Frigger v Clavey Legal Pty Ltd [No 3] - [2016] WASCA 209

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FRIGGER -v- CLAVEY LEGAL PTY LTD [No 3] [2016] WASCA 209

CORAM: MARTIN CJ
BUSS P
MURPHY JA

HEARD: 12 OCTOBER 2016

DELIVERED : 30 NOVEMBER 2016

FILE NO/S: CACV 56 of 2015
CACV 162 of 2015

BETWEEN: ANGELA FRIGGER
First Appellant
HARTMUT FRIGGER
Second Appellant
AND
CLAVEY LEGAL PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :HERRON DCJ
Citation  :FRIGGER -v- CLAVEY LEGAL PTY LTD [No 3] [2015] WADC 21
File No  :CIV 1221 of 2011

Catchwords:

Professional negligence - Claims by appellants against former solicitors - Nature and scope of retainer - Performance of retainer - Termination of retainer - Whether relationship of trust and confidence between solicitor and client had broken down - Primary judge's findings based significantly on assessment of evidence as to oral communications between solicitor and client - Multiple findings that the first appellant was a dishonest witness - Appellants' evidence rejected - Findings based on credibility - Turns on own facts

Practice and procedure - Applications to adduce additional evidence - Forensic decision taken not to adduce evidence at trial

Costs - Calderbank offer - Indemnity costs - Proper construction and application of Calderbank offer - Turns on own facts

Legislation:

Nil

Result:

Appeals dismissed

Category: B

Representation:

Counsel:

First Appellant              :     Mr R E Cook
Second Appellant          :     Mr R E Cook
Respondent:     Mr P Quinlan SC

Solicitors:

First Appellant              :     In person
Second Appellant          :     In person
Respondent:     MDS Legal

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

BP Refinery (Western Port) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169
French v Carter Lemon Camerons LLP [2012] EWCA Civ 1180
Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21
Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (S)
Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533
Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting & Tax Pty Ltd [No 3] [2010] WASC 93
Quigley (a practitioner) v Legal Practitioners Complaints Committee [2003] WASCA 228
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Saunders v The Public Trustee [2015] WASCA 203
The State of Western Australia v Watson [1990] WAR 248
REASONS OF THE COURT:

Introduction

These appeals relate to the dismissal of an action brought by Mr and Ms Frigger against Clavey Legal Pty Ltd, solicitors, in the District Court.
The trial judge was Herron DCJ. His Honour published reasons dismissing the action: Frigger v Clavey Legal Pty Ltd [No 3].[1] His Honour published supplementary reasons in relation to an award of costs against Mr and Ms Frigger: Frigger v Clavey Legal Pty Ltd [No 3] (S).[2]
[1] Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21.
[2] Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (S).
Mr and Ms Frigger appeal both the substantive decision dismissing their action, as well as the adverse costs decision made against them. They also challenge an interlocutory decision dated 15 October 2014 made by Herron DCJ during the trial of the matter, in which his Honour refused the admission of a certain valuation report upon which Mr and Ms Frigger had sought to rely by way of expert evidence in relation to their claim for damages.
For the reasons which follow, the appeals should be dismissed.

Overview of the primary proceedings and primary decision

The primary proceedings

Mr and Ms Frigger had alleged in the District Court, in effect, that the respondent (Clavey Legal) had, in the course of acting for them in certain matters, breached the terms of the retainer, been negligent and breached fiduciary duties. The retainer allegedly related, inter alia, to resisting an application to wind up a company of which Mr and Ms Frigger were sole directors and shareholders, namely Computer Accounting and Tax Pty Ltd (CAT), and in relation to a proposed application to stay certain orders against CAT, made in the Court of Appeal in late 2009, in CACV 76 of 2008. The Court of Appeal orders had the effect of requiring CAT to pay Professional Services of Australia Pty Ltd (PSA) and the estate of Mr Banning, an amount in the order of $800,000.[3]
[3] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) [21].
An important part of Mr and Ms Frigger's case was that Clavey Legal's purported termination of the retainer on 30 March 2010 was unlawful and in breach of contract, in consequence of which Mr and Ms Frigger allegedly suffered loss and damage. They also asserted claims based upon the manner in which they alleged Clavey Legal represented and advised them.
Mr and Ms Frigger alleged in the District Court, in effect, that the breaches and negligence of Clavey Legal caused them to suffer loss and damage in that had the retainer been performed properly, CAT would have obtained a stay of the Court of Appeal judgment in CACV 76 of 2008 and, consequently, it would not have been wound up on the ground of insolvency. Mr and Ms Frigger alleged that it was the winding up of CAT which caused them to suffer certain specified losses.[4]
[4] Frigger v Clavey Legal [No 3] [10].
Mr and Ms Frigger also alleged that Clavey Legal had been instructed to:
(a)appear on their behalf in Supreme Court proceedings CIV 2001 of 2009 in respect of a deed of company arrangement entered into by PSA (DOCA proceedings);[5] and
(b)act for Mr and Ms Frigger in Supreme Court proceedings CIV 2265 of 2006, specifically in relation to freezing orders over Mr and Ms Frigger's assets in the 'Frigger Super Fund' (freezing order proceedings).[6]
[5] Frigger v Clavey Legal [No 3] [290(c)].
[6] Frigger v Clavey Legal [No 3] [290(d)].
Herron DCJ dismissed the appellants' action.

The primary decision

The primary judge found, in effect, that Clavey Legal was retained in accordance with the terms of a written costs agreement dated 23 February 2010 to defend the winding-up application of CAT, and to advise on the prospects of obtaining a stay of the Court of Appeal's orders of 23 October 2009.[7]
[7] Frigger v Clavey Legal [No 3] [5], [180], [289], [293].
His Honour also found, in effect, that on 12 March 2010 the retainer was extended for Mr Clavey to consider the merits upon which PSA's deed of company arrangement (DOCA) could be challenged.[8] The judge also found that on or about 25 March 2010, the retainer was further extended to include instructions to act for Mr and Ms Frigger in relation to the freezing order proceedings, conditional upon a hearing that was scheduled for 1 April 2010 being adjourned.[9]
[8] Frigger v Clavey Legal [No 3] [6], [229] - [231], [314] - [315].
[9] Frigger v Clavey Legal [No 3] [7], [316] - [317].
His Honour found that, contrary to Ms Frigger's assertions, Clavey Legal had not accepted instructions to appear on behalf of Mr and Ms Frigger in the DOCA proceedings;[10] nor had Clavey Legal accepted unconditional instructions to represent Mr and Ms Frigger in the freezing order proceedings.[11]
[10] Frigger v Clavey Legal [No 3] [314] - [315].
[11] Frigger v Clavey Legal [No 3] [316] - [317].
His Honour also found that, on 30 March 2010, Clavey Legal had terminated the retainer in the matters in which it had been retained because the requisite trust and confidence between solicitor and client had broken down.[12]
[12] Frigger v Clavey Legal [No 3] [[8], [264] - [271], [329] - [351], [353].
The appellants' case at trial in relation to the scope and terms of the relevant retainer and the communications between the parties throughout the performance of the retainer up to and including its termination, relied significantly upon the evidence of Ms Frigger.[13] His Honour found, with detailed reference to Ms Frigger's evidence and affidavits previously sworn by her that:
(a)Ms Frigger was dishonest in, and gave a dishonest explanation about, an affidavit sworn 23 September 2008;[14]
(b)Ms Frigger was a person who showed little or no regard for the truth;[15]
(c)Ms Frigger deliberately falsely swore an affidavit for the purpose of intentionally misleading the court;[16]
(d)Ms Frigger manipulated and created documentation, including by swearing affidavits which were often contradictory of and inconsistent with each other to defeat applications against her;[17]
(e)Ms Frigger swore a false affidavit on 10 February 2010 in connection with CAT's application for special leave to the High Court, and she dishonestly swore the affidavit intending to mislead the High Court as to CAT's financial position;[18]
(f)Ms Frigger took certain green appeal books away from the court and into her custody, and returned them with a page inserted into volume 3 of the green appeal book which had not been there, and she knowingly and deliberately gave false and untruthful evidence when she denied that she had inserted the document into the book;[19] and
(g)Ms Frigger gave unsatisfactory evidence with little regard, if any, to the truth on other matters and was otherwise an unreliable witness.[20]
[13] Frigger v Clavey Legal [No 3] [40], [176] - [288], [314] - [317].
[14] Frigger v Clavey Legal [No 3] [90].
[15] Frigger v Clavey Legal [No 3] [94].
[16] Frigger v Clavey Legal [No 3] [101].
[17] Frigger v Clavey Legal [No 3] [105].
[18] Frigger v Clavey Legal [No 3] [113], [115].
[19] Frigger v Clavey Legal [No 3] [138].
[20] Frigger v Clavey Legal [No 3] [143], [148], [156], [164], [169].
On the other hand, the trial judge found that Mr Clavey was a credible, truthful and reliable witness, whose evidence he accepted.[21] His Honour also found that Clavey Legal's other witnesses, Ms Richards and Ms Zohar, were reliable and credible witnesses who gave their evidence in a thoughtful and straightforward way. His Honour noted that it was not suggested by the appellants' counsel that they were unreliable witnesses.[22]
[21] Frigger v Clavey Legal [No 3] [170], [173].
[22] Frigger v Clavey Legal [No 3] [174].
The judge rejected Mr and Ms Frigger's claims for breach of contract, breach of fiduciary duties and breach of common law duties.[23]
[23] Frigger v Clavey Legal [No 3] [318] - [328], [353].
His Honour also rejected the appellants' contention that there was an implied term of the retainer to the effect that Clavey Legal would comply with the Law Society of Western Australia's Professional Conduct Rules 2008.[24] Further, his Honour found that even if it were assumed that r 19.3(1) and r 19.3(8) of the Professional Conduct Rules were implied terms of the retainer, the circumstances of the termination did not constitute a breach of, and was not contrary to, those rules.[25]
[24] Frigger v Clavey Legal [No 3] [299] - [312].
[25] Frigger v Clavey Legal [No 3] [291], [334] - [335], [353].
His Honour also rejected specific allegations of negligence pleaded in par 10 of the statement of claim.[26]
[26] Frigger v Clavey Legal [No 3] [354] - [375].
As to the position of Mr and Ms Frigger following the termination of the retainer, the judge found, amongst other things, that:[27]
[27] Frigger v Clavey Legal [No 3] [273] - [288], [352], [359], [380].
(a)in relation to the suspension application to the Court of Appeal:
(i)this was not due to be heard until 16 April 2010;
(ii)Mr and Ms Frigger had no difficulty obtaining new solicitors; and
(iii)on 16 April 2010, the new solicitors obtained an adjournment sine die of the suspension application to the Court of Appeal; and
(iv)that application was never brought back on.
(b)in relation to the winding up application of CAT:
(i)this was not due to be heard until 28 April 2010;
(ii)Mr and Ms Frigger had no difficulty obtaining new solicitors;
(iii)on 27 April 2010, Ms Frigger swore a further affidavit, settled by her new solicitor, Mr Dutton, in connection with the application to wind up CAT. The affidavit was filed and was referred to by the master in his reasons delivered on 6 May 2010;
(vi)the winding up application came on before Master Sanderson on 28 April 2010. Ms Frigger appeared through counsel and made submissions. Master Sanderson ordered CAT to be wound up in insolvency on 6 May 2010;
(v)subsequently, Mr and Ms Frigger filed an appeal against Master Sanderson's decision, but chose not to pursue it.
Also, on 8 April 2010, Mr Clavey offered to speak with the new solicitors to facilitate transfer of the matters, at no charge. That offer was never taken up. Nor did Mr Clavey claim a lien over the papers.
The judge further found that the appellants' claims against Clavey Legal were a collateral attack on the decision of the master to wind-up CAT, and on that basis he would, in any event, have ordered the proceedings to be stayed as an abuse of process.[28]
[28] Frigger v Clavey Legal [No 3] [382].
His Honour found that had either Mr Clavey remained acting for them, or an experienced competent solicitor and counsel appeared on their behalf, the appellants would not have successfully opposed the winding‑up application of CAT. His Honour found that given the master's findings that CAT was indebted to PSA and the Banning Estate in an amount over $800,000 and did not have the capacity to make that payment and was therefore prima facie insolvent, the only way Mr and Ms Frigger could establish that CAT was solvent would be for Ms Frigger or Mr Frigger to personally undertake to meet the debts of CAT as and when they fell due. The undertaking was not forthcoming, and the conclusion that CAT should be wound up was therefore inevitable. His Honour found that the outcome would have been no different no matter who represented the appellants at the hearing.[29]
[29] Frigger v Clavey Legal [No 3] [381], [390].
The judge also found, in effect, that the appellants could not have, in any event, been successful in obtaining a stay or suspension of the Court of Appeal's orders, in that had the true financial circumstances of CAT, as later disclosed by Mr and Ms Frigger, been known to the Court of Appeal, CAT would never have successfully resisted a stay of the primary judgment in the first place; CAT would thereby never have received and been in a position to dissipate the money which the Court of Appeal subsequently ordered it to repay; and in those circumstances, the prospect of the Court of Appeal then staying its orders requiring repayment by CAT, would have been 'remote'.[30]
[30] Frigger v Clavey Legal [No 3] [392] - [394].

