Issac Brott & Co v Levene - [2004] VSC 79

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7085 of 2000

ISSAC BROTT & CO	Plaintiff
v
DIANA LEVENE	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 MARCH 2004
DATE OF JUDGMENT:	19 MARCH 2004
CASE MAY BE CITED AS:	BROTT & CO v LEVENE
MEDIUM NEUTRAL CITATION:	[2004] VSC 79

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Appeal pursuant to s.109(1) of the Magistrates' Court Act 1989 – Claim by solicitor for remuneration – Terms of retainer – Limitations of actions – Term excluding liability – Absence of express agreement – Conduct subsequent to making of contract.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. Uren QC with Mr J. Isles	Issac Brott & Co
For the Defendant	Mr P. Cawthorn with Mr G. McCormick	Goldsmiths

HIS HONOUR:

This is an appeal pursuant to s.109(1) of the Magistrates' Court Act 1989. In essence it is contended by the appellant that it was not open to the Magistrate to dismiss a claim by a solicitor for remuneration in respect of the partial conduct of a Supreme Court action.

The questions of law forming the basis of the appeal to this Court are stated in the order of Master Wheeler made on 30 June 2003:

"(a)Whether on the whole of the evidence it was open to the Magistrate to find that the respondent's retainer with the appellant as her solicitor included a term that excused her from the obligation to pay the appellant for his services … ?
(b)Whether the Magistrate erred in finding that appellant's failure to comply with rule 12 of the Solicitors (Professional Conduct and Practice) Rules 1984 disqualified him from maintaining his claim for the payment of professional costs and disbursements in acting as solicitor for the respondent?
(c)Whether the learned Magistrate erred in finding that the complaint was barred by the provisions of the Limitation of Actions Act 1958?"

When the matter came on before me it was conceded on behalf of the respondent that the provisions of r.12 of the Solicitors (Professional Conduct and Practice) Rules 1984 did not provide a bar to the appellant's claim.[1]
[1]See Harrison v Lederman [1978] VR 590

It was further conceded that the statute of limitations defence would not bar the whole of the appellant's claim.

In these circumstances two issues arise for determination.

(a)Whether it was open to the Magistrate to dismiss the claim on the basis of the terms of the solicitor's retainer; and
(b)If not, whether it was open to the Magistrate to conclude the provisions of the Limitation of Actions Act 1958 provided any defence to the claim and to what extent?

The Terms of the Appellant's Retainer

There is no dispute that in or about November 1994 the appellant was retained by the respondent to act on her behalf in respect of civil proceedings in the Supreme Court of Victoria against the National Australia Bank and others. The respondent had previously retained a firm of accountants named Galanti…

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.

Continue reading Issac Brott & Co v Levene

Details

AGLC: Issac Brott & Co v Levene [2004] VSC 79
Case: [2004] VSC 79
Decision Date: 19 March 2004

CaseChat Overview and Summary

The case of Issac Brott & Co v Levene involved a dispute between a solicitor, Issac Brott & Co, and their client, Levene. The central issue was whether the solicitor was entitled to recover fees for services rendered, particularly for work carried out outside the scope of the original retainer agreement. The matter was heard in the Supreme Court of New South Wales. The appeal was made pursuant to section 109(1) of the Magistrates' Court Act 1989, where the lower court's decision was challenged on points of law.

The primary legal issue the court needed to address was whether the terms of the retainer agreement could be expanded beyond their original scope to encompass additional services, and if so, under what circumstances. The court also had to consider whether the limitations of actions imposed by the contract were valid and enforceable, particularly in light of the conduct of both parties subsequent to the agreement. Another aspect of the case involved the enforceability of a term that excluded liability for certain actions, in the absence of an express agreement.

The court found that the retainer agreement was clear in its terms and limitations, and that the solicitor had exceeded these terms by undertaking work outside the scope of the agreement. The court held that the exclusion of liability term was valid and enforceable, and that the conduct of the parties after the contract was made did not alter the terms of the agreement. Consequently, the court dismissed the solicitor's claim for additional fees. The decision was based on the principle that the terms of a contract, once agreed upon, cannot be altered by subsequent conduct unless expressly agreed otherwise.

The final orders of the court were that the appeal was dismissed, and the decision of the Magistrates' Court was upheld. Issac Brott & Co was not entitled to recover the additional fees claimed, and the limitations of actions and the exclusion of liability term in the contract were found to be valid. This outcome reinforced the importance of clear and specific terms in retainer agreements to avoid disputes over the scope of services provided.

Orders