Goldbrook Family Law Pty Ltd v Al Jabiri

[2018] ACAT 112

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GOLDBROOK FAMILY LAW PTY LTD v AL JABIRI (Civil Dispute) [2018] ACAT 112

XD 268/2018

Catchwords:              CIVIL DISPUTE – unpaid legal fees – breach of contract – duty of care – dissatisfaction with service – counter-claim

Tribunal:                   Senior Member G Lunney SC

Date of Orders:  6 November 2018

Date of Reasons for Decision:         6 November 2018

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 268/2018

BETWEEN:

GOLDBROOK FAMILY LAW PTY LTD

Applicant

AND:

FIRAS AL JABIRI

Respondent

TRIBUNAL:Senior Member G Lunney SC

DATE:6 November 2018

ORDER

The Tribunal orders that:

1.Judgment be entered for the applicant in the amount of $13,603.02, comprised of:

(a)$12,596.90, being the original debt;

(b)$706.12, being interest; and

(c)$300.00 being the tribunal filing fee.

2.The counter-claim is dismissed.

………………………………..

Senior Member G Lunney SC

REASONS FOR DECISION

1.This was an application in debt by the proprietor of a law firm in the Australian Capital Territory (Goldbrook) for payment of fees incurred by the respondent (Mr Al Jabiri) in a family law matter.

2.There was no challenge to the fees agreement alleged or to the calculation of the amount claimed. The Mr Al Jabiri was dissatisfied with the service provided by Goldbrook and he alleged that the firm had been negligent and had breached its retainer. His case was that consequently the firm was not entitled to charge for the services claimed, and that because he had sustained damage, he was entitled to compensation in damages by way of counter-claim.

3.The case proceeded on the basis of examination of his defence and counter-claim.

Background

4.The applicant and his wife were married in Sydney in January 2006. They had two children who were eight and six at the time of the dispute. The couple were living in Canberra when unhappy differences arose, and during a family holiday in Sydney late in December 2016, the wife returned to her family in Sydney with the two children without notice to Mr Al Jabiri.

5.Mr Al Jabiri saw his wife and the children from time to time in Sydney, but they did not return to Canberra. He first saw Goldbrook’s staff on 1 March 2017 and instructions were taken and an application and supporting documentation were drafted and sent to Mr Al Jabiri. The principal of the firm was Ms Andrea Goldrick, and she had carriage of the respondent’s file.

6.On 8 March 2017 Mr Al Jabiri instructed Goldbrook that he wished to try mediation with a private mediator prior to commencement of proceedings. A cost disclosure statement was sent to Mr Al Jabiri on 9 March 2017 with a final draft of initiating process awaiting his instructions to file. This was done by email.

7.Mr Al Jabiri was reminded on 14 March 2017 about filing the documents, however he advised that he wished to proceed with mediation. The costs disclosure statement was not returned and it was re-sent on 15 March 2017. There is a file note recording instructions confirming a preference for mediation. Goldbrook asked again about filing on 16 March 2017 and was advised that Mr Al Jabiri wished to pursue mediation.

8.On 27 March 2017 Mr Al Jabiri instructs the applicant to commence proceedings and a letter is sent to the Court in Canberra with documents which is dated and stamped as filed on 28 March 2017, the date that the wife commenced proceedings in NSW. Mr Al Jabiri becomes the respondent in the proceedings commenced by the wife.

9.The documents previously prepared are redrafted, and a response to the wife’s application is filed on 20 April 2017. This seeks urgent interim orders. In the financial disclosure statement, no mention is made of an investment property in Mr Al Jabiri’s name in St Clair NSW. Documents later produced by Mr Al Jabiri indicate that the St Clair property was sold on 22 March 2017. A return date of 8 May is allocated and the first return of the matter occurs on that date in Sydney. The urgent application in relation to the children is set down for further mention and possible hearing for 18 August 2017.

10.There is a further hearing on 20 July 2017 when members of Mr Al Jabiri’s family are joined to the proceedings in relation to his claim that the St Clair house was a family investment property.

11.Goldbrook continued to act for Mr Al Jabiri in the family law matter until just after that hearing. Another firm, O’Sullivan Legal, served an authority to act on Goldbrook indicating that Goldbrook’s retainer was terminated. The Mr Al Jabiri has previously made some payments toward invoices presented to him but does not comply with further requests.