The primary judge's findings of fact in more detail

22 February 2010[31]

[31] Primary reasons [176] - [177].

Ms Frigger first met with Mr Clavey on 22 February 2010. Ms Frigger asked Mr Clavey to assume responsibility for acting for Mr and Ms Frigger in:
(a)opposing an application to wind up CAT; and
(b)seeking a suspension of the Court of Appeal orders.
Mr Clavey advised that as the statutory demands against CAT had not been set aside, there was a difficulty in that Ms Frigger would have to prove that CAT was solvent.
Ms Frigger also had with her a deed of company arrangement (DOCA) for PSA. She explained that she had applied to set the DOCA aside, and she had engaged another solicitor, Mr Stokes, to do so.

23 February 2010[32]

[32] Primary reasons [51], [179] ‑ [185].

By email dated 23 February 2010, Mr Clavey emailed a copy of his firm's costs agreement. The letter identified the services to be provided as, in effect, acting to defend the winding up application of CAT and to advise on the prospects of obtaining a suspension order in respect of the Court of Appeal's judgment, and/or in relation to a variation of orders concerning the appointment of a provisional liquidator to CAT.
By the email, inter alia, Mr Clavey also sought a copy of the papers in respect of CAT's application for leave to appeal to the High Court, and a copy of Simmonds J's orders appointing a provisional liquidator.
Also on 23 February 2010, Mr Clavey asked for a copy of the Mareva order. By email to Ms Frigger later that evening, Mr Clavey identified issues that needed to be addressed, and other documents that were required. Ms Frigger signed and returned the costs agreement.
Also on 23 February 2010, Mr Clavey requested two members of his staff, Ms Richards and Ms Zohar, to undertake various tasks, including research, in connection with the retainer.

24 - 26 February 2010[33]

[33] Primary reasons [185] - [196].

Ms Richards and Ms Zohar commenced attending to legal research, and Ms Richards was involved in the preparation of an affidavit in response to the winding up application. Ms Richards contacted Ms Frigger and requested further information that was required.
By email dated 25 February 2010, Ms Frigger said, in effect, that she would provide the requested information. She also asked Ms Richards to write to the master urgently to ask for a special appointment for half a day to avoid what she described as an unnecessary appearance at the master's chambers on 4 March 2010. Ms Frigger also repeated those instructions to Mr Clavey, who said that he would need to first seek the consent of the solicitors for the provisional liquidator.
On 26 February 2010, Ms Frigger emailed Ms Richards in response to certain requests for further information.
Later on 26 February 2010, Ms Frigger telephoned Ms Richards in an irate mood, expressing concern as to whether her affidavit in opposition to the winding up application would be finalised that week. Ms Frigger telephoned Ms Richards on two occasions and sent four emails on 26 February 2010.
Also on 26 February 2010, Ms Richards also sent Ms Frigger a draft affidavit, asking her to review the draft and respond to various questions in connection with it. Ms Richards suggested a meeting on the following Tuesday (2 March 2010) to finalise the affidavit once it had been settled by Mr Clavey.

1 - 3 March 2010[34]

[34] Primary reasons [197] - [201].

Monday, 1 March 2010 was a public holiday.
On 2 March 2010, Mr Clavey met with Ms Frigger. She provided some further material. At the meeting, Mr Clavey reported, in effect, that the solicitor for the provisional liquidator of CAT was complaining that he was not receiving appropriate cooperation from Mr and Ms Frigger as directors of CAT. In particular, it was said that the report as to affairs had not been provided to the liquidator's satisfaction, and various books and records of the company had not been provided. Mr Clavey cautioned Ms Frigger about the importance of cooperating, particularly as one of the grounds of the winding up application was on the just and equitable basis. Ms Frigger said that there was a lot of information and documents and she was finding it difficult to get all of it.
Mr Clavey also said, as politely as he could, that it was not appropriate for Ms Frigger to be overly terse or rude with his staff. Ms Frigger replied that she had not realised that she had been rude, and would be mindful of it.
More documents were sought by Mr Clavey by email on 2 March 2010.
On 3 March 2010, a further affidavit in opposition to the winding up application was sworn, filed and served, together with an outline of submissions.

4 March 2010[35]

[35] Primary reasons [202] ‑ [209].

On 4 March 2010, Mr Clavey appeared before Master Sanderson on the return application of the winding up and sought an adjournment to a special appointment. However, the matter was listed instead for further directions on 16 March 2010.
In response to a question from the master as to when CAT's application for special leave to the High Court had been listed, Mr Clavey sought instructions from Ms Frigger who told him that it had been listed for 23 April 2010. Mr Clavey accordingly advised the master of that instruction. That instruction was not correct and misrepresented the true position. When the true position subsequently emerged, Mr Clavey asked Ms Frigger for the basis upon which she had provided that instruction. Ms Frigger's evidence in cross‑examination concerning her explanation for providing false instructions to Mr Clavey revealed 'Ms Frigger's indifferent attitude to telling the truth and how she is prepared to misrepresent the facts if she thinks it will assist her'.[36]
[36] Primary reasons [205].

Mr Clavey provided further advice and sought further instructions by letter later on 4 March 2010. On 5 March 2010, he passed on to Ms Frigger further complaints by the provisional liquidator regarding alleged non‑cooperation in relation to the affairs of CAT.

8 March 2010[37]

[37] Primary reasons [210] - [212].

On 8 March 2010, Mr Clavey met with Ms Frigger. There were discussions about whether s 471B of the Corporations Act 2001 (Cth) obviated the need for a suspension application.[38] Mr Clavey's memorandum that day identified his current instructions to include that 'subject to s 471B advice, either bring a stay application or proceed with application to vary or declare DOCA terminated'. The judge rejected Ms Frigger's evidence that she gave instructions, and Mr Clavey accepted instructions, on 8 March 2010 to 'progress the termination of the DOCA'.

9 - 11 March 2010[39]

[38] Primary reasons [210].

[39] Primary reasons [213] - [222].

