Grant Thornton (Qld) P/L v Mourgelas
[2008] QMC 2
•14 March 2008
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Grant Thornton (Qld) P/L v Mourgelas [2008] QMC 002
PARTIES:
GRANT THORNTON (QLD) PTY LTD
(applicant/plaintiff)
v
VASILIKI MOURGELAS
(respondent/defendant)FILE NO/S:
Brisbane M51199/07
DIVISION:
Magistrates Court
PROCEEDING:
Application for Summary Judgement
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
14 March 2008
DELIVERED AT:
Brisbane
HEARING DATE:
14 March 2008
MAGISTRATE:
Callaghan CJ
ORDER:
Application Dismissed
CATCHWORDS:
CLAIM – SUMMARY JUDGEMENT – PROSPECT OF SUCCESSFUL DEFENCE – reasonableness of charges and terms of contract must be determined at trial
Uniform Civil Procedure Rules 1999 (Qld), r 292
COUNSEL:
S Bohan (sol) for the applicant/plaintiff
Geraghty for the respondent/defendant
SOLICITORS:
Patane Lawyers for the applicant/plaintiff
Hatzis Lawyers for the respondent/defendant
In this matter the Plaintiff has applied to the Court for the following orders:-
1. That pursuant to Rule 292 of the Uniform Civil Procedure Rules 1999 Summary Judgement being entered against the Defendant in favour of the Plaintiff;
2. That the Defendant pay the Plaintiff’s costs of and incidental to the application; and
3. Any other order that this Honourable Court deems appropriate.
Rule 292 of the Uniform Civil Procedure Rules provides as follows –
“ Summary judgment for plaintiff
292. (1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.
(2) If the court is satisfied that—
(a) the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and
(b) there is no need for a trial of the claim or the part of the claim;
the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”
The Plaintiff’s claim was filed on 24 July 2007. The Defendant filed her notice of intention to defend on 11 October 2007. The Defendant’s defence accompanied that notice. Further and better particulars of the defence were provided on or about 26 October 2007. The Plaintiff has replied to the defence. Sub-rule 292(1) has therefore been complied with. The remaining questions on this application are whether I am satisfied that the Defendant has no real prospect of successfully defending all or part of the plaintiff’s claim and whether I am satisfied that there is no need for a trial of the claim or part of the claim.
The claim by the Plaintiff is that the Defendant owes it the sum of $35,256.91 for professional services rendered by the Plaintiff to the Defendant at the request of the Defendant. The Plaintiff is a Company of accountants which as part of its business provides forensic services to litigants in the Family Court of Australia (of which the Defendant was one).
The Defendant had engaged a law firm, Harrington Family Lawyers, (“Harringtons”) in about July 2005 to represent her in Family Court proceedings. Harringtons, in a telephone conversation in or about early February 2006 indicated to the Plaintiff that they, Harringtons, sought the Plaintiff’s services to conduct a forensic investigation in the Defendant’s matter in the Family Court of Australia.
Harringtons wrote to the Plaintiff on 15 February 2006 (“Exhibit JAB-2” to the affidavit of Joseph Allan Box) confirming an indication by the Plaintiff that it, the Plaintiff, would be prepared to carry its costs until the completion of the matter and asking the Plaintiff to provide details of its fees and a preliminary estimate of its likely costs and outlays to conduct the investigation. In that letter Harringtons forwarded to the Plaintiff a number of documents that had been filed in the Court together with orders of the Court, the list of disclosure documents, search results, bank statements and other taxation and financial documents.
On 6 March 2006 the Plaintiff wrote to Harringtons, and instead of offering to be retained by Harringtons, offered to be retained by the Defendant personally. That letter which is part of Exhibit “JAB-4” sought additional information and advised that until that was provided it would be unable to provide a specific fee estimate. It did go on to say “however, we anticipate that our costs to conduct an investigation such as this would be in the order of $10,000 EXCLUDING GST and disbursements.” That letter also reiterated that the above figure was an estimate only and would be subject to revision subsequent to the Plaintiff’s review of the additional information. That letter also enclosed a letter addressed to the Defendant care of Harringtons which is also part of Exhibit “JAB-4”.
