Lennon Mazzeo Lawyers v Stuart Longhurst

[2016] VMC 18

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE

BETWEEN:

F11155969

LENNON MAZZEO LAWYERS   Plaintiff

-and-

STUART LONGHURST  Defendant

MAGISTRATE:   GINNANE

DATES OF HEARING:   19 NOVEMBER & 17 DECEMBER 2015;

1 MARCH & 17 AUGUST 2016;

MEDIATION 8 SEPTEMBER 2016

DATE OF DECISION:   14 OCTOBER 2016

CASE MAY BE CITED AS:                LENNON MAZZEO LAWYERS v STUART LONGHURST

MEDIUM NEUTRAL CITATION:    [2016] VMC018

APPEARANCES:COUNSEL  SOLICITORS

For the Plaintiff  Mr P Lennon (Solicitor)   Lennon Mazzeo

For the Defendant  Mr D Connell (19 November

& 17 December 2015; 1 March 2016;  Skerret Legal

Defendant in Person 17 August 2016

Catchwords:

Agreement for the provision of legal Services – defendant client of plaintiff law firm - whether defendant agreed to and or acceded to the engagement of counsel for provision of advice regarding duties levied by State Revenue Office arising from transfer of shares -  potential claim in negligence against former solicitors arising from share transfer - absence of return of executed retainer agreement by defendant to plaintiff no bar to recovery of professional fees – defendant’s ongoing conduct of dealings with plaintiff - defendant’s failure to pay money into solicitor’s trust account on account of counsel – client’s assurance to solicitor to pay funds into trust account for same and solicitor acting on assurance of client - requesting formal advice of counsel pursuant to brief previously delivered to counsel and made known to defendant - advice provided by counsel and provided to client – general allegation of delay in provision of services – allegation that delay occasioned increased liability of SRO – order in favour of plaintiff

REASONS FOR DECISION

His Honour:

1. The plaintiff is an Australian Law Firm. The defendant became a client of the plaintiff in about June 2014. The plaintiff performed professional services for the defendant. The extent of and authority for the provision of such services is contested by the defendant. The plaintiff claims that the defendant remains indebted to it for unpaid fees for the provision of legal services.
2. By a Complaint dated 30 March 2015 together with a Statement of Claim the plaintiff claims the sum of $5,510.52 against the defendant. Initially the defendant responded to the Complaint by completing by hand a notice of defence dated 20 May 2015. It really was non-responsive to the allegations contained in the Statement of Claim. However, from it the following matters were alleged:

·That the plaintiff didn’t get directions to engage a barrister as Dennis Connell is my Barrister

·Derick from Lennon Mazzeo had a no obligation meeting with myself

·I made phone calls over months never to get an answer

·Phone call from Pat. Nothing happened so I moved on. Never had a bill from them.

3. By undated letter to the Court Registry but stamped received on 5 August 2015,  Skerrett Legal, solicitors advised that it now acted for the defendant and enclosed:

·A Notice of Defence dated 31 July 2015

·A Proper Basis Certificate

·An Overarching Obligations Certificate

4. On 19 November 2015 I gave leave for the notice of defence. It raised a variety of matters but was expressed in more recognisable language and so better informed the issues in dispute. The defence did as follows:

(i)It admitted the capacity and status of the plaintiff to commence the proceedings;

(ii)It admitted that in about May 2015 he retained the plaintiff to act as his legal practitioners and to provide legal services for fee or reward in relation to, inter-alia, commercial legal proceedings (‘the proceedings’);

(iii)However, by paragraph 3 of the same, the defendant denied that any retainer between him and the plaintiff was entered into until 12 June 2014 when the plaintiff sent him a retainer letter[1].

(iv)In regard to the allegation made by the plaintiff  in the Complaint that from May 2014 until December 2014 the plaintiff duly carried out work and provided legal services as instructed and requested by the defendant and rendered invoices to the defendant for the work and legal services Longhurst responded by alleging that:

(a)    the plaintiff only carried out some of the work and only carried out some of the requested legal services as requested and instructed by him and only provided some of the legal services as requested by him;

(b)   wholly failed to provide the legal service of advising him as to the merits of a claim by him against solicitors Law 554 whom he had previously engaged and had requested in about May 2014;

(c)    in about December 2014 and only after being specifically requested by him as to the provision of advice did the plaintiff brief counsel to provide advice contrary to the defendant’s express instructions not to do so but instead to pass any queries that the plaintiff may have regarding such advice past Dennis Connell of counsel who was known to the defendant; and

(d)   denied the allegation that he had received an invoice from the plaintiff for the sum of $5,510.52 or for any sum at all.

