Gartrell v Gibson and Gibson (A Firm)
[2000] WASC 13
•1 FEBRUARY 2000
GARTRELL -v- GIBSON & GIBSON (A FIRM) [2000] WASC 13
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 13 | |
| Case No: | CIV:1504/1999 | 21 JANUARY 2000 | |
| Coram: | WHITE J | 1/02/00 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | DARRYL KENNETH GARTRELL GIBSON & GIBSON (A FIRM) |
Catchwords: | Costs Solicitors bills Whether served on the plaintiff Turns on own facts |
Legislation: | Legal Practitioners Act 1893 s 65(1), s 66, s 68A(d) |
Case References: | Nil Bowen Buchbinder Vilensky v Banning, unreported; FCt SCt of WA; Library No 960325; 20 June 1996 Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vic) (1938) 60 CLR 741 D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Josephson v Walker (1914) 18 CLR 691 Malleson Stewart Stawell & Nankivell v Williams [1930] VLR 410 Pasmore v Oswaldtwistle Urban District Council [1898] AC 387 Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192 Stobbart v Mocnaj [1999] WASC 252 Taylor v The Minister [1973] 1 NSWLR 352 Webb v Bateman & Co, unreported; SCt of WA; Franklyn J; Library No 6305; 27 May 1986 Woolf v Snipe (1933) 48 CLR 677 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
GIBSON & GIBSON (A FIRM)
Defendant
Catchwords:
Costs - Solicitors bills - Whether served on the plaintiff - Turns on own facts
Legislation:
Legal Practitioners Act 1893 s 65(1), s 66, s 68A(d)
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr M L Segler
Defendant : Mr R A H Leclezio
Solicitors:
Plaintiff : E N Stamatiou & Co
Defendant : Gibson & Gibson
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Bowen Buchbinder Vilensky v Banning, unreported; FCt SCt of WA; Library No 960325; 20 June 1996
Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vic) (1938) 60 CLR 741
D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Josephson v Walker (1914) 18 CLR 691
Malleson Stewart Stawell & Nankivell v Williams [1930] VLR 410
Pasmore v Oswaldtwistle Urban District Council [1898] AC 387
Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192
Stobbart v Mocnaj [1999] WASC 252
Taylor v The Minister [1973] 1 NSWLR 352
Webb v Bateman & Co, unreported; SCt of WA; Franklyn J; Library No 6305; 27 May 1986
Woolf v Snipe (1933) 48 CLR 677
(Page 3)
1 WHITE J: In this matter, the defendant is a firm of solicitors and the plaintiff is a former client of the defendant. The plaintiff makes the application by originating summons, firstly seeking a declaration that the fees and disbursements charged to him by the defendant, as appear by a number of accounts from the defendant to the plaintiff, are not recoverable by the defendant from the plaintiff as fees or charges by bills of costs in that the "purported accounts" failed to comply with s 65(1) of the Legal Practitioners Act1893. He lists 10 accounts, the first dated 30 April 1996 and the tenth dated 3 July 1997.
2 Some of the accounts were directed to "D & D Engine Assemblers" which was formerly a partnership between the plaintiff and his then de facto spouse, Ms Deborah Jane Grimshaw. It appears that the partnership has been dissolved and the plaintiff and Ms Grimshaw have separated.
3 Each account was addressed, either to the plaintiff or to the partnership, at 30 Le Grande Gardens, Marangaroo (to which address I shall hereinafter refer as "Marangaroo".)
4 Secondly, the plaintiff seeks a declaration that these purported accounts represent claims for fees in excess of reasonable remuneration and, thirdly, he seeks an order for the review for taxation of the purported accounts in the inherent jurisdiction of the court.
5 The application is opposed by the defendant. Section 65(1) of the Legal Practitioners Act provides:
"65.(1) No practitioner shall sue for the recovery of any services, fee, charges or disbursements until a bill for the same, being either a bill containing detailed items or for a lump sum, has been served upon the party charged therewith."