Ms Frigger drafted her own version of an application for a stay of the Court of Appeal judgment and sent it to Mr Clavey on 9 March 2010. It was in terms, inter alia, that, in effect, there be a stay not only pending a determination of CAT's proceedings in the High Court, but also 'pending the resolution and taxation of all legal and enforcement costs between the parties'.
Mr Clavey was working on an affidavit in support of a suspension application.
By email dated 11 March 2010, Mr Clavey sent Ms Frigger a draft of the affidavit. He advised that he would inspect the liquidator's documents the following morning. He also communicated to Ms Frigger an offer of settlement from the liquidator's solicitors.
Later on 11 March 2010, Mr Clavey recommended in a telephone conversation with Ms Frigger, that he be instructed to make a suspension application in respect of the Court of Appeal orders, and that it would be a useful aid to oppose the winding up application. Ms Frigger firmly instructed him not to proceed with a stay application until there was a listing date for the winding up application. Mr Clavey nevertheless said he was concerned about delaying making the suspension application, and explained to Ms Frigger that he did not think it was in her interest to delay it, and that it was necessary to get on with the application. Mr Clavey also outlined the settlement proposal from the liquidator's solicitors, but Ms Frigger was quite emphatic that she was not going to settle. He asked Ms Frigger to read the email and think about it.
In the email dated 11 March 2010 regarding the inspection of the liquidator's documents, Mr Clavey told Ms Frigger, in effect, that he wanted to identify what documents he may need to address because he had not seen them. Mr Clavey explained that one of the matters he raised before the master on 4 March 2010 was that he did not have the documents relied upon by the applicants in the winding up application, and that he needed to see what that material was in order to consider whether it affected Mr and Ms Frigger's position and whether it was necessary to make additional submissions.

12 - 15 March 2010[40]

[40] Primary reasons [223] - [232].

On 12 March 2010, Ms Frigger gave instructions to or for Mr Clavey:
(a)not to inspect the liquidator's documents, and if he did he would not be paid for it;
(b)not to proceed with the suspension application until there was a hearing date for the winding up application.
Mr Clavey advised Ms Frigger that it was not in her interest to delay the suspension application. He also asked her to read the email concerning the proposed settlement and think about it.
Later on 12 March 2010, Mr Clavey met with Ms Frigger for the entire afternoon. The meeting was intended to deal with the suspension application affidavit but, in Mr Clavey's words', 'went completely off the rails'. At that meeting, Ms Frigger's instructions to proceed with the suspension application were renewed. Ms Frigger asked Mr Clavey to take over the DOCA application. He declined, but said he was prepared to provide a second opinion in relation to it.
On 15 March 2010, Mr Clavey confirmed these instructions by email and required confirmation of an extension to his costs agreement. He also requested a further $30,000 to be paid into trust on account of fees and anticipated fees.

16 - 18 March 2010[41]

[41] Primary reasons [233] - [238].

On 16 March 2010, Mr Clavey sent an itemised list for the monies requested to be paid into trust.
Mr Clavey also advised Ms Frigger that her proposed suspension application to the Court of Appeal would be prejudiced if she sought a stay until costs orders had been finalised in the several proceedings. He advised that the 'proper request' was for a stay of the Court of Appeal judgment until the appeal in the High Court had been determined.
Ms Frigger responded on 17 March 2010 saying, in effect, that she would prefer to 'keep the application' as it was.
Mr Clavey ultimately settled a stay application to the Court of Appeal in accordance with his advice to Ms Frigger in terms that he considered appropriate. The affidavit in support was settled and sworn on 18 March 2010. Mr Clavey said he would not file the application until the funds requested had been paid into trust.

22 - 23 March 2010[42]

[42] Primary reasons [239].

Ms Frigger paid the sum requested, and the suspension application was filed on 23 March 2010.
In the meantime, on 22 March 2010, Ms Frigger emailed Mr Clavey asking him to file a notice of appointment in, and attend on, a relisted freezing orders hearing in relation to Mr and Ms Frigger personally. The relisted hearing was for 1 April 2010.
Mr Clavey told Ms Frigger that he was not available on 1 April 2010, and that he did not know enough about the matter. He suggested she seek an adjournment, and offered to facilitate an adjournment. Mr Clavey telephoned a barrister who said he was available to appear on 1 April 2010 and was on 'standby' if need be. Mr Clavey also spoke to Mr Lenhoff who said that subject to speaking to counsel, he was amenable to have the hearing adjourned for a short period.

24 - 26 March 2010[43]

[43] Primary reasons [244] - [246], [282] - [287].

Mr Clavey had a meeting with Ms Frigger on 24 March 2010 in which various matters concerning the hearing on 1 April 2010 in relation to the application for freezing orders were discussed. In particular,[44] Ms Frigger asked Mr Clavey to appear for Mr and Ms Frigger at the hearing listed for 1 April 2010 to defend an application to extend certain Mareva orders made by Simmonds J in those proceedings, and to argue the issue of costs in that matter. Ms Frigger also said that she wanted Mr Clavey to attend to three other matters 'in due course', being:
1.assume conduct of the proceedings to terminate the DOCA;
2.apply to appoint a new receiver over the estate of Martin Banning's share of Banning Holdings; and
3.obtain an order that CAT be permitted to have interlocutory costs orders taxed separately from its costs of trial.
[44] Primary reasons [286].
Mr Clavey's instructions were to try to arrange an adjournment of the hearing on 1 April 2010 or, if necessary, brief a barrister to appear on 1 April 2010.[45]
[45] Primary reasons [288].
By 26 March 2010, Mr Clavey had obtained Mr Lenhoff's agreement to adjourn the hearing on 1 April 2010, and informed Ms Frigger that it was necessary to prepare a minute of consent orders.
Ms Zohar was involved in seeking to get a minute of consent orders signed and filed.

The events of 29 - 30 March 2010[46]

[46] Primary reasons [247] - [258], [263] - [264].

By email on the evening of 29 March 2010, Ms Zohar advised Ms Frigger of her progress in relation to having the hearing scheduled for 1 April 2010 adjourned. She told Ms Frigger she would let her know the next morning if they were able to file a signed minute of consent orders moving the hearing from 1 April 2010 to either 9 or 16 April 2010. She also noted that otherwise Mr Clavey would brief a barrister to appear on Ms Frigger's behalf on Thursday, 1 April 2010.
On the following day, 30 March 2010, Ms Zohar took various steps to arrange the consent order. As events transpired, the organisation of the consent order proved to be quite difficult, having regard to the requirements of the court and each of the different parties. This included the fact that there were a number of changes to the minute of consent orders suggested throughout the day, which required Ms Zohar to make approximately 20 telephone calls.
At about 2.55 pm on 30 March 2010, Ms Zohar spoke with Ms Frigger by telephone. She told Ms Frigger that she needed to sign the consent order and send it back to Ms Zohar. Ms Frigger started asking her about other issues about which Ms Zohar was not sure, and Ms Zohar informed Ms Frigger that all Ms Zohar was doing was working on these consent orders, and that it was necessary to do this to adjourn the hearing. Ms Frigger got very upset and started to raise her voice and ended up screaming at Ms Zohar over the telephone, saying words to the effect that 'why hadn't [Mr Clavey] done this and why hadn't it been done, it wasn't good enough'.[47]
[47] Primary reasons [251].
Ms Frigger hung up on Ms Zohar.
At 3.30 pm on 30 March 2010, Ms Zohar spoke again to Ms Frigger. Ms Frigger had calmed down a lot. In that telephone conversation, Ms Frigger told Ms Zohar that Mr Clavey had misled her because Mr Clavey said that he could argue the matter on 1 April 2010.
In her cross‑examination on this topic, Ms Frigger accepted that if she had made the statements that Ms Zohar had said she had made, then she accepted that her statements were 'completely unacceptable and would demonstrate a complete lack of trust between her [Ms Frigger] and Mr Clavey'.[48]
[48] Primary reasons [256].
Ms Zohar reported Ms Frigger's behaviour to Mr Clavey, including the accusation that Mr Clavey had 'misled' Ms Frigger.
On the basis of Ms Frigger's behaviour, Mr Clavey considered that the relationship of trust and confidence necessary to maintain the solicitor/client relationship had broken down.

Termination of the retainer: 30 - 31 March 2010[49]

[49] Primary reasons [267] - [271].

Having considered that the relationship of trust and confidence had broken down, Mr Clavey sent an email to Ms Frigger on 30 March 2010 terminating his retainer.
On 31 March 2010, Mr Frigger telephoned Mr Clavey and apologised for Ms Frigger's conduct. Mr Frigger asked Mr Clavey to reconsider his position.
Mr Clavey agreed to reconsider his position. However, in a telephone conversation later that day with Ms Frigger, Ms Frigger angrily accused Mr Clavey of acting or being 'unprofessional'.
Mr Clavey was confirmed in his earlier view that the requisite relationship of trust and confidence had broken down.

Events after termination of the retainer[50]

[50] Primary reasons [273] - [288], [352], [380].

The suspension application to the Court of Appeal was not due to be heard until 16 April 2010.
The winding up application was not due to be heard until 28 April 2010. The Friggers had no difficulty obtaining new solicitors. Mr Dutton was retained the next business day following the termination of the retainer by Mr Clavey. A barrister was consulted and Ms Frigger advised Mr Clavey on 8 April 2010 that the barrister had been engaged.
On 8 April 2010, Mr Clavey offered to speak with the new solicitors to facilitate transfer of the matters, at no charge. That offer was never taken up. Mr Clavey did not claim a lien over the papers.
The new barrister gave certain advice. Ms Frigger rejected the barrister's advice, and chose not to have the barrister act and appear in the matter of the winding up application against CAT.
On 16 April 2010, the new solicitors obtained an adjournment sine die of the suspension application to the Court of Appeal. That application was never brought back on.
On 27 April 2010, Ms Frigger swore a further affidavit, settled by Mr Dutton, in connection with the application to wind up CAT. The affidavit was filed and was referred to by the master in his reasons delivered 6 May 2010.[51]
[51] Primary reasons [280]; Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting & Tax Pty Ltd [No 3] [2010] WASC 93 [18].
The winding up application came on before Master Sanderson on 28 April 2010. Mr and Ms Frigger appeared by counsel (Mr Dutton) at the hearing on 28 April 2010, and had the opportunity to make submissions in opposition to the application. In fact, Mr and Ms Frigger only instructed Mr Dutton to ask for an adjournment because he advised them that he did not have the experience to argue against the winding‑up application. Mr Dutton, on Mr and Ms Frigger's instructions, applied for the adjournment, but it was not granted and the application was heard. Master Sanderson ordered that CAT be wound up in insolvency.
Subsequently, Ms Frigger filed an appeal against that decision to wind up CAT, but chose not to pursue it.