[1] Later in the course of the hearing and when the defendant came to represent himself, he denied receipt of the letter

5. The defence also alleged that:

(i)     the legal costs were not calculated by reference to the Magistrate’s Court scale;

(ii)   a great majority of the plaintiff’s attendances should not be chargeable because they arose as a result of the defendant chasing the plaintiff for advice he had requested in May 2014;

(iii) a great majority of the plaintiff’s attendances should not be charged at all because they arose as a result of the plaintiff briefing counsel contrary to the defendant’s express instructions not to do so;

(iv)  the great majority of the plaintiff’s attendances should not be chargeable at all because they did not arise with respect to a file number 3685 opened by the plaintiff where the defendant is the named client of the plaintiff but arose as a result of the file number 3726 opened by the plaintiff where Eildon Resort Pty Ltd is the proper client of the plaintiff;

(v)    the disbursement of $1,590.91 being fees due to counsel which forms part of the sum claimed was incurred by the plaintiff as a result of the plaintiff acting contrary to the defendant’s express instructions;

(vi)  Lastly the defendant says that until the plaintiff provides him with a bill in taxable form which bill takes into account the matters set out in the defence and which is subsequently taxed the defendant is not indebted to the plaintiff in any sum at all.

6. For the reasons that follow I find each of the matters raised by the defence unmeritorious and must fail.

The course of the proceeding

7. On the first day of the hearing of the Arbitration the plaintiff was represented by Mr Patrick Lennon, the solicitor and principal of the plaintiff law firm. The defendant was represented by Mr Dennis Connell of counsel. A preliminary issue arose regarding the capacity and propriety of counsel to appear for the defendant. Mr Lennon submitted that Mr Connell had a conflict of interest because of his involvement in the matters the subject of the proceeding, including holding discussions with the plaintiff law firm in relation to the matters upon which the plaintiff had been engaged to advise the defendant.  Mr Lennon said that the defendant had been referred to the plaintiff by Mr Connell. Mr Connell agreed this was so.  Mr Lennon said that the file contained numerous references to Mr Connell such that Mr Connell was likely to be a necessary witness or that the references to him would cause him embarrassment in the carriage of the defence. Mr Lennon also referred to the Bar Rules of conduct.
8. Mr Connell expressed on more than one occasion that he was taken by surprise in relation to the allegation. He said that any concerns the Court might have should be allayed because he had never been involved in the matters the subject of this file. Mr Connell said he had appeared for the defendant in family law proceedings. Mr Lennon indicated that references to Mr Connell appear within the file notes maintained by the plaintiff in relation to the matter. Mr Connell again expressed surprise, and in relation to the assertion, denied having had any involvement let alone having any matter of interest in connection with the proceeding such as to cause embarrassment or conflict. The matter not then being able to be taken further by the plaintiff, and relying on the assurance given to me by counsel and not wanting to unduly prolong the proceeding, I determined that the matter would proceed as presently constituted but if any further issues arose that the plaintiff wished to pursue in relation to Mr Connell’s ongoing involvement then I would be prepared to entertain argument on a subsequent occasion on application supported by proper material. Mr Lennon reserved his position of Mr Connell’s continuing involvement in particular in relation to any costs that might arise

The course of evidence

9. Derek Begg is a solicitor employed by plaintiff. He said he had been employed by the plaintiff for approximately 5 ½ years and is experienced in a wide range of commercial litigation. He met with the defendant in May 2014 at the offices of the plaintiff in relation to matters involving Mr Longhurst and his company.
10. On 12 June 2014 Mr Begg wrote a letter to the defendant that did a number of things:

(i)The letter confirmed the retention of the plaintiff by the defendant;

(ii)Identified the matters upon which professionals services were sought;

(iii)Referred to and attached the plaintiff’s retainer letter identifying fee estimates and related matters;

(iv)Referred to a request for an initial payment into trust of $2,000 on account of fees ‘with respect to the professional negligence matter’.

