Glen BONIFACE v Edward Michael BYRT

[2006] NSWSC 952

CITATION:	Glen BONIFACE v Edward Michael BYRT [2006] NSWSC 952 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	14 September 2006
JUDGMENT DATE :	15 September 2006
JURISDICTION:	COMMON LAW - Administrative Law List
JUDGMENT OF:	Associate Justice Malpass
DECISION:	The appeal fails. The Summons is dismissed. The plaintiff is to pay the costs of the proceedings.
CATCHWORDS:	Dispute as to nature of retainer - conflicting evidence - no error in point of law.
CASES CITED:	Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309.
PARTIES:	Glen BONIFACE (Plaintiff) Edward Michael BYRT trading as Norman Waterhouse Solrs. (Defendant)
FILE NUMBER(S):	SC 11936 of 2006
COUNSEL:	Mr A Z Monzo (Plaintiff) Mr S J Stanton (Defendant)
SOLICITORS:	Thorntons Lawyers (Plaintiff) Norman Waterhouse Lawyers (Defendant)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	7731 of 2005
LOWER COURT JUDICIAL OFFICER :	Beattie LCM
LOWER COURT DATE OF DECISION:	31 March 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Edward Michael BYRT trading as Norman Waterhouse Solrs. v Glen BONIFACE

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Associate Justice Malpass

15 September 2006

11936/06 Glen Boniface v Edward Michael Byrt trading as Norman Waterhouse Solrs.

JUDGMENT

1 The plaintiff is a former client of the defendant. The defendant is a firm of solicitors.

2 The defendant was retained to act in relation to a dispute between the plaintiff and his former employer. In respect of that retainer, discussions took place between the plaintiff and Mr Brown (a former salaried partner of the defendant). There was also written material.

3 Ms Najjar was an employed solicitor who worked under the supervision of Mr. Brown. She had the day to day conduct of the matter. It is the defendant’s contention that a written retainer agreement was prepared and sent to the plaintiff.

4 The defendant provided legal services in respect of the retainer and payment was made by the plaintiff for work done by the defendant.

5 The defendant and Mr Brown went their separate ways. Mr Brown set up his own practice. There seems to have been a contemplation that Mr Brown was to take over the conduct of the matter.

6 A dispute arose between the parties as to the nature of the retainer. The plaintiff contended that he had retained the defendant on a contingency basis (with professional fees being payable only upon a successful result). The defendant was of the view that it was a standard retainer (with the plaintiff being liable to pay professional costs as well as costs and disbursements).

7 The dispute came to a hearing in the Local Court. It was heard and determined by Beattie LCM. Her decision was given on 31 March 2006. She gave detailed reasons for the decision. She found in favour of the defendant (judgment was entered in an amount in the order of $15,000.00).

8 The plaintiff has brought an appeal to this court. It is alleged that there has been error in point of law. The grounds of appeal relied on are to be found in the Summons.

9 The appeal was heard on 14 September 2006. Both at the outset and during the hearing, the grounds of appeal were the subject of trenchant criticism. One well-founded complaint was that they failed to identify any error in point of law. This problem persisted to the end.

10 Before proceeding further, I should briefly mention what happened before the Magistrate. The defendant called Mr Kent (its managing partner) and Ms Najjar. The plaintiff relied on his own evidence and that of Mr Brown. Both parties adduced documentary material.

11 I should briefly make some observations as to the nature of certain of the material that was put in evidence. The evidence given by the plaintiff and Mr Brown as to their discussions had similarity. It gave support to the plaintiff’s contention that the defendant had been retained on a contingency basis. The evidence of Ms Najjar threw up conflict. She had made notes of instructions given to her by Mr Brown. These contradicted the evidence of Mr Brown. She prepared the written retainer. It was in terms that established the case propounded by the defendant. It was signed by Mr Brown. There was evidence that it was sent to the plaintiff (from both Mr Kent and Ms Najjar). The evidence given by the plaintiff on this matter was that he couldn’t recall receiving it.

12 The judgment of the Magistrate contains the following:-

“35. I am satisfied on the basis of the matters set out in paragraph 34 that the Plaintiffs’ case was more persuasive than that of the Defendant and I find that they have established their claim. I find that the Defendant did not engage the Plaintiffs on the basis that the legal fees would be paid on a “contingency” or “no win, no fee” basis. Accordingly, there is no need for me to determine the second set of issues concerning the nature of the alleged contingency agreement nor the issue as to agency.”

13 Paragraph 34 of the judgment is a lengthy one. It had been preceded by observations appearing respectively under the headings “The Plaintiff’s Case” and “The Defendant’s Case”. This material identifies the evidence relied on by the parties. It was followed by a recording of the submissions made by the parties.

14 Paragraph 34 recited facts upon which she relied and contains observations made by the Magistrate in relation to that evidence. It sets forth observations made as to the impression created by witnesses. One of those observations was that she found the evidence of Ms Najjar as being highly persuasive. It was said that she “impressed as a candid, frank witness and was not really tested as to the accuracy of her file note”. There are observations concerning the evidence of Mr Brown which could be regarded as being detrimental to his credibility.

15 In the circumstances, the task confronting the Magistrate was to resolve evidentiary conflict. She did this, inter alia, by preferring the evidence of Ms Najjar and certain of the documentary material. The material relied on by her could be described as powerful and justifying the decision made by her.

16 Despite repeated questioning that he do so, counsel for the plaintiff was unable to identify and enunciate any error in point of law. The court was often told of the unusual features of the case. Largely, the complaint seemed to be a failure by the Magistrate to give sufficient weight to the evidence of the plaintiff and Mr Brown and to not give sufficient reasons for her preference of other evidence.

17 An appellant in a case such as this bears the onus of satisfying the court that there is error of law that justifies the disturbing of the decision of the Local Court. In my view, the plaintiff failed to discharge that onus.

18 Before concluding this judgment, I will make some specific observations as to certain of the matters that were mentioned in argument.

19 It does not need to be stressed that a complaint to the effect that the finding was against the weight of the evidence, does not give rise to error in point of law. As earlier indicated, I do not consider that the Magistrate erred in her findings.

20 Lack of disclosure of reasoning process was not a ground of appeal relied on by the plaintiff. Therefore, it was not open to the plaintiff to pursue such a ground. As I understand the position, ultimately it was not pressed. For completeness, I should add that in my view the Magistrate more than sufficiently disclosed her reasoning process.

21 The plaintiff did refer the court to a line of authority (including Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309). In my view, this authority had no application in the circumstances of the present case and could not in any way assist the plaintiff.

22 A brief submission was made in respect of ground 3. The Magistrate took the view that there was no need to determine an issue as to “agency”. It was an issue raised by the defendant in relation to the alleged contingency agreement (as opposed to the written retainer). The plaintiff made no challenge to the authority of Mr Brown and the issue has no materiality to the findings made by the Magistrate. Accordingly, the ground does not assist the plaintiff in this case.

23 The appeal fails. The Summons is dismissed. The plaintiff is to pay the costs of the proceedings. The exhibit may be returned.

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21/09/2006	-	typographical errors - Paragraph(s) coversheet
21/09/2006	-	spelling errors - Paragraph(s) various