Grounds of appeal in CACV 56 of 2015

In relation to the substantive decision of Herron DCJ, Mr and Ms Friggers' grounds of appeal were to the following effect:
1.The judge erred in fact by finding, at [345] - [346], that Ms Frigger accused Mr Clavey of misleading Ms Frigger in relation to his availability on 1 April 2010, in that the finding of fact was against the weight of the contemporaneous documentary evidence.
2.The judge erred in mixed law and fact by finding, at [264], that Clavey Legal was entitled to terminate the costs agreement pursuant to cl 9.5.
3.The judge erred in law in finding, at [310], that Clavey Legal was contractually not obliged to comply with the Law Society Professional Conduct Rules.
4.The judge erred in fact in finding, at [211] - [212], that Mr Clavey was not given, and did not accept, instructions to take over the application concerning the DOCA.
5.The judge erred in finding, at [357], that Clavey Legal undertook the instructions in the retainer in a competent, conscientious and proper manner.
6.The judge erred in fact in finding, at [352], that there was ample time for Mr and Ms Frigger to arrange further representation.
7.The judge erred in his provisional assessment of Mr and Ms Friggers' claim for damages.
8.The judge erred in mixed law and fact in finding, at [169], that Ms Frigger:
(a)is an unreliable, dishonest and untruthful witness;
(b)is prepared to make unfounded and untruthful allegations against people with whom she is in dispute;
(c)embellishes and reconstructs past events to suit her purposes;
(d)misconstrues contemporaneous documents to support her reconstructed account of what happened or what was said;
(e)falsely represents the financial status of CAT to achieve her own purpose of obtaining payment and keeping the payment when not entitled to do so; and
(f)to defeat legitimate purposes of litigation in which she is involved.
In relation to Herron DCJ's interlocutory decision, Mr and Ms Frigger contended (ground 9), that the judge erred in mixed law and fact by his interlocutory ruling that the expert evidence of Mr Smoothy in 'valuing the goodwill of public accounting practice of [Ms Frigger] was inadmissible' and in refusing to allow Mr and Ms Frigger to adduce such valuation evidence.
Before dealing with the grounds of appeal, it is convenient to refer to the appellants' applications to adduce additional evidence in the appeal.

The appellants' applications to adduce additional evidence

Mr and Ms Frigger filed two applications to adduce additional evidence in CACV 56 of 2015, one dated 25 August 2015 and the other dated 20 June 2016. The applications had no arguable merit. Each was dismissed in the course of the hearing of the appeal. The relevant principles were recently considered in Saunders v The Public Trustee.[52]
[52] Saunders v The Public Trustee [2015] WASCA 203 [83] ‑ [90].
In the first application, Mr and Ms Frigger sought to adduce as evidence a copy of a document purporting to be an email from Mr Cobby (a barrister) to Mr Lenhoff (a solicitor) dated 12 July 2013. The application was dismissed because the document was plainly not evidence of anything. It was an unsworn, unsigned, document apparently made over three years after the events that were the subject of the primary proceedings. There was nothing to suggest that it was a document made by, or on behalf, of Clavey Legal. It could have had no conceivable bearing on the outcome of the appeal. Also, and in any event, the primary proceedings were heard in 2014. The document was plainly not fresh evidence, and there was no explanation as to why, if it was thought to be relevant, the document was not produced as evidence at the trial.
In relation to the second application, Mr and Ms Frigger sought to adduce evidence of written submissions dated 29 October 2009 before the Court of Appeal in CACV 76 of 2008; an email dated 15 November 2009 in relation to other proceedings, apparently from Mr Campbell‑Smith to his lawyer; an unsigned and unsworn document purporting to be a 'Statement of Assets and Liabilities'; a statement of claim containing allegations made by Mr and Ms Frigger in the Federal Court of Australia; an 'expert report prepared by [Clavey Legal]'; an extract of a transcript of an interlocutory hearing in CACV 76 of 2008 dated 16 April 2010; and a copy of a letter and directors' resolution dated 1 September 2003, both relating to the commencement of legal action against persons and entities other than Clavey Legal, and both emanating, it seems, from Mr and Ms Frigger.
Again, the application was rejected because none of the documents were admissible. Nor were they fresh evidence. Mr Cook, who appeared for Mr and Ms Frigger as counsel at trial and also on the appeal, sought to contend that certain documents at least were not available to Mr and Ms Frigger at the time that they instructed Clavey Legal in 2010, and that Clavey Legal, acting reasonably, should have obtained them in relation to the retainer. That submission merely served to demonstrate the absence of merit in the application. If the documents were reasonably obtainable by lawyers acting on behalf of Mr and Ms Frigger, they should have been obtained for the purposes of the trial. There was no, or no adequate, explanation as to why they were not.
Further, particular mention should be made of the 'expert report' which was sought to be adduced as evidence in the appeal. It emerged from the respondent's submissions that this was a document which had been prepared on behalf of Clavey Legal in response to a particular plea in the statement of claim by Mr and Ms Frigger, which Mr Cook, as counsel for Mr and Ms Frigger, had abandoned at trial. The report was consequently not tendered by Clavey Legal at the trial. Nor did Mr Cook seek to tender it at the trial. Mr Cook failed to mention these matters in his submissions, save to say that Mr and Ms Frigger had access to the report at the time of trial, but that they received legal advice not to rely upon it. Plainly the document was not tendered at trial as a result of a deliberate (albeit logical) forensic decision taken by or on behalf of the appellants. This serves to confirm the complete absence of merit in relation to the application for that particular document.

Disposition

It is convenient to commence the consideration of the grounds of appeal by reference to ground 8. Ground 8 concerns the adverse credibility findings made by the judge against Ms Frigger. Those findings permeate his Honour's findings as to the nature and scope of the retainer, and the communications between Ms Frigger and Clavey Legal in the course of the retainer.

Ground 8

Ground 8 of the appeal relies, in effect, on the following contentions:
(a)the judge took a 'singular dislike to Ms Frigger and her evidence', and was biased;
(b)the judge's findings were 'gratuitous' and were irrelevant to the case at trial; and
(c)the judge made findings of fact and inferences of fact which were 'contrary to Ms Frigger's evidence' and were 'collateral matters' which had no bearing on the issues in dispute, and reference was made to Piddington v Bennett & Wood Pty Ltd.[53]
[53] Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533, 545.

The first contention misconceives the function of the trial judge. The judge made findings of fact based on his assessment of the evidence at trial, including the oral evidence of Ms Frigger. His findings to the effect that Ms Frigger was a dishonest witness were open on the evidence before his Honour. That did not mean, however, that his Honour 'took a dislike' to Ms Frigger, or that he was biased. His Honour was merely carrying out, in a conventional way, the judicial function.
As to the second contention, Mr and Ms Friggers' case at trial depended, in large measure, on alleged oral communications involving Ms Frigger in relation to the scope, performance, termination and events subsequent to the termination of the retainer.[54] Accordingly, the second contention is incorrect.
[54] See statement of claim, pars 4(d), 9(D), 9(E), 10(a), 10(b), 13(b), 13(h), 13(i) (BB 128 - 135); defendant's request for particulars, pars, 1 - 2, 6, 8, 10, 11, 13, 19, 22 - 23 (BB 156 - 159); plaintiffs' further and better particulars, pars 1 - 2, 6, 8, 10 - 11, 13(i), 19, 22 - 23 (BB 160 - 165).
As to the third contention, questions of Ms Frigger's credibility were relevant, including as to the scope of the retainer and the communications with Mr Clavey and Ms Zohar in the course of the retainer. The principle in Piddington to which the appellants referred did not require the cross‑examiner, in cross‑examining Ms Frigger as to her credit, to accept without further challenge her denials of wrongdoing: The State of Western Australia v Watson.[55]
[55] The State of Western Australia v Watson [1990] WAR 248, 288 ‑ 289.
Further, aspects of the judge's findings as to Ms Frigger's dishonesty also went to the issue of causation, and not merely to credit. The context was this. The Court of Appeal judgment of which Mr and Ms Frigger were seeking a stay (being the stay application about which they consulted Mr Clavey) was a judgment against CAT in an appeal by PSA and Banning. The appeal by PSA and Banning related to a judgment obtained by CAT from Simmonds J. PSA and Banning had applied for a stay of the Simmonds J judgment pending a determination of their appeal, but this had been opposed by Mr and Ms Frigger on behalf of CAT. His Honour had found that Ms Frigger had dishonestly misled the Court of Appeal in the stay application.[56] But for that dishonest conduct, there would have been no need for Mr and Ms Frigger to seek a stay of the Court of Appeal judgment, and the losses claimed by Mr and Ms Frigger against Clavey Legal would not have been incurred.
[56] Primary reasons [101].
Accordingly, the third contention is also incorrect. Ground 8 should be dismissed.