11. The letter from the plaintiff to the defendant identified the following issues expressed as follows:

‘The first is that Stuart has incurred a liability for stamp duty on the transfer of shares in the company to Medina, and Stuart’s instructions are that this liability should not have arisen and it is only occurred because of the fault of Gerard Conlan, solicitor at Law 554.

Second, Law 554 has brought proceedings in the Magistrates Court against the company (Eildon Resort Pty Ltd) claiming unpaid fees of $1,137.29 plus interest and legal costs of the proceedings. A default judgement has been obtained against the company which now places the amount due at over $2000. It appears that this default judgement was obtained because the company did not receive notice of the proceedings until after the default order was taken out by Law 554.

Because one claim is brought by Stuart and one by the company, the firm will be opening separate files for the sake of proper record-keeping’.

12. Mr Begg testified about a very difficult telephone attendance with the defendant on 1 December 2014 during which the defendant spoke aggressively to him. Mr Longhurst expressed concerns about delays he perceived in resolving issues and when told that money was required to be placed in trust to cover the fees for counsel for the provision of advice, Mr Longhurst hung up on Mr Begg.
13. Mr Begg said he was sufficiently concerned by the tenor of the conversation and being hung up on, and being concerned that Mr Longhurst may be intending to terminate the retainer with the plaintiff, that he spoke with Mr Mazzeo, who along with Mr Lennon, were the supervising partners of the law firm. Mr Begg spoke with Mr Mazzeo. Mr Mazzeo said that he would speak with the defendant. Mr Begg recalled sitting in on a telephone conversation with Mr Mazzeo and the defendant. He said that thereafter he had no further direct dealings with Mr Longhurst but thereafter directions on the file were conveyed to him by Mr Mazzeo.
14. Mr Begg referred to a request made by Skerret Legal, the solicitors engaged by the defendant for the conduct of his defence to this proceeding, for the bill drawn by the plaintiff to the defendant for its professional costs, to be in taxable form. Mr Begg said that this required the provision of the bill in regard to the two files that had been opened. One bill was done according to the Magistrates’ Court scale of costs and the other file opened in relating to the possibility of a claim in negligence against the defendant’s former solicitor Mr Conlon of Law 544 to be prepared on the County Court scale.
15. In cross-examination by Mr Connell for the defendant, Mr Begg was tested as to what steps had been taken to progress the matters on which the defendant had sought professional assistance. Mr Begg said that initially he attempted to stave off the State Revenue Office (SRO) duty claim against the defendant and to sort out matters of possible negligence against Law 544 and to investigate what could be done to obtain a contribution from the principal of that firm, Mr Conlon towards the SRO liability. Mr Begg testified the defendant had specifically instructed him that he did not have the capacity to pay the SRO duty that had been raised against him.
16. Mr Connell took Mr Begg to the conversation on 1 December 2014 when the defendant hung up on him.  Mr Begg said he had telephoned the defendant. Mr Begg’s file note reflected the strategy he referred to in his evidence, which was to determine if a basis in law existed to avoid the impost or to assess if the stamp duty could have been avoided had the agreement for the sale and transfer of shares in the defendant’s business been structured differently by the Mr Conlon of Law 544 and, if so, to exert pressure on Mr Conlon to increase an apparent earlier financial contribution made to the defendant and prior to the plaintiff commencing to act for the defendant.
17. Mr Begg said he told the defendant words to the effect that ‘we need money in trust to cover barrister’s fees for advice.’ Mr Begg said the plaintiff refused. Mr Begg said he then handed the further conduct over to Mazzeo.
18. Mr Begg accepted that the defendant spoke heatedly to him but did not concede that he understood then and there, that he had been “sacked” despite the defendant having said to him, “no, I’m just not going any further with you”.
19. Mr Begg said that he understood Mr Mazzeo telephoned the defendant the following day. A file note dated 2 December 2014 at 10.00am records that the plaintiff agreed to place $2,000 in trust and later that day the file note also records a phone message left for counsel.
20. It was put to Mr Begg by Mr Connell that the defendant’s evidence would be that at no time after the conversation of 1 December 2014 and including the conversation on 2 December 2014 did he agree to place $2,000 in trust and in fact no such amount was placed in trust.
21. Mr Begg said that on occasion it is the practice of the firm to brief without money up front.
22. By email and attached letter to Mr Longhurst from Mr Mazzeo dated 2 December 2014 and time stamped 1.18pm, Mr Mazzeo wrote:

Dear Stuart

RE: DISPUTE WITH LAW 554

I refer to my telephone attendance upon you this morning and confirm that you will pay the sum of $2000 into our firm’s trust account to cover the cost of Mr Tim Scotter of Counsel. I advise that our trust account details are as follows:

…..

Upon receipt of the above payment, I will arrange for Mr Scotter to proceed with giving formal advice in relation to your matter.

23. The letter to Mr Longhurst was sent at 1.18 pm by email and it followed on from a telephone attendance by Mazzeo on Mr Longhurst that morning at 10.00 am, the contents of which are reflected in a file note made by Mr Mazzeo that records:

‘I will email him trust account details-he will place$2K in trust

I indicated that I will assist in managing his file’

24. Despite the letter of 2 December 2014 sent by email to Mr Longhurst at 1.18 pm being predicated on receipt of payment into the trust account of the plaintiff as a condition of the provision of instructions to counsel to proceed with the provision of formal advice, Mr Mazzeo proceeded to instruct Mr Scotter of counsel. By email also  email also dated 2 December 2014 and stamped as sent at 1.17pm (thereby suggesting the correspondence to counsel and Mr Longhurst were emailed consecutively in time) Mr Mazzeo wrote:

Tim,

I would be grateful if you could proceed in looking at this matter on behalf of Mr and Mrs Longhurst. The clients are in the process of making arrangements to pay the sum of $2000 into our trust account as requested.

If you require a further memorandum or any other documents or instructions, please let me know as soon as possible.

It would be ideal if you’re formal advice was received by the end of this week.

25. It was pointed out by the defendant that a memorandum to counsel signed by Mr Begg and dated 5 November 2014 accompanied the brief to counsel and therefore pre-dated the request from Mr Mazzeo to the defendant on 2 December 2014 to place money in trust on account of counsel as a condition of briefing counsel.
26. Mr Begg was asked how this decision made to engage counsel was conveyed to the defendant. Mr Begg said it was by means of an email from him to the defendant dated 30 October 2014 that read:

Hi Stuart and Medina,

Pat has asked me to prepare a brief to counsel to draw a Statement of Claim re your claim against Law 554.

I have found a barrister who can do the work-Tim Scotter. He should have the brief tomorrow.

27. Mr Connell directed Mr Begg to a letter dated 7 October 2014[2] from the SRO addressed to the defendant and marked “URGENT FINAL NOTICE LEGAL ACTION PENDING”. On the typed document there is as well a red FAXED stamp mark, and in hand writing, the following annotations, “13-10-14 96706999 DERIK 96705999 STUART”. A mobile phone number appeared as well. Mr Begg said he had no recollection of the document with the annotations.

[2] Ex D1

28. A follow up letter dated 9 December 2014 was sent to the defendant on behalf of Mr Mazzeo. It read:

Dear Stuart,

Please see attached further copy of letter I sent to you on 2 December 2014.

29. A file note of a telephone call made by  Mr Mazzeo to Mr Longhurst dated 12 December 2014 at 11.40 am reads

I will send advice

He will call me on Monday to discuss

Says he will chase up $2k for trust & pay it.

30. Mr Connell put to Mr Begg that the money was never paid into trust, no further documents were called for from the defendant to provide to counsel and a conference did not eventuate. Mr Begg agreed.  
31. A written advice dated 11 December 2014 was received from counsel. Mr Begg said he read the advice. Mr Begg said the advice from counsel was forwarded to the defendant by email.
32. The advice from counsel at paragraph 18  read:

‘I assume that the company was Land rich, as defined in the pre I July 2012 Duties Act…’

33. Mr Begg could not say if the assumption expressed in paragraph 18 of the advice was correct or, if steps were taken to determine its correctness. Mr Begg was asked why a conference did not eventuate with counsel. He could not say.
34. Mr Connell suggested to Mr Begg that the defendant did not authorise Mr Scotter of counsel to be retained and no documents were produced by him in clarification of the Land Rich provisions of the statute and no conference was held, because the plaintiff’s retainer was terminated by the defendant on 1 December 2104. Mr Begg disagreed.
35. Mr Begg was not re-examined.

