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Legalese P/L v Russo & Russo

Legalese P/L v Russo & Russo

Case [2005] SADC 96 3 August 2005

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
LEGALESE P/L v RUSSO & RUSSO
Reasons for Ruling of His Honour Judge Chivell
3 August 2005
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
ESTOPPEL - ESTOPPEL IN PAIS - THE REPRESENTATION - BY CONDUCT - WAIVER
PROFESSIONS AND TRADES - LAWYERS - REMUNERATION - BILLS OF COSTS - ACTIONS TO RECOVER COSTS
Action by incorporated legal practice to recover costs and disbursements alleging defendants verbally indemnified client for payment of costs – whether compliance with s 41(1) of the Legal Practitioners Act 1981 (SA) – failure to send bill to defendants detailing amount claimed and describing legal work to which costs relate – submission of no case to answer – whether action statute – barred – whether protection of statute waived by defendants – whether defendants estopped from denying liability to pay.
Held – action statute – barred.
Legal Practitioners Act 1981 (SA) s 41; Limitation of Actions Act 1936 (SA) s 50, referred to.
Costello v The Law Society of South Australia (1979) 83 LSJS 304; Residues Treatment & Trading Co Ltd & Anor v Southern Resources Ltd & Ors (1989) 52 SASR 54; Zizza v Seymour (1976) 2 NSWLR 135; Dodd v Gillis (1989) 16 NSWLR 623; Udovenko & Ors v Mitchell (1997) 160 ALR 161; Conder v Silkbard [1999] NSWCA 459; Warren v Cunningham (1819) 171 ER 842; Vincent & Slaymaker (1810) 104 ER 146; Nagy v Ryan (2003) 225 LSJS 432; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Foran v Wight (1989) 168 CLR 385; Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235; Thompson v Palmer (1933) 49 CLR 507; Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723 ; Commonwealth v Verwayen (1990) 170 CLR 394, considered.

LEGALESE P/L v RUSSO & RUSSO
[2005] SADC 96

This is an action, commenced on 2 November 2004, by Legalese Pty Ltd, an incorporated legal practice, which carries on the business Peter Scragg and Associates. Mr Peter Scragg is a director and shareholder of the company.
The plaintiff’s claim was originally for legal fees and disbursements in the sums of $38,088.01 and $49,686.39 respectively, a total of $87,774.40. This was amended to $37,103.55 and $4,742.00 respectively, a total of $41,845.55 (see Exhibit P2).
The fees claimed were for legal services provided by Mr Scragg to Dragni Encheff in relation to murder charges against him. Mr Encheff was eventually convicted of murder.
The plaintiff alleges that the defendants, who are the daughter and son-in-law of Dragni Encheff, gave “verbal undertakings to the plaintiff that they would indemnify (Mr Encheff)” for those fees and disbursements. (Statement of Claim para 5.)
The plaintiff says that the indemnity constitutes a “collateral contract” between the plaintiff and the defendants. Alternatively, because the plaintiff asserts that it continued to act for Mr Encheff in reliance upon those undertakings, to its…

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 Legalese P/L v Russo & Russo

Details

AGLC: Legalese P/L v Russo & Russo [2005] SADC 96
Case: [2005] SADC 96
Decision Date: 3 August 2005

CaseChat Overview and Summary

Legalese P/L sought to recover costs and disbursements from Russo & Russo, asserting that the defendants had verbally indemnified the client for the payment of costs. The defendants argued that the claim was statute-barred as the plaintiff had failed to send a bill to them detailing the amount claimed and describing the legal work to which the costs related. The defendants also contended that the claim was barred by the statute of limitations and that the plaintiff had waived any protection by not issuing a bill. The matter was heard in the South Australian Supreme Court.

The court was required to determine whether the plaintiff's failure to issue a bill detailing the costs complied with section 41(1) of the Legal Practitioners Act 1981 (SA). The court also needed to assess if the action was statute-barred, whether the statute's protection was waived by the defendants, and if the defendants were estopped from denying liability to pay.

The court held that the action was statute-barred as the plaintiff had not sent a bill to the defendants within the required timeframe. The court found that the failure to send a bill was a compliance issue with section 41(1) of the Legal Practitioners Act 1981 (SA). The court further determined that the statute's protection was not waived by the defendants, and the defendants were not estopped from denying liability to pay as there was no representation by conduct or waiver on their part.

The court dismissed the plaintiff's claim and made no orders for costs.

Orders