Ground 1

The particulars of ground 1 allege that the judge erred in:
(a)accepting the oral evidence of Ms Zohar that, in a conversation between Ms Frigger and Ms Zohar on 30 March 2010, Ms Frigger had accused Mr Clavey of misleading her (Ms Frigger);
(b)accepting the oral evidence of Ms Zohar that she had reported this accusation to Mr Clavey on the same day; and
(c)not accepting the oral evidence of Ms Frigger to the contrary.
In this regard, Mr and Ms Frigger place reliance on the matters set out in the schedule to the appellants' submissions (appellants' schedule) under the heading '"Misleading Statement" evidence: Ground One'.[57] The documents referred to in this regard are exhibits 1.83 (GB 97 ‑ 98); 1.101 (GB 194); 1.108 ‑ 1.115 (GB 197 ‑ 204); 1.116 (GB 205 ‑ 206); 1.117 (GB 207 ‑ 212); 1.123 (GB 217 ‑ 219) and 1.134 (GB 230 ‑ 260).
[57] WB 43.
Dealing with the documents in that order, the first (exhibit 1.83) is an email dated 16 March 2010 from Mr Clavey to Ms Frigger. It precedes the relevant conversation between Ms Zohar and Ms Frigger by some 14 days.
The second (exhibit 1.101) is an email from Ms Frigger to Mr Clavey dated 25 March 2010, which again precedes the relevant conversation.
The third (exhibits 1.108 ‑ 1.115) are Ms Zohar's file notes of a series of conversations with Ms Frigger on 30 March 2010. Only one file note refers to the relevant conversation, and that records Ms Frigger as having accused Mr Clavey of misleading her.[58]
[58] GB 204, exhibit 1.115.
The fourth (exhibit 1.116) is an email from Ms Frigger to Mr Clavey sent at 4.26 pm on 30 March 2010, in which Ms Frigger requests that a letter be sent to the court by 10.00 am the next day, and that her affidavits be ready for signing at 12 noon the next day. Mr Clavey was also requested to respond to certain phone messages.
The next document (exhibit 1.117) is a letter from Mr Clavey to Ms Frigger sent by email on 30 March 2010 at 8.33 pm. It refers to Ms Frigger having told Ms Zohar that Mr Clavey had misled Ms Frigger. In that letter, Mr Clavey explained that he would seek to cease acting for Ms Frigger.
The next document (exhibit 1.123) is an emailed letter dated 6 April 2010 from Ms Frigger to Mr Clavey in response to Mr Clavey's email letter of 30 March 2010. In that letter, Ms Frigger did not deny that she had told Ms Zohar on 30 March 2010 that Mr Clavey had misled her.
The final document (exhibit 1.134) is Clavey Legal's application to be removed from the record as Ms Frigger's lawyer. It includes an affidavit of Mr Clavey sworn 13 April 2010, in which Mr Clavey deposes to the fact that Ms Zohar had reported to him that Ms Frigger had said that he had misled her (par 6).
The High Court has recently confirmed in Robinson Helicopter Co Inc v McDermott,[59] that a Court of Appeal should not interfere with a primary judge's findings of fact unless they are demonstrated to be wrong by incontrovertible facts or uncontested testimony, or they are glaringly improbable or contrary to compelling inferences. None of the material relied upon by Mr and Ms Frigger falls into that category. Indeed, insofar as it is relevant, it supports the primary judge's finding of fact that Ms Frigger told Ms Zohar on 30 March 2010 that Mr Clavey had misled her.
[59] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43].
In written submissions, Mr and Ms Frigger also contend that Ms Zohar's file note is inconsistent with her evidence‑in‑chief at trial. That is not the case. In both the file note and in her oral evidence, Ms Zohar referred to Ms Frigger as having said that Mr Clavey had misled her. In her file note, it is recorded that:[60]
She [Ms Frigger] said she is very upset because [Mr Clavey] has mislead [sic] her, he told her he would have plenty of time to argue it. I said that he will have time if it is adjourned to 9 April.
[60] GB 204.
In her oral evidence, Ms Zohar said:[61]
And then I remember that she said that, you know, it wasn't - she wanted [Mr Clavey] to deal with these other matters and that he had misled her because he said that he could argue the matter on 1 April, and that he'd misled her by saying that. I thought that was quite - I thought it was a concern, so I remember it.
[61] ts 1184 - 1185.
Mr and Ms Frigger also contended that there was an inconsistency between, on the one hand, the file note referring to Mr Clavey having said (according to Ms Frigger) that he had 'plenty of time to argue it', and, on the other hand, the statement in Ms Zohar's evidence that Mr Clavey had misled her 'because he said that he could argue the matter on 1 April …'. There is no inconsistency between the two. The reference in the file note to 'plenty of time to argue it' (being the matter on 1 April) was, in context, the same thing as being able 'to argue the matter on 1 April'. Ground 1 should be dismissed.

Ground 2

Ground 2 challenges the judge's finding at [264] to the effect that on 30 March 2013, Mr Clavey had formed the view that the relationship of trust and confidence necessary to maintain the solicitor/client relationship had broken down. In this regard, the judge accepted Mr Clavey's oral evidence that he had formed that view. His Honour also examined, and explained why he rejected, the points raised in cross‑examination of Mr Clavey, and in submissions by Mr and Ms Frigger, to the effect that Mr Clavey had not formed that view, but had in fact terminated the retainer on some other bases.[62] Insofar as ground 2 seeks to rely on Ms Frigger's oral evidence, it lacks merit having regard to our conclusions with respect to ground 8.
[62] Primary reasons [266] ‑ [268].
The arguments advanced in relation to ground 2 also appeared to assert a broader point, not covered by the challenge to the judge's finding at [264]. It was to the effect that the judge erred in finding that Mr Clavey had terminated the retainer lawfully. In oral submissions, counsel for Mr and Ms Frigger in particular submitted that Clavey Legal should not have terminated the retainer without affording her a 'hearing'. Reference was made to French v Carter Lemon CameronsLLP.[63]
[63] French v Carter Lemon CameronsLLP [2012] EWCA Civ 1180.
A number of observations may be made about this broader point. First, the arguments do not engage with, or confront, the judge's findings and reasoning on the issue of the termination of the retainer. The finding of termination was based on the judge's assessment of the proper construction and application of cl 9.5 of the written costs agreement. His Honour noted:[64]
Relevantly, cl 9.5 of that written agreement is as follows:
9.[The defendant] may cease acting for you and be entitled to remove [the defendant] from the court record as your solicitor, if the following occur:
…
9.5if the necessary relationship of trust is broken between us.
[64] Primary reasons [331].
His Honour construed cl 9.5 and applied it to the circumstances of the case. His Honour's reasons appear at [329] ‑ [353]. There was no challenge to his Honour's construction of cl 9.5 of the written costs agreement. His Honour considered that cl 9.5 had both subjective and objective elements.[65] The subjective element was that the solicitor had formed the belief that the necessary relationship of trust and confidence had broken down. The objective element was that the solicitor's belief was required to be based on reasonable and objective grounds. His Honour concluded, as noted earlier, that Mr Clavey had formed that subjective belief. Ground 2, which attacks that finding, has not been established. As to the objective element, His Honour explained in some detail, with reference to the evidence, why he concluded that Mr Clavey's belief was based on reasonable grounds. These included the following matters:
(a)Ms Frigger's acceptance that if she had told one of Clavey Legal's staff (Ms Zohar) that Mr Clavey has misled her, then that would have been 'a completely unacceptable thing for her to say and would have demonstrated a complete lack of trust between her and Mr Clavey'.[66]
(b)After Mr Clavey had emailed the termination letter on the evening of 30 March 2013, Mr Frigger contacted Mr Clavey the next day and apologised for Ms Frigger's conduct. He asked Mr Clavey to reconsider his firm's position and Mr Clavey agreed to do so.
(c)Later on 31 March 2010, Mr Clavey had a telephone conversation with Ms Frigger. Ms Frigger became angry and accused Mr Clavey of acting unprofessionally. As a result of this, Mr Clavey felt confirmed in his view that the relationship of trust and confidence had completely broken down.
(d)At the time of the termination of the retainer, there was, objectively, sufficient time for Mr and Ms Frigger to retain alternative lawyers to attend to the relevant proceedings.
[65] Primary reasons [341].
[66] Primary reasons [347].
As to these matters, so far as the first three might be challenged by ground 8 (it is not clear), the challenge is unsuccessful. The fourth is the subject of attack under ground 6, but, for the reasons given later, ground 6 must also be rejected.
The case of French v Carter, Lemon Camerons LLP, to which counsel referred, involved a dispute between a solicitor and client in which it was held that the solicitor was entitled to claim a lien over the file after the termination of the retainer. In that case, in the course of the retainer before its termination, there was a meeting between the solicitor and client which included some discussion as to whether, in light of certain complaints made by the client, the retainer should continue. It sheds no light on the proper construction and application of cl 9.5 in the particular circumstances of this case.
Also, the general principles of law quoted in the appellants' submissions, which have been taken from a legal textbook, do not point to any error by the judge.
Ground 2 should be dismissed.