Mazzeo testified

36. The plaintiff adduced evidence from Mr Mazzeo. Mr Mazzeo is a principal of the plaintiff law firm. He was taken to file notes the sum total of which confirmed the position identified in the evidence in chief of Mr Begg. In addition, Mr Mazzeo referred to two file notes he made both dated 15 December 2014. The first is time is marked at 4.15pm and consists of a telephone call made to the defendant and that includes:

He asked whether Dennis Connell has spoken to me

I told him he hasn’t, then he hung up on me.[3]

[3] Mr Mazzeo eschewed any implication otherwise that the reference to the defendant hanging up was intended to do more than describe the fact that the conversation finished.

37. The second entry appearing as part of the file note dated 15 December 2014 is time marked at 4.35 pm and contains the following entry relating to a conversation had with Mr Connell of counsel:

Disc[used] advice given by Tim Scotter

Gave him run down re advice from barrister

Gerard Conlon said send him to someone else

Went over advice that was given

Suggested SL [the defendant] negotiate instalment plan

38. The advice from Mr Scotter was conveyed by the plaintiff to Mr Longhurst by letter dated 16 December 2014 forwarded by email on 17 December 2014.
39. Mr Mazzeo said it was at Mr Connell’s suggestion that the defendant come to the plaintiff.
40. At the conclusion of Mr Mazzeo’s evidence in chief, I raised with Mr Connell my concern about the second in time file note of 15 December 2014, to which Connell replied, “so am I Your Honour”. I then asked why he should remain in the proceeding as counsel representing the defendant, and he replied “I shouldn’t Your Honour”. He added, “the first I’ve heard of it Your Honour”. Mr Connell said he may well need to give evidence about the matter because he maintained that he had never spoken with Mr Mazzeo. The matter was then of necessity adjourned because counsel now accepted that he was compromised in his continuing representation of the defendant. It was put to the court by Mr Lennon from the bar table that Mr Connell’s instructing solicitor, Skerret Legal, had been provided access to the plaintiff’s file in which the file note was contained and had inspected the file.
41. A period of time elapsed before the proceeding was able to be relisted and when the matter came back on Mr Longhurst appeared on his own account. There was no appearance made by counsel or the defendant’s former solicitors. I made inquiries of the defendant and endeavoured to explain to him what would be required by of him in the ongoing conduct of the defence in order to provide as fair a hearing as possible in the circumstances.
42. Mr Mazzeo having concluded his evidence in chief on the previous occasion attended for the purpose of cross-examination and in the course of which he again had occasion to refer to his file note of conversation with the defendant dated 2 December 2014.
43. Mr Mazzeo said he assisted Mr Begg on the file between 2 December and 15 December 2014.
44. The defendant disputed having spoken to Mr Mazzeo and said he had only ever spoken with Mr Lennon and Mr Begg.
45. The defendant again asked Mr Mazzeo why counsel had been briefed if money had not been placed by him in trust. Mr Mazzeo repeated his previous evidence that on 2 December 2014 the defendant said that $2,000 would be placed in trust, and accordingly, Mr Mazzeo said he went ahead and briefed counsel on the basis of being instructed to do so. Mr Longhurst said he did not have such a conversation with Mr Mazzeo and, furthermore, he said that if such a conversation had occurred, he would have been billed for the telephone attendance and he said this was not the case. That is incorrect. The attendance is in fact described and charged for in the plaintiff’s bill. I directed the defendant to the entry by way of clarification.
46. Mr Longhurst acknowledged that his complaint was not only that counsel should not have been briefed but also the extent of work associated with counsel, which he said ‘seems to me to be excessive’. Mr Longhurst referred to the bill in taxable form and the three attendances on counsel on one day. Mr Mazzeo said that two attendances involved him and he believed the other entry related to Mr Begg. Mr Mazzeo said the entries related to different issues attended to that that day including a letter from him to counsel of that date, about which I have already referred to in these reasons. Mr Longhurst’s  questions on this aspect of the bill was predicated on what I perceive to be a misapprehension on his part arising from the fact of the bill recording more than one operator attending to matters associated with his files on the same date.
47. Mr Mazzeo was not re-examined.

