DELLA-VEDOVA and Sons v Dusol Pty Ltd Trading as B W Duckham & Co - [2025] WASC 160

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   DELLA-VEDOVA AND SONS -v- DUSOL PTY LTD TRADING AS B W DUCKHAM & CO [2025] WASC 160
CORAM:   COBBY J
HEARD:   3 FEBRUARY 2025
DELIVERED          :   6 MAY 2025
FILE NO/S:   CIV 1844 of 2021
BETWEEN:   DELLA-VEDOVA AND SONS
Plaintiff
AND
DUSOL PTY LTD TRADING AS B W DUCKHAM & CO
Defendant

Catchwords:

Solicitor and client - Accord and satisfaction regarding asserted entitlement by solicitor to costs - Solicitor claimed no consideration for agreement - Client seeking declaration as to efficacy of agreement and injunction to prevent solicitor pursuing payment of costs - Turns on own facts

Legislation:

Australian Consumer Law, s 20, s 21
Legal Profession Act 2008 (WA), s 260, s 267, s 268
Legal Profession Uniform Law Solicitors' Conduct Rules 2015, reg 27.1
Legal Profession Uniform Conduct (Barristers) Rules 2015, reg 101(d)

Result:

Claim allowed
Declaration made
Injunction granted

Category: B

Representation:

Counsel:

Plaintiff	:	R J Squires
Defendant	:	B W Duckham

Solicitors:

Plaintiff	:	Roe Legal Services
Defendant	:	Duckham & Co

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

Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38; (2022) 277 CLR 445
Ashton v Pratt [2015] NSWCA 12; (2015) 88 NSWLR 281
Australian Competition and Consumer Commission v Australialink Pty Ltd (No 3) [2009] FCA 552
Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Cooper v Parker (1855) 15 CB 822
Foakes v Beer (1884) 9 App Cas 605
Glasson v Fuller [1922] SASR 148
Hurley v McDonald's Australia Ltd [1999] FCA 1728
Ibberson v Neck (1886) 2 TLR 427
Mercanti v Mercanti [2015] WASC 297
Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723
Orr v Ford (1989) 167 CLR 316
Pinnel's Case; Penny v Core (1602) 5 Co Rep 117a; (1602) 77 ER 237
Pitts v Jones [2007] EWCA Civ 1301; [2008] 1 QB 706
Re Vandervell's Trusts (No 2), White v Vandervell Trustees Ltd (1974) Ch 269
Sampey v Doherty [2024] WASCA 105
Stubbings v Jams 2 Pty Ltd [2022] HCA 6; (2022) 276 CLR 1
Wigan v Edwards (1973) 47 ALJR 586
Wilson v Arwon Finance Ltd [2020] WASCA 137

COBBY J:

