Colquhoun Murphy Pty Ltd v Reddy (Appeal) - [2018] ACAT 42

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COLQUHOUN MURPHY PTY LTD v REDDY (Appeal) [2018] ACAT 42
AA 32/2017 (XD 426/2017)
Catchwords: APPEAL – debt application – solicitor’s unpaid costs – whether solicitor responded to client instructions – role of the Appeal Tribunal – role of the original Tribunal in response to a debt application – no role to review the merit of legal advice on a debt application where the advice was pursuant to the contract – appeal allowed – Tribunal to refund appeal filing fee where appeal wholly successful but unfair for respondent to pay it

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 82
Court Procedure Act 2004 s 15
Land Titles Act 1925 s 108

Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2), rules 14, 21
Court Procedures (Fees) Determination 2017 (No 3)

Cases cited:B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners-Units Plan 3324 [2013] ACTSC 219
Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11
Colquhoun Murphy Pty Ltd v Reddy [2017] ACAT 83
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Fox v Percy (2003) 214 CLR 118
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
Global Minerals v Valerica [2000] NSWSC 1143
Legal Services Commissioner v Kotsifas [2014] VCAT 1615
Ogbonna & Anor v Tankard & Anor [2018] ACAT 14
PCM Office Services Pty Ltd and Anor v Mi [2018] ACAT 36

List of
Texts/Papers cited: Guide to Parties - Types of Conferences in the Civil Jurisdiction of the ACT Civil and Administrative Tribunal, ACAT website
Land Titles Practice Manual

Tribunal:                   Presidential Member G McCarthy
Date of Orders:  12 April 2018
Date of Reasons for Decision:         12 April 2018
AUSTRALIAN CAPITAL TERRITORY             )
CIVIL & ADMINISTRATIVE TRIBUNAL           )      AA 32/2017
BETWEEN:
COLQUHOUN MURPHY PTY LTD
Appellant

AND:
GLORIA DARNELL REDDY
Respondent

TRIBUNAL:Presidential Member G McCarthy

DATE:12 April 2018
The Tribunal orders that:

1.The decision under appeal is set aside.
2.Within 28 days, the respondent pay the appellant $2,207.85 and $190.15 interest.
And the Tribunal notes that:

1.The Registrar should refund the original application filing fee and the appeal filing fee to the appellant.

………………………………..
Presidential Member G McCarthy

REASONS FOR DECISION

1.The appellant carries on business as a firm of solicitors. On or about 21 July 2016, under a costs agreement entered into between the appellant and the respondent, the respondent engaged the appellant to provide legal services.
2.On 10 April 2017, consequent upon the respondent not paying the appellant’s fees for services provided, the appellant applied to the Tribunal for an order that the respondent pay the appellant’s fees. The application was brought as a debt application. The appellant claimed $2,207.85 as the quantum of its unpaid legal fees, plus interest, plus the lodgement fee of $290.
3.On 18 August 2017, the Tribunal (hereafter the original tribunal) heard and dismissed the application. On 19 September 2017, the appellant appealed from the original Tribunal’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] ACAT 42
Decision Date: 12 April 2018

CaseChat Overview and Summary

Colquhoun Murphy Pty Ltd, a firm of solicitors, appealed a decision of the Australian Capital Territory Civil and Administrative Tribunal (ACAT) in which the ACAT dismissed their application for an order that their client, Ms Gloria Darnell Reddy, pay their legal fees. The Tribunal had dismissed the application on the basis that the solicitors had not complied with Ms Reddy’s instructions and had provided advice that was of no value to her. The Appeal Tribunal set aside the original tribunal’s decision and ordered that Ms Reddy pay the appellant’s legal fees, plus interest. The Appeal Tribunal also ordered that the Registrar of the Tribunal refund the original application filing fee and the appeal filing fee to the appellant.

The Appeal Tribunal found that the original tribunal had erred in reviewing the merits of the appellant’s advice and actions, rather than determining whether, pursuant to the contract, the appellant was entitled to be paid for the services that it had provided. The Appeal Tribunal also found that the original tribunal had breached procedural fairness by not allowing the appellant to respond to the respondent’s criticisms of the appellant’s advice. The Appeal Tribunal found that it should not admit fresh evidence on the appeal as the evidence was irrelevant to the question of whether the appellant was entitled to be paid for services rendered. The Appeal Tribunal also found that it would be unjust for Ms Reddy to pay the appellant’s appeal filing fee given the circumstances of the case.

The Appeal Tribunal concluded that the appellant was entitled to be paid for the services it had provided to Ms Reddy and that the original tribunal had no jurisdiction to dismiss the appellant’s application on the basis of its opinion about the quality of the appellant’s advice. The Appeal Tribunal also concluded that it was in the interests of justice to refund the appellant’s original application and appeal filing fees.

Orders