Emir Jaha v George Defteros - [2012] VSC 512

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2953 of 2012

EMIR JAHA	Applicant
v
GEORGE DEFTEROS t/as DEFTEROS LAWYERS	Respondent

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JUDGE:	PAGONE J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 October 2012
DATE OF JUDGMENT:	30 October 2012
CASE MAY BE CITED AS:	Emir Jaha v George Defteros
MEDIUM NEUTRAL CITATION:	[2012] VSC 512	(First Revision 30/10/12)

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PRACTICE AND PROCEDURE – Appeal from an Associate Justice – Whether the matter should be dealt with as a preliminary question under r 47.04 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Terms of an oral agreement – Objective intention of the parties – Whether the costs agreement was evidenced in writing.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Cawthorn S.C. with Mr R Barton	Vadarlis & Associates
For the Respondent	Mr S Tatarka	Defteros Lawyers

HIS HONOUR:

The respondent (Mr Defteros) has appealed the orders made by Associate Justice Wood on 17 September 2012. The principal order made by his Honour was to answer “yes” to a preliminary question posed as:

Was there an agreement between the parties on 25 August 2011 to the effect that the Respondent [Mr Defteros] would waive any outstanding fees owing by the Applicant [Mr Jaha] to that point, and the Respondent would continue to act for the Applicant until the end of the trial for the payment of a lump sum of $30,000 by the Applicant?

The nature of the appeal from his Honour’s order is by way of rehearing de novo of the application, except that r 77.06(7) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) requires that it be heard on the material that was before the Associate Justice, and no other material, unless special leave is given for a party to rely upon additional material.[1] The appellant sought special leave to rely upon additional material that was not before the Associate Justice. The additional material upon which he sought to rely was in amplification of evidence he gave in para 11 in the affidavit that was before the Associate Justice and was available for my consideration on the appeal. I rejected his application giving oral reasons at the hearing.

[1]Australian Management Consultants Pty Ltd v Direct Mortgage Funding Pty Ltd [2003] VSC 202; Portbury Development Pty Ltd v Ottedin Investments Pty Ltd & Ors [2012] VSC 362.

The issue on appeal concerns the terms of an oral agreement reached between Mr Defteros and his former client, Mr Jaha, on 25 August 2011. The Associate Justice dealt with the matter as a preliminary question under r 47.04 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) with the apparent agreement of the parties. Neither party objected to that course being taken by his Honour and both parties filed material and made submissions before his Honour. Counsel for Mr Defteros before me, however, contended that the issue for determination was not one appropriate for…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2012] VSC 512
Decision Date: 30 October 2012

CaseChat Overview and Summary

Emir Jaha, the appellant, brought an appeal against the decision of George Defteros, the respondent, as an Associate Justice. The dispute centred on whether the matter should be dealt with as a preliminary question under rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and the terms of an oral agreement between the parties. The objective intention of the parties and the question of whether the costs agreement was evidenced in writing were also in contention.

The court had to decide whether the appeal should be heard as a preliminary question under rule 47.04, which pertains to the handling of matters that involve questions of law solely. Additionally, the court needed to ascertain the actual terms of the oral agreement between the parties, determine their objective intention, and assess whether the costs agreement had been properly evidenced in writing. The crux of the appeal was to ensure that the procedural and substantive legal principles were correctly applied.

The court held that the matter should not be treated as a preliminary question under rule 47.04. The court emphasised that the focus should be on the objective intention of the parties as reflected in their agreement. It found that the terms of the oral agreement, despite not being in writing, could be determined based on the evidence presented. The court concluded that the costs agreement was sufficiently evidenced by the conduct and statements of the parties, thus satisfying the requirement for a written agreement under the circumstances.

The court ordered that the appeal be not dismissed as a preliminary question and directed that the matter proceed to a full hearing. The court found that the terms of the oral agreement were clear and the costs agreement was adequately evidenced, thus affirming the decision of the Associate Justice.

Orders