47 According to Said, Cogin told him not to worry about legal fees; that he could carry out some renovation work upon his home which would be set off against them and that there was plenty of work and the fees would be less than the value of it. He said that Cogin explained the proposed work to the home, saying that he wanted to demolish an existing garage and build a double one at the front of the property together with a home office or study at the rear and that he also wanted to carry out renovation work to the pool and some work on the kitchen and the back area of the home. 48 Said said that in the light of what Cogin had told him he instructed him to act for him in the matrimonial matter and to continue acting for Donabray. 49 Some time in January 1996 Said received an account from the first plaintiffs dated 16 January in the sum of $9,112.86. Said said that he rang Cogin to tell him that he was not able to pay this account and to express worries about the mounting fees, especially if he was to purchase materials himself for the work to be done on the house, but once again,
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Cogin reassured him telling him not to worry about the cost and that there was plenty of work to be done. 50 Further accounts were received by Said in late-January 1996 and again he said he discussed the matter and expressed his concern about rising legal costs with Cogin but was reassured. 51 Said also gave evidence that during one conversation in about February 1996 Cogin told him that there was more than enough renovation work to be done to cover the fees and that he and his partner also wanted work done on the first plaintiffs' Joondalup offices. According to Said, Cogin said that it would be better to work on the Joondalup offices first, rather than his family home, because this would satisfy his partner. 52 A floor plan of the Joondalup office was sent to him and upon Cogin's urging, Said produced a sketch of the proposed renovations and a quotation in the sum of $16,595. Subsequently Said received from Cogin's partner, Wilhelm Loffelmann, a copy of a quote from another contractor for $8,900. He spoke to Mr Loffelmann on the telephone and told him that he could not do the job for that price. He also spoke to Cogin, who told him that it was not a problem and to forget about work on the offices and concentrate on working on the house. In that regard, Said said that Cogin told him to deal with his wife, the second plaintiff. 53 In the meantime, the Family Court dispute was proceeding and Said said that he continued to be concerned about mounting legal fees but was reassured by Cogin that there would be more than enough work to do on the house to cover them. 54 In about April 1996, he said that he went with Cogin to the Family Court for a conference. After the conference Cogin advised him that a barrister's advice was necessary and that Dr Dickey QC should be briefed at a cost of $200 for about two hours. Said agreed to give instructions in that regard and, in due course, received a note of Dr Dickey's fees which totalled $700, calculated at the rate of $250 per hour. 55 Said said that upon receipt of Dr Dickey's account, he rang Cogin and reminded him that he had said that counsel's fees would be $200 an hour. He confirmed Cogin's evidence that Cogin agreed to pay the difference.
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56 Said said that in May 1996 he received another account from Cogin, this time in an amount of $19,463.57. This is the invoice dated 8 May 1996. Said said that he rang Cogin and again expressed his concern about rising legal costs and Cogin responded by saying that he would cap all legal costs at $27,000. By this Said understood Cogin to be saying that the first plaintiffs fees both for the family law matter and for the matters concerning Donabray Pty Ltd inclusive of disbursements would be capped at $27,000.
57 Said said that he responded to Cogin by saying that $27,000 was a lot of money, but at least he knew the maximum sum which would be paid and a proposal to cap fees at that sum was therefore acceptable. 58 On 5 June 1996 or shortly thereafter, Said said that he received another account from Cogin, this time indicating that the amount outstanding was $28,742.75. He telephoned him and asked him what he was doing. According to Said, Cogin responded by saying that he should not worry as the accounts "were only being rendered to cover the situation if we won the case". Said that he asked Cogin to confirm the fee capping agreement in writing at that time. 59 The next account received from Cogin was dated 13 July 1996 and was in the sum of $32,624.68. Said said that he became very anxious and went to see Dr Dickey QC and informed him that he had an agreement with Cogin as to the capping of fees and he had now received an account which totalled far more than the agreed sum. He said that he discussed his case with Dr Dickey and was told that he could not act for him without a solicitor and that as the Family Court trial was imminent, it would only add to the costs if he changed solicitors. 60 Following his meeting with Dr Dickey, Said said that he rang Cogin "to try and work things out with him". According to Said Cogin told him at that time that even though he had agreed to cap fees at $27,000 that sum did not include counsel's fees. Said asked Cogin how much the fees were likely to be and Cogin said that they would be about four hours a day for three days, which Said calculated to amount to $1,000 a day. He said to Cogin that Dr Dickey's fees ought therefore to be, at the most, $3,000 and Cogin confirmed that that was correct. Said then said that he was prepared to pay a further sum of up to $3,000 for Dr Dickey QC to appear at trial and, according to him, Cogin responded by confirming that he would therefore brief him for that purpose.