The plaintiff firm is the former client of the defendant, an incorporated legal practice which traded under the name 'B W Duckham & Co'.
In 2016 the plaintiff's former accountants CBSW Pty Ltd commenced proceedings in the District Court of Western Australia against the plaintiff seeking payment of unpaid invoices for professional services rendered to the plaintiff (CBSW proceedings).
The plaintiff retained the defendant to act on its behalf in those proceedings.
Bruce Duckham was and is a director of the defendant. He is a solicitor of many years standing.
The plaintiff contends that, following a conversation between Lucia Della‑Vedova on behalf of the plaintiff and Mr Duckham on behalf of the defendant on 25 February 2019 regarding the amount of costs invoiced by the defendant to the plaintiff in respect of the CBSW proceedings, an accord and satisfaction was reached between the parties on 12 March 2019, Mr Duckham having agreed to accept $100,000 (inclusive of GST) in satisfaction of any entitlement to costs the defendant may have then had.
Although the defendant did not deny that agreement was made, Mr Duckham claims it did not bind the defendant because it was not made by deed and the plaintiff did not give any consideration for the defendant's agreement to accept $100,000, which was said to be less than the amount due to the defendant. The defendant alleged in the alternative that it was unconscionable for the plaintiff to rely upon the agreement, because it was implicit that the plaintiff would continue to retain the defendant to act on its behalf if the defendant accepted its proposal, and the plaintiff failed to do so.
On those bases, Mr Duckham caused the defendant to pursue payment of approximately $86,000 from the plaintiff in District Court proceedings (the District Court costs proceedings), and, when it became apparent that s 268(2) of the Legal Profession Act 2008 (WA) (LPA) prohibited the defendant maintaining those proceedings, caused the defendant to seek an assessment of its alleged costs by this court in LPA 16 of 2021 (the assessment proceedings).
By a writ of summons filed 20 August 2021 the plaintiff sought a declaration that it is not liable to pay any further amount to the defendant in relation to the CBSW proceedings, together with a permanent injunction restraining the defendant from taking any further step in the assessment proceedings.
I have determined that the plaintiff is entitled to the relief it claims for the reasons which follow.
Ms Della‑Vedova, a member of the plaintiff firm, and a solicitor formerly employed by the defendant, Suzanne Macmillan, gave evidence on behalf of the plaintiff.
Ms Della‑Vedova was principally responsible for providing instructions on behalf of the plaintiff to the defendant in relation to the CBSW proceedings. Although her evidence was brief, she gave evidence in a careful and sensible manner. I found her to be a truthful and credible witness, although her evidence was mistaken in one respect, to which I refer below.
Ms Macmillan was the solicitor who had the principal carriage of the CBSW proceedings on behalf of the plaintiff in the period leading to the settlement of those proceedings. I found Ms Macmillan to also be an honest and credible witness.
Mr Duckham did not give evidence. The defendant did not call any other witness.
Prior to the trial, it became evident that Mr Duckham intended to act as counsel for the defendant at trial, notwithstanding that it was obvious on the pleadings that he had a different recollection of the conversation on 25 February 2019, and that the determination of what was said on that occasion was important to the outcome of the proceedings.
Regulation 27.1 of the Legal Profession Uniform Law Solicitors' Conduct Rules 2015 therefore prohibited Mr Duckham acting as solicitor for the defendant. Moreover, it was clearly inappropriate that Mr Duckham appear as counsel for the defendant, as he was the principal witness for the defendant.[1]
[1] See reg 101(d), Legal Profession Uniform Conduct (Barristers) Rules 2015.
Nevertheless, prior to trial Mr Duckham applied to have the court authorise his continuing to act as counsel, and that he be permitted to give his evidence‑in‑chief by affidavit. I rejected both applications on 4 October 2024.
It having become apparent that the defendant did not intend to instruct alternative counsel, the plaintiff subsequently applied for an order enjoining Mr Duckham from appearing as counsel at the trial.
At the hearing of that application on 9 December 2024, without prior notice to the plaintiff or the court, Mr Duckham proposed that he appear as counsel at trial on the basis that he would not give evidence at the trial. After the forensic disadvantages that would cause the defendant were outlined to him, including that the defendant might face difficulties in adducing documents in evidence if there was no consent to their tender, Mr Duckham maintained that he wished to proceed on the basis he proposed.
Mr Duckham having given an undertaking to the court that he would not give evidence at the trial, I dismissed the application to enjoin him from appearing as counsel for the defendant.
At the commencement of the trial, Mr Duckham sought to rely upon an affidavit sworn by him on 7 April 2020 and filed in the District Court costs proceedings, apparently on the basis that it was contained in the book of documents prepared for the trial.
When it was pointed out that there had been no consent to the tender of that affidavit and he had previously been refused leave to adduce evidence by affidavit, Mr Duckham claimed to have understood that he had only undertaken not to give evidence orally and it remained open to him to tender affidavits he had previously sworn. When I reminded him that I had ruled that he could not give evidence by affidavit, Mr Duckham sought to refer to a copy of an affidavit by Ms Della‑Vedova sworn 10 December 2021 which had been included in the book of documents without its annexures, but to which there had been no consent to tender. At that point I pointed out to Mr Duckham that he would need to consider how he would tender documents in evidence if there was no consent to that being done.
Notwithstanding that exchange, Mr Duckham subsequently attempted to circumvent his undertaking by seeking to tender Ms Della‑Vedova's affidavit sworn 10 December 2021 in the course of his cross‑examination of her.
As a complete copy of that affidavit was not included in the book of documents, I initially overlooked that a copy of Mr Duckham's affidavit sworn 7 April 2020, together with another affidavit sworn by Mr Duckham, in the District Court costs proceedings were attached to Ms Della‑Vedova's affidavit sworn 10 December 2021.
Both of Mr Duckham's affidavits had been included in the book of documents for the trial, but there had been no consent to their tender.
Although Mr Duckham asked Ms Della‑Vedova to verify that she had made two affidavits in the course of his cross‑examination of her and tendered those affidavits (which included her affidavit sworn 10 December 2021) on the basis of her having done so, Mr Duckham did not question her on the contents of either affidavit.
When it came to my attention that Mr Duckham's affidavit sworn 7 April 2020 was attached to that of Ms Della‑Vedova, through Mr Duckham seeking to cross‑examine Ms Macmillan upon the contents of his affidavit, I asked Mr Duckham whether, having tendered Ms Della‑Vedova's affidavit, he intended to submit that I could rely upon his affidavit, because it was attached to Ms Della‑Vedova's affidavit. Mr Duckham told me that he did.
After a further exchange, I informed Mr Duckham that I would not permit him to rely upon either of his affidavits.
As Mr Duckham did not give evidence at the trial, it is unnecessary to form any view of his credit. I have not taken his conduct during the trial into account in assessing the credibility of Ms Della‑Vedova and Ms Macmillan.
The terms of the defendant's retainer to act in the CBSW proceedings were in issue at trial, although ultimately little turns on the point.
By a letter dated 26 April 2016 Mr Duckham wrote to Ms Della‑Vedova on behalf of the plaintiff in terms which included:
I point out that it is necessary to disclose costs parameters and I believe this is best achieved by forwarding a costs agreement which is made available.
The defendant's case was that a costs agreement in standard terms made available to practitioners by the Law Society of Western Australia, with some typewritten additions, was provided to the plaintiff under cover of that letter.
Paragraph 5 of sch 2 to that instrument stated:
Law practice's overall estimate of legal costs (including disbursements) payable by you under this agreement ('Client/Lawyer costs'):
$75,000 plus GST.
Estimate of costs of legal services in attending to and pursuing a one day appeal.
The reference to the one day appeal was inconsistent with par 3 of that schedule, which identified the legal services to be provided by the defendant as:
Defending District Court proceedings CIV 783 of 2016 and pursuing counterclaim based on our (sic) anticipated 2 day trial.
