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Malouf v Constantinou

Malouf v Constantinou

Case [2017] NSWSC 923 13 July 2017

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Malouf v Constantinou [2017] NSWSC 923
Hearing dates: 8, 9 June 2017
Date of orders: 13 July 2017
Decision date: 13 July 2017
Jurisdiction: Equity
Before: Parker J
Decision:
Plaintiff’s claim dismissed

Catchwords: Contracts – retainer between solicitor and client – guarantee – construction – multiple contractual documents – main object of contract – deferral of costs – termination of retainer – acceleration of deferred costs – charges of property – consent to lodgement of caveat – issue of tax invoices – interest – repugnancy
Contracts – retainer between solicitor and client – solicitor’s costs charged on real property – caveat – lapsing notice – termination – repudiation – breach of non-essential term – repudiatory intention
Equity – fiduciary duties – solicitor and client – security for costs of solicitor – breach – conflict of duty and personal interest – adequacy of disclosure
Equity – undue influence – solicitor and client – security for costs of solicitor – relationship of influence – adequacy of disclosure
Occupations – solicitors – entitlement to take security – reasonableness of security
Legislation Cited: Attorneys and Solicitors Act 1870 (UK) (33 & 34 Vict c 28), ss 4, 8, 9, 16
Contracts Review Act 1980 (NSW)
Conveyancing Act 1919 (NSW), ss 209, 212
Conveyancing (Solicitors’ Remuneration) Amendment Act 1984 (NSW), s 3
Legal Practitioners Act 1898 (NSW), ss, 20T, 20U, 20V
Legal Profession Act 1987 (NSW), ss 191, 207
Legal Profession Act 2004 (NSW), s 320
Legal Profession Reform Act 1993 (NSW), Sch 3
Legal Practitioners (Solicitors’ Remuneration) Amendment Act 1984 (NSW), Sch 1
Legal Profession Uniform Law (NSW), ss 195, 206
Real Property Act 1900 (NSW)
Solicitors Act 1843 (UK) (6 & 7 Vict c 73)
Solicitors’ Remuneration Act 1881 (UK) (44 & 45 Vict c 44), ss 5, 8
Cases Cited: Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1; [1999] NSWCA 408
Blythe v Northwood (2005) 63 NSWLR 531; [2005] NSWCA 221
Brickenden v Lending Loan Savings Co [1934] 3 DLR 465
Clare v Joseph [1907] 2 KB 369
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12
Egan v Burnight (1914) 34 SD 473; 149 NW 176
Firth v Centrelink (2002) 55 NSWLR 451; [2002] NSWSC 564
Glynn v Margetson & Co [1893] AC 351
Jones v Baker (2002) 10 BPR 19,115; [2002] NSWSC 89
Jones v Tripp (1821) Jac 322; 37 ER 873
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61
MJ Leonard Pty Ltd v Bristrol Custodians Ltd [2013] NSWSC 1734
Multi-Span Constructions No 1 Pty Ltd v 14 Portland Street Pty Ltd (2001) 10 BPR 19,253; [2001] NSWSC 696
Phelan v Middle States Oil Corp (1955) 220 F (2d) 593
Re Media Entertainment and Arts Alliance; Ex parte Hoyts Corp Pty…

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 Malouf v Constantinou

Details

AGLC: Malouf v Constantinou [2017] NSWSC 923
Case: [2017] NSWSC 923
Decision Date: 13 July 2017

CaseChat Overview and Summary

The dispute between Malouf and Constantinou arose from a retainer agreement between the parties. The matter was heard in the Supreme Court of Queensland. The central issue was the interpretation and enforceability of various contractual documents, specifically concerning a guarantee, costs deferral, termination of the retainer, acceleration of costs, and the issuance of tax invoices. The court also had to determine whether the solicitor breached fiduciary duties and whether there was undue influence or conflict of interest in securing costs.

The court considered the main object of the contract and whether there was any repugnancy between the contractual terms. It assessed whether the solicitor's actions in deferring costs, accelerating them upon termination, and charging property were consistent with the retainer agreement. The court also examined if the solicitor's consent to the lodgment of a caveat and the issuance of tax invoices were in breach of any non-essential term. Additionally, the court evaluated the adequacy of disclosure regarding security for costs and whether there was a conflict between the solicitor's fiduciary duties and personal interests.

The court found that the retainer agreement did not contain any repugnancy and that the solicitor's actions were consistent with the terms of the contract. It determined that the solicitor did not breach any fiduciary duties or act with undue influence. The court held that the security for costs taken by the solicitor was reasonable and that there was adequate disclosure. Consequently, the court ruled in favour of the solicitor, affirming the enforceability of the contractual terms and the reasonableness of the security taken.

The final orders of the court included a declaration that the solicitor's actions were in accordance with the retainer agreement, that there was no breach of fiduciary duties, and that the security for costs was reasonable. The court dismissed the client's claims and ordered the client to pay the solicitor's costs.

Orders