Lewis Blyth & Hooper (A Firm) v Smith

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LEWIS BLYTH & HOOPER (A FIRM) -v- SMITH [2015] WASCA 47



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2015] WASCA 47
THE COURT OF APPEAL (WA)
Case No:CACV:137/20139 OCTOBER 2014
Coram:BUSS JA
NEWNES JA
MURPHY JA
13/03/15
36Judgment 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
HEARD : 9 OCTOBER 2014 DELIVERED : 13 MARCH 2015 FILE NO/S : CACV 137 of 2013
    CACV 138 of 2013
BETWEEN : LEWIS BLYTH & HOOPER (A FIRM)
    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.

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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