Desai v AustAsia Legal Pty Ltd
[2020] WASC 307
•26 AUGUST 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: DESAI -v- AUSTASIA LEGAL PTY LTD [2020] WASC 307
CORAM: MASTER SANDERSON
HEARD: 11 JUNE 2020 AND ON THE PAPERS
DELIVERED : 26 AUGUST 2020
PUBLISHED : 26 AUGUST 2020
FILE NO/S: CIV 2800 of 2019
BETWEEN: CHIRAGKUMAR NARENDRAPRASAD DESAI
Plaintiff
AND
AUSTASIA LEGAL PTY LTD
Defendant
Catchwords:
Solicitor costs agreements - Application to set aside various agreements - Turns on own facts
Legislation:
Legal Profession Act 2008 (WA)
Result:
Plaintiff's application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | JR Shepherd |
| Defendant | : | AJC Mossop |
Solicitors:
| Plaintiff | : | Blackwall Legal LLP |
| Defendant | : | AustAsia Legal Pty Ltd |
Case(s) referred to in decision(s):
Nil
MASTER SANDERSON:
By originating summons filed 14 October 2019 the plaintiff applied for the following orders:
1. That the First Costs Agreement (as defined in the affidavit of Chiragkumar Desai, sworn 11 October 2019 and filed in this matter the same date as this originating summons (Affidavit)) be set aside pursuant to section 288(2) of the Act, on the grounds that it is not fair, not reasonable, or both. Specifically as:
a. The Plaintiff was induced to enter into the agreements by the misrepresentation of the Defendant or of representatives of the Defendant. This misrepresentation occurred, inter alia, as a result of the Defendant holding out Mr Sydney Chesson as a legal practitioner prior to, and throughout the course of the matter.
b. The Defendant failed to make required disclosures under Division 3 of the Act. This included, but was not limited to the fact that the Defendant failed to disclose which costs determination applied to any of the legal work undertaken by the Defendant.
c. The circumstances and conduct of the Defendant prior to the agreements, and during the conduct of the matter was not fair or reasonable. This included (but was not limited to):
i. The Defendant reserving the right to charge full hourly rates for time spent travelling.
ii. The Defendant apparently reserving the right to unilaterally amend its hourly rates.
iii. The Defendant reserving the right to charge $1.00 a page for photocopying, $2.00 a page for facsimiles and $3.00 to cash cheques.
iv. The Defendant limiting the Plaintiff's right to request the itemisation of bills to a 30 day period after receiving a lump sum bill.
v. The Defendant requiring that the Plaintiff indemnify the Defendant for certain actions.
vi. The Defendant requiring that the Plaintiff meet all disbursements, howsoever incurred.
d. The Defendant failed to comply with the Act and subsidiary legislation in material respects. This included, but was not limited to:
i. The agreement failed to make reference to the 7-day period in which a client has to object to dealing with trust funds as provided under regulation 66(4) of the Legal Profession Regulations 2009 (WA).
ii. The Defendant failed to identify that any ability of the Defendant to withdraw as the Plaintiff's legal representative, should be subject, at all times, to the professional conduct rules placed on the Defendant.
2. That the Second Costs Agreement (as defined in the Affidavit) be set aside pursuant to section 288(2) of the Act on the grounds that it is not fair, not reasonable or both. The Plaintiff repeats paragraphs 1a. – 1d above.
3. That the Third Costs Agreement (as defined in the Affidavit) be set aside pursuant to section 288(2) of the Act on the grounds that it is not fair, not reasonable or both. The Plaintiff repeats paragraphs 1a. – 1d above.
4. That the Fourth Costs Agreement (as defined in the Affidavit) be set aside pursuant to section 288(2) of the Act on the grounds that it is not fair, not reasonable or both. The Plaintiff repeats paragraphs 1a. – 1d above.
5. That the Fifth Costs Agreement (as defined in the Affidavit) be set aside pursuant to section 288(2) of the Act on the grounds that it is not fair, not reasonable or both. The Plaintiff repeats paragraphs 1a. – 1d above.