The defendant claimed to have forwarded a second costs agreement to Ms Della‑Vedova on behalf of the plaintiff under cover of a letter dated 26 May 2017, which stated in part:
The present position is that the counterclaim has been amended with the input of counsel … and discovery and inspection is being undertaken. Significantly, at the date of dictating a defence to the counterclaim has not been filed.
The entry for trial date has been extended, and the time to file the defence to our counterclaim has also been extended at the request of the plaintiff.
It will be necessary to obtain a detailed proof from you before the matter be entered for trial.
A costs disclosure was made available to you in this matter under cover of letter dated 26 April 2016. Taking into account the extended nature of proceedings, I believe it is appropriate to make available a further costs agreement/disclosure detailing the costs parameters.
Do not hesitate to obtain independent advice as to the costs agreement should you see fit.
Note however that your continuing to instruct us in the matter will amount to acceptance of such as an agreement under s 282 of the Legal Profession Act.
The defendant alleges that a second costs agreement, in near identical terms to that provided under cover of the letter dated 26 April 2016, accompanied that letter.
Paragraph 3 of pt 2 to that second instrument defined the legal services to be provided as:
Continuing defence and counterclaim and District Court proceedings CIV 783 of 2016 and pursuing counterclaim, based on an anticipated 3 day trial.
Paragraph 5 estimated the Client/Lawyer costs to now be $150,000 plus GST. The inapplicable reference to attending to and pursuing a one day appeal in the earlier instrument was repeated.
Both documents provided for the defendant to charge an hourly rate of $473, inclusive of GST, for a director of the defendant and a senior lawyer having five years or more in practice.
The defendant did not produce a copy of either document executed on behalf the plaintiff. It did not lead evidence to establish that either letter had been sent, or that the costs agreement referred to in each letter had been sent with that letter. There was no evidence of the defendant ever seeking a response to either letter.
I infer, however, from the terms of the letters dated 26 April 2016 and 26 May 2017 that Mr Duckham and thereby the defendant were aware of the cost disclosure provisions contained in the LPA, each letter having referred to the requirement for costs disclosure.
The plaintiff's case was that there was an informal agreement as to costs, with a term to the effect that the defendant would charge an hourly rate of $400, exclusive of GST, for each of Mr Duckham and Ms Macmillan.
Ms Della‑Vedova's evidence was that she recalled receiving the letter dated April 2016, but not the subsequent letter in 2017. She could not recall receiving either costs agreement.
Ms Della‑Vedova was not asked, either in the course of her evidence‑in‑chief or in cross‑examination, whether the terms of the April 2016 letter caused her to make any inquiry as to the whereabouts of the costs agreement referred to therein.
In cross‑examination, Ms Della‑Vedova was asked whether she had any document to support the pleaded allegation that any services provided by Mr Duckham or Ms Macmillan would be charged at an hourly rate of $440, inclusive of GST, to which she answered 'no'.
I find Ms Della‑Vedova's evidence on this point to have been incorrect. On 31 March 2019 the defendant issued an invoice to the plaintiff for $56,720 exclusive of GST. An itemised schedule of attendances accompanied the invoice, showing that the defendant charged the plaintiff $400 an hour, exclusive of GST, rather than the $473 (inclusive of GST) stated in the two written costs agreements. There was no evidence explaining the discrepancy between the rate specified in the two costs agreements and the hourly rate actually charged in March 2019.
A statement of account provided by the defendant to the plaintiff dated 31 March 2019 showed the defendant firm to have issued 11 invoices totalling $189,074.68 to the plaintiff in respect of the CBSW proceedings, of which the plaintiff had paid $66,027.88, as at 31 August 2018.
That statement of account did not distinguish between amounts invoiced in respect of legal fees and amounts attributable to disbursements. Further, only the last three of the 11 invoices issued by the plaintiff were tendered in evidence. Of those, only the invoice dated 31 March 2019 was itemised.
I am unable to reconcile the defendant recording having charged $400 an hour in the itemisation dated 31 March 2019 (exclusive of GST) with the terms of the two written costs agreements. It is possible that the defendant reduced the hourly rate recorded in the itemisation from $473 to reflect the agreement reached between the parties on 12 March 2019, but there is nothing to indicate that was done.
Ms Macmillan gave evidence‑in‑chief that her hourly charge out rate was about $400 plus GST. As she was not cross‑examined on that evidence, I accept it.
I am not satisfied that the costs agreements between the plaintiff and the defendant were in the terms of the two unsigned costs agreements, as alleged by the defendant, since an hourly rate of $473 inclusive of GST is inconsistent with both Ms Macmillan's evidence of her hourly rate and the hourly rate actually charged by the defendant to the plaintiff for work identified in the invoice dated 31 March 2019.
Having regard to the 31 March 2019 itemisation and Ms Macmillan's evidence as to her hourly rate, I find that the agreement between the plaintiff and the defendant was that the defendant would charge $400 an hour, not including GST, for work performed by Ms Macmillan, and, I infer, Mr Duckham.
A letter signed on behalf of the defendant by Susan Macmillan, a solicitor of more than five years standing employed by the defendant and who had the day‑to‑day carriage of the CBSW proceedings, to Ms Della‑Vedova dated 30 January 2019 referred to a telephone conversation between them on 29 January 2019 regarding the legal costs incurred by the plaintiff.
That letter stated in part:
As advised, your legal costs to date including the costs of Counsel are estimated to be in excess of $200,000. The further costs of preparing for attending a trial are estimated in the range of $65,000 to $85,000 not including the further costs of expert witnesses.
We note your advice that you intend to discuss the matter of costs in this matter with the firm's principal, Mr Bruce Duckham.
Ms Macmillan was briefly cross‑examined regarding the letter, the clear intent of the cross‑examination being to establish that the estimate of $200,000 was 'accurate'. Ms Macmillan's evidence, which I accept, was to the effect that she had not calculated the figure personally, and that the defendant's costs records often contained errors.
As at 30 January 2019 the defendant had not issued an invoice in respect of its fees to the plaintiff since 31 August 2018.
As already noted, as at 31 August 2018 the costs invoiced by the plaintiff to the defendant in respect of the CBSW proceedings substantially exceeded both the defendant's first estimate of its likely costs, being $75,000, and its second estimate of $150,000, with the proceedings still to be tried. The estimate provided as at 29 January 2019 was that the likely total costs to the conclusion of the trial had increased to between $265,000 and $285,000, not including the further costs of expert witnesses.
There was no suggestion that the defendant had provided updated costs disclosure as soon as reasonably practicable after it had become apparent that the estimate of $150,000 was inadequate, which must have been apparent to the defendant by no later than 31 August 2018.
Section 267 of the now repealed LPA imposed an ongoing obligation on a law practice to disclose to a client any substantial change to anything included in a costs disclosure already made to the client 'as soon as reasonably practicable after the law practice [became] aware of that change'.
In these proceedings the plaintiff pleaded, in effect, that it had alleged in the District Court costs proceedings that the defendant's retainer agreements did not comply with s 260 of the LPA, with the consequence that the defendant could not maintain those proceedings until its costs had been assessed in accordance with s 268 of the LPA, and that the defendant had agreed that was the position.
Section 268(1) provided that a consequence of a failure to make disclosure in accordance with s 267 was that the client need not pay the law practice's legal costs unless they had been assessed under div 8 of the LPA. Further, s 268(2) provided that the law practice could not maintain proceedings against the client for the recovery of legal costs unless the costs had been so assessed, and s 268(4) gave the taxing officer, in effect, a discretion to reduce the amount of costs payable by the client by the amount the taxing officer considered proportionate to the seriousness of the failure to disclose.

