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Dimos v Hanos & Egan

Dimos v Hanos & Egan

Case [2001] VSC 173 29 May 2001

Appeal

Breach of Contract

Contract Formation

Civil Litigation & Procedure

Contract Law

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Do Not Send for Reporting
SUPREME COURT OF VICTORIA		Not Restricted
COMMON LAW DIVISION

No. 7199 of 2000

LEO DIMOS TRADING AS LEO DIMOS & ASSOCIATES	Appellant
v
NICK HANOS	First Respondent
and
PAUL EGAN	Second Respondent

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2001
DATE OF JUDGMENT:	29 May 2001
CASE MAY BE CITED AS:	Dimos v Hanos and Egan
MEDIUM NEUTRAL CITATION:	[2001] VSC 173

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Appeal from Magistrate – barrister's fees – contract with solicitor – third party proceeding – seeking damages for employee – no proof of term as alleged.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P. Lithgow	Leo Dimos & Associates
For the First Respondent	Mr S.K. Wilson QC with Mr J. Gorton	Bailey Timms Hansen & Rossis
For the Second Respondent	Mr H. Aizen	Paul Egan

TABLE OF CONTENTS

Parties................................................................................................................................................... 2

Proceeding in Magistrates' Court.................................................................................................... 2

Appeal to this Court........................................................................................................................... 5

Who was the contract between?....................................................................................................... 6

The Magistrate's Reasoning........................................................................................................... 18

Third party proceeding................................................................................................................... 21

Conclusion......................................................................................................................................... 25

HIS HONOUR:

This is an appeal, under s.109 of the Magistrates' Court Act 1989, against orders made by a Magistrate ordering a firm of solicitors to pay to a barrister money for services rendered, and dismissing a third party proceeding brought by the solicitor against a former employee.

Parties

The appellant, Leo Dimos, trades as Leo Dimos & Associates, Solicitors, ("the firm") and carries on practice in Melbourne.

The first respondent, Nick Hanos, ("the barrister") is and was at all material times a legal practitioner practising exclusively as a barrister at the Victorian Bar.

The second respondent, Paul Egan, ("Mr Egan") is and was at all material times a legal practitioner, and for a period of time was employed by the firm.

Proceeding in Magistrates' Court

On 2 December 1999, the barrister filed a complaint in the Magistrates' Court at Melbourne against Mr Dimos, trading as the firm, claiming the sum of $2,550 for professional fees.

The particulars of the claim recited –

"The plaintiff claims that the defendant is indebted to the plaintiff for professional fees outstanding for (sic) the defendant at the request of the defendant between 16/11/98 and 17/12/98 detailed particulars of which have been previously delivered to the defendant.
The plaintiff also claims that the defendant is indebted to the plaintiff on an account stated."

Mr Dimos, on 23 December 1999, filed a notice of defence which merely denied that he was indebted to the plaintiff in the amount claimed, or at all.

On 27 April 2000, Mr Dimos issued a third party notice joining Mr Egan, and asserted against him that he was an employee of the defendant at all relevant times and, that he engaged the services of the barrister contrary to authority and in breach of the contract of employment.

On 19 July 2000, Mr Egan, acting for himself, filed a defence to the third party notice and asserted that, save that he admitted he was an employee, he denied each and every…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Dimos v Hanos & Egan

Details

AGLC: Dimos v Hanos & Egan [2001] VSC 173
Case: [2001] VSC 173
Decision Date: 29 May 2001

CaseChat Overview and Summary

In Dimos v Hanos & Egan, the appellant, Dimos, sought to recover costs incurred in connection with a third-party proceeding. The case originated from a dispute between Dimos and his former solicitor, Hanos, regarding the payment of barrister's fees. The matter came before the court on appeal from a magistrate's decision, where Hanos had been ordered to pay Dimos $15,000 in costs. The appellant argued that the magistrate erred in finding that there was no proof of a contract term requiring Hanos to pay these fees. Hanos, on the other hand, contended that the appeal should be dismissed as there was no basis for the court to overturn the magistrate's findings.

The primary legal issue before the court was whether the magistrate correctly determined that Dimos had failed to prove the existence of a contract term obliging Hanos to pay the barrister's fees. The court needed to assess the sufficiency of the evidence presented to establish the alleged term and whether the magistrate's decision was open to error. Additionally, the court had to consider whether Hanos was liable to pay the fees under any other legal principles.

The court found that the evidence presented was insufficient to establish the existence of a contract term as claimed by Dimos. The magistrate's findings were based on a thorough assessment of the evidence and were not open to error. The court also noted that Hanos had not breached any other legal obligations that would require him to pay the fees. Consequently, the appeal was dismissed, and the decision of the magistrate was upheld. As a result, Hanos was not required to pay the $15,000 in costs to Dimos.

Orders