6 The plaintiff contends that the defendant failed to serve upon him the 10 purported accounts.
7 In his affidavit in support of his application, the plaintiff says that, by a letter dated 29 January 1999, the defendant advised the plaintiff's new solicitors, Messrs Slater & Gordon, of a list of their accounts addressed to the plaintiff and said to be outstanding. He says that he received copies of these accounts on or about 25 March 1999 from his solicitors, to whom they had been sent by the defendant. He said that he had not received them at an earlier date.
(Page 4)
8 Mr Melville says in his affidavit (par 19) that some time after 3 December 1996, the plaintiff advised him that the plaintiff was changing his address to Mundaring.
9 Despite this, the defendant continued to address correspondence and accounts to the plaintiff at Marangaroo. In addition, facsimile messages were relayed between the plaintiff and the defendant between 4 February 1997 and 20 August 1997, utilising the facsimile telephone number at Marangaroo.
10 On 5 February 1997, the defendant wrote to the plaintiff at Marangaroo, enclosing an Acknowledgment of Debt for signature by Ms Grimshaw and requesting its return. The Acknowledgment of Debt was signed by Ms Grimshaw and witnessed by the signature of the plaintiff and dated 27 February 1997 and it was returned to the defendant.
11 Although the plaintiff received these communications, and others addressed to him at Marangaroo, his evidence was that the accounts sent to that address were not received by him. It appears that the property in question was occupied by Ms Grimshaw and their children and that he repeatedly visited them from time to time in order, he says, to see his children. There is no suggestion that correspondence addressed to him at Marangaroo would have been wrongfully intercepted and destroyed before he had access thereto.
12 The plaintiff was subjected to a lengthy cross-examination, in the course of which it was pointed out, inter alia, that he had executed a number of affidavits in the course of proceedings, including those bearing dates 26 May 1997, 3 September 1997, 25 September 1997 and 17 October 1997, being affidavits prepared by the defendant on his behalf, in each of which he had described his address as "30 Le Grande Gardens, Marangaroo". He was unable to offer any explanation for having so described his address.
13 In addition, the account given by the plaintiff of his communications with the defendant was, in many respects improbable and, at the conclusion of the hearing, the plaintiff had not discharged the onus which lies upon him to satisfy me on a balance of probabilities that the various accounts of which he complains were not, in fact, served upon him. Furthermore, the plaintiff was not able to satisfy me that the accounts, or any of them, represented claims for fees in excess of reasonable remuneration.
(Page 5)
14 Some of the accounts submitted by the defendant, being lump sum accounts, were deplorably lacking in any detailed information as to the services said to have been rendered, or as to how the amounts claimed were made up. In accordance with s 65(2) of the Legal Practitioners Act, at any time within 30 days from the service of a lump sum bill, the party charged may require the practitioner to serve upon him, in lieu of the lump sum bill, a bill containing detailed items and in accordance with s 65(5), where a lump sum bill or an itemised bill of costs does not contain adequate detail to enable the taxing officer to tax the bill, the taxing officer may order the practitioner to remedy the deficiency within a time specified in the order and, in default of an account sufficiently detailed being filed, reduce the amount of the costs that might otherwise have been certified by a proportion not greater than 25 per cent. Section 66 of the Legal Practitioners Act provides that any person charged with an itemised bill of costs may have the same taxed by the taxing officer of the Supreme Court, upon first serving upon the practitioner, within 30 days from the service of such itemised bill, a written notice of intention to have the same taxed. By virtue of s 68A(d) of the Legal Practitioners Act, the taxing officer has a discretionary power to enlarge the time prescribed for the taking of any step provided for in the relevant sections of the Act. In the present case, the plaintiff may be able to persuade the taxing officer to enlarge the times prescribed by law for the calling for an itemised bill of costs and the taxation thereof.
15 In the result, however, the present application has not been made out by the plaintiff and it will be dismissed.
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