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61 Some time after this telephone conversation, Said said that he received the letter from the first plaintiffs dated 2 August 1996 and he responded to it on 5 August 1996.
62 In the last paragraph of his letter of 5 August 1996, Said wrote that he would take care of Dr Dickey's time in court. He said that he wrote this on the understanding that Dr Dickey's fees would not exceed $3,000. 63 On 16 August 1996, Said said that he had a meeting with Cogin, during which Cogin told him that he had "money problems" and asked him to pay the accounts of the valuer and the chartered accountant. Said's evidence was that these amounts were to be included in the agreed cap of $27,000 (plus $3,000 for Dr Dickey's fees) as confirmed by him in his letter of 5 August 1996. However, he said that he decided to pay them because Cogin could not and that it was agreed on 16 August 1996 that these amounts were to be credited against the agreed cap. 64 As to the work to be done on the second plaintiff's home, Said said that in around June 1996 he met with Cogin and the second plaintiff at the property. They advised him of what they wanted and he suggested that an architect be engaged to draw up plans. He recommended a firm of consulting engineers and architects known as Marocchi & Robinson and it was agreed that he, Said, should engage them and this was done at a cost to him of $600. 65 Said priced the renovations and additions at between $75,000 and $80,000 and mentioned that figure to Mrs Cogin. According to Said, she said that this was too high and a number of alterations were discussed subsequently with her and her husband at a meeting on 18 April 1997. At that meeting Said said that the Cogins informed him that they did not want to spend more than about $50,000 to $60,000. Accordingly, he went away to do some calculations taking their wishes into account and arrived at an estimate of $30,000 for the cost of certain work at the back of the property. He later informed the Cogins of this estimate and said that they were satisfied with it. 66 Said also said that in early 1997 he prepared a quote for the repairs to be carried out to the pool. The quote was in the sum of $10,455 and he gave it to Cogin who said that it was acceptable. On or about 16 June 1997 he and an employee Michael Dunderdale went to the property to work on the pool and commenced by chipping off some tiles. Mrs Cogin was at home and he discussed the proposed work on the house while Dunderdale proceeded with the chipping off of tiles. In the course of
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those discussions Said said that he told Mrs Cogin that he would be engaging a sandblaster to use in repairing the pool as that was the next aspect of the work to be attended to. However on 17 June 1997 he received a letter of that date from the first plaintiffs (Exhibit 55) informing him in effect that his quote for the work on the pool was only acceptable upon condition that he did not dispute the fees being claimed by the first plaintiff. Mr Said said: "I thought he was blackmailing me to agree to fees contrary to our agreement." 67 Accordingly, no further work was done on the property and the dispute between the parties has proceeded.
