Costa v Murcia Pestell Hillard Pty Ltd

[2013] WASC 44

COSTA -v- MURCIA PESTELL HILLARD PTY LTD [2013] WASC 44

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 44
Case No:	LPA:33/2012	Heard:	12 FEBRUARY 2013
Coram:	MASTER SANDERSON	Delivered:	19/02/13
No of pages:	4	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	PETER RAYMOND COSTA MURCIA PESTELL HILLARD PTY LTD
Catchwords:	Costs Application to set aside costs agreement on ground of uncertainty Turns on own facts
Legislation:	Nil
Case References:	Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : COSTA -v- MURCIA PESTELL HILLARD PTY LTD [2013] WASC 44 CORAM : MASTER SANDERSON HEARD : 12 FEBRUARY 2013 DELIVERED : 19 FEBRUARY 2013 FILE NO/S : LPA 33 of 2012 BETWEEN : PETER RAYMOND COSTA

Client

AND

MURCIA PESTELL HILLARD PTY LTD
Practitioner

Catchwords:

Costs - Application to set aside costs agreement on ground of uncertainty - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

(Page 2)

Category: B

Representation:

Counsel:

Client : In person
Practitioner : Mr B M France

Solicitors:

Client : In person
Practitioner : Murcia Pestell Hillard

Case(s) referred to in judgment(s):

Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429


(Page 3)

1 MASTER SANDERSON: This is the client's application to set aside a costs agreement he entered into with the practitioner. In support of the application the client relies upon his affidavit sworn 25 January 2013. In opposition to the application the practitioner relies on an affidavit of Bryan Michael France sworn 7 February 2013.

2 There appears to be no dispute as to the circumstances in which the client entered into a costs agreement with the practitioner. On 25 October 2011 Mr France, a solicitor employed by the practitioner, and his colleague Ms Kendra Fowler met with Mr Costa and his associate a Mr Gus Lee-Steere at the offices of the practitioner. Mr Costa advised he was being sued in both the District Court and the Supreme Court in relation to the purchase of a business. The meeting between the parties lasted approximately one and a half hours. At the end of the meeting Mr Costa was advised the practitioner would act for him subject to his entering into a costs agreement.

3 On 26 October 2011 the practitioner forwarded to Mr Costa via email an agreement for the provision of legal services. A copy of that document is found as annexure BMF2 to Mr France's affidavit. On 27 October 2011 a signed copy of the agreement was returned by the client to the practitioner. A copy of that document is annexure BMF3 to Mr France's affidavit.

4 In his affidavit Mr Costa makes a number of complaints about whether or not the work he has been charged for was actually done and whether the work actually done was of any value. These are matters which might be taken up on a taxation of the practitioner's bill. They are not the basis upon which a costs agreement can be set aside. As I read the client's affidavit the sole ground upon which he alleges the agreement ought be set aside is it is void for uncertainty.

5 The agreement itself is straightforward and easily comprehensible. It contains a number of schedules. Schedule 2 to the agreement sets out the 'Professional Costs and Disbursements'. Under s A 'Professional Costs' there is reference to the charge-out rate for a 'Director'. In sch 3 entitled 'Estimates and Other Matters' there is a subheading 'Lawyer Responsible'. In par 7 of the schedule the 'Supervising Director' is said to be Mr Nigel Pakes. The client complains Mr Pakes was introduced as a partner. He says there is no rate in sch 2 for a partner and for this reason the agreement is uncertain and void.

(Page 4)

6 It has often been stated that for a contract to be binding it must be sufficiently certain and clear and complete in its essential terms: see Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429, 436 - 437 (Barwick CJ). Any fair reading of this costs agreement makes it clear the agreement is both clear and certain not just in its essential terms but in all its terms. No reasonable person reading this agreement could be left in any doubt as to the basis upon which a client was to be charged. That is not to say it is possible with any certainty to say what the ultimate bill might be. Estimates are provided but it is clear they are estimates. Be that as it may the agreement taken in the overall is clear, straightforward and in my view there is no basis upon which it should be set aside.

7 Accordingly the client's summons is dismissed. The client ought pay the costs of the application including the reserved costs.