6. That the First Deed of Acknowledgement (as defined in the Affidavit) be set aside pursuant to section 288(2) of the Act. This claim is made on the grounds that:
a. The First Deed of Acknowledgement is a costs agreement pursuant to section 252 of the Act.
b. The First Deed of Acknowledgement is either not fair, not reasonable, or both as:
i. The Plaintiff was induced to enter into the agreements by the misrepresentation of the Defendant or of representatives of the Defendant.
ii. The circumstances and conduct of the Defendant prior to the agreements, and during the conduct of the matter was not fair or reasonable.
7. Alternatively to b. above, the First Deed of Acknowledgement be declared void pursuant to section 287 of the Act as:
a. The First Deed of Acknowledgement is a costs agreement pursuant to section 252 of the Act.
b. It provides that certain legal costs are not subject to costs assessment under Division 8 of the Act in contravention of section 282 of the Act.
c. It is therefore void pursuant to section 287 of the Act.
8. That the Second Deed of Acknowledgement (as defined in the Affidavit) be set aside pursuant to section 288(2) of the Act, or declared void pursuant to section 287 of the Act. The Plaintiff repeats paragraphs 6a. – 6e and 7, substituting the words 'Second Deed of Acknowledgement' in place of 'First Deed of Acknowledgement' where necessary.
9. The Defendant pay the Plaintiff's costs in this matter.
It is clear from the originating summons the plaintiff seeks to set aside five separate costs orders and relies on the same ground in each case. The plaintiff also seeks to set aside two agreements described as the first deed of acknowledgement and the second deed of acknowledgement. Although it is not entirely clear from the wording of the originating summons, it would appear that the application to set aside the first deed of acknowledgement is made on grounds set out in par 6 of the originating summons or in the alternative, pursuant to pars 6(a) and 7. In relation to the second deed of acknowledgement, the plaintiff relies on s 282 of the Legal Profession Act 2008 (WA) (Act) rather than on s 288(2) which is relied upon in relation to the first deed of acknowledgment. It seems the plaintiff alleges that both deeds are costs agreements pursuant to s 252 of the Act. That enlivens the jurisdiction to set the agreements aside. So in relation to the first deed of acknowledgement and the second deed of acknowledgment, the preliminary question is whether or not these deeds are in fact costs agreements. If they are, then the question is whether or not they are void under s 287 or should be set aside pursuant to s 288(2).
In support of the application the plaintiff relied upon three affidavits, the first sworn 11 October 2019, the second sworn 25 November 2019 and the third sworn 16 April 2020. The plaintiff also relied on an affidavit of Lorna Jane Clarke affirmed 15 April 2020. In opposition to the application the defendant relied upon two affidavits of Archana Luktuke, the first sworn 4 February 2020, the second sworn 24 April 2020. The defendant also relied on an affidavit of Simon James Chesson sworn 24 April 2020. Both the plaintiff and Ms Luktuke were cross‑examined to a limited extent on their affidavits. I will deal with the circumstances giving rise to the order for cross‑examination later in these reasons. For the present, the starting point is the affidavits of the plaintiff.
There is no dispute between the parties that, for the purposes of the Act, the plaintiff is a client in relation to the costs agreement and the defendant is a legal practice. However, there are a number of other entities and individuals who play a role in this application and they should be identified. AustAsia Group Pty Ltd is an entity related to the defendant that also provided legal services to the plaintiff.[1] AustAsia Accounting Services Pty Ltd is an entity related to the defendant that provided non‑legal services to the plaintiff.[2] Ms Hidy Ka Yee Chan (Ms Chan) is the plaintiff's partner.[3] She was added as a party to the second deed of acknowledgement. At all relevant times Sydney James Chesson was a director of the AustAsia Group and AustAsia Accounting. Mr Sydney Chesson has since passed away.[4] Mr Simon Chesson is the son of the late Mr Sydney Chesson.