Patrick Lennon

48. Mr Lennon testified. He said that Mr Connell of counsel has previously referred matters to the plaintiff firm. He said the defendant’s situation involved potentially two claims: a consideration of whether an objection could be raised to the SRO stamp duty assessment arising from a share/sale disposition between the defendant and an associate and if the duty could not be ameliorated, then consideration of a potential action in negligence against the defendant’s former solicitor, Mr Conlon of Law 554. Mr Lennon said that the issues were further complicated because Law 554 had apparently obtained a default judgement against the defendant for unpaid fees.
49. Mr Lennon spoke to Mr Begg’s expertise in areas of professional negligence and he delegated the work on the defendant’s matters to him under his supervision.
50. Mr Lennon acknowledged that he became aware that the defendant was unhappy with the progress of the matter of the SRO duty assessment but could not recall whether this was raised by the defendant or via conversation with Mr Connell.
51. Mr Lennon testified that the professional bill of costs were prepared in taxable form and the plaintiff engaged an external costs consultant to perform that exercise.
52. Mr Lennon referred to the plaintiff’s letter to the defendant dated 12 June 2014 attaching the firm’s pro forma retainer and trust account details.
53. Mr Longhurst cross-examined Mr Lennon. Mr Longhurst said the retainer was unsigned and he said that it was only in these proceedings that he became aware of it and said it ‘the first time I have seen it’.   Mr Longhurst said that when he met with Mr Begg he signed ‘4 or 5 bits of paper and then I left’ the office.
54. The defendant denied receipt of the letter of 12 June 2014. I do not accept his evidence. In any event its existence and provision to the defendant has been admitted in the defence filed for the defendant by Skerret Legal.
55. Mr Longhurst asked Mr Lennon why counsel was retained if money had not been received into trust. Mr Lennon said it was not his decision but that of the operator and that it was necessary that the operator on a case by case basis feel satisfied that funds would be available to meet disbursements incurred before engaging counsel.
56. Mr Longhurst directed Mr Lennon to the bill and by reference to it, suggested that counsel was engaged on 31 October 2014 and almost everything else on the bill thereafter related to dealings with counsel.  The fact that it does is not objectionable.
57. In response to the ongoing denial by Mr Longhurst that he authorised the engagement of counsel other than Mr Connell, he was directed to the 30 October 2014 email from Mr Begg addressed to ‘[email protected]’ that reads:

Hi Stuart and Medina,

Pat has asked me to prepare a brief to Counsel to draw a Statement of Claim re your claim against Law554.

I have found a barrister who can do the work – Tim Scotter. He should have the brief tomorrow.

Pat or I will let you know where things are up to.

58. The defendant denied receipt of the email letter. I do not accept his denial. I am satisfied that the defendant knew Scotter was to be briefed.