In the letter addressed to the Defendant personally, under the heading “TERMS OF OUR ENGAGEMENT” the Plaintiff said that it was unable to give a precise estimate of its costs, that it is often required to perform additional work to that originally agreed and that as it is impractical to obtain instructions on every aspect of its involvement in the matter there will often be instances where it will have to use its own discretion in determining the work to be performed. The letter also provided, under the heading of “OUR FEES”, an average hourly rate and it said that its charge out rates are reviewed on 30 June and 31 December each year.
Further, in the letter addressed to the Defendant personally, under the heading “FEE ESTIMATE”, the Plaintiff advised “however, we anticipate that our costs to conduct an investigation such as this would be in the order of $10,000 EXCLUDING GST and disbursements”. The Letter went on to reiterate that that was an estimate only and that figure was subject to revision subsequent to the Plaintiff’s review of the additional information sought referred to above.
The letter enclosed a document which was drafted for the Defendant to sign and return confirming the retainer.
Both letters of 6 March 2006, signed by JA Box, a Director of the Plaintiff, can only be construed as an offer to the Defendant by the Plaintiff to retain the Plaintiff’s services.
On 29 March 2006 the Defendant signed the document which had been forwarded to her by the Plaintiff. That is Exhibit “JAB-6”.
It was submitted by the Defendant’s Counsel in these proceedings that the response by the Defendant, Exhibit “JAB-6” does not amount to an acceptance of the retainment offered by the Plaintiff.
In Exhibit “JAB-6” the Defendant acknowledged that she read and noted the Plaintiff’s terms and conditions, confirmed that she wished to retain the Plaintiff to act as an independent expert in relation to her Family Law proceedings and to carry out or perform such professional services as either she or her solicitors or counsel requested from time to time and agreed to the basis of charging as detailed in the offer of retainment letter which had been addressed to her personally.
Further in Exhibit “JAB-6” the Defendant noted that the Plaintiff’s fees would be payable in a certain manner which included the fact that the GST component of the Plaintiff’s account be paid within seven days on the rendering of the Plaintiff’s accounts, failure of which would entitle the Plaintiff the refuse to undertake any further work. This does not seem to be part of the initial offer of retainment.
Further in Exhibit “JAB-6” the Defendant noted that on receipt of each of invoice she would acknowledge in writing the total debt due. Again this was not part of the offer of retainment.
Due to these differences it may be successfully argued by the defendant that Exhibit “JAB-6” does not amount to an acceptance of the plaintiffs offer to be retained, and even if the Plaintiff is successful in resisting such argument, the question remains as to what the precise terms of the retainer are.
The Plaintiff argues that the terms of the engagement are set out in the letters which I have referred to as the offer to retain and the acknowledgement – Exhibit “JAB-6”. As those documents have some significant differences there becomes a real question as to what are the precise terms of the engagement.
In Exhibit “JAB-6” the Defendant acknowledged that the Plaintiff had given her a preliminary estimate of fees “in the order of $10,000 EXCLUDING GST disbursements and special functions.” It said that she understood that subsequent to the Plaintiff’s review of the additional information required and detailed in appendix 1 to the offer of retainment letters, the Plaintiff would then be in a position to provide her with a specific estimate of fees.
There is nothing on the evidence to suggest that any specific estimate of fees was done subsequent to the Plaintiff’s review of the additional information required and detailed in appendix 1 to the offer of retainer letters.
Exhibit “JAB-6” then went on to state “if requested by me you will keep me appraised of the extent of these costs as incurred and in the event that they exceed the preliminary estimate you will notify me before incurring additional costs.”
I construe that paragraph as imposing two separate and distinct obligations by the Plaintiff to the Defendant: the first being that if requested by the Defendant, the Plaintiff will keep the Defendant appraised of the extent of the costs as incurred; and secondly in the event that the costs exceed the preliminary estimate ($10,000 EXCLUDING GST) then the Plaintiff is required to notify the Defendant before incurring additional costs.
There is nothing on the evidence to suggest that the Defendant ever requested the Plaintiff to keep her appraised of the extent of the costs as incurred.
Also there is nothing on the evidence which suggests that the Plaintiff notified the Defendant that the costs exceeded the preliminary estimate before incurring additional costs. I note that the preliminary estimate was ten thousand dollars excluding the GST.