[1] Plaintiff's submissions in support of the application to set aside costs agreements filed 10 March 2020 [4(a)].
[2] Plaintiff's submissions in support of the application to set aside costs agreements filed 10 March 2020 [4(b)].
[3] Plaintiff's submissions in support of the application to set aside costs agreements filed 10 March 2020 [4(c)].
[4] Plaintiff's submissions in support of the application to set aside costs agreements filed 10 March 2020 [4(d)].
Turning to the plaintiff's first affidavit, he says that in June 2016 he and a Mr Alan Leeming approached the defendant to assist a company N S Technologies Pty Ltd (NST) in respect of a dispute NST had with a company known as Water Technology Systems Pty Ltd (In liq) (Water Tech).[5] At the time the plaintiff was an employee of NST. Further, on or about 24 August 2016, NST and the plaintiff engaged the respondent to assist further with the dispute with Water Tech and to undertake some non‑contentious corporate matters to do with the plaintiff's involvement with NST.[6]
[5] Affidavit of Chiragkumar Narendraprasad Desai sworn 11 October 2019 [4].
[6] Affidavit of Chiragkumar Narendraprasad Desai sworn 11 October 2019 [6].
Although it is not entirely clear, it would appear that the engagement of the defendant in June 2016 was not followed by a costs agreement. The 'first costs agreement' as defined in par 7 of the plaintiff's first affidavit was, according to the plaintiff, 'entered into' on 26 August 2016 and was signed by the plaintiff on 12 September 2016. This first costs agreement was accompanied by a covering letter. A copy of the covering letter and of the first costs agreement appears as attachment CND1 to the plaintiff's first affidavit.
The covering letter sent by the defendant to the plaintiff is dated 24 August 2016. Relevantly it reads as follows:
1.As previously advised in our email correspondence dated 17 August 2016 Fort Knox Legal the solicitors for Water Technology Systems Pty Ltd (in liquidators) requested that we provide documentary evidence in respect of the assertion that the funds recorded in the books of Water Technology Systems Pty Ltd (in liquidation) was investment capital provided by the directors in their personal capacities and was not a loan to N S Technologies Pty ltd.
2.As discussed at the meeting on 13 June 2016 we understand that you wish to appoint AustAsia Group Pty Ltd and AustAsia Accounting Service Pty Ltd to tidy up the directorships, accounts and minutes of N S Technologies Pty Ltd.
3.Once the directorships, accounts and minutes of N S Technologies Pty Ltd are tidied up we ought to be able to respond to the letter from Fort Knox Legal.
4.We understand that your instructions are to carry out the following work:
4.1.Legal advice and general representation in respect of the Water Technology Systems Pty Ltd (in liq) matter (AustAsia Legal Pty Ltd);
4.2.Correspondence with the liquidator of Water Technology Systems Pty Ltd (in liq) or its solicitors (AustAsia Legal Pty Ltd);
4.3.Assisting you with tidying up the directorships of N S Technologies Pty Ltd (AustAsia Group Pty Ltd); and
4.4.Attendance on the accounts and meeting minutes of N S Technologies Pty Ltd (AustAsia Accounting Services Pty Ltd).
5.We estimate our legal costs of carrying out the work set out in paragraphs 4.1 and 4.2 above to be approximately $2,500.00 plus GST.
6.We understand the balance of the funds (being $2,500 plus GST) are in respect to AustAsia Group Pty Ltd and AustAsia Accounting Services Pty Ltd's fees to carry out the work in paragraphs 4.3 and 4.4 above.
Legal Costs
7.You are responsible for AustAsia Legal Pty Ltd's costs. Our usual billing practice is on a monthly basis until the finalisation of the matter.
8.It is our usual practice to request funds upfront to be deposited into our trust account.
9.We request that you deposit the sum of $5,000.00 plus GST ($5,500.00 inclusive of GST) into our trust account for the costs of the work to be completed by AustAsia Legal Pty Ltd, AustAsia Group Pty Ltd and AustAsia Accounting Services Pty Ltd.