The defendant’s case

59. I explained to Mr Longhurst what was required in terms of the presentation of his defence. He was sworn and testified. In order to direct the defendant to relevant matters I asked him to explain the circumstances giving rise to him seeking the services of the plaintiff. He said that he purchased 50% of the shares in Eildon Holiday Resort and Mr Conlon, a solicitor with Law 554 had undertaken the legal matters associated with the transfer of shares. Subsequently he received a call from the SRO advising him of the imposition of a stamp duty liability.  He said he spoke with Mr Conlon of Law 554 about the matter who told him that in the circumstances he could not act for him as in the circumstances he may need to notify his professional indemnity insurer and therefore Mr Longhurst would need to secure alternative representation.  Mr Longhurst knew Mr Connell and he recommended he seek advice from the plaintiff law firm. The defendant said he arranged an appointment which he attended on Mr Begg with his wife at the plaintiff’s offices in Queen Street. He said they met for about half an hour. He said he ‘signed about 5 bits of paper’. Over course of next 6 or 8 months he said he made ‘between 60 to 80 telephone phone calls’ to the firm ‘but probably only had 2 returned’.
60. Mr Longhurst said that in November or December 2014 he spoke with who he believed was Mr Lennon, although he understands it is being put by the plaintiff that the conversation was with Mr Mazzeo. After listening to the oral evidence of the witnesses and having regard to the plaintiff’s file notes, I am satisfied it was with Mr Mazzeo.
61. The defendant complains that his indebtedness to the SRO increased by some $16,000 whilst under the care of the plaintiff. 
62. The defendant said that when told of the needed to brief counsel he replied by saying that Mr Connell was ‘my barrister’ and he should be contacted. He also said that ‘they said they would need $2,000 but I said no, Dennis is my barrister at that’s it. All I know now is that the barrister was engaged without my permission”.
63. Mr Longhurst was cross-examined by Mr Lennon. He was asked if it remained his evidence that he had not received the email containing letter that set out the terms of the plaintiff’s retainer, and he said it was.  He also said in response to additional questions from Mr Lennon on the subject that he had not received any emails from the firm. I reject this evidence. The defendant was shown email correspondence from his wife to the plaintiff that bears the same email address as that used by the plaintiff to respond to the defendant. I found the defendant obfuscated when asked to identify the email address attributable to the correspondence sent by his wife to the plaintiff law firm and when asked the straightforward question if he would confirm that it matched that used by the plaintiff to send email correspondence to him, he prevaricated and in my assessment of his presentation, feigned a misunderstanding of what he was being asked. I reject the suggestion that he did not understand what was being asked of him by Mr Lennon.
64. Mr Lennon asked Mr Longhurst if he agreed that he had not any time sought to have the plaintiff’s costs taxed. The defendant said “he wouldn’t know what to do”. The defendant said he had never received a bill. I do not accept his evidence. I am satisfied he did receive the plaintiff’s bill.  The defendant also said he had “been sitting in the back of the court listening to barristers and solicitors and not knowing what was going on”. Of course the defendant’s former solicitors Skerret Legal inspected the plaintiff files and no issue was raised in the notice of defence or by Mr Connell when engaged and cross examining Mr Begg and Mr Mazzeo that work was charged but not undertaken or that the charge for work performed was excessive.
65. Mr Longhurst denied having received from the plaintiff the written advice from Mr Scotter of counsel. I do not accept his evidence on that matter. Not only am I positively satisfied that he did receive the advice but I also find that the advice was discussed with Mr Connell as reflected in the plaintiff’s file note of conversation with Mr Connell.
66. The defendant said the SRO debt was resolved by payment by him to the SRO. He said he had no choice but to pay the impost. The plaintiff put to Mr Longhurst that his payment reflected the advice on from counsel. Mr Longhurst said he had no choice but to pay because he could not afford to take the matter further.
67. Mr Longhurst made repeated claims in his testimony that the SRO debt ballooned whilst the matters were under the care of the plaintiff firm. I am not satisfied of that claim based on the evidence produced. The debt did increase marginally during the time the matters were under the care of the plaintiff. It is inevitable that until resolved that interest would accrue unless the debt was compromised or extinguished or otherwise capable of being legally set aside. I am not satisfied the interest increased due to any default in the conduct of the matters by the plaintiff. I am satisfied that the plaintiff was seeking to resolve two connected matters.
68. A  notice of assessment made against the defendant by the SRO and addressed to him care of his former solicitor Gerard Conlon of Law 554 Solicitors required payment of $53,642.83 by 23 May 2014 and made up as follows:

Duty of $40,792,

Penalty of $8,158.40 and

Interest of $4,692.43

69. A reminder notice dated 3 June 2014 from the SRO to the defendant was expressed as requiring payment to be remitted for the above amount, as also was the case by reference to further notices addressed to the defendant dated 14 July 2014 and 15 August 2014. A notice expressed as an “Urgent Final Notice Legal Action Pending” dated 7 October 2014 was expressed to be in the sum of $55,495.90, and an intention to sue, addressed to the defendant dated 7 November 2104 identified the sum claimed as $55,932.82.
70. Mr Longhurst said that Mr Conlon had agreed to contribute an amount of approximately $8,000 which sum he thought was agreed on as a contribution referrable to the interest that had accrued on the assessable duty.

