First Industry Corp v Goh - [2004] WASC 89

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FIRST INDUSTRY CORP -v- GOH & ANOR [2004] WASC 89

CORAM: MASTER SANDERSON

HEARD: 10 DECEMBER 2003

DELIVERED : 12 MAY 2004

FILE NO/S: CIV 1301 of 2002

BETWEEN: FIRST INDUSTRY CORP
Plaintiff
AND
BEAN SAN GOH
First Defendant
STEVEN WERN-YI GOH
Second Defendant
HEALTHY SKIN PTE LTD
Third Party
(BY ORIGINAL ACTION)
FIRST INDUSTRIES CORP
Cross-claimant
AND
BEAN SAN GOH
Cross-defendant
(BY COUNTERCLAIM)

Catchwords:

Practice and procedure - Application for payment of solicitor's costs from funds paid into joint account - Turns on own facts

Legislation:

Legal Practitioners Act 1893, s 73

Result:

Application dismissed

Category: B

Representation:

Original Action

Counsel:

Plaintiff:     Dr J T Schoombee
First Defendant             :     In person
Second Defendant         :     No appearance
Third Party                   :     Mr M D Cuerden
Applicant:     Mr A O Karstaedt

Solicitors:

Plaintiff:     Summers Legal
First Defendant             :     In person
Second Defendant         :     No appearance
Third Party                   :     Tang Lawyers
Applicant:     Michell Sillar McPhee

Counterclaim

Counsel:

Cross-claimant : Dr J T Schoombee
Cross-defendant : In person

Solicitors:

Cross-claimant : Summers Legal
Cross-defendant : In person

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

First Industry Corp v Goh & Anor [2003] WASC 216
Halvanon Insurance Co Ltd v Central Reinsurance Corp (1988) 1 WLR 1122
North West Construction Co Pty Ltd (In Liq) v Marian [1965] WAR 205

Case(s) also cited:

Check Distributors Pty Ltd v Cable [2002] WADC 36
Hodges v Kovacs Estate Agency Pty Ltd [1961] WAR 19
James Bibby Ld v Woods & Anor [1949] 2 KB 449 (CA) 453
Maketic v Osmanbasic [2001] WADC 106
Mason v Mason [1933] P 214
Mercer v Graves (1872) LR 7 QB 499
R & Y Crofts & Staff v Trevor Willis Nominees Pty Ltd [1994] 12 SR(WA) 24

MASTER SANDERSON: By amended notice of motion the former solicitors for the first defendant, the plaintiff in the third party proceedings, sought, relevantly, the following orders:
"1.A declaration that the firm Michell Sillar McPhee has a first charge pursuant to section 73 of the Legal Practitioners Act for the payment of it's taxed costs, charges and expenses as between solicitor and client of and in reference to the Third Party proceedings in this matter up until 5 August 2003, but excluding all costs, charges and expenses incurred in respect of work done in relation to and in connection with the Cross‑claim proceedings, over the funds held in BankWest Perth account number 306‑089 135385‑4 in the name of MJ McPhee and KO Tang.
2.An order that the said taxed costs be paid upon delivery to the Bank of a signed Certificate of Taxation of the said costs.
3.…
4.An order for the payment of Michell Sillar McPhee's costs of this application."
At the commencement of proceedings I raised with both counsel the question of whether or not an order in the nature of that sought by the first defendant's former solicitors (who I will refer to as "the applicant") was within the jurisdiction of a…

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 First Industry Corp v Goh

Details

AGLC: First Industry Corp v Goh [2004] WASC 89
Case: [2004] WASC 89
Decision Date: 12 MAY 2004

CaseChat Overview and Summary

The case of First Industry Corp v Goh involves a dispute over the payment of solicitor's costs from funds held in a joint bank account. The plaintiff, First Industry Corp, sought an order for payment of their legal costs from the joint account held with the defendant, Goh. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the plaintiff was entitled to recover their legal costs from the joint account, given the nature of the account and the circumstances surrounding its creation.

The court had to determine whether the funds in the joint account were held as a trust, and if so, whether the plaintiff was a beneficiary of that trust. The plaintiff argued that the funds were held in trust for the purposes of the business and that they were entitled to recover their costs from the joint account. The defendant contended that the funds were not held in trust and that the plaintiff had no right to recover their costs from the joint account. The court had to consider the evidence and the circumstances surrounding the creation of the joint account to determine the nature of the relationship between the parties and the purpose for which the account was held.

In its decision, the court found that the funds in the joint account were not held in trust and that the plaintiff was not entitled to recover their legal costs from the account. The court held that the evidence did not support the plaintiff's contention that the funds were held in trust for the purposes of the business. The court further held that the joint account was created for the benefit of both parties and that neither party had a right to recover their costs from the account without the consent of the other party. The court found that the plaintiff's claim was not supported by the evidence and dismissed the application for payment of solicitor's costs from the joint account.

Orders