…
11.We confirm we have received a signed Trust Authority from you in respect to any monies deposited in our trust account in accordance with our professional obligations under the Legal Profession Act 2008.
12.We will aim to keep costs as low as possible for you.
13.In accordance with the Legal Profession Act 2008 we are required to provide you with an estimate of legal fees and certain information concerning legal costs as soon as possible after receiving instructions from you.
14.To that end we now enclose the follows:
14.1.Costs Agreement ('Agreement');
14.2.Terms and Conditions of retainer; and
14.3.Legal Costs Fact Sheet.
15.We ask that you read the enclosed documents carefully and contact us if you have any queries.
16.We also ask that you sign the enclosed Costs Agreement and return a copy to our office at your earliest convenience. The Costs Agreement sets out the basis upon which we will charge you for providing you with legal services.
17.Ms Katherine Pole will have the care and conduct of your legal matters. Ms Pole may be assisted by other members of AustAsia Legal Pty Ltd.
…
18.We welcome you to obtain independent legal advice in relation to the costs matters.
19.We will provide you with updates in respect to costs as the matter progresses.
Attached to that letter is what is described as 'Terms and Conditions of Retainer'. It is a very detailed document. On its face it appears to have been drawn by the defendant. Whether that is so or whether it was adopted from standard precedents is beside the point. It sets out clearly the basis upon which fees will be charged, the basis upon which disbursements will be charged, it allows for an itemised bill and assessment of that bill by the Supreme Court. It advises the plaintiff could have the agreement reviewed by the Supreme Court (cl 34). Clause 39, under the heading 'Independent Legal Advice' is as follows:
If you have any issues in relation to this Agreement, we recommend that you first obtain independent legal advice before proceeding with this Agreement.
On the face of it, it must be said the agreement in its terms is comprehensive, fair and reasonable.
A further document described as a fact sheet was also enclosed. That document is headed 'Legal Costs – Your Right to Know'. It is in fact Form 2 of the Legal Profession Regulations 2009 (WA). Particular reference is made to reg 80(1) – Form of Disclosure of Client's Rights. In some ways this document does no more than summarise the terms and conditions of the costs agreement. But there can be no doubt that it was provided to the plaintiff, as was required by the Act. In addition, a copy of Form 2, which further summaries the plaintiff's rights, was also included.
What is notable about the plaintiff's first affidavit and his evidence in relation to the first costs agreement, is that he does not make any complaint about the circumstances in which he entered into the first costs agreement nor does he suggest he did not understand its meaning. Nothing further is added by the plaintiff's second affidavit. In par 5 of that affidavit, he refers to email correspondence which he alleges (without actually saying as much) that Mr Sydney Chesson, who was not a qualified lawyer, was acting in relation to his affairs. If that is the allegation, it is not reflected in the originating summons. Nor is there sufficient evidence to conclude that was in fact the case. The plaintiff's third affidavit does not deal with the first costs agreement at all.
Section 288 of the Act deals with 'Setting aside costs agreements'. Relevantly that section reads as follows:
Setting aside costs agreements
…
(2)On application by a client, the Supreme Court may order that a costs agreement be set aside if satisfied that the agreement is not fair or reasonable.
(3)In determining whether or not a costs agreement is fair or reasonable, and without limiting the matters to which the Supreme Court can have regard, the Supreme Court may have regard to any or all of the following matters -
(a)whether the client was induced to enter into the agreement by the fraud or misrepresentation of the law practice or of any representative of the law practice;
(b)whether any Australian legal practitioner or Australian registered foreign lawyer acting on behalf of the law practice has been found guilty of unsatisfactory professional conduct or professional misconduct in relation to the provision of legal services to which the agreement relates;
(c)whether the law practice has failed to make any of the disclosures required under Division 3;
(d)the circumstances and the conduct of the parties before and when the agreement was made;
(e)the circumstances and the conduct of the parties in the matters after the agreement was made;
(f)whether and how the agreement addresses the effect on costs of matters and changed circumstances that might foreseeably arise and affect the extent and nature of legal services provided under the agreement;
(g)whether and how billing under the agreement addresses changed circumstances affecting the extent and nature of legal services provided under the agreement.
