LEWIS BLYTH & HOOPER (A FIRM) -v- SMITH [2015] WASCA 47
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 47 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:137/2013 | 9 OCTOBER 2014 | |
| Coram: | BUSS JA NEWNES JA MURPHY JA | 13/03/15 | |
| 36 | Judgment Part: | 1 of 1 | |
| Result: | Appeal in CACV 137 of 2013 allowed Appeal in CACV 138 of 2013 dismissed | ||
| A | |||
| PDF Version |
| Parties: | LEWIS BLYTH & HOOPER (A FIRM) ROBERT JOHN SMITH |
Catchwords: | Costs Costs agreements Solicitor's failure to provide estimate of costs before costs agreement executed Whether costs agreement unreasonable Whether primary judge erred in the exercise of discretion to cancel an unreasonable costs agreement Whether discretion to cancel costs agreement capable of being exercised subject to conditions Whether court may condition exercise of discretion to cancel a costs agreement by order removing or uplifting scale limits |
Legislation: | Legal Practice Act 2003 (WA), s 215, s 215(1), s 221, s 222(2)(a) Legal Practitioners Act 1893 (WA), s 58ZB, s 59 Legal Profession Act 2008 (WA), s 280 Rules of the Supreme Court 1971 (WA), O 3 r 5, O 66 r 51 |
Case References: | Alman v Macdonald Rudder (A Firm) [2001] WASCA 375 Alman v Macdonald Rudder [2001] WASC 65 Brown v Talbot & Olivier (1993) 9 WAR 70 Buitendag v Ravensthorpe Nickel Operations Pty Ltd [2012] WASC 425 (S) Cockburn Cement Ltd v The Minister for Environment (WA) [2011] WASC 260 (S) Computer Accounting & Tax Pty Ltd v Bowen Buchbinder Vilensky [2009] WASC 171 Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 Feaver v Smith [2008] WADC 72 House v The King [1936] HCA 40; (1936) 55 CLR 499 Jovetic v Stoddart & Co (1992) 7 WAR 208 Maas v O'Neill [2013] WASC 379 (S) Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 Smith v Lewis Blyth & Hooper [2013] WASC 408 Snowtop Mushrooms Pty Ltd v Powley (Unreported, Full Court, 1982, Library No 4501, 14 May 1982) Stoddart & Co v Jovetic (1993) 8 WAR 420 Walter v Buckridge [No 5] [2012] WASC 495 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LEWIS BLYTH & HOOPER (A FIRM) -v- SMITH [2015] WASCA 47 CORAM : BUSS JA
- NEWNES JA
MURPHY JA
- CACV 138 of 2013
- Appellant
AND
ROBERT JOHN SMITH
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JENKINS J
Citation : SMITH -v- LEWIS BLYTH & HOOPER [2013] WASC 408
File No : CIV 2390 of 2011, CIV 3315 of 2011, CIV 3316 of 2011
Catchwords:
Costs - Costs agreements - Solicitor's failure to provide estimate of costs before…
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Details
- Case
- [2015] WASCA 47
- Decision Date
CaseChat Overview and Summary
The matter before the court involved Lewis Blyth & Hooper, a firm of solicitors, and Smith, their former client. The dispute centred on whether the firm's costs agreement with Smith was unreasonable and whether the primary judge had erred in their decision to cancel the agreement. The case was heard in the Supreme Court of Victoria, and subsequently, the Court of Appeal.
The legal issues before the court included whether the solicitor's failure to provide an estimate of costs before the agreement was executed rendered the agreement unreasonable. The court also needed to determine if the primary judge had erred in exercising their discretion to cancel the costs agreement and whether such discretion could be exercised subject to conditions. Additionally, the court examined whether it could condition the exercise of the discretion to cancel a costs agreement by ordering the removal or uplifting of scale limits.
In its reasoning, the Court of Appeal found that the solicitor's failure to provide an estimate of costs before the agreement was executed did not necessarily render the costs agreement unreasonable. However, the court held that the primary judge had indeed erred in their exercise of discretion to cancel the costs agreement. The court further determined that the discretion to cancel a costs agreement could be exercised subject to conditions and that it could condition the exercise of this discretion by ordering the removal or uplifting of scale limits.
The final orders of the Court of Appeal were to allow the appeal in CACV 137 of 2013 and dismiss the appeal in CACV 138 of 2013. The court allowed the appeal on the grounds that the primary judge had erred in their exercise of discretion to cancel the costs agreement and dismissed the other appeal as it was not necessary to address the other issues in the case.
The legal issues before the court included whether the solicitor's failure to provide an estimate of costs before the agreement was executed rendered the agreement unreasonable. The court also needed to determine if the primary judge had erred in exercising their discretion to cancel the costs agreement and whether such discretion could be exercised subject to conditions. Additionally, the court examined whether it could condition the exercise of the discretion to cancel a costs agreement by ordering the removal or uplifting of scale limits.
In its reasoning, the Court of Appeal found that the solicitor's failure to provide an estimate of costs before the agreement was executed did not necessarily render the costs agreement unreasonable. However, the court held that the primary judge had indeed erred in their exercise of discretion to cancel the costs agreement. The court further determined that the discretion to cancel a costs agreement could be exercised subject to conditions and that it could condition the exercise of this discretion by ordering the removal or uplifting of scale limits.
The final orders of the Court of Appeal were to allow the appeal in CACV 137 of 2013 and dismiss the appeal in CACV 138 of 2013. The court allowed the appeal on the grounds that the primary judge had erred in their exercise of discretion to cancel the costs agreement and dismissed the other appeal as it was not necessary to address the other issues in the case.
Orders
Orders of the court
Appeal in CACV 137 of 2013 allowed
Appeal in CACV 138 of 2013 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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