Ground 3

Ground 3 alleges that the judge erred in finding that the defendant was not contractually obliged to comply with and act in accordance with The Law Society of Western Australia's Professional Conduct Rules 2008 (PCR). The appellants contend there was 'an implied term in the contract that [Clavey Legal] would exercise care and skill as promulgated by the PCR'.[67] His Honour rejected that contention. His Honour referred to Quigley (a practitioner) v Legal Practitioners Complaints Committee,[68] and concluded that the provisions of the PCR were neither implied as a term of the engagement in fact,[69] nor in law.[70] The appellants' submissions provide no basis for their contention that the judge was incorrect.
[67] Appellants' grounds of appeal, par 26; WB 7.
[68] Quigley (a practitioner) v Legal Practitioners Complaints Committee [2003] WASCA 228 [17]; primary reasons [306] ‑ [309].
[69] Primary reasons [311]. See also, generally, BP Refinery (Western Port) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, 283 ‑ 284.
[70] Primary reasons [302], [309] ‑ [310]. For an explanation of the relevant legal principles as to implied terms, see Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 [28] ‑ [30], [56], [60], [86], [113] ‑ [114].
Further, even if this ground were successful, it could have no effect on the result in the appeal. That is because his Honour approached the case, in any event, on the basis that Clavey Legal owed duties in tort and contract 'to exercise professional, skill, care and diligence',[71] and on the assumption that the provisions of the PCR applied to Clavey Legal's conduct in relation to the termination of the retainer.[72]
[71] Primary reasons [296].
[72] Primary reasons [334].
Ground 3 should be dismissed.

Ground 4

Ground 4 challenges:
(a)the judge's acceptance of Mr Clavey's evidence that at the meeting on 8 March 2010, he was not given, and did not accept, instructions 'to take over' the application concerning the DOCA which, his Honour observed, involved different parties and in relation to which Mr and Ms Frigger had another solicitor, Mr Stokes, acting for them;[73] and
(b)the judge's rejection of Ms Frigger's evidence to the contrary.[74]
[73] Primary reasons [211].
[74] Primary reasons [212].
In relation to the rejection of Ms Frigger's evidence, the judge said:[75]
Mrs Frigger said in her evidence that on 8 March 2010 she gave Mr Clavey instructions to progress the termination of the DOCA, and that he accepted those instructions. I reject her evidence. In particular that evidence:
(a)is inconsistent with the plaintiffs' pleaded case, which was that the DOCA instructions were accepted by the defendant on 12 March 2010 (the following Friday);
(b)the evidence is inconsistent with Mr Clavey's evidence; and
(c)the evidence is inconsistent with the contemporaneous note.
[75] Primary reasons [212].
In relation to this ground, the appellants rely on that part of the appellants' schedule headed 'Ground Four - DOCA instructions'.[76] In that part of the schedule, the first exhibit referred to as being evidence that supports the appellants' ground of appeal is exhibit 1.115 (GB 204). It is a file note made by Ms Zohar after speaking with Ms Frigger by telephone at 3.30 pm on 30 March 2016. Insofar as it refers to the DOCA, it indicates that Ms Zohar thought that Mr Clavey would be arguing the DOCA matter on the same day as the stay application was heard, but she said that she did not know enough about that matter to answer Ms Frigger's questions. Ms Zohar also noted that Ms Frigger had said that she was 'very upset' because Mr Clavey had misled her.
[76] WB 38.
In this part of the schedule, the appellants also rely on exhibits 1.63 (GB 48 - 50); 1.64 (GB 51 ‑ 55); 1.65 (GB 56 ‑ 57); 1.7 (GB 13 ‑ 15); 1.74 (GB 82 ‑ 83); 1.80 (GB 89 ‑ 96); 1.83 (GB 97 ‑ 98); 1.121 (GB 216); 1.123 (GB 217 ‑ 219) and 5 (GB 591). Dealing with those documents in turn, the first (exhibit 1.63) is a file note of Mr Clavey dated 8 March 2010. The note refers to the proceedings already commenced by Mr and Ms Frigger to have the DOCA terminated. At one point, the note refers to 'current instructions', and records '[s]ubject to 471B advice, either bring stay application or proceed with application to vary or declare DOCA terminated'. This sentence in the note, albeit cryptically expressed, does not, on its face, record unconditional instructions for Clavey Legal to 'take over' the DOCA proceedings. Moreover, the judge had the benefit of hearing the evidence of Ms Frigger and Mr Clavey in relation to the meeting on 8 March 2010. His Honour also had evidence of, amongst other things, Ms Frigger's earlier instructions to the effect that Mr Stokes had been engaged to act in the DOCA proceedings, and Mr Clavey's letter dated 30 March 2010. That letter referred to a meeting on 24 March 2010 in which Mr Clavey recorded that Ms Frigger had said on 24 March 2010 that she had wanted him to attend 'in due course' to a number of matters, including assuming conduct of the proceedings to terminate the DOCA.[77] Such an instruction would have been unnecessary had Ms Frigger instructed Clavey Legal to take over the DOCA proceedings on 8 March 2010. Having regard to the principles of appellate restraint in overturning findings of fact in a context such as this, Mr Clavey's file note of 8 March 2010 does not demonstrate any error by the judge as alleged in ground 4. Nor, having regard to those principles, do the other documents assist the appellants.
[77] Primary reasons [286]; GB 208.
The next document (exhibit 1.64) is a draft affidavit of Ms Frigger, made in March 2010, in connection with the opposition to wind up CAT. The draft affidavit does not assist the appellants.
The next document (exhibit 1.65) is an email from Ms Frigger to Mr Clavey dated 9 March 2010 attaching a draft letter prepared by Ms Frigger, apparently with the intention that Mr Clavey put it on his letterhead and send it to Hotchkin Hanly Lawyers, in relation to the DOCA. We were not referred to any document which suggested that Mr Clavey put Ms Frigger's draft letter into his firm's letter template and sent it to Hotchkin Hanly Lawyers.
The next document (exhibit 1.7) appears to be a copy of a Clavey Legal file note made by Mr Clavey and dated 23 February 2010. It includes observations on the law in relation to the winding up of a company in insolvency. As part of the chronology, the document refers to the DOCA. It does not suggest that Clavey Legal had instructions to 'take over' the DOCA proceedings.
The next document (exhibit 1.74) is an email chain dated 12 March 2010 between Mr Clavey and Ms Frigger. Mr Clavey in his email said there was an advantage in obtaining a stay of the Court of Appeal judgment if possible, and referred to PSA's position in connection with the fund created by the DOCA for CAT's taxed costs. He also said that he had arranged to inspect certain documents the next day. Ms Frigger's email reply was to the effect that he should not inspect the documents to which he referred. Exhibit 1.74 is of no assistance to the appellants in relation to ground 4.
The next document (exhibit 1.80) concerns email chains dated 15 March 2010. One email, from Mr Clavey to Ms Frigger, notes that she had asked him to expand his current instructions 'to consider the merits of [the] current DOCA challenge and the grounds upon which the DOCA challenge should be made' (emphasis added). It expressed a preliminary view about certain matters in that regard. Mr Clavey also referred to the need for Ms Frigger 'to confirm the extension of my existing cost agreement to cover the advice to be provided with respect to the DOCA in writing' (emphasis added). Again, however, the document on its face made no mention of Clavey Legal having 'taken over' the DOCA proceedings. Rather, Mr Clavey effectively agreed to give a second opinion on the DOCA challenge. The draft facsimile letters attached to the email stated that Clavey Legal had been instructed 'to provide advice' concerning the DOCA.

The next document (exhibit 1.83) is an email from Mr Clavey to Ms Frigger dated 16 March 2010, which referred, amongst other things, to the need for additional funds in order to '[p]rovide advice with respect to the DOCA proceedings and if needs be attend to any appearance required' (emphasis added). The letter included Mr Clavey's statement that 'I don't know how much will be incurred in relation to the DOCA, but I will need funds to do that work'. This sentence is inconsistent with the contention that Mr Clavey had already been instructed to take over the DOCA proceedings on 8 March 2010.
The next document (exhibit 1.121) is a short email chain dated 31 March 2010. This was after Mr Clavey had sent an email to Ms Frigger advising of his termination of the retainer. Exhibit 1.121 is not relevant to ground 4.
The next document (exhibit 1.123) is Ms Frigger's letter to Mr Clavey in response to his letter of 30 March 2016 terminating his retainer with Ms Frigger. It is dated 6 April 2010, and was sent by email to Mr Clavey on that same date. The letter includes the allegation that '[y]ou failed/forgot about my instructions at our meeting on 12 March 2010 to proceed with CAT's application to terminate the DOCA'. This allegation does not support ground 4 of this appeal. On the contrary, it tends to confirm that Mr Clavey had not agreed to take over the DOCA proceedings on 8 March 2010.
The final document (exhibit 5) is an email dated 10 March 2010 from Ms Frigger to Mr Clavey. It is headed 'Computer Tax and Accounting Pty Ltd - termination of DOCA'. It says that Ms Frigger had compiled a file of relevant documents for Mr Clavey's perusal and preparation of submissions, and that she wished to meet with Mr Clavey the next day if he had time. As to that, the judge found that on 12 March 2010 Ms Frigger did meet with Mr Clavey.[78] She asked him to take over the DOCA application. He declined, but said that he was prepared to provide a second opinion in relation to it.[79]
[78] Primary reasons [228].
[79] Primary reasons [229(b)].
The appellants' schedule in relation to this ground also seeks to rely on oral evidence given by Ms Frigger[80] and also refers to certain oral evidence given by Ms Zohar.[81] The judge rejected Ms Frigger's oral evidence in relation to the scope of the retainer, and accepted Mr Clavey's evidence. Error is not demonstrated by reference to Ms Zohar's evidence.
[80] ts 530 - 558, 569 - 573, 582, 592 ‑ 593.
[81] ts 1170 - 1180 is cited in support, however, the correct page numbers would appear to be ts 1175 ‑ 1191.
Ground 4 should be dismissed.