Further conduct of proceeding

71. At the conclusion of the defendant’s evidence and with the express consent of the parties I ordered that the parties attend a mediation. In my judgment the conduct of the proceeding was wholly out of proportion to the sum claimed and I expressed to the parties the utility in bringing their dispute to a consensual resolution. The mediation was conducted by a judicial registrar on 8 September 2016. I subsequently received notice that the mediation did not resolve the dispute.

Findings of fact

72. There is no question that the defendant retained the plaintiff for the provision of legal services. The issue raised in the defence as to the commencement of the retainer is not a matter of any moment. The detailed long form bill identifies a number of occasion in May 2014 involving the plaintiff and attendances on the defendant for which no fee was charged. I am satisfied that the plaintiff complied with its disclosure obligations to the defendant. The fact that the retainer was not returned signed by the defendant is not determinative of any matter raised by the defence or in the hearing of the arbitration because I am satisfied the defendant continued to evidence the ongoing retainer of the plaintiff by his conduct in his ongoing dealings with the plaintiff as reflected in file notes of discussions with him by the plaintiff solicitors.
73. No allegation of professional negligence is made against the plaintiff by the defendant. The conduct and progress of the matter was the subject of some delay. The delay was not on the evidence inordinate or inexplicable, in light of the evidence of Mr Begg, including his absence due to some illness. I accept Mr Begg’s evidence that resolution of the SRO debt was not immediately achievable because Mr Longhurst instructed him that he lacked the capacity to meet the payment and thus it was sensible to consider its resolution against a background of a potential negligence action Law 554. The plaintiff bill identifies considerable work undertaken on the files during the period of the retainer although an apparent lack of chargeable activity in August and September 2014.
74. I am satisfied that had it been necessary for me to decide the point sans the provision by the plaintiff of a disclosure agreement the fees charged are not excessive. So much is apparent from the taxable bill obtained by the plaintiff. I am not satisfied that the plaintiff is liable for the interest accrual on the assessable duty sought by the SRO. There is certainly no evidence that the plaintiff caused the accrual of additional interest by any negligent act or omission by it.
75. I do not accept the evidence by Mr Longhurst about the engagement of counsel. I am satisfied he was made aware of the need for and the identity of counsel. I am satisfied that he did not direct the plaintiff that he would only accept the provision of instructions to Mr Connell. He was made known the identity of counsel. Although he did not expressly endorse the choice of counsel, he acceded to the decision to brief and he received the benefit of the advice. Had in fact it been the case that had in fact expressly refused permission to brief the barrister concerned then I would have anticipated the existence of a file note recording the objection or reference to the matter made by Mr Begg or Mr Mazzeo and no such note was adduced in evidence. Neither is there any correspondence from Mr Longhurst contesting the decision.
76. There will be an award on the Complaint. The amount claimed is under the cap and hence would ordinarily be governed by the provisions relating to Arbitrations but bearing in mind that the nature of the claim and the length of time occupied by and the unresolved matter should the plaintiff seek to pursue some basis for costs occasioned by the conduct of the defence incurred due to counsel and or Skerret Legal I will not deal with the question of costs in these orders.
77. I hereby order:

(i)     There be an award on the Complaint in the sum of $5,401.75;

(ii)   If the plaintiff seeks costs against the defendant otherwise than by reference to the rules governing an award of costs in an Arbitration, then I direct:

(a)    Any such application be made on summons, supported by affidavit to be served on the defendant and any non-party within 7 days of today;

(b)    The defendant and any non-party within 14 days of today, serve on the plaintiff and file with the Court any affidavit in response;

(c)    Argument in relation to costs be listed before me, if requested, for oral argument on a date to be fixed.

(iii) In the event that the plaintiff does not seek a departure from the costs applicable to an Arbitration then I direct that a minute of proposed orders be served on the defendant and filed with the Court within 7 days of today including any sum claimed by way of interest and the basis of the same.

(iv)  I reserve liberty to the parties to apply to the court.