Tribunal documents

12.Goldbrook’s civil dispute application was filed on 8 March 2018. It was a debt application claiming $12,596.90 with interest to date of $478.04 and filing fee of $300.00. The basis of the claim was a costs agreement dated 2 March 2017, the issue of a number of invoices, a letter of demand and non-payment of the debt.

13.Mr Al Jabiri filed a response on 6 April 2017 which disputed the debt claim and included a counter claim for $25,000.00. The basis of the response was that Goldbrook did not act according to instructions, made mistakes, and was negligent. The counter claim was based on the same allegations. Mr Al Jabiri then set out a number of matters which formed the factual basis of his claim. These correspond with various stages of the litigation up to the time that Goldbrook’s retainer was terminated. The Tribunal interprets Mr Al Jabiri’s response as being assertion of a set off for breach of contract and negligence, and a counter claim for damages on the same basis.

The hearing

14.Goldbrook filed two affidavits by Andrea Goldrick, the principal of the firm. These annexed a great deal of the client file. Since the quantum of Goldbrook’s claim was accepted by Mr Al Jabiri, his response and counter claim formed the substance of the hearing. Ms Goldrick was called and cross-examined by Mr Al Jabiri.

15.Mr Al Jabiri relied on witness statements by himself and his brother, Ali. The statements had copies of computer generated images said to be relevant. He also tendered a document from a lawyer called Ben,[1] and document from Hills Legal Group.[2] He also handed up copy of part of a transcript of the proceedings on 20 July 2017. A chronology was handed up by Goldbrook.

[1] Exhibit 4

[2] Exhibit 7

16.The response was set out in discursive terms and the following is an attempt at categorisation of the complaints set out in it.

Filing of the Family Court application

17.Mr Al Jabiri gave instructions to file documents commencing proceedings on 27 March 2017. Initiating documents were filed in Canberra on 28 March 2017 which was the date on which the wife filed proceedings in Parramatta in NSW. The proceedings that resulted were the ones initiated by the wife. Mr Al Jabiri complains that he was named as respondent due to the delay and negligence of Goldbrook. Goldbrook denies this.

18.It is evident that Goldbrook had prepared documentation prior to 28 March 2017, however the filing of this was delayed by the wish of Mr Al Jabiri to proceed with mediation.

19.The Tribunal does not accept that the filing of documents the day after instructions are received constitutes delay amounting to breach of retainer or negligence in circumstances in which Mr Al Jabiri is unable to establish any warning that the wife was planning to do the same thing on the same day. In any event, Mr Al Jabiri does not establish by evidence any detriment beyond the assertion of it.

Urgency of application for return of children

20.Mr Al Jabiri complains that Goldbrook did not apply for urgent consideration of an application for return of the children. This was done at the time of the filing of the initiating application for Mr Al Jabiri on 28 March 2017, but had to be done again as part of the response procedure.

21.At the hearing on 8 May 2017, the urgent application was set down for mention on 18 August 2017 in the hope that it could be determined at that time. This was the earliest date that was available. The Tribunal does not accept that there was any default by Goldbrook. The earliest possible date for hearing was allocated by the Court at the time of first return of the process.[3]

[3] See pages 69-70 Exhibit AG-1, Exhibit 1

22.The response and Mr Al Jabiri’s statement refer to other complaints about inactivity by Goldbrook in relation to activities by the wife making changes to the children’s routine such as schooling. These later complaints predate the urgent application in August and in those circumstances cannot form a basis for his challenge to Goldbrook’s claim.

The St Clair property

23.Mr Al Jabiri complains that on the return date, 8 May 2017, Goldbrook did not tell the wife’s adviser that he had sold the St Clair property and that he had told her about this “before the Court”. He further complains that she made him sign a document authorising valuation of the property without permitting him time to read it.

24.In her affidavit of 3 September 2018, Ms Goldrick says that she attended the Court in Parramatta, and before the matter was called was given draft directions by the wife’s solicitor which provided for valuation of the St Clair property. During the hearing, she said that she had not been aware of the property until this time. She showed the draft directions to Mr Al Jabiri who told her that the property had been sold. She asked him for the documents relative to this but he did not have these. She told him that if he had sold it they would not go ahead with the valuation and would use the sale price as the valuation but said that in the meantime she would go ahead with the valuation. She then said to the wife’s solicitor that she thought that Mr Al Jabiri may have sold the St Clair property and that they would agree to authorise a valuation which would be superseded by the sale price if sale had occurred. She said the solicitor agreed to that.