Ground 5

Ground 5 challenges the judge's finding at [357] which is as follows:
Paragraph 10(b) [of the statement of claim] alleges a failure to file the suspension application and affidavit in support on an urgent basis and in accordance with Mrs Frigger's instructions. I have already dealt with the circumstances in which the suspension application and the affidavit in support were prepared and filed on 23 March 2010 after Mr Clavey received the funds from the plaintiffs he had requested. In my view Mr Clavey took all proper and necessary steps in preparation and filing of the suspension application and Mrs Frigger's affidavit sworn in support of the application. The drafting of the affidavit and in particular the compiling of the voluminous exhibits in circumstances where Mrs Frigger had not provided much of the necessary documentation to Mr Clavey, and where there were ongoing requests for further documentation to be provided, was a difficult exercise and necessitated a considerable amount of work by Mr Clavey, Ms Richards and Ms Zohar. In my view Mr Clavey undertook the work involved in a competent and conscientious manner. In all of the circumstances the suspension application was filed in a timely manner.
The particulars to ground 5 exceed the scope of the ground (particularly insofar as they concern contentions in relation to the DOCA) and are otherwise a disparate list of allegations of law and fact which fail to engage with the judge's reasons and findings. The appellants' schedule under the heading 'Ground Five - Professional Negligence' itemises a number of purported telephone attendances in relation to which, it is alleged, there was no memorandum of attendance. The ground is misconceived. It appears to proceed on the basis that this court's function is to undertake its own de novo review of the materials, rather than to deal with alleged errors in the judge's findings on the evidence before him.
Further, insofar as the ground may be construed as challenging the judge's finding that Mr Clavey settled the terms of the stay application to the Court of Appeal in the most appropriate way,[82] it should be rejected. The context of this finding appears from the judge's findings as to the events and communications of 9 ‑ 11 March 2010, 12 ‑ 15 March 2010 and 16 ‑ 18 March 2010, set out earlier in these reasons. In substance, Mr Clavey recommended that the stay application be proceeded with sooner rather than later, and Ms Frigger had told him not to proceed with it until a hearing date had been set for the winding up application. Ms Frigger had herself prepared her own draft of the terms of the application for a stay which proposed that the Court of Appeal be asked to stay its judgment pending the resolution of the various costs matters in various proceedings. Mr Clavey counselled against that approach, and advised that the proper course was merely to apply for a stay of the Court of Appeal judgment until the disposition of any appeal to the High Court. Mr Clavey prepared an application in the terms he considered appropriate. Mr Clavey acted appropriately in accordance with his independent judgment and having regard to his duty to the court. No error is shown.
[82] Primary reasons [323] ‑ [325].
Ground 5 should be dismissed.

Ground 6

Ground 6 challenges the judge's finding at [352] that after the retainer had been terminated, there remained ample time for the appellants to engage alternative lawyers. The judge said:[83]
[83] Primary reasons [352].
Further, in my view there was ample time available following the termination of the retainer for the plaintiffs to arrange further representation. Significantly, in that regard:
(a)No lien was claimed over the plaintiffs' files.
(b)On the date of the termination (30 March 2010) there were over two weeks remaining until the suspension application (16 April 2010) and four weeks remaining until the winding up application (28 April 2010).
(c)Mr Dutton was engaged on the Easter Monday public holiday, after only two business days had passed following the termination of the retainer.
(d)Shortly thereafter Mr Cobby, a barrister, was consulted. On 8 April 2010, Mrs Frigger advised the defendant that Mr Cobby had been engaged on 8 April 2010.
(e)Mr Clavey offered to speak with the new solicitors to facilitate the transfer of the matters, at no charge. That offer was never taken up.
(f)Mr Dutton and Mrs Frigger met with Mr Cobby on a number of occasions. Mr Cobby gave advice and was prepared to act. It was Mrs Frigger who chose not to have Mr Cobby act (see Mr Dutton's evidence above [277]):
(g)Mrs Frigger 'absolutely' agreed that it was she who chose not to engage Mr Cobby because of advice that he had given.
The appellants refer, in their particulars and in the appellants' schedule under the heading 'Ground 6 - Alternative representation', to excerpts from Ms Frigger's[84] and Mr Dutton's[85] oral evidence. The schedule also refers to exhibits 1.116 (GB 205 ‑ 206) and 1.119 (GB 214 ‑ 215).
[84] ts 591 - 598.
[85] ts 997 - 1000.
Again, in substance, the challenge under ground 6 appears to assume that the role of this court is to conduct a de novo review of the evidence. As to the exhibits, the first has been mentioned earlier. It is dated 30 March 2010 and is a reply to an email of Mr Clavey (which is also included in the exhibit). Ms Frigger's email is phrased in these terms:
[Mr Clavey]
I have not seen your letter to the above [Simmonds J] requesting the other two matters be listed for 9 April 2010:
1.The overall costs of the proceedings, other than the trial costs, to be re‑instated and to be listed immediately for taxation.
2.The application for termination of DOCA.
I require the above letter to be sent by 10 am tomorrow 31 March 2010[.]
I require that my affidavits I delivered to you yesterday be ready for signing tomorrow at 12 noon, failing which I shall pick them up and swear them as they are now.
A lawyer from BP has left you several messages, which you have failed to answer. Please respond immediately.
Angela Frigger
The other exhibit included an email dated 31 March 2010 from Mr Clavey, in the following terms:
Dear Helmut [sic: Hartmut] and Angela
I am not available to meet you today for 1 ‑ 2 hours.
I refer to your e‑mail below and I have considered your position.
You will suffer no disadvantage by the termination of our engagement. You have exactly the same number of working days in which to find representation on the Freezing order application as you had when Angela saw me on 24 March.
Perhaps Mr McKinlay will now be available to represent you.
As to the other matters in which I am engaged, the stay application has not been listed for hearing. The winding up application is still 4 weeks away and the Court of Appeal has not listed that matter for directions.
As to your files, I will prepare them for collection later today. I do not propose exercising any lien over them. I shall have someone contact you when they are ready.
Regards
Terry Clavey
Neither document points to any error by the primary judge.
Insofar as this ground suggests that the judge erred in not accepting the evidence of Ms Frigger, the ground has no merit. Insofar as it relies on Mr Dutton's evidence, that evidence confirms that Mr Dutton consulted Mr Cobby of counsel shortly after Mr Dutton was retained, but Mr Cobby was not engaged because Ms Frigger was not 'happy with what … [Mr Cobby] had to say'.[86]
[86] ts 999.
The relevant finding of fact at [352] was open on the evidence and supported by the particular matters identified by his Honour at (a) to (g) of [352]. There has been no successful challenge to those specific matters.
Ground 6 should be dismissed.

Ground 7

Ground 7 alleges that the judge erred in his provisional assessment of damages. This ground strictly does not arise for consideration given that the appellants have not succeeded on their challenges to the judge's findings on liability. Nevertheless, it will be addressed for completeness.
Apart from repeating and relying on their contentions under grounds 1 ‑ 5 (which, for the reasons given earlier, should be dismissed), the appellants appear to contend, in essence, that:
(a)the Court of Appeal's orders made against CAT following the successful appeal by PSA and Banning in late 2009 were misconceived or incorrect for various reasons, including having regard to the operation of the PSA DOCA;
(b)these misconceptions or errors by the Court of Appeal, together with the arguments advanced by CAT in its application for special leave to appeal to the High Court, showed that had Clavey Legal done its job properly, the orders of the Court of Appeal would have been suspended; and
(c)had the orders of the Court of Appeal been suspended, CAT would not have been wound up in insolvency.
In written submissions, the appellants also asserted that a lawyer who terminates a retainer involving an entire contract without just cause, prior to completing the agreed services, cannot recover his or her fees.
This ground is devoid of merit. In the period after the termination of Clavey Legal's retainer, but before the winding up of CAT, CAT (controlled by the appellants and legally represented) applied for, and was granted, an adjournment sine die of CAT's application for suspension orders in respect of the Court of Appeal's decision. The application for suspension orders was never brought back on. Once there was no suspension of the Court of Appeal's orders against CAT, the judge was correct to conclude that absent at least personal undertakings by the appellants to meet CAT's liabilities, it was inevitable that CAT would be wound up.[87]
[87] Primary reasons [381].
In addition, the judge's findings at [391] ‑ [394] have not been shown to be erroneous. His Honour said:
Significantly, in relation to the suspension application, [Mr and Mrs Frigger] were seeking to suspend or stay an order of the Court of Appeal to repay over $800,000 which CAT had received from the original judgment. That money had been received by CAT notwithstanding an attempt by [PSA and Banning] in the Court of Appeal to have the original judgement stayed (Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222) and immediately disbursed to [Mr and Mrs Frigger's] superannuation fund or to their benefit personally.
Had the true position taken by [Mr and Mrs Frigger] as to the assets of CAT been known to the Court of Appeal, [Mr and Mrs Frigger] (and CAT) would never have received the benefit of that money in the first place.
This is no mere speculation. The Court of Appeal has since held as much in Frigger v Professional Services of Australia Pty Ltd [No 3]. In that case, in light of the affidavits contained in exhibits 6.1 and 6.2, as I have earlier referred to [95], the court stated [109]:
'All that is necessary is to observe that [Mrs Frigger] has been guilty of bending the truth. If all that Mrs Frigger has now offered about CAT's circumstances as at 23 September 2008 had been put before Buss JA, a stay would almost certainly have been granted and the freezing and ancillary orders would not have been necessary.'
In those circumstances, where millions of dollars of assets said to have been available to creditors were either dissipated (or never belonged to CAT in the first place), the prospects of then obtaining a stay of the Court of Appeal's repayment order were remote. (emphasis added)
In other words, had Ms Frigger not dishonestly misled the Court of Appeal in the stay application, the judgment debt in favour of CAT would have been stayed pending the determination of the appeal, and CAT would not have been paid the judgment debt in advance of the disposition of the appeal. No suspension application in relation to the restitutionary orders ultimately made by the Court of Appeal would then have been needed. Also, the prospect of CAT obtaining a suspension order, suspending the restitutionary orders made by the Court of Appeal against it, had the true circumstances been disclosed to the Court of Appeal on such an application, would have been 'remote', if not inconceivable.
In relation to the 'entire contract' point raised in the appellants' submissions, it proceeded upon the assumption that Clavey Legal had terminated the retainer without just cause. That is not correct having regard to the findings of the judge, which have not been successfully challenged in this appeal.
Ground 7 should be dismissed.