The effect of the defence, which asserted that those allegations were embarrassing and did not disclose a cause of action, and otherwise expressly did not plead to them, was to admit them.[2]
[2] O 20 r 14(1) and (2), Rules of the Supreme Court 1971 (WA); and see Australian Competition and Consumer Commission v Francis(2004) 142 FCR 1 [37] ‑ [38]; Australian Competition and Consumer Commission v Australialink Pty Ltd (No 3) [2009] FCA 552 [20] ‑ [21], [23].
On the pleadings in these proceedings the defendant admitted that it had been alleged in the District Court costs proceedings that it could not maintain those proceedings until it had its costs assessed in accordance with s 268, and that the defendant had accepted that was correct.
The position as at 29 January 2019 was, therefore, that the plaintiff was not presently obliged to pay the costs invoiced by the defendant and as yet unpaid, no amount being payable by the plaintiff to the defendant until the defendant's costs had been assessed by the taxing officer, and the defendant's invoiced costs, once assessed, were also subject to reduction by the taxing officer in an amount to be determined by that officer.
It was common ground that Ms Della‑Vedova met with Mr Duckham at the defendant's offices on 25 February 2019. I find that the defendant knew that the CBSW proceedings were all but completed by that date, as Ms Della‑Vedova executed a deed of settlement in respect of those proceedings that day at the defendant's offices.
The plaintiff's pleaded case is that, at the meeting on 25 February 2019, Ms Della‑Vedova told Mr Duckham words to the effect that:
(a)an amount in excess of $200,000 for the costs of the defendant was far too high for the work the defendant had carried out for the plaintiff in the CBSW proceedings;
(b)the plaintiff disputed and was not willing to pay the defendant that amount in respect of its costs; and
(c)the plaintiff was willing to pay the defendant's outstanding costs for the CBSW proceedings if they were capped at $100,000 plus the costs of the barrister engaged on behalf of the plaintiff.
The defendant pleaded that Ms Della‑Vedova made no statement to the effect that the costs were far too high but merely requested a 'gross reduction', while admitting that Ms Della‑Vedova said that the plaintiff was willing to pay the defendant's outstanding costs for the CBSW proceedings if they were capped at $100,000 as well as the costs of the barrister engaged on behalf of the plaintiff.
Somewhat oddly, the defendant pleaded that no request was made for 'any assessment of the costs for the … professional services rendered by the defendant' at that meeting. As the consequences of a failure to make a required costs disclosure were imposed by s 268 without there being any need for the client to request that occur, there was no obligation on the plaintiff to do so.
Ms Della‑Vedova's oral evidence as to what was said at the meeting was:
What did you say?‑‑‑I opened with the fact that I had seen the - what - where the costs were running and that the whole - that it was all too high, that the fees were far too high, and would he consider some relief. I - - -
Did you say anything - - -?‑‑‑I then put it to him that we would pay the 100,000 capped - the fees of 100,000 capped, and there was no difficulty with that.
And would that 100,000 include [the barrister]?‑‑‑No.
…
What did Mr Duckham say?‑‑‑He actually just said he would consider it. He didn't give me an answer. He just said he would consider it.
On her oral evidence, Ms Della‑Vedova did not expressly say at the meeting that the plaintiff disputed and was not willing to pay the defendant $200,000, as pleaded at par 17(b) of the amended statement of claim.
By letter dated 12 March 2019, Mr Duckham wrote to Ms Della‑Vedova stating:
I note your request that our fees in relation to this matter not including Counsel fees and disbursements be set at $100,00 inclusive of GST. I agree to this request upon the proviso that payment be made this month.
As Mr Duckham did not give evidence, it is unclear which matters he took into consideration in agreeing to accept Ms Della‑Vedova's proposal, but he had sufficient time to consider whether the defendant had complied with its cost disclosure obligations and the amounts charged by the defendant in acting for the plaintiff in the CBSW proceedings.
The potential significance of the difference between the pleaded allegations as to what occurred on 25 February 2019 and Ms Della‑Vedova's oral evidence is whether the plaintiff disputed that the amount of $200,000 was properly chargeable, or merely requested that the defendant reduce its fees. That might have some bearing on whether there was an accord and satisfaction reached between the parties on 12 March 2019, when Mr Duckham wrote to Ms Della‑Vedova accepting the proposal that the defendant's outstanding fees be capped at $100,000.
In that regard, Ms Della‑Vedova deposed in each of her affidavits tendered by Mr Duckham that she had said words at the meeting to the effect that:
(a)an amount in excess of $200,000 for the defendant's costs was far too high for the work the defendant had carried out for the plaintiff in the CBSW proceedings;
(b)the plaintiff disputed and was not willing to pay the defendant that amount in respect of its costs; and
(c)the plaintiff was willing to agree the defendant's costs if they were capped at $100,000 plus the costs of the barrister engaged for the CBSW proceedings.
In her affidavit sworn 22 January 2020, Ms Della‑Vedova also deposed to having 'told Mr Duckham that [the defendant's] account was excessive and that [the plaintiff] would not pay it'.
Ms Della‑Vedova was not cross‑examined as to what was said at the meeting nor whether there was any material difference between her oral evidence and what was stated in her two affidavits.
I find that it was implicit in Ms Della‑Vedova having told Mr Duckham that 'the fees were far too high' and that the plaintiff would pay '$100,000 capped' that the plaintiff disputed that it was obliged to pay $200,000 in costs to the defendant and was unwilling to do so.
That finding is supported by Ms Della‑Vedova's affidavit evidence, tendered by the defendant and unchallenged, and by the statement of account issued by the defendant dated 31 March 2019, which included the following entries:
Sub-total of outstanding fees  $200,453.80
Less agreed compromise - B W Duckham & Co        ($100,453.80)
(*$100,000 inclusive of GST plus disbursements)
Sub-total payable to B W Duckham & Co         $100,000.00