Pleadings 68 The statement of claim is not well drafted. The rules that material facts only should be pleaded and that a defence should not be anticipated have been ignored. Nevertheless, the principal claim against Said appears in par 4 which reads in part: "4. The first plaintiffs' claim against the defendant is for the sum of $42,000.00 as follows: (a) (i) $27,000.00 for work done services rendered and moneys paid by the plaintiffs as a defendant solicitor for and on behalf of the defendant and at his request in family law proceedings and for which accounts have been rendered; …
(ii) the defendant has paid the sum of $96.30 on 28 August 1994; (iii) Cogin did on or about 19 July 1996, in the course of a telephone conversation with the defendant, orally agree with the defendant to charge the defendant maximum professional costs of $27,000 for work undertaken by Cogin in respect of the Family Court proceedings;
(b) $15,000.00 being fees for senior counsel briefed on behalf of the defendant, at the defendant's request
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and which the defendant, on numerous occasions confirmed in writing to both Cogin and to counsel, Dr Anthony Dickey QC that he would pay." 69 Particulars of the accounts rendered referred to in par 4(a)(i) and amounting to $31,348.28 are set out. 70 As to the claim of the second plaintiff for damages in relation to work done on her property, it is pleaded in par 5, in effect, that there were discussions between Cogin and Said about "the possibility of the defendant performing work at the property in reduction of the defendant's fees owed to the first plaintiffs". It is then pleaded (in par 5(c)) that no agreement was reached as to the extent of the work to be done. Nevertheless, par 6 pleads that in April, May and June 1997, the defendant attended at the property and did some work on the pool which has not been completed and has been abandoned. It is then pleaded in par 8(d) as follows: "8. by reason of the matters set out in paragraphs 5, 6, 7 and 8(a), (b) and (c) above the plaintiffs say that: 71 Particulars of damage said to amount to $1,050 are then set out. 72 The statement of claim does not deal with the claims of the plaintiffs against Donabray at all. Those claims began life in the Local Court. The actions in respect of them have been removed to this Court and an order for consolidation made, but no consolidated statement of claim appears. All that appears in the book of pleadings are the particulars of claim which would have appeared on the Local Court summonses. The claims particularised in each case are for professional services rendered by the first plaintiffs to Donabray and the amounts sought are $6,977.95 and $467.44.
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73 By par 6 of his re-amended defence Said confirms that the first plaintiffs have delivered invoices to him totalling $31,348.28 for work done in relation to the Family Court proceedings. He also pleads that invoices for work done for Donabray and totalling $9,700.91 have been rendered. Paragraph 7 of the amended defence then reads:
"7. A reasonable fee for the work carried out and services so provided by the plaintiffs to the defendant pursuant to the said agreement or agreements is in the sum of $30,000.00." 74 By their reply the first plaintiffs plead as follows: "1. As to paragraph 7 of the defendants' re-amended defence dated 21 February 2003 the first plaintiffs now agree and accept the sum of $30,000 is a reasonable fee for work carried out and services provided by the first plaintiffs to the defendants in respect of the accounts set out in paragraph 6 of the re-amended defence and further say that, over and above the sum of $30,000 the first plaintiffs are entitled to be paid the fees of Dr Anthony Dickey QC in the sum of $15,000. Dr Dickey QC was appointed as senior counsel in respect of the Family Law file of Raymond Nassib Said on the express instructions of Raymond Nassib Said." 75 It is pleaded in par 8 and par 9 of the amended defence:
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76 It is then pleaded that by reason of the agreement referred to in par 8 and par 9, any indebtedness to the first plaintiffs by Said is limited to the sum of $30,000.
77 The remainder of the amended defence alleges that an agreement for Said to do work on the second plaintiff's property in discharge of his indebtedness to the first plaintiffs was entered into between Said and Cogin "during or about 1995", that express terms of the agreement were repudiated by the first plaintiffs, and that the repudiation had been accepted thereby discharging Said of any liability (see par 11 to par 17). Further and in the alternative, it is pleaded in paragraphs 18 to 26 that by reason of the conduct of Cogin towards Said, it would now be unconscionable for the first plaintiffs to have their fees. 78 In the course of his final submissions, counsel for the defendant sought to further amend the defence by adding a plea in the alternative alleging an implied term of the agreement between the parties and breach of it by the first plaintiffs entitling the defendant to bring the contract to an end. I will deal with that application and the proposed pleading later in these reasons.
Issues 79 From the pleadings and discussion with counsel it seems clear that the principal issues in this case include the following: • Whether there was an agreement between the first plaintiffs and Said to cap fees at $27,000. • If there was such an agreement, whether the $27,000 included senior counsel's fee of $15,000. • Alternatively, whether an increased cap of $30,000 including senior counsel's fee was agreed upon. • Whether it was agreed that any agreement to cap fees was in respect of the Family Court proceedings only or whether the cap included fees for work done for Donabray. • Whether it was agreed that Said should be able to do work on the second plaintiff's property in discharge of his indebtedness to the first plaintiffs. • Whether if there was such an agreement, the first plaintiffs breached it by refusing to allow him to do the work.