Ground 9

Ground 9 challenges the judge's interlocutory decision to reject the proposed tender by Mr and Ms Frigger of an expert report by Mr Smoothy, which was said to relate to the appellants' claim for damages for the loss of the accounting practice operated by CAT.
Two preliminary points may be made about ground 9. The first is that it is strictly unnecessary to deal with ground 9, given that all the challenges to the findings on liability have been dismissed. The second is that the appellants were unable to explain the basis upon which it was alleged that CAT's loss of its business was recoverable by the appellants.
In any event, the following observations may be made about the merits of the ground.
The judge's reasons for rejecting the tender included the following:[88]
It is apparent from a further reading of the report that Mr Smoothy also relies upon other information with which he has been provided. He, in part, relies upon the evidence of other transactions in relation to fees of other practices. … he refers to actual sales of four different accounting firms and just very briefly sets out the dollar amount that he relies upon for the valuation in relation to the actual sales. None of that has been provided. During the course of these proceedings since this trial has started, I ordered the plaintiffs, when Mrs Frigger, in her evidence, referred to some documents, to produce documents in response to that.
…
The view I have formed is the report of Mr Smoothy, which is now well over a year old, is woefully deficient and is inadmissible.
There has been to date no evidence led which explains how the business operated at the relevant time, the nature of the business, the profits received by the business, the structure of the business, its client base, as you would expect where a court is being asked to assess damages on the basis of the value of the business and the loss of goodwill in the business. …
However, the deficiency in the report goes well beyond that. It is now too late to cure that. It will cause prejudice to the defendant by having to address those matters.
… it is too late in the proceedings for the plaintiffs to now properly comply with their obligation for discovery for all those documents to be produced to enable the defendants to properly meet the report against them. It is almost inevitable it would be necessary for there to be an amended report to be prepared which inevitably would necessitate an adjournment in the trial. It is too late in the proceedings for this matter to be adjourned. It will cause prejudice to both parties for the trial to be adjourned.
[88] ts 973 - 975.
None of these reasons by his Honour has been shown to be wrong. Ground 9 should be dismissed.

The appeal on the question of costs: CACV 162 of 2015

In the costs decision, Herron DCJ ordered:[89]
1.[Mr and Ms Frigger] pay [Clavey Legal's] costs of the action, including reserved costs before 14 June 2013 on a party and party basis to be taxed;
2.[Mr and Ms Frigger] pay all [Clavey Legal's] costs of the action from 14 June 2013 except insofar as they are of an unreasonable amount or have been unreasonably incurred so that subject to the above exclusions [Clavey Legal] is completely indemnified by [Mr and Ms Frigger] for its costs from 14 June 2013, including the costs of this application for costs.
3.[Clavey Legal's] costs under items 17, 20(b) and 20(d) be taxed without reference to the limits fixed under the Supreme Court scale of costs.
4.[Mr and Ms Frigger] pay [Clavey Legal's] costs of obtaining the transcript incurred by [Clavey Legal].
[89] Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (S) [71] (Frigger v Clavey Legal [No 3] (S)).
In his reasons for judgment,[90] his Honour made the following observations and findings. First, from certain primary facts to which there was no challenge, it was to be inferred that Mr and Ms Frigger had been advised by counsel by at least 25 March 2014 that their claim in fraud against Clavey Legal lacked reasonable grounds. Nevertheless, they persisted with these claims until they were withdrawn on the second day of the trial. Then, despite having withdrawn them, they subsequently repeated them in the argument as to costs.
[90] Frigger v Clavey Legal [No 3] (S).
Secondly, the complexity and variety of the matters raised by Mr and Ms Frigger required a consideration of a large volume of documents. This, together with the allegations of fraud, and Mr and Ms Frigger's failure to provide proper discovery, considerably prolonged the duration of the trial and caused Clavey Legal to incur unnecessary costs.
Thirdly, by a letter dated 21 May 2013, Clavey Legal had made a Calderbank offer to settle in the sum of $35,000. The letter explained in considerable detail why it was contended that the action brought by Mr and Ms Frigger should fail and that the offer was made for commercial reasons to avoid costs. Prior to the stated period of the expiration of the offer, it was rejected by Mr and Ms Frigger by a letter dated 29 May 2013. In that letter Mr and Ms Frigger counteroffered $430,000. They maintained, or at least were not prepared to abandon, the allegations that Clavey Legal had committed fraud and fabricated evidence.

The judge found that the rejection of the Calderbank offer was unreasonable. His Honour said:[91]
[91] Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (S) [48].
I am satisfied that for the following reasons the plaintiffs' rejection of the defendant's Calderbank offer was unreasonable:
1.The offer which was made, 26 days before the trial was due to commence on 17 June 2013 and before the trial dates were vacated on 12 June 2013, was in my view, made at a sufficiently early stage in the history of the District Court proceedings, which if it had been accepted would have avoided the considerable costs incurred by the defendant in proceeding to trial.
2.The offer, which was open for acceptance until 4.00 pm on 14 June 2013, allowed for a sufficient length of time for the plaintiffs to consider the offer.
3.The extent of the compromise offered, which was expressed as a commercial offer, would have met a significant part of the plaintiffs' costs noting that the plaintiffs in their letter of 29 May 2013 rejecting the offer said they were advised by counsel that their legal costs would be in the order of $50,000.
4.The plaintiffs' prospects of success were in my view negligible. In its letter to the plaintiffs, the defendant expressed the view that the claims in the action were bound to fail. In my view at the time that offer was expressed, and without having regard to the decision I have since reached, the defendant's assessment was a realistic one.
5.The letter addressed each of the plaintiffs' pleaded alleged causes of action explaining in detail and at length why the defendant believed the plaintiffs would not succeed at trial. Essentially that letter reflected the defendant's defence to the plaintiffs' causes of action and how the defendant conducted its defence at trial.
6.The terms of the offer were, as I have already observed, set out in considerable detail and in my view were set out in clear terms. I reject the plaintiffs' submission that the offer was incapable of being accepted because it required the plaintiffs to sign a deed of release on behalf of CAT in circumstances where they had no authority to do so. In my view the terms of the offer which referred to the terms of settlement needing to be formalised in a deed of settlement, simply reflected the causes of action pleaded by the plaintiffs in their statement of claim against the defendant.
7.Section 471A of the Corporations Act 2001 (Cth) states that the powers of an officer of a company are suspended during the company's winding up. In my view the defendant's written offer of settlement did not require the plaintiffs to sign a deed of release on behalf of CAT where they were prevented from doing so because of s 471A. All that the Calderbank letter did was identify the various causes of action alleged against the defendant and require the plaintiffs in their personal capacity to release and discharge the defendant from all claims in the action and arising from the action. The defendant's solicitors would clearly have known of the effect of s 471A and would have known the plaintiffs could not have entered into a deed of release on behalf of CAT.
His Honour accordingly rejected the submission by Mr and Ms Frigger that the offer was incapable of being accepted in the terms proposed by Clavey Legal. His Honour also noted that the final outcome for Mr and Ms Frigger was not more favourable than that contained in the offer.
His Honour also considered that the costs scales for items 17, 20(b) and 20(d) were inadequate, and that those items should be taxed without reference to the limits fixed by the scales. His Honour also found that it was reasonable and necessary for an allowance to be made in respect of the expense of obtaining the transcript.
The appellants' grounds of appeal are prolix and lack clarity. They also appear to be, to a considerable extent, drafted on the assumption that they have succeeded in the appeal against the substantive decision. For the reasons given earlier, that assumption is incorrect.
The essential points sought to be raised appear to be as follows:
(a)the judge acted on a wrong principle by mistaking the facts and misconstruing a material consideration in finding that the Calderbank offer to which he referred in his reasons was capable of acceptance by Mr and Ms Frigger in that, amongst other things, it did not require the provision of a release by CAT (ground 1, par 3.1);
(b)the judge erred by mistaking the facts, was guided by extraneous and irrelevant matters, and failed to give any consideration to the evidence contained in Ms Frigger's affidavit sworn 4 September 2015, 'which evidence proves that [Clavey Legal's] witnesses had lied in their oral evidence at the trial and materially contradicted the contemporaneous documentary evidence' (ground 1, par 3.2);
(c)the judge failed to take into account the evidence in Ms Frigger's affidavit sworn 4 September 2015 in making the findings which he did at [65] of the costs decision (ground 2, par 4.2); and
(d)the judge mistook the facts when coming to the conclusion that Mr and Mrs Friggers' approach to discovery was inadequate and unfair to Clavey Legal (ground 1, par 3.3).
This appeal on the question of costs should be dismissed. As to the first point, the judge did not make an error of principle, or mistake the facts, or misconstrue a material consideration. In particular, the Calderbank offer was, on its terms, capable of acceptance. The contention that it required a release by CAT involves a misconstruction of the document. The judge was correct in his analysis at [48.7] of his reasons, referred to earlier. The second and third points also have no merit. In substance, the proposition advanced is that Ms Frigger, in her affidavit of 4 September 2015, could provide admissible evidence of certain facts on the costs application, which were inconsistent with the findings of fact made by the judge in the substantive decision. The proposition is misconceived. Similarly, in relation to (d) above, there was no scope for contending, for the purposes of the costs application, that the discovery was not inadequate once the judge had made a finding of fact to the contrary in the substantive decision.

Conclusion

Each of the appeals should be dismissed.