Division 3 of the Act deals with 'Costs disclosure'. For present purposes s 260 is relevant. It is in the following terms:
Disclosure of costs to clients
(1)A law practice must disclose to a client in accordance with this Division -
(a)the basis on which legal costs will be calculated, including whether a costs determination applies to any of the legal costs; and
(b)the client’s right to -
(i)negotiate a costs agreement with the law practice; and
(ii)receive a bill from the law practice; and
(iii)request an itemised bill after receipt of a lump sum bill; and
(iv)be notified under section 267 of any substantial change to the matters disclosed under this section;
and
(c)an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable -
(i)a range of estimates of the total legal costs; and
(ii)an explanation of the major variables that will affect the calculation of those costs;
and
(d)details of the intervals (if any) at which the client will be billed; and
(e)the rate of interest (if any) that the law practice charges on overdue legal costs, whether that rate is a specific rate of interest or is a benchmark rate of interest (as referred to in subsection (2)); and
(f)if the matter is a litigious matter, an estimate of -
(i)the range of costs that may be recovered if the client is successful in the litigation; and
(ii)the range of costs the client may be ordered to pay if the client is unsuccessful;
and
(g)the client’s right to progress reports in accordance with section 269; and
(h)details of the person whom the client may contact to discuss the legal costs; and
(i)the following avenues that are open to the client in the event of a dispute in relation to legal costs -
(i)costs assessment under Division 8;
(ii)the setting aside of a costs agreement under section 288;
(iii)making a complaint under Part 13;
and
(j)any time limits that apply to the taking of any action referred to in paragraph (i); and
(k)that the law of this jurisdiction applies to legal costs in relation to the matter; and
(l)information about the client’s right -
(i)to accept under a corresponding law a written offer to enter into an agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter; and
(ii)to notify under a corresponding law (and within the time allowed by the corresponding law) the law practice in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter.
(2)For the purposes of subsection (1)(e), a benchmark rate of interest is a rate of interest for the time being equal to or calculated by reference to a rate of interest that is specified or determined from time to time by an ADI or another body or organisation, or by or under other legislation, and that is publicly available.
(3)The regulations may make provision for or with respect to the use of benchmark rates of interest, and in particular for or with respect to permitting, regulating or preventing the use of particular benchmark rates or particular kinds of benchmark rates.
(4)For the purposes of subsection (1)(f), the disclosure must include -
(a)a statement that an order by a court for the payment of costs in favour of the client will not necessarily cover the whole of the client’s legal costs; and
(b)if applicable, a statement that disbursements may be payable by the client even if the client enters into a conditional costs agreement.
(5)A law practice is taken to have complied with the requirement to disclose the details referred to in subsection (1)(b)(i), (ii) and (iii), (g), (i), (j) and (l) if it provides a written statement in or to the effect of a form prescribed by the regulations for the purposes of this subsection at the same time as the other details are disclosed as required by this section.
(6)A form prescribed for the purposes of subsection (5) may, instead of itself containing details of the kind referred to in that subsection, refer to publicly accessible sources of information (such as an internet website) from which those details can be obtained.
(7)The regulations may require the Board to develop a statement of the relevant details and to revise it as necessary to keep it up to date.
Other sections in that division build upon s 260. For instance, s 262 deals with 'How and when disclosure must be made'. Section 267 deals with 'Ongoing obligation to disclose'. Section 268 deals with the 'Effect of failure to disclose'. It is in the following terms:
Effect of failure to disclose
(1)If a law practice does not disclose to a client or an associated third party payer anything required by this Division to be disclosed, the client or associated third party payer (as the case may be) need not pay the legal costs unless they have been assessed under Division 8.