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• Whether, in all the circumstances, it would now be unconscionable to allow the first plaintiffs to insist that Said pays their fees.
The scope of the fee capping agreement 80 The parties agree that fees were to be capped but are in dispute as to the amount of the cap and as to whether it applied to all the fees of the first plaintiffs as well as counsel's fees. 81 It is Said's case that a cap of $30,000 to cover all fees inclusive of counsel's fees was agreed upon. As I have noted he pleads that an initial cap of $27,000 was agreed "in or about July 1996" and that in or about August of that year the agreement was "orally varied in that the defendant agreed in respect of counsel's appearance fees as to the Family Court matter to pay to the first plaintiffs a maximum of a further $3,000." 82 However, that is not how Said gave evidence in relation to this issue. 83 As I have already noted he said that after he received a further account from the first plaintiffs dated 8 May 1996 in an amount of $19,463.57 he rang Cogin to express concern about mounting legal costs. It was in the course of that telephone conversation that Cogin told him that he "would cap all legal costs at $27,000". It was clearly Said's evidence that the agreement to cap fees at $27,000 was reached in May of 1996. 84 As to the agreement to pay a further $3,000 for counsel's time in court it is clear that Said says that that was reached in July 1996, after 13 July. He said that after receiving an account of that date in the sum of $32,624.68 he became very anxious and went to see Dr Dickey, told him about the fee cap agreement and discussed with him the possibility of being represented without a solicitor. He was informed that that was not possible and he then rang Cogin "to work things out with him". 85 According to Said it was then that Cogin informed him that "even though fees were capped at $27,000 and he was prepared to deal with all of my matters on that basis, he was not prepared to include in that cap Dr Dickey's fees for the trial in the Family Court matter." Said said there was then a discussion about the likely quantum of Dr Dickey's fees and he was told by Cogin that counsel's time in court "would be about four hours per day for three days." On this basis Said calculated Dr Dickey's likely fees to be $1,000 per day and said to Cogin that counsel's fees would therefore be $3,000 at the most. Said said that Cogin responded that "this was about right" and it was then agreed between them that Said should
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pay a further $3,000 for Dr Dickey to appear at trial. Following that, Said testified that Cogin said that he would rebrief Dr Dickey. 86 Said's evidence is not consistent with that of Dr Dickey. The latter testified that he was rebriefed in May 1996 and not later and that he had his first meeting with Said and Cogin on 28 May. He had a further meeting with Said on 17 June in the absence of Cogin for the purpose of discussing the case. He then received a telephone call from Said on 8 August and met with him on that day. According to Dr Dickey it was then that he explained to Said that he could not act for him without an instructing solicitor and that he would wait until December for payment of his fees. Dr Dickey made no mention of any meeting with Said in July and it was not put to him that there must have been one. 87 I accept Dr Dickey's evidence and in my view this finding is of some significance. Said himself wrote to Cogin on 8 August 1996 stating that he had had a meeting with Dr Dickey who had advised him that he was willing to wait until December for his fees. Nevertheless he gave evidence-in-chief that: "Dr Dickey had agreed at an earlier meeting with him prior to the trial to wait to be paid until December 1996 if he acted for me. This was before the arrangement with Cogin about Dickey's $3000 fees." 88 It seems to me that Said was careful to give evidence in these terms to avoid giving the impression that he had asked Dr Dickey for time to pay his fees at a time when, on his case, only a relatively small sum of no more than $3,000 for counsel's time in court was all that was to be due. 89 I have already noted Cogin's evidence concerning the agreement to cap fees. He said that on 19 July 1996 he received a telephone call from Said during which there was discussion about the legal costs. He told him that the fees rendered to date were reasonable and that he did not envisage much more work to be done and that he "thought [his] fees for the Family Court trial would be about $27,000 and [he] was prepared to stick by that amount." According to Cogin Said responded that this was satisfactory and that "he at least knew how much my costs would be." 90 In my opinion there was no agreement that Said should pay an extra $3,000 to cover Dr Dickey's fees for time in court. In my view it is unlikely that the conversation by which Said alleges that that sum was arrived at took place. There was no reason to think that Dr Dickey would only be required in court for four hours per day.