There was no evidence as to who prepared that statement of account, but the reference to an 'agreed compromise' is consistent with Mr Duckham having accepted that the plaintiff had disputed the defendant's claimed entitlement to be paid in excess of $200,000 in respect of costs.
It was common ground that the plaintiff paid the further $100,000 to the defendant, albeit not by the date specified by Mr Duckham.
By letter dated 2 April 2019 Mr Duckham threatened to institute legal proceedings against the plaintiff if the $100,000 that he had agreed to accept and the outstanding counsel's fees were not paid by 13 April 2019.
By letter dated 18 April 2019 the defendant, by Ms Macmillan, confirmed receipt of the plaintiff's cheque payable to the defendant in the amount of $100,000, together with a cheque in payment of counsel fees. Under cover of that letter, Ms Macmillan enclosed another statement of account, which recorded the defendant's receipt of the $100,000 on 13 April 2019 and again referred to an agreed compromise in the same terms as that stated in the statement of account dated 31 March 2019.
Ms Macmillan's evidence was that she left she defendant's employ at the end of April 2019, and accepted an offer of employment with another firm of solicitors in about early May 2019. At some point in about June 2019, members of the Della‑Vedova family attended at the offices of Ms Macmillan's new firm to review and sign some papers. Mr Duckham saw them there, although why he was there was not explained in the evidence.
Ms Macmillan's evidence, which I accept, is that after that meeting Mr Duckham came to her office and asked what the Della‑Vedova family members were doing there. Ms Macmillan told him that they were there regarding Gosnells land holdings, following which Mr Duckham said he was going to have to rethink the arrangement regarding the discount he had given.
Having been told by Ms Macmillan that he could not do that, Mr Duckham told her that he could. When she asked on what basis, Mr Duckham told her that 'there was no deed, no written deed', or words to that effect.
There was no evidence as to when members of the Della‑Vedova family changed solicitors, which members of the family did so, or why. There was no attempt to cross‑examine Ms Della‑Vedova about those matters, nor was Ms Macmillan asked as to how her new firm came to act for those persons.
It appears that Mr Duckham considered that it was unacceptable that members of the Della‑Vedova family had engaged other solicitors. After his conversation with Ms Macmillan, he adopted the position that the agreement he reached with Ms Della‑Vedova was clearly not enforceable, not having been made by deed and there otherwise being no consideration for the defendant's agreement to accept $100,000 in satisfaction of its costs.
By writ issued on 1 November 2019 in the name B W Duckham & Co (a firm), the defendant instituted the District Court costs proceedings against, amongst others, the plaintiff firm, seeking payment of the balance of the costs it had agreed to forego as a result of the agreement made with Ms Della‑Vedova, as well as other amounts from other members of the Della‑Vedova family.
On 21 April 2021 the defendant filed a reply in the District Court costs proceedings, admitting the allegation that the defendant had failed to make disclosure in accordance with s 260 of the LPA and that it could not maintain the District Court costs proceedings by virtue of s 268(2) of the LPA unless and until the costs sought by the defendant were assessed.
On 4 May 2021 the defendant commenced the assessment proceedings.
The plaintiff's solicitors informed the defendant's solicitors by email dated 11 May 2021 that it was necessary for the parties to have the claims regarding the alleged compromise determined before any assessment of the defendant's claimed costs.
On 25 May 2021 the plaintiff filed an unconditional appearance in the assessment proceedings. At that time, the District Court costs proceedings remained on foot, so that the plaintiff's pleaded case that there was a binding agreement between the parties as to the costs of the CBSW proceedings remained in issue between the parties.
By letter dated 11 June 2021, sent less than three weeks after the plaintiff had filed its appearance in the assessment proceedings, the plaintiff's solicitors advised the defendant's then solicitors that they considered that, if the defendant's application for the assessment of its costs was determined first, the assessment would take effect as a judgment of this court by operation of s 305 of the LPA and 'cause our client's defences in the District Court action that [the defendant's] claim for costs has been extinguished to be rendered nugatory', the outcome of the District Court costs proceedings would determine the defendant's entitlement to recover an assessed costs and '[if a way cannot be found for the determination of the Defences in the District Court prior to the assessment of [the defendant's invoices] then [the plaintiff] will be left with no alternative but to commence proceedings in the Supreme Court for the determination of its Defences and an interim stay of the assessment of [the defendant's] invoices'.
By letter dated 5 July 2021 the defendant's solicitors advised that they considered that the appropriate course was for the District Court costs proceedings to be discontinued, having regard to s 268(2) of the LPA.
On 12 July 2021 the defendant was granted leave to discontinue the District Court costs proceedings and the proceedings were discontinued save as to costs, with the issue of costs reserved to a special appointment on 18 August 2021.
On 11 October 2021 Acting Registrar Hosking ordered in the assessment proceedings that the assessment be adjourned sine die, pending the determination of these proceedings.
There is no evidence that the defendant took any step in the assessment proceedings between the filing of the application and the court staying the application, other than to provide an itemisation of each of the three invoices submitted for assessment and to provide 'lever arch files in respect of each of the relevant memos of costs' under cover of a letter dated 12 July 2021, the same day that the District Court costs proceedings were discontinued.
In response to a question from the court, Mr Duckham said that the defendant did not suffer any detriment due to its having filed the request for assessment of its invoices.
Immediately before the trial, the defendant filed an outline of submissions asserting that the plaintiff had failed to plead a case of accord and satisfaction. Further, Mr Duckham submitted in the course of the trial that the first time the plaintiff had raised a case of accord and satisfaction was in January 2025 when it filed its outline of submissions for the trial.