(2)A law practice that does not disclose to a client or an associated third party payer anything required by this Division to be disclosed may not maintain proceedings against the client or associated third party payer (as the case may be) for the recovery of legal costs unless the costs have been assessed under Division 8.
(3)If a law practice does not disclose to a client or an associated third party payer anything required by this Division to be disclosed and the client or associated third party payer has entered a costs agreement with the law practice, the client or associated third party payer may also apply under section 288 for the costs agreement to be set aside.
(4)If a law practice does not disclose to a client or an associated third party payer anything required by this Division to be disclosed then, on an assessment of the relevant legal costs, the amount of the costs may be reduced by an amount considered by the taxing officer to be proportionate to the seriousness of the failure to disclose.
(5)If a law practice retains another law practice on behalf of a client and the first law practice fails to disclose something to a client solely because the retained practice failed to disclose the relevant information as required by section 261(2), then subsections (1) to (4) —
(a)do not apply to the legal costs owing to the first law practice on account of legal services provided by it, to the extent that the non disclosure by the first law practice was caused by the failure of the retained law practice to disclose the relevant information; and
(b)do apply to the legal costs owing to the retained law practice.
(6) In a matter involving both a client and an associated third party payer where disclosure has been made to one of them but not the other -
(a)subsection (1) does not affect the liability of the one to whom disclosure was made to pay the legal costs; and
(b)subsection (2) does not prevent proceedings from being maintained against the one to whom the disclosure was made for the recovery of those legal costs.
(7)Failure by a law practice to comply with this Division is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any Australian legal practitioner or Australian registered foreign lawyer involved in the failure.
There was no dispute between the parties as to the operation of the various sections of the Act. They speak for themselves. There is nothing in the evidence to suggest the plaintiff did not understand the nature of the costs agreement he was entering into. He is a man of business and he consulted the defendant in relation to his business affairs. By any reasonable measure, full and frank disclosure was made to him of how he would be charged, who would be undertaking the legal work on his behalf and what he was obliged to pay. There is nothing in the evidence to support the proposition, put in pars 1(a) and (c), that there was any misrepresentation on the part of the defendant or that the defendant's conduct prior to entering into the agreement was unreasonable. Nor am I satisfied there was failure to make disclosure as alleged in par 1(b) of the originating summons. There is no evidence the defendant failed to comply with the Act and subsidiary legislation in any material respect as alleged in par 1(d) of the originating summons.
It is clear that the provisions of the Act are designed to offer protection to a client of a legal practice. Those provisions require the client be provided with not just a costs agreement but an explanation as to how the costs agreement will operate. If that disclosure is not made then the costs agreement can be set aside. But here, the plaintiff was provided with a suite of documents which were very clear, written in plain language and hence entirely comprehensible to anyone who has even a passing familiarity with the business world. The plaintiff can have no complaint as to the first costs agreement.
The same position applies in relation to the second and third costs agreements. It seems as the dispute between NTS and Water Tech escalated and as time passed, the defendant thought it necessary to alter and update the costs agreements. Neither the second nor third costs agreement was significantly different from the first costs agreement. Both of these agreements were entered into by the plaintiff in circumstances where it is not suggested he did not have an understanding of what he was signing and the effect of the agreements. There is no basis for setting aside either the second or third costs agreements. None of the complaints made in pars 2 and 3 of the originating summons are made out.
On 24 July 2017 the defendant wrote to the plaintiff enclosing what is known as the 'fourth costs agreement'. At this point there was a material change in the approach of the defendant to securing their costs. Paragraph 20 of the covering letter was in the following terms:
Should you decide to proceed, we ask that you pay $8,000.00 into AustAsia Legal Pty Ltd's trust account at the time of signing the costs agreement. This money will be used to defend the proceedings brought by NST. Alternatively, we will require a caveat or second mortgage to be registered against your property in Como to secure payment of our fees.