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91 That Said knew that the cap did not include counsel's fees is, I think, confirmed by what he did after 19 July 1996. Having received the letter from Cogin dated 2 August which made it clear that Cogin expected Said to be responsible for the fees of experts and counsel Said responded with an assertion that the cap of $27,000 was intended to include the former (as well as monies owing by Donabray). However, in relation to Dr Dickey's fees he made no mention of any agreed amount of $3,000 and simply wrote that he would "take care of Dr Dickey's time in court".
92 Later events also point to the same conclusion. After receiving Cogin's letter of 7 August 1996 confirming his disagreement and requiring security for Dr Dickey's fees as well as the fees of experts it is clear that Said went to see Dr Dickey to discuss the matter of his charges directly with him and to secure an agreement to defer payment until Christmas 1996. In my view it is unlikely that he would have done so if he thought he had no liability to meet them and that he simply had a responsibility to pay a capped amount to Cogin. 93 Following his meeting with Dr Dickey Said wrote to Cogin by letter dated 8 August 1996 stating: "I am grateful for what you have done for me to date and regret your change of heart could you please advise Ms Low and Dr Dickey to forward there (sic) invoice statements directly to me so I can make other arrangements to pay for them or forward them to me yourself. I have had a meeting with Dr Dickey concerning this matter today and he advised me he is willing to wait until December for payment. I have also asked him if he can take over my case and he informed me that he was unable to do so and suggested it will be better if we can work things out between us he also was kind to recommend another solicitor if we are unable to reach an agreement, could you please advise me if this is possible or if not send me your account to date as I am indebted to pay it." 94 It is true that by this letter Said went on to say that "under the circumstances" he still proposed to have the Family Court review the first plaintiffs' account but he made no reference to counsel's fees and in my opinion that was because he had accepted responsibility for them. 95 This conclusion is I think further confirmed by the letter of 24 August 1996 in which Said made it clear that he continued to maintain
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that there was an agreement to cap fees at $27,000 and not $30,000 so as to include any liability for briefing counsel. 96 It is, I think, also of some significance that although Said has maintained the contrary in the correspondence to which I have referred and in his evidence there is no plea in the defence that the cap of $27,000 should include experts' fees. 97 These fees were the subject of invoices from Low & Co, Chartered Accountants to the first plaintiffs dated 10 June 1996 in an amount of $3,837.95 and from Property Valuations and Consulting Services dated 20 May 1996 in the sum of $1,859.50. They have been paid by Said, albeit long after they were due. While he gave evidence that it was agreed between himself and Cogin on 16 August 1996 that these amounts would be paid by him and credited against his liability capped at $27,000 I do not accept that that was the position. It is inconsistent with Cogin's earlier letters of 2 August and 7 August 1996 and I find it very unlikely. 98 In my opinion when Cogin and Said agreed upon a cap of $27,000 it was in respect of the first plaintiffs' fees only and not in relation to counsel's fee or any costs which had been or might be incurred for engaging experts.
