Gilles & Eliades v Giakoumelos - [2008] NSWSC 70

CITATION: Gilles & Eliades v Giakoumelos [2008] NSWSC 70

HEARING DATE(S): 7 February 2008

JUDGMENT DATE :
18 February 2008

JUDGMENT OF: Malpass AsJ

DECISION: Application for leave pursuant to s 208M Legal Profession Act 1987 refused; proceedings dismissed; plaintiffs to pay the costs of the proceedings.

CATCHWORDS: COSTS ASSESSMENT - disclosure of fees of senior counsel - statutory construction - person concerned - reasonable opportunity to make submissions - disclosure - basis upon which fees were to be charged - materiality - reasons and appeal as of right

LEGISLATION CITED: Legal Profession Act 1987

CATEGORY: Principal judgment

CASES CITED: Cachia v Colaco [2004] NSWSC 1043
Frumar v Owners of Strata Plan 36957 [2006] NSWSC 224; (2006) 67 NSWLR 321

PARTIES: Joseph John Gilles & Gregory George Eliades trading as Giles Payne & Co Solicitors ( Plaintiffs)
Jim Giakoumelos (Defendant)

FILE NUMBER(S): SC 16278/06

COUNSEL: I E Davidson (Plaintiffs)
D D Knoll (Defendant)

SOLICITORS: Giles Payne & Co (Plaintiffs)
Konstan Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

Monday 18 February 2008

16278/06 Joseph John Gilles & Gregory George Eliades t/as Giles Payne & Co v Jim Giakoumelos
JUDGMENT

1 HIS HONOUR: The defendant retained the plaintiffs to act in a probate dispute. These parties entered into a costs agreement. The plaintiffs provided legal services for the defendant. The plaintiffs then briefed counsel. The plaintiffs gave an estimate of the costs of legal services (letter dated 23 June 2004). It gave a total of legal fees of about $200,000 (including $60,000 for senior counsel). Senior counsel purported to make a disclosure of fees in writing (a document dated 24 January 2005). It disclosed rates of charge on a “contingency fee basis”. On 3 February 2005, it was endorsed by the defendant (“I accept these fees”).

2 After a hearing over about six days, the proceedings were settled on 4 April 2005. On that day, the defendant signed a written document that, inter alia, appeared to have the effect of acknowledging indebtedness for legal costs in the order of $250,000 (“I am responsible to pay my own legal costs which are approximately $250,000”). I shall hereafter refer to this written document as “the writing”.

3 In July 2005, the plaintiffs rendered a bill of costs for work done up to that date to the defendant. It claimed fees of senior counsel as a disbursement ($40,000). The attached trust account statement showed, inter alia, that $85,510 had been paid to senior counsel.

4 The total fees rendered by senior council was in the order of $125,000 (by April 2005). By July 2005 he had been paid the sum of $85,510 out of moneys held on trust. The defendant became aware of these matters by letter dated 7 July 2005. The balance was paid on 13 October 2005.

5 By August 2005, the defendant had terminated the retainer. He then retained his present solicitors. A copy of the memorandum of fees…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2008] NSWSC 70
Decision Date: 18 February 2008

CaseChat Overview and Summary

The case involved Gilles and Eliades, who were the plaintiffs, and Giakoumelos, the defendant, who was a solicitor. The dispute arose from a matter concerning the assessment of costs, specifically regarding the disclosure of fees for senior counsel. This case was heard in the Supreme Court of Victoria. The plaintiffs sought clarification and orders related to the disclosure of senior counsel's fees and the process for assessing those fees, particularly focusing on whether the defendant had provided them with a reasonable opportunity to make submissions on the matter.

The central legal issues the court had to decide involved the interpretation of statutory provisions concerning the disclosure of fees for senior counsel. The plaintiffs argued that the defendant had failed to provide them with a reasonable opportunity to make submissions regarding the fees. They contended that the statutory requirements had not been met, as the disclosure of fees was made without allowing them to provide input. The plaintiffs also argued that the defendant's failure to disclose the basis upon which the fees were to be charged was material, and that this omission undermined the fairness of the cost assessment process.

In addressing these issues, the court considered the relevant statutory provisions and the principle of fairness in the assessment of costs. The court determined that the statutory requirements for disclosure and the opportunity to make submissions were not met, as the plaintiffs were not given a reasonable opportunity to provide their views on the fees before they were disclosed. The court found that the materiality of the defendant's failure to disclose the basis upon which the fees were charged was significant, as it impacted the fairness of the cost assessment. The court concluded that the statutory requirements had not been properly followed, and that the assessment of costs needed to be reconsidered in light of these findings. The court also noted that the plaintiffs had a right to appeal the decision as of right due to the importance of the issues involved.

Orders