25.When asked by Mr Al Jabiri at the hearing, she said that she had read through the draft directions with Mr Al Jabiri. She also said that the Court was pressed that day for an urgent listing.

26.In relation to this property, Mr Al Jabiri had not referred to it earlier in the financial statement dated 20 April 2017, possibly because it had been sold on 22 March 2017 and because he viewed it as being a family investment property. Mr Al Jabiri produced a copy of transcript of 20 July 2017, and it is clear that the judge took a dim view of the non-disclosure of the sale at the first hearing on 8 May 2017. The hearing of 20 July 2017 had been called urgently to discuss property matters arising out of Mr Al Jabiri’s interest in the property and was attended by a town agent. The agent was not instructed about the circumstances in which the direction for valuation for property had been made, and the judge’s attitude may have been different to that aspect of the proceeding had Ms Goldrick been there to give her explanation referred to above. In any event that circumstance was irrelevant to the main issue being considered: whether Mr Al Jabiri had an interest in the property and were the interests of his relatives bona fide for the purposes of the wife’s potential interest.

27.It is for the jurisdiction of the Federal Circuit Court to determine the circumstances of acquisition and divestment of the St Clair property. However, on 8 May 2017, Ms Goldrick was confronted by a decision regarding what to do about disclosure of that property. She knew that it had not been included in the 20 April 2017 financial statement, nor did she have any evidence of its sale, with limited time to obtain instructions. She decided to authorise a valuation, advise the wife’s solicitor that she thought the property had been sold, and after making suitable investigations, provide appropriate disclosure at a later time when she was better aware of the circumstances.

28.There were alternative – and possibly better – ways to handle the decision confronting her. The only question for the Tribunal in relation to the decision that she did make is whether for the purpose of Mr Al Jabiri’s response and counter-claim, her decision constituted a breach of the contract with her client or was negligent. She had a clear choice and in the opinion of the Tribunal, it cannot be said that the course she opted for was a wrong decision or was made carelessly.

29.It is clear that the issue of disclosure of sale to the Court on 8 May 2017 did not have any detrimental effect on the outcome of the proceedings on 20 July 2017, nor in any other respect. The Tribunal therefore takes the view that there are no grounds for complaint established by Mr Al Jabiri of a contractual or duty of care nature in relation to Goldbrook’s claim.

30.In relation to the assertion by Mr Al Jabiri and his brother that Mr Al Jabiri had been “made to” sign the document, Ms Goldrick denies this and did so in the course of cross-examination at the hearing. It is possible that the brothers are confused in their recollection of what happened or their recollection has soured with time. However, the Tribunal accepts the account given by Ms Goldrick. There was no reason for her to apply pressure and it took until crystallisation of these proceedings for this assertion to surface.

Claim in relation to financial information

31.The Tribunal was not satisfied due to lack of evidence that there had been any failure to seek or obtain bank or Centrelink information relating to the wife. There was also no demonstrated detriment established.

Other matters

32.There is no substance in the complaint that Goldbrook allocated an interest of 50% and not 100% in the former matrimonial home. In the same way there is no substance in the assertion by Mr Al Jabiri that she engaged a barrister for the 18 August 2017 hearing because she felt pressure as a result of making mistakes. The Tribunal accepts her explanation that it was done in accordance with her usual practice.

Conclusion

33.Mr Al Jabiri has not established either breach of contract or breach of duty of care for the purposes of defence of Goldbrook’s claim. It follows that judgment must be entered for the applicant for the amounts claimed and the counter-claim must be dismissed.

………………………………..

Senior Member G Lunney SC

HEARING DETAILS

FILE NUMBER:	XD 268/2018
PARTIES, APPLICANT:	Goldbrook Family Law Pty Ltd
PARTIES, RESPONDENT:	Firas Al Jabiri
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	McInnes Wilson Lawyers
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	Senior Member G Lunney SC
DATES OF HEARING:	12 September 2018