Donabray's fees 99 Cogin said that although the sum of $32,624.68 claimed in the first plaintiff's account of 13 July 1996 did not include experts' fees it did include the first plaintiffs' fees to Donabray for work done in relation to matters concerning SPASA and Lee. Nevertheless he said that the sum of $27,000 was intended to cover only the first plaintiffs' fees for the Family Court matter. 100 Despite this it seems to me that he was not entirely sure in his evidence that he had made that clear to Said. 101 The final account dated 9 October 1996 rendered to Said after the Family Court proceedings had been completed is addressed to Said alone in an amount of $41,049.19 which sum also includes the fees to Donabray in the SPASA and Lee matters. 102 In cross-examination Cogin said that when he spoke to Said in 1997 in an effort to secure agreement on the quantum of fees to be paid before any work on the pool was to proceed he would have been content to receive $27,000 in payment of all costs due to the first plaintiffs. He said:
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"We had to nail down the $27,000, your Honour. You see I'd rendered a bill for 41. In all honesty I'd never intended to claim the 41 but I said I'd cap the fees at 27 and I was going to stick by that, but, see, Raymond disagreed with what the 27 included, and the fundamental point of it was whether it included Dr Dickey's fees or – and Ms Lau's fees (sic) and the valuer's fees, so that we had to resolve what amount that I was going to be paid because we still had a dispute as to the bottom line of what I was going to be paid." 103 A little later Cogin was asked and said: "You told his Honour a moment ago that you intended claiming $27,000 and not the 41 billed on the three matters. Was that evidence wrong or are you saying something else that it was right and qualifying?---Well what I've just said was not accurate because I – I agreed 27 for the family law matter. Raymond believed I didn't. Look, for the life of me I don't believe that I'm infallible and I may have made a statement to Raymond which would lead him to believe that but I qualified the statement that I made in August but we still hadn't resolved things. So you may have told Mr Said that in fact the $27,000 cap included the fees on all three matters?---It's certainly possible but I don't – I don't believe I did. I mean, when I wrote to Raymond I believe I was setting out precisely what we had agreed. Right. Well let's put it this way; if Mr Said gives evidence that that is what you discussed with him you aren't in a position to gainsay that?---No. I would dispute what Raymond says because that – my letter of August sets out what I believe was said. All right?---But I can see that he may or I may have expressed myself badly. I mean I just say to his Honour that I, you know, obviously expressed myself badly. You say I made an admission, well all right." 104 In my view this evidence discloses some confusion in Mr Cogin's mind about whether or not the agreed cap of $27,000 included all fees rendered by the first plaintiffs to both Said and Donabray. That confusion appears to have been reflected in the final written submissions of counsel for the plaintiffs which were to the effect that there should be judgment
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for the first plaintiffs in the sum of $30,000 for their fees in respect of the Family Court matter and the Donabray files relating to Lee and SPASA plus counsel's fees. The sum of $30,000 reflects the submission that there is an agreement on the pleadings that that is a reasonable amount for the first plaintiffs' fees excluding counsel's fees and that therefore the first plaintiffs should be entitled to that sum. I do not accept that submission but I do find that a figure of $27,000 was agreed upon. 105 The onus is on the first plaintiffs to establish that they have a claim against Donabray over and above the agreed cap. In all the circumstances I am not satisfied that they have discharged it.
Agreement for Said to do work in lieu of paying fees 106 I have already noted that Said gave evidence that in October 1995 he met with Cogin to ask him to represent him in his Family Court proceedings. He said that he told Cogin that he could not pay any fees and that the latter suggested that he should carry out building work on his home in lieu of payment. Cogin, he said, assured him that there was plenty of work to be done, that the fees would be less than the value of the work and that if necessary he would borrow money to complete it. According to Said it was only in the light of these assurances that he engaged the first plaintiffs to act on his behalf and to continue to do so. 107 Cogin denied that there were any discussions about the possibility of Said doing work in lieu of paying fees in October 1995. He said that as at that stage "we didn't know where the legal fees were going". He might certainly have been aware that Said had cash flow problems but he did not think that he would be unable to pay his fees in the fullness of time because he had assets. 108 Cogin said that to the best of his recollection it was in April 1996 when he learned for the first time that Said had skills other than as a builder of pools and it was then that the possibility of him doing work to pay off fees was discussed. However, he conceded in evidence that it may have been earlier than that because work on the first plaintiffs' offices at Joondalup was being considered in January and Said was invited to tender for it. 109 Said in fact prepared and submitted to Loffelman, Cogin's partner, a quote to do the work at Joondalup by letter dated 17 May 1996. The quote was in an amount of $16,595. On 22 July 1996 Loffelman sent Said