While this paragraph might be regarded as a precursor to disputes in relation to the deeds of acknowledgement, the fact it was included in the covering letter is not a matter which the plaintiff alleges was in some way improper and impugned the fourth costs agreement. That much is clear from par 5 of the originating summons. Moreover, there is nothing in the Act, either in the sections I have quoted or otherwise, which precludes a legal practice from taking security from a client in relation to payment of fees. The evidence in this matter shows that the plaintiff was not in a position to make payment of the defendant's accounts in full as and when they were rendered. No criticism can be directed at the defendant for seeking security in such circumstances.
The complaints made by the plaintiff about the fifth costs agreement are essentially the same as those made about the earlier costs agreements. For the same reasons, I am not satisfied the fifth costs agreement ought be set aside.
In June 2017, around the same time the third costs agreement was sent to the plaintiff, the defendant sent to the plaintiff the first deed of acknowledgement. That document appears as attachment CND5 to the plaintiff's first affidavit. The first deed of acknowledgement of debt is not a complicated affair. It recites the fact the plaintiff was indebted to the defendant in an amount of $13,833.50. It anticipates repayment of the outstanding balance in monthly instalments and if those monthly instalments are not met then interest will be charged. The deed really amounts to a repayment arrangement. It imposes no additional obligations on the plaintiff – the various costs agreements required payment of outstanding amounts seven days after the costs were rendered. The first deed of acknowledgement removes that obligation from the plaintiff. In other words, it was to his advantage. Assuming, without deciding, the first deed of acknowledgement was a costs agreement within the terms of the Act, there is nothing in the agreement which is at odds with any of the sections of the Act. There is no basis upon which it can be set aside.
In or around May 2018 the defendant sent the plaintiff the second deed of acknowledgement of debt. This document differed from the first deed of acknowledgement of debt, in so far as Ms Chan was a party to this deed. Effectively, the defendant wanted Ms Chan to guarantee the obligations of the plaintiff. Ms Chan never signed the deed. Otherwise the comments I have made about the first deed of acknowledgement of debt apply equally to this document. There is no basis upon which it can be set aside.
Prior to the hearing of this matter, counsel for the plaintiff made an application for leave to cross‑examine Ms Luktuke on sections of her affidavits. Almost as a concomitant to that application, the defendant applied to cross‑examine the plaintiff on certain paragraphs of his affidavits. On 25 May 2020 I made, relevantly, the following order:
2. Chiragkumar Narendraprasad Desai (Mr Desai) and Archana Luktuke (Ms Luktuke) make themselves available at the special appointment, referred to at paragraph 1 above, to be cross examined in relation to the disputed evidence contained at the following paragraphs of their affidavits filed in this matter:
(a) paragraph 20 of Mr Desai's affidavit, sworn 11 October 2019;
(b) paragraph 15 of Ms Luktuke's affidavit, sworn 4 February 2020;
(c) paragraphs 4-8 of Mr Desai's affidavit, sworn 16 April 2020; and
(d) paragraphs 3-6 of Ms Luktuke's affidavit, sworn 24 April 2020.
The dispute of fact picked up by these orders was very narrow. In par 20 of his first affidavit, the plaintiff said that at a meeting at which he discussed with Ms Luktuke and Mr Sydney Chesson the second deed of acknowledgement of debt, he was told that if he did not sign the document the defendant would cease acting for him. Ms Luktuke denied such a threat was made. Having listened to the cross‑examination of both witnesses I am not satisfied any such threat was made. I was left with the strong impression the plaintiff was manufacturing the evidence to suit his purposes. Moreover, it is not consistent with what actually occurred. Ms Chan did not sign the acknowledgement of debt and the defendant kept acting for the plaintiff. I found Ms Luktuke's denial the conversation ever took place entirely convincing and I accept her evidence unequivocally.
There is then no basis for making any of the orders sought by the plaintiff in his originating summons. The application will be dismissed. I will hear the parties as to the precise form of orders and as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IW
Associate to Master Sanderson26 AUGUST 2020
0
0
1