I reject both submissions.
First, it is admitted on the pleadings that the defendant had failed to comply with the costs disclosure obligations imposed by s 260 of the LPA in respect of its costs agreements.
The legal consequence of those facts was that the plaintiff was not obliged to pay any amount in respect of costs to the defendant until those costs had been assessed and, further, the taxing officer had determined whether to reduce them pursuant to s 268(4) of the LPA.
Secondly, as identified above, the plaintiff pleads that the plaintiff had disputed the amount charged by the defendant in respect of its costs, and that the defendant had agreed to accept payment of $100,000 (inclusive of GST) in satisfaction of any entitlement the defendant might have.
The plaintiff therefore pleaded the elements of an accord and satisfaction, namely an agreement to resolve a genuine dispute between parties, and (in effect) an intention on the part of the defendant to release the plaintiff from any further liability in respect of the balance of the amount claimed by the defendant.[3] Further, the facts giving rise to the existence of other consideration for the plaintiff's promise to pay a lesser sum than the amount claimed by the defendant, namely that no amount was payable until the defendant's costs had been assessed, was also pleaded.
[3] See Ashton v Pratt [2015] NSWCA 12; (2015) 88 NSWLR 281 [172] ‑ [173].
It is true to say that the phrase 'accord and satisfaction' was not used in the pleading, but that has no bearing on whether the claim was satisfactorily pleaded. Subject to any question of surprise, a party is entitled to rely upon any legal consequence arising from the material facts pleaded in a statement of claim.[4]
[4] Re Vandervell's Trusts (No 2), White v Vandervell Trustees Ltd (1974) Ch 269, 321 ‑ 322.
Moreover, contrary to the defendant's submissions, the plaintiff disclosed its case in an outline of submissions filed in February 2022 in opposition to the defendant's application for summary judgment. Those submissions made clear beyond doubt that the plaintiff alleged that the agreement reached in March 2019 constituted an accord and satisfaction,[5] and that the plaintiff would only have been liable to pay the defendant's claimed costs once they had been assessed.[6]
[5] Plaintiff's Outline of Submissions in Opposition to Defendant's Application for Summary Judgment filed 14 February 2022 [31], citing Ashton v Pratt and Wigan v Edwards (1973) 47 ALJR 586, 594 ‑ 595.
[6] See [32] - [35] of those submissions.
Before me, the defendant argued that there had been no consideration for the defendant's agreement to accept $100,000 (inclusive of GST) in settlement of entitlement to costs, in circumstances where its 'prima facie costs entitlement as at … 25/2/2019 was in excess of $200,000'.
In making that submission, the defendant consistently overlooked that it had received $66,027.88 in respect of amounts invoiced to the plaintiff as at 31 August 2018. The total amount received by the defendant was therefore $166,027.88, although some of that amount may have been applied to disbursements and some was attributable to GST.
As I have found that the plaintiff had disputed the amount invoiced by the defendant for the work done in the CBSW proceedings, Mr Duckham's acceptance of the amount of $100,000 in settlement of that dispute constituted valuable consideration for the release of the balance of the amount said to be due by the plaintiff.
Little ultimately turns, however, on whether the plaintiff disputed the amount of $200,000 was properly chargeable or stated that it was unwilling to pay that amount on 25 February 2019, because there was valuable consideration for the defendant's agreement to accept $100,000 in satisfaction of its entitlement to costs regardless of whether Ms Della‑Vedova specifically disputed the amount said to be due.
The consequence of the defendant's failure to comply with its costs disclosure obligations meant that, as at 12 March 2019, the defendant had no present entitlement to be paid any amount in respect of costs, and the amount it was entitled to be paid was not $200,000, as the defendant asserted, but an indeterminate amount to be fixed by the court following an assessment of the costs claimed by the defendant, and the further determination by the taxing officer whether that amount should be reduced pursuant to s 268(4) of the LPA.
The defendant's reliance upon a 'prima facie entitlement' to $200,000 is therefore misplaced. Although a debt can only be released and extinguished by an agreement for valuable consideration or an instrument under seal,[7] there is valuable consideration when a lesser amount than the sum claimed is paid in circumstances where there is a dispute about the amount due,[8] the claim is for an unliquidated sum,[9] or the debt is not presently payable.[10]
[7] Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723, 739; Foakes v Beer (1884) 9 App Cas 605.
[8] Cooper v Parker (1855) 15 CB 822.
[9] Ibberson v Neck (1886) 2 TLR 427.
[10] Pinnel's Case; Penny v Core (1602) 5 Co Rep 117a; (1602) 77 ER 237.
In this regard, the defendant submitted that the court could find the amount likely to have been due to the defendant, apparently for the purposes of ascertaining whether it was likely that the agreement was made as alleged.
I reject that submission. The evidence falls far short of what would be required to make any assessment of what costs would likely have been found payable to the defendant had an assessment been undertaken. Other than the pleadings, there is no evidence of the scope of the issues in the CBSW proceedings, nor of the extent of the work carried out by the defendant, whether that work was competently performed, and whether it was necessary.
Further, the amount likely to be assessed to be payable to the defendant is irrelevant both to the question whether there was an agreement as alleged by the plaintiff and to the determination of the other issues in the proceedings.
In the circumstances, even if, contrary to my findings, Ms Della‑Vedova did not specifically dispute the amounts invoiced by the defendant, the plaintiff's offer to pay the fixed amount of $100,000 constituted valuable consideration for the release of any obligation to pay the balance of the costs claimed by the defendant, the defendant obtaining by its acceptance of that offer a promise of the payment of a certain amount and the fixing of a time at which it would be paid, as well as avoiding having to devote resources to the assessment of its costs.

