LEWIS BLYTH AND HOOPER -v- DENNIS [2007] WASC 177

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 177
Case No:	LPA:49/2006	Heard:	13 JULY 2007
Coram:	NEWNES J	Delivered:	3/08/07
No of pages:	17	Judgment Part:	1 of 1
Result:	Appeal allowed Application for extension of time dismissed
Category:	B
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Parties:	LEWIS BLYTH AND HOOPER JOHN RAYMOND DENNIS
Catchwords:	Costs Appeal against grant of extension of time to tax solicitors' bills of costs Extent of delay in seeking taxation of costs Whether prejudice to solicitors by delay Whether solicitors' retainer was entire contract Consideration of application of doctrine of entire contract to solicitors' retainer to conduct litigation Effect of costs agreement
Legislation:	Legal Practice Act 2003 (WA), s 229, s 231
Case References:	Baltic Shipping Co v Dillon (1993) 176 CLR 344 Cachia v Isaacs (1985) 3 NSWLR 366 Clairs Keeley (A Firm) v Treacy [2005] WASCA 86 Cresswell v Byron (1807) 14 Ves 271 Del Borrello v Friedman and Lurie (A Firm) [2001] WASCA 348 Harris v Osbourn (1834) 2 Cr & M 629; 149 ER 912 Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112 Re Hall & Barker (1878) 9 Ch D 538 Re Romer & Haslam [1893] 2 QB 286 Retail Equity Pty Ltd v Murie and Edward, unreported; SCt of WA (White J); Library No 940163; 31 March 1994 Underwood Son & Piper v Lewis [1894] 2 QB 306 Webb v Bateman, unreported; SCt of WA; Library No 6305; 27 May 1986

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CHAMBERS

CITATION : LEWIS BLYTH AND HOOPER -v- DENNIS [2007] WASC 177 CORAM : NEWNES J HEARD : 13 JULY 2007 DELIVERED : 3 AUGUST 2007 FILE NO/S : LPA 49 of 2006 BETWEEN : LEWIS BLYTH AND HOOPER

Appellant (Practitioner)

AND

JOHN RAYMOND DENNIS

Respondent (Party Charged)

Catchwords:

Costs - Appeal against grant of extension of time to tax solicitors' bills of costs - Extent of delay in seeking taxation of costs - Whether prejudice to solicitors by delay - Whether solicitors' retainer was entire contract - Consideration of application of doctrine of entire contract to solicitors' retainer to conduct litigation - Effect of costs agreement

Legislation:

Legal Practice Act 2003 (WA), s 229, s 231

Result:

Appeal allowed

Application for extension of time dismissed

(Page 2)

Category: B

Representation:

Counsel:

Appellant (Practitioner) : Mr D J Garnsworthy

Respondent (Party Charged) : Mr S V Forbes

Solicitors:

Appellant (Practitioner) : Lewis Blyth & Hooper

Respondent (Party Charged) : Stewart Forbes

Case(s) referred to in judgment(s):

Baltic Shipping Co v Dillon (1993) 176 CLR 344
Cachia v Isaacs (1985) 3 NSWLR 366
Clairs Keeley (A Firm) v Treacy [2005] WASCA 86
Cresswell v Byron (1807) 14 Ves 271
Del Borrello v Friedman and Lurie (A Firm) [2001] WASCA 348
Harris v Osbourn (1834) 2 Cr & M 629; 149 ER 912
Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112
Re Hall & Barker (1878) 9 Ch D 538
Re…

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: [2007] WASC 177
Decision Date: 3 AUGUST 2007

CaseChat Overview and Summary

The appeal was brought by the defendants in a personal injury action, Lewis Blyth and Hooper, against the plaintiff, Dennis, regarding the costs incurred in the litigation. The defendants sought to challenge the decision of the primary judge, who had granted an extension of time to tax the solicitors' bills of costs. The appeal was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the delay in seeking taxation of the solicitors' costs was so significant that it prejudiced the solicitors, thereby justifying the grant of an extension of time. Additionally, the court examined whether the retainer between the solicitors and their clients constituted an entire contract, and if so, how this principle would apply to the taxation of costs. The court also considered the effect of the costs agreement on the timeliness of the taxation process.

The court found that the delay in seeking taxation of costs was substantial, and the solicitors had not adequately explained the reasons for this delay. The court held that the retainer between the solicitors and their clients was indeed an entire contract, and the terms of this contract did not permit extensions of time for the taxation of costs. Consequently, the court dismissed the application for an extension of time, and the appeal was allowed. The court's decision underscores the importance of adhering to the timelines set out in costs agreements and the potential consequences of failing to do so.

Orders

Orders of the court

Appeal allowed

Application for extension of time dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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