Sometime prior to 14 September 2006 the Plaintiff sent to Harringtons a document for signing by the Defendant which is entitled “acknowledgement of revised engagement and debt”. The Defendant signed this document on 14 September 2006 and her signature was witnessed by her solicitor Bruce Provan of Harringtons. He returned that document to the Plaintiff by letter of the 18 September 2006. In that document, which forms part of Exhibit “JAB-7”, the Defendant acknowledged her indebtedness to the Plaintiff for the amount of $5,559.20 at 25 August 2006 and of the fact that there was currently in excess of $5,380.00 on the work in progress ledger held by the Plaintiff. This is a total of something in excess of $10,939.20 but the extent of the excess is not before me in evidence. The total known amount is not in excess of the preliminary estimate of “$10,000 EXCLUDING GST”. As such, I cannot construe this document as a notification by the Plaintiff to the Defendant that the costs have exceeded the preliminary estimate which notification was required by the Plaintiff before incurring additional costs (see the highlighted paragraph of page 2 of Exhibit “JAB-6” referred to earlier).
It follows that even if Exhibit “JAB-6” is construed as being an acceptance of the Plaintiff’s offer to be retained and if the paragraph highlighted is construed to form part of the contract of retainment, due to there being no notification as required, the Defendant has arguably been denied an opportunity to put a stop to the work. The question then is “is that failure to notify, a breach of the contract and if so what sort of breach and with what result?”
The Plaintiff argues that the Defendant acknowledged her liability firstly in a document which is part of Exhibit “JAB-7” referred to earlier, and then later by an email sent by the Defendant’s daughter Gina to a representative of the Plaintiff on 23 July 2007 which forms part of Exhibit “JAB-29”. What transpired was that on the 20 July 2007 Forbes Cannon representing the Plaintiff sent an email to the Defendant’s daughter Gina requesting her advice regarding the settlement of the outstanding balance no later then the close of business of 23 July 2007. The Defendant’s daughter Gina responded to Mr Cannon by saying “I received verbal notification last week that my loan has been approved. Once the loan agreement has been signed and I have been given a draw down date from the Bank, I will email you with an expected payment date.”
The Plaintiff argues that this email from the daughter is an acceptance by the Defendant of the amount owing, as I should infer from all of the circumstances that the daughter was acting as the agent of the Defendant given that the daughter came to a meeting with the Plaintiff and both her and the Defendant communicated openly and, also given that Mr Box, in Paragraph 25 of his affidavit filed on behalf of the Plaintiff, said that he accepted that the daughter was authorised to act as the Defendant’s agent and/or representative. The fact that a daughter comes to a meeting with a mother and communicates openly does not mean that the daughter is acting as the mother’s agent. The fact that a representative of the Plaintiff at all times accepted that the daughter was acting as the agent does not make the daughter the agent of the mother. Both of those facts put together do not lead to the inference that the daughter was the agent of the mother. There is nothing in the material from which I can draw the inference that the daughter was acting as the agent of the mother with all of the authority it entails. It is also interesting to note that the daughter was talking about a loan to herself rather than her mother in the email of the 23 July 2007 and by implication it seems that the daughter was giving consideration to making a payment (although how much is unknown) herself in respect of the outstanding balance.
The Defendant has raised in her defence a question as to the reasonableness of the charges. In paragraph 6 (b) of the defence, the Defendant says in relation to paragraph 7 of the statement of claim that she denies “because it is not true that the true price of such work and services was $34,759.80 because such work was an over-service and not performed in an expedient manner”. She also said in paragraph 18 of her affidavit that she has previously made it very clear that she thought the account to be excessive. The Defendant says further in her affidavit that after making it clear that she thought the account to be excessive that she then continued to request copies of the itemised invoices. She says in paragraph 24 that she did not authorise the additional work that she was not given notice of the work being incurred in any timely way nor has she ever received any satisfactory response to her request for explanations as to how the amount is calculated. She, on her affidavit material, has clearly raised an issue as to the reasonableness of the charges in all the circumstances. This is quite different to the question as to the value of the chattels as referred to by His Honour McGill DCJ in Palace Backpackers Australia Pty Ltd v Christensen Industries Pty Ltd [2002] QDC084 at paragraph 16.
This mater of the reasonableness or otherwise of all of the Plaintiff’s charges can only be resolved at a trial.
Likewise the matters of the construction of the terms of the contract of retainer between the parties and the question of the Defendant’s acceptance or otherwise of the debt can only be resolved at trial.
I am not satisfied that the Defendant has no real prospect of successfully defending all or part of the Plaintiff’s claim and in my view there is need for a trial of the claim.
In the circumstances I dismiss the Plaintiff’s application for Summary Judgement and I will hear the parties in respect of costs.
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