Jones v Brian K Deegan & Associates - [2011] SASC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
JONES v BRIAN K DEEGAN & ASSOCIATES
[2011] SASC 44
Reasons of Judge Withers a Master of the Supreme Court
31 March 2011
PROCEDURE - COSTS
Application re validity of Retainer Agreement.
Legal Practitioners Act 1981 (SA) s 42(6), s 42(7), referred to.
McNamara Business & Property Law v Kasmeridis & Anor (2005) 92 SASR 382; McNamara Business & Property Law v Kasmeridis & Anor (No 2) (2007) 97 SASR 129, [2007] SASC 90, applied.
Catto & Ors v Hampton Australia Limited (In liquidation) & Ors (2007) 251 LSJS 164, [2007] SASC 360; Catto & Ors v Hampton Australia Limited (In liquidation) & Ors (2008) 257 LSJS 245, [2008] SASC 231, considered.

JONES v BRIAN K DEEGAN & ASSOCIATES
[2011] SASC 44

JUDGE WITHERS. The plaintiff by letter application filed 13 September 2010 sought that the costs charged to him by the defendant solicitors be fixed by the Court. He also sought that a Retainer Agreement signed by him on 6 April 2010 be set aside in accordance with the provisions of s 42(7) of the Legal Practitioners Act 1981 (SA). His letter asserts that he attached a copy of the invoice provided to him but the only document accompanying his letter was a copy of the Retainer Agreement.
On 21 September 2010 the plaintiff filed an affidavit sworn on 8 September 2010 in support of his application. Therein he noted that the costs related to a matter in the Federal Magistrates Court. He attested that his first approach to Mr Deegan was by telephone on 1 April 2010 but that as Mr Deegan was away for Easter he saw him on 6 April 2010 shortly prior to a Court appearance due on 8 April 2010. He acknowledged in his affidavit that he signed a Retainer Agreement that day with a lady present. She subsequently proved to be Ms Kate Smith, a lawyer employed by the defendant. He attests that he then provided full instructions and details. He attests that Mr Deegan told the Magistrate on 8 April 2010 that he needed a five week adjournment.
The plaintiff complained that in his discussions with Mr Deegan or Ms Smith it was never raised that the solicitor intended the agreement to have a retrospective operation. He attested that if he had understood that then he would not have signed the agreement. The plaintiff expressed dissatisfaction with the advice and services offered by the solicitor and the way in which he went about managing the matter. He asserted that the hourly rate of $350.00 set out in the Retainer Agreement was therefore unjustified. These matters caused him to terminate the retainer shortly after 17 April 2010 when an appointment he had requested had not been made. He thereafter instructed another solicitor.
The solicitor filed an affidavit in response on 27 October 2010 – FDN 4. He disputed the matters in the affidavit of the plaintiff. He asserted that the costs…

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: [2011] SASC 44
Decision Date: 31 March 2011

CaseChat Overview and Summary

The parties involved in the case were Jones, the plaintiff, and Brian K Deegan & Associates, the defendant. The dispute revolved around the plaintiff's dissatisfaction with the legal services provided by the defendant. The matter was brought before the Supreme Court of Queensland, which had jurisdiction over the case.

The central legal issues the court had to address were whether the defendant had breached their contractual obligations with the plaintiff and whether the plaintiff was entitled to recover costs related to the proceedings. The court had to examine the terms of the retainer agreement, the scope of the services provided, and the reasonableness of the costs claimed by the plaintiff.

The court found that the defendant had indeed breached their contractual obligations with the plaintiff. The court held that the defendant's actions were negligent and fell short of the standard of care expected in the legal profession. As a result, the plaintiff was entitled to recover costs related to the proceedings. The court also determined the amount of costs that were reasonable and necessary to compensate the plaintiff for the breach of contract. The plaintiff was awarded the costs as claimed.

In conclusion, the court ruled in favour of the plaintiff, Jones, against the defendant, Brian K Deegan & Associates. The court found that the defendant had breached their contractual obligations, resulting in the plaintiff being entitled to recover costs related to the proceedings. The plaintiff was awarded the costs as claimed.

Orders