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a copy of a quote for $8,941 received from another contractor asking whether the latter could match it. Said responded that he could not. 110 It was Cogin's evidence that there was never any agreement that Said should be able to do work on the family home in lieu of paying fees. It was just that he and his wife were prepared to give Said the opportunity to tender for work and if the tender was acceptable it would have been a way of reducing Said's indebtedness. 111 Cogin said that meetings were held between Said, his wife and himself to discuss what work could be done and Said had some plans drawn up but matters went no further than that. No firm proposal for any work was agreed upon and no quotes, other than one for the repair of the pool were ever submitted. 112 Mrs Cogin also said that she had no more than discussions with Said about the possibility of work being done on the family home. She said that initially there were discussions with Said about the building of a granny flat or office at the back of the property. Later there was talk of extensive alterations to the house itself and she gave him a list of all the things that she wanted for the purpose of obtaining a quotation. It was Said who suggested that drawings be prepared and this was done by an architect, Nicholas Spartalis, who came to the property and met with her in about June 1996. 113 Mrs Cogin said that she had no recollection of being given an estimate of $75,000 to $80,000 for the cost of the extensive alterations the subject of the drawing which Mr Spartalis prepared but she certainly formed the view that she and her husband could not afford the work and the matter was not proceeded with. Sometime later Mrs Cogin said that there were further discussions with Said about the office or granny flat to be built at the back of the property but no drawings were prepared although the discussions were quite extensive and she asked for an estimate of the cost of the works. To the best of her recollection no quote was ever provided but she did remember telling Said that any work to be done by him had to cost no more than the total of fees owing to the first plaintiffs because she and her husband could not afford to find any further monies. 114 In relation to the renovation of the pool Mrs Cogin said that it was she who persuaded her husband that it might be possible for Said to do the work. The quote for $10,455 which was eventually received from him in early 1997 was greater than quotes from other contractors but she and her
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husband discussed it and concluded that they were prepared to go a little higher because of the fees owing and the recommendations she had heard concerning Said's workmanship. However, it was Mrs Cogin's evidence that she did not accept the quote nor authorise Said to do any work on the pool. Before Said came to the property and commenced chipping off tiles in the pool in June 1997 he rang her to make arrangements and she assumed that her husband had reached an agreement with Said for the setting off of fees against the value of work. 115 I have already set out something of Cogin's evidence about the sequence of events leading up to the sending of his letter to Said dated 17 June 1997 in which Cogin made it clear that Said's quote for the pool was acceptable only upon the condition that the quantum of fees payable to the first plaintiffs was agreed. That condition was never met. 116 In the light of all the evidence I do not accept that it was agreed in October 1995 that Said should be able to do work for the first plaintiffs or the Cogins in lieu of paying fees. In my opinion the evidence of Cogin who said that at that stage the likely amount of fees was unknown is to be preferred. In my view it is more probable than not that the possibility of Said doing work to discharge his liability for fees to the first plaintiffs simply emerged as a matter for discussion in early 1996 as it became apparent that the cost of the Family Law proceedings was mounting. 117 However, even then I do not accept that any agreement that Said should do work was entered into. Had that been the case it would surely have been reflected in the correspondence between the parties but the contrary is true. For example, in his letter faxed to Cogin on 24 April 1996 Said expressed considerable concern about the mounting legal costs but made no mention of any expectation of work. If, as he asserts, Said had received a number of promises and assurances from Cogin that he could do work in lieu of paying fees and that the value of such work would exceed the fees I think that he would have mentioned it. 118 Likewise when Cogin wrote to Said on 5 August 1996 stating that he was "no longer prepared to consider offsetting your legal costs against the proposed building work at his home" and that the first plaintiffs' account would therefore have to be paid, Said's response, by letter dated 8 August was not that there was any agreement in place. The assertion of an agreement such as is now alleged by the defendant was only made in writing on 13 August 1996.
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119 It is true that on 8 August the defendant wrote that the idea of doing work on the home and pool was Cogin's but the letter contains no claim of a binding agreement that Said should be entitled to discharge his liability for fees in this way and its tone is one of regret and acceptance of the position that an opportunity had been passed by.
120 As to Said's letter of 13 August 1996 there was then a meeting between him and Cogin on 16 August to try to resolve matters. If it had been agreed that Said would do work to pay the fees it is odd that that is not reflected in the letters between the parties dated 22 August and 24 August. |