D A Starke Pty Ltd v Yard & Anor - [2012] SASC 19

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Civil)
D A STARKE PTY LTD v YARD & ANOR
[2012] SASC 19
Judgment of The Honourable Justice Kourakis
13 February 2012
PROFESSIONS AND TRADES - LAWYERS - REMUNERATION - COSTS AGREEMENTS
PROFESSIONS AND TRADES - LAWYERS - REMUNERATION - COUNSEL'S FEES
PROFESSIONS AND TRADES - LAWYERS - DUTIES AND LIABILITIES - SOLICITOR AND CLIENT - RETAINER
The plaintiff legal practice sought payment of its fees including counsel’s fees for work completed arising from a matrimonial dispute – defendants denied liability for the full extent of the fees – whether second defendant jointly and severally liable for all work performed on behalf of first and second defendant – whether plaintiff provided fixed quote for work completed on the trial – whether work completed on the appeal was subject to a contingency arrangement – whether counsel fees for settlement work were reasonable – whether defendants liable for costs arising from application to extend a stay order delayed by the plaintiff.
Held – plaintiff entitled to payment of fees in relation to the trial, settlement and application to extend the stay – first and second defendant jointly and severally liable for payment to plaintiff.
Burridge v Bellew (1875) 32 LT 807, discussed.
Hudgson v Endrust (Australia) Pty Ltd (1986) 11 FCR 152; Bolton v Stange [2001] WASCA 34; Beaumont v Senior & Bull (1903) 1 KB 282; Harvey v Facey 1893] AC 552; JS Robertson (Aust) Pty Ltd v Martin (1956) 94 CLR 30; Aotearoa International Ltd v Scancarriers A/S [1985] 1 NZLR 513, considered.

D A STARKE PTY LTD v YARD & ANOR
[2012] SASC 19
Civil:

KOURAKIS J: The plaintiff is an incorporated legal practice. The principal is Mr Starke. The first defendant, Alfred Yard, is 88 years of age. He, like his father before him, has farmed land around Murrayville in Victoria all of his adult life. Shortly after the end of the Second World War Alfred Yard also opened a fuel depot in the town, and has run it ever since. Trevor Yard is his son. Both Alfred and Trevor Yard are shareholders and directors of the second defendant, Yardoo Pty Ltd (Yardoo). During the times material to this matter, Alfred’s wife Gladys, and Trevor’s wife Judith, were also shareholders and directors.
In about 1977, Alfred Yard transferred certain farming properties and town blocks in and around Murrayville to Yardoo for estate planning purposes. At about the same time Trevor, Gladys and Judith Yard transferred land to Yardoo. Later, Yardoo also purchased other land from third parties. Alfred, Gladys, Trevor and Judith Yard were also members of a partnership which farmed Yardoo’s land, and other land of which they were the registered proprietors, including a large tract of land in Lobethal.
Mr Starke’s claim is for legal fees earned in acting for Alfred, Gladys and Trevor Yard and Yardoo in litigation against Judith Yard. The litigation arose out of a matrimonial property dispute between Trevor and Judith…

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: [2012] SASC 19
Decision Date: 13 February 2012

CaseChat Overview and Summary

D A Starke Pty Ltd, the plaintiff, sought payment of fees from Yard and Anor, the defendants, for work completed in a matrimonial dispute. The defendants contested liability for the full extent of the fees. The primary legal issues before the court were whether the second defendant was jointly and severally liable for all work performed on behalf of both defendants, whether a fixed quote was provided for the work completed on the trial, whether the work completed on the appeal was subject to a contingency arrangement, whether counsel fees for settlement work were reasonable, and whether the defendants were liable for costs arising from an application to extend a stay order delayed by the plaintiff. The court found that the plaintiff was entitled to payment of fees in relation to the trial, settlement, and application to extend the stay. The first and second defendant were held jointly and severally liable for payment to the plaintiff.

The court concluded that the appropriate course was to stay the enforcement of any costs to which Mr Starke was entitled until the fate of the counterclaim was determined. The court used the costs of the receivers and managers as a guide to the possible cost of the liquidator and ordered that the enforcement of any allocutur given on the remittal of this matter to a Master for taxing be stayed to the extent of $80,000. The court gave judgment for the plaintiff against both defendants for his fees and disbursements of the trial before Justice Cummins, the application to extend the stay order made by Justice Cummins, and the settlement. The quantum of those fees was to be determined after an apportionment between all of Mr Starke’s clients. The court ordered that those fees be taxed pursuant to s 42 of the Legal Practitioners Act 1981 in accordance with these reasons and that the enforcement of the final allocutur would be stayed, until further order, to the extent of $80,000.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Starke’s counsel suggested that the enforcement of any costs to which Mr Starke is entitled might be stayed until the fate of the counterclaim is determined. I accept that is the most appropriate way to proceed. I will use the costs of the receivers and managers as a guide to the possible cost of the liquidator. I will order that the enforcement of any allocutur given on the remittal of this matter to a Master for taxing be stayed to the extent of $80,000. Conclusion I give judgment for the plaintiff against both defendants for his fees and disbursements of the trial before Justice Cummins, the application to extend the stay order made by Justice Cummins and the settlement. The quantum of those fees is to be determined after an apportionment between all of Mr Starke’s clients. I order that those fees be taxed pursuant to s 42 of the Legal Practitioners Act 1981 in accordance with these reasons. The enforcement of the final allocutur will be stayed, until further order, to the extent of $80,000.

Ratio Decidendi

Legal Principle Established

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