As I have already said, it is not possible to make any finding as to whether Mr Duckham gave active consideration to the defendant's position, although the fact that he took time to consider the plaintiff's proposal suggests that he did, but there may be good consideration even where the promisee does not consciously realise that he or she is receiving a benefit in return for the release of a claimed debt.[11]
[11] Pitts v Jones [2007] EWCA Civ 1301; [2008] 1 QB 706 [16] ‑ [18].
Payment of $100,000 by the plaintiff to the defendant therefore constituted good consideration for the defendant's promise to accept that amount in satisfaction of its claim to payment, both because the agreement constituted the settlement of a bona fide dispute as to the amount due to the defendant, and because the payment of a lesser amount at an earlier time than when payment is due under a contract may also constitute good consideration.
I accordingly find that the agreement made on 12 March 2019 upon Mr Duckham's acceptance of Ms Della‑Vedova's proposal was made for good consideration, and, subject to the defences raised by the defendant, binding upon the parties.
In further opposition to the plaintiff's claim, the defendant pleaded that 'the plaintiff entered an unconditional appearance in [the assessment proceedings]'.
The defendant submitted that that plea, in and of itself, raised defences of acquiescence, election, waiver, and estoppel.
The defendant sought to justify those submissions by reference to the decision of Le Miere J in Mercanti v Mercanti,[12] where his Honour rejected a submission that a party seeking to rely upon the maxim 'he who seeks equity must do equity' was obliged to specifically plead that maxim, saying:[13]
In my opinion the defendants are not required to plead the maxim 'he who seeks equity must do equity' nor the way in which the pleaded facts and the maxim would operate. The defendants must plead the facts they intend to rely upon. The plaintiffs must also plead any matter which if not specifically pleaded might take the opposite party by surprise. In my view, that does not require the defendants to plead that they rely upon the maxim or how the pleaded facts and the maximum would operate. That is because when a plaintiff seeks equitable relief it should be part of his case to offer to do equity. (emphasis added)
[12] Mercanti v Mercanti [2015] WASC 297.
[13] Mercanti [193].
None of the defences identified by the defendant has been adequately pleaded, not least because the plea gives no indication that they will be relied upon and is therefore conducive of surprise, but they are without merit in any case. As the defendant spent considerable time on them at the trial I will give short reasons as to why none of them were reasonably arguable.
Acquiescence involves, in the sense that I understood it to be used by the defendant, a party standing by while he sees the violation of his right in progress, taking no step to interfere.[14]
[14] Glasson v Fuller [1922] SASR 148, 161; Orr v Ford (1989) 167 CLR 316, 337 ‑ 338.
That did not occur here. I find that at all times the defendant knew that the plaintiff did not intend to abandon the agreement it had made with the defendant by filing the appearance in the assessment proceedings. At the time the defendant commenced the assessment proceedings, the plaintiff's case in the ongoing District Court costs proceedings was that there was a binding agreement between the parties as to the costs of the CBSW proceedings, and the plaintiff made clear in its correspondence of 11 and 25 May 2021 that the validity of that agreement had to be determined before the defendant's costs could be assessed.
Once the defendant discontinued the District Court costs proceedings, the plaintiff commenced these proceedings, and obtained a stay of the assessment proceedings pending their determination.
The plaintiff's conduct therefore cannot be characterised as its having stood by and allowed the defendant to breach the accord and satisfaction.
I accordingly reject the submission that the mere filing of the appearance by the plaintiff, considered in the context in which that step was taken, amounted in any way to acquiescence on its part to the defendant's conduct.
As to waiver, in Allianz Australia Insurance Ltd v Delor Vue ApartmentsCTS 39788[15] the plurality made clear that, in general, a statement of intention by a party not to exercise a right does not extinguish the right unless supported by consideration, so that an expressed waiver of a right may generally be revoked upon reasonable notice at any time.[16]
[15] Allianz Australia Insurance Ltd v Delor Vue ApartmentsCTS 39788 [2022] HCA 38; (2022) 277 CLR 445.
[16] Delor Vue Apartments [28] - [32].
Assuming that the entry of an appearance in the assessment proceedings constitute a waiver of the plaintiff's right to enforce the accord and satisfaction, there was pleaded allegation and no evidence to the effect that any consideration was given for that waiver, so that any waiver was revoked upon the institution of these proceedings on 21 August 2021.
Insofar as the defendant sought to rely upon the plaintiff having made an election by filing the appearance, the doctrine of election only applies where there is a choice made between two inconsistent sets of rights, such that a person's rights are extinguished 'as a consequence of either the completed exercise of a power to extinguish the rights, or a full satisfaction of alternative and inconsistent rights'.[17] The plurality in Delor Vue Apartments expressly rejected the creation of a 'novel third category where a person's rights are extinguished by a person merely taking steps which clearly evidence a choice between two inconsistent courses of action'[18] (emphasis added).
[17] Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [65].
[18] Delor Vue Apartments [65], [67].
The filing of an appearance in the assessment proceedings therefore did not constitute an election, because taking steps to oppose the assessment of the defendant's costs was not inconsistent with the plaintiff's claim in the District Court costs proceedings that there had been a binding agreement regarding the amount of costs to be paid, and because the plaintiff had not pursued either the District Court costs proceedings or the assessment to a conclusion.
The defendant's claim that the plaintiff made an election by entering an unconditional appearance in the assessment proceedings also ignores the context in which that was done. As already stated, the defendant knew that the plaintiff contended that the accord and satisfaction prohibited the defendant seeking any further amount in respect of costs. The defendant nonetheless instituted the assessment proceedings, leading to the filing of an appearance by the plaintiff, the plaintiff having previously stated it would apply to stay any such proceedings.
While it was open to the plaintiff to commence proceedings seeking similar relief to that now sought and to enjoin the defendant from pursuing the assessment on an interlocutory basis, it is not reasonably open to suggest that the plaintiff acted to irrevocably abandon its rights under the accord and satisfaction simply by filing an appearance in the assessment proceedings.
Acceptance of the defendant's submissions to the effect that the plaintiff extinguished its rights under the accord and satisfaction simply by filing an appearance would be directly contrary to the rejection by the High Court in Delor Vue Apartments of the proposition that it is insufficient for a person to have simply taken a step or steps which evidences a choice between inconsistent courses of action to give rise to an election, and I therefore reject the defendant's submissions in relation to election.
The defendant also asserts that the plaintiff is estopped from opposing the assessment of the defendant's further costs. As the elements of an estoppel were not pleaded, it is impossible to ascertain the precise nature of the estoppel asserted by the defendant from the defence, nor was Mr Duckham able to do so when asked in the course of submissions.
The defendant's written submissions on estoppel stated (omitting reference to matters not in evidence):
DV&S pleaded.
'(a)the defendant … not liable to pay fees … until fees have been assessed; and
(b)the plaintiff is unable to maintain these proceedings until such time as … fees … assessed'
Thereafter 12/7/21, … proceedings 4286/2019 were discontinued as required and LPA 16 of 2021 issued.
In the circumstances the attempt by DV&S to now object oppose or attempt to stay the assessment process it is clearly estopped.
Subparagraphs (a) and (b) above correctly summarise the effect of ss 268(1) and (2) of the LPA. The defendant's submissions regarding estoppel therefore ignore that the commencement of the District Court costs proceedings was improper, the plaintiff being under no present liability to pay any costs and the defendant being prohibited from commencing proceedings in respect of its costs by s 268(2) unless and until its costs had been assessed.
The District Court costs proceedings were therefore always liable to be struck out.
So far as the plaintiff's opposition to the assessment is concerned, the defendant's submissions ignore that the plaintiff pleaded the agreement between the parties in the District Court costs proceedings in the alternative to the provisions of the LPA which prohibited the defendant maintaining those proceedings, and the email from the plaintiff's solicitors pointing out that it was necessary to determine the enforceability of the accord and satisfaction before the defendant's costs could be assessed.
In general terms, the doctrine of equitable estoppel prevents a party from unconscionably relying upon his or her strict legal rights. As stated by Quinlan CJ and Vaughan JA in Wilson vArwon Finance Ltd,[19] '[t]he fundamental object of equitable estoppel is to protect a claimant against unjust detriment which would flow from the charged party's change of position if the charged party were permitted to depart from an assumption or expectation held by the claimant as induced by the charged party's representation or conduct'.[20]
[19] Wilson vArwonFinance Ltd [2020] WASCA 137.
[20] Wilson vArwonFinance Ltd [84].
