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Mango Boulevard Pty Ltd v Whitton

Mango Boulevard Pty Ltd v Whitton

Case [2019] FCA 490 11 April 2019

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FEDERAL COURT OF AUSTRALIA
Mango Boulevard Pty Ltd v Whitton [2019] FCA 490

File number: VID 1183 of 2010

Judge: RANGIAH J

Date of judgment: 11 April 2019

Catchwords: COSTS – indemnity principle – barrister’s contingent costs agreement with uplift fee in relation to claim for damages – whether costs agreement void – whether barrister entitled to recover costs – where separate costs agreements for separate proceedings – barrister not precluded from recovering costs – where costs agreement did not include an estimate of the uplift fee – applicant only required to pay the respondents the fair and reasonable value of barrister’s services

Legislation:
Acts Interpretation Act 1987 (NSW) s 5(2) and 8(b)

Legal Profession Act 2004 (NSW)(repealed) ss 3, 83, 237, 302, 303, 305, 306, 319, 322, 323, 324, 326 and 327

Legal Profession Act 2007 (Qld) ss 302, 305, 319, 323, 324 and 327

Federal Court Rules 2011 (Cth) r 40.17

Cases cited:
Bobby v Damiliuk [2012] VSC 575

Branson v Tucker [2012] NSWSCA 310

Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378

Chief Commissioner ofState Revenue v Smeaton Grange Holdings Pty Ltd [2017] NSWCA 184

Cross v Certain Lloyds Underwriters [2011] NSWCA 136

Keesing v Adams [2010] NSWSC 336

Legal Services Commissioner v Baker (No 2) [2006] 2 Qd R 249

Mainieri and Another v Cirillo (2014) 47 VR 127

Mango Boulevard Pty Ltd v Whitton (2015) 242 FCR 331; [2015] FCA 1169

Mango Boulevard Pty Ltd v Whitton [2015] FCA 1352

Mango Boulevard Pty Ltd v Whitton [2018] FCA 399

Morley-Clarke v Jones (Inspector of Taxes) [1986] 1 Ch 311

National Acceptance Corporation Pty Ltd v Benson (1988) 12 NSWLR 213

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451

Paroz v Clifford Gouldson Lawyers [2012] QDC 151

Rondel v Worsley [1969] 1 AC 191

Russells Solicitors v McCardel [2014] VSC 287

Stringer v Flehr [2003] QSC 370

Tabtill No 2 Pty Ltd v DLA Phillips Fox [2012] QSC 115

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd (No 4) [2011] NSWSC 720

Roger Quick, Quick on Costs (Thomson Reuters Westlaw AU, subscription service) at [20.280] (update 78)

Date of hearing: 4 October 2018

Date of last submissions: 28 November 2018 (Respondent)
8 January 2019 (Applicant)

Registry: Victoria

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Category: Catchwords

Number of paragraphs: 136

Counsel for the Applicants: Mr D Butler

Solicitor for the Applicants: Carter Newell

Counsel for the Second and Third Respondents: Mr PA Freeburn QC with Mr SP Colditz

Solicitor for the Second and Third Respondents: Delta Law

ORDERS

VID 1183 of 2010

BETWEEN:
MANGO BOULEVARD PTY LTD (ACN 101 544 601)

First Applicant

BMD HOLDINGS PTY LIMITED (ACN 101 093 349)

Second Applicant

AND:
ROBERT WILLIAM WHITTON

First Respondent

RICHARD WILLIAM SPENCER

Second Respondent

SILVANA PEROVICH

Third Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

11 APRIL 2019

THE COURT DECLARES THAT:

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 Mango Boulevard Pty Ltd v Whitton

Details

AGLC: Mango Boulevard Pty Ltd v Whitton [2019] FCA 490
Case: [2019] FCA 490
Decision Date: 11 April 2019

CaseChat Overview and Summary

In the case of Mango Boulevard Pty Ltd v Whitton, the primary dispute involved the interpretation and application of legal practitioner acts governing contingent costs agreements and the recovery of those costs. The court was tasked with determining the validity of a barrister's costs agreement with an uplift fee in relation to a claim for damages and whether the barrister was entitled to recover such costs. The case was heard in the Queensland Court of Appeal.

The legal issues revolved around whether the costs agreement was void due to non-compliance with statutory provisions, specifically sections 324(4) of the Legal Profession Act 2007 (NSW) or section 324(3) of the Legal Profession Act 2007 (Qld). Additionally, the court had to decide whether the barrister was entitled to recover the costs under the indemnity principle, given that the agreement did not include an estimate of the uplift fee. The applicability of either the NSW or the Queensland Legal Practitioners Act to the costs agreement was also examined.

The court concluded that regardless of whether the NSW or Queensland Act applied, the costs agreement was void due to non-compliance with the respective statutory provisions. However, the court held that the barrister was entitled to recover the fair and reasonable value of his legal services. This decision was based on the principle of indemnity, which required the applicant to pay the respondents only the fair and reasonable value of the barrister’s services. The court ultimately determined that the applicants’ liability was limited to the fair and reasonable value of the services provided, and it issued a declaration to that effect.

The final orders of the court were that no order as to costs would be made unless the parties submitted further arguments on the issue. The court's decision underscored the importance of ensuring that costs agreements comply with statutory requirements and highlighted the principle that legal practitioners are entitled to recover the fair and