As there has been no change of position on the part of the plaintiff, the defendant's claim that the plaintiff is estopped in some unexplained fashion is misconceived.
Further, as the defendant was not entitled to commence or maintain the District Court costs proceedings, any costs consequences incurred by the defendant in respect of those proceedings were due to the defendant having engaged in conduct prohibited by s 268(2) of the LPA, which occurred prior to any conduct of the plaintiff.
Nor, given Mr Duckham's statement that the defendant did not suffer any detriment arising from the filing of the assessment application, did it suffer detriment from commencing those proceedings.
Accordingly, even if there was some basis for thinking that the plaintiff had changed its position, the absence of detriment to the defendant arising from that change means that any claim of estoppel by the defendant must fail.
Finally, the defendant claims to have pleaded that the plaintiff engaged in unconscionable conduct. That plea comprised [19.1] of the further amended defence, as follows:
In the alternative if the Compromise Agreement is valid and effective at law which is not admitted the acceptance was against the background of the matters pleaded below:
(a)the defendant and its predecessor firms of solicitors under the direction or control or participation of Mr B W Duckham had acted for the plaintiff and those associated with it for 40 years or thereabouts;
(b)the defendant's prima facie costs entitlement as at the said 25/2/2019 was in excess of $200,000;
(c)no representation was given by the plaintiff at the time of the offer of the Costs Proposal or the acceptance thereof that the solicitor/client relationship would not continue.
The Plaintiff has acted unconscionably and is not entitled to the relief claimed or any relief.
There was little evidence of the matters pleaded in subparagraph (a). The only evidence relating to other matters in respect of which the defendant was acting is a reference to eight files in relation to which Ms Della‑Vedova offered to pay $50,000 in respect of costs on 1 November 2019, but the identity of each client of the defendant is not apparent from that document.
The plea in subparagraph (b) is misconceived. For the reasons already identified, the defendant did not have any 'prima facie entitlement' to $200,000 in respect of costs.
Both the plea and the defendant's submissions assume that an assessment of the defendant's costs would have resulted in the whole of the costs invoiced to the plaintiff being assessed as properly payable, but the assumption is speculative, the defendant having failed to adduce the evidentiary material which would be required to establish the claimed entitlement.
As to the plea in subparagraph (c), there is no suggestion that any continuation of the relationship of solicitor and client as between the defendant and the plaintiff was mentioned between Mr Duckham and Ms Della‑Vedova. The defendant does not plead, and there is no evidence to suggest, that the plaintiff knew that the defendant assumed that the plaintiff would continue to retain the defendant as its solicitors.
In effect, the defendant asserts that the plaintiff implicitly represented that the plaintiff would continue to retain the defendant to act as its solicitors. As the CBSW proceedings had effectively settled before the defendant accepted the plaintiff's proposal of 25 February 2019, the representation alleged by the defendant is that the plaintiff would continue to instruct the defendant in relation to other matters or in the future.
The defendant did not plead why it would be unconscionable for the plaintiff to cease to instruct the defendant to act as its solicitors in those circumstances, it being unreasonable to think that the plaintiff could never choose to engage other solicitors.
Although no reference was made to the Australian Consumer Law in the defence, I infer from the references to Hurley v McDonald's Australia Ltd[21] and the 2018 edition of Miller's Australian Competition and Consumer Law in the defendant's outline of submissions that the defendant relies upon either s 20 or s 21 of the Australian Consumer Law.
[21] Hurley v McDonald's Australia Ltd [1999] FCA 1728.
Very briefly, s 20 prohibits a person engaging in conduct, in trade or commerce, which is unconscionable within the meaning of the unwritten law from time to time, whereas s 21 prohibits a person from engaging in conduct that is, in all the circumstances, unconscionable.
Any reliance by the defendant upon s 20 is untenable. Unconscionability under the unwritten law involves 'a relationship that places one party at a "special disadvantage" vis-à-vis the other; knowledge of that special disadvantage by the stronger party; and unconscientious exploitation by the stronger party of the weaker party's disadvantage'.[22]
[22] Stubbings v Jams 2 Pty Ltd [2022] HCA 6; (2022) 276 CLR 1 [39], citing Commercial Bank of Australia Ltd v Amadio(1983) 151 CLR 447, 459 ‑ 460, 461, 471.
There is simply nothing to suggest that Mr Duckham, a legal practitioner of many years standing, was at any disadvantage in dealing with the plaintiff, and even less reason to think that the plaintiff took advantage of the defendant.
As noted previously, Mr Duckham did not accept the plaintiff's proposal for several weeks. He therefore had time to consider the implications of the defendant's failure to provide proper costs disclosure, particularly the delay in the determination of the amount payable by the plaintiff, and consequently, the delay in receipt of payment from the plaintiff which would follow the defendant submitting its costs for assessment.
Nor did he inquire whether the plaintiff would continue to instruct his firm in the future, an option which was clearly open to him.
I accordingly find that the plaintiff did not act unconscionably under the general or unwritten law.
As to whether the plaintiff's conduct in relying upon the accord and satisfaction contravenes s 21 of the Australian Consumer Law in some fashion, any assessment of the plaintiff's alleged conduct requires an objective evaluation of the parties' behaviour, including the reasons for their behaviour and the effect, or likely effect, of that behaviour, with the court being required to undertake a comprehensive analysis of all the circumstances.[23]
[23] Sampey v Doherty [2024] WASCA 105 [362] ‑ [367].
The assessment required to be made is whether the identified conduct is offensive to conscience, in the sense of being outside societal norms of acceptable commercial behaviour.[24]
[24] Sampey v Doherty [367].
Here, the conversation which gave rise to the agreement between the parties took place in the context of the proceedings in which the defendant had acted for the plaintiff being about to settle, so that there was no reason to think that the defendant's retainer in relation to those proceedings would continue for any length of time. The thrust of the conversation between Ms Della‑Vedova and Mr Duckham on 25 February 2019 was that the defendant had charged too much for the work that it had done, with the plaintiff offering to make an additional payment, over and above what had been paid to date, to resolve any liability the plaintiff might have.
Other than the defendant's unproved assertion that various entities had acted for the plaintiff and its predecessors for some time in the past, there was no reason to think that the plaintiff might continue to instruct the defendant in the future. It is possible that the plaintiff, having formed the view that it had been overcharged, wished to bring the relationship to an end, but the evidence does not allow a positive finding to that effect to be made, and there was no communication of that view to the defendant, even if it was held by the plaintiff.
When the plaintiff failed to pay the agreed amount of $100,000 by 31 March 2019, the defendant threatened to take legal proceedings against the plaintiff to enforce payment. That threat might also be thought to potentially have had an impact on the plaintiff's willingness to continue to instruct the defendant, but the issue was not explored during the trial.
Similarly, it is possible that the plaintiff determined to follow Ms Macmillan to her new firm, but that possibility was also not investigated.
In all the circumstances, I am far from satisfied that the plaintiff's conduct was unconscionable in the relevant sense. There is nothing to indicate that the plaintiff caused the defendant to make any assumption about what might occur if the defendant accepted the plaintiff's proposal. Mr Duckham was well placed to consider that proposal, in the context of the defendant having failed to comply with its obligations under the LPA, and took time to do so.
In addition, although Mr Duckham submitted that it could be inferred that the defendant would not have compromised a debt of $200,000 by accepting $100,000 in its stead, I am not prepared to draw that inference in circumstances where the absence of evidence from the defendant meant that its reasons for accepting the plaintiff's proposal were neither identified nor the subject of cross‑examination, and the defendant's failure to comply with its costs disclosure obligations meant, objectively, that it was not entitled to payment of any further amount, much less $200,000, until its costs had been assessed, with the further consequence that the defendant might not receive payment of whatever amount was assessed to be due by the plaintiff for some time.
In addition, having regard to the two letters under cover of which the defendant's costs agreements were said to have been provided to the plaintiff, I am not prepared to infer that Mr Duckham did not appreciate the consequences of the defendant's failure to comply with its costs disclosure in considering the plaintiff's offer.

The allegation that the plaintiff engaged in unconscionable conduct therefore fails.
As I have found that the agreement between the parties was made for valuable consideration and the various grounds relied upon by the defendant, pleaded or otherwise, to avoid that agreement have failed, there will be judgment for the plaintiff.
I will hear the parties as to the precise form of the orders to be made, and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Hon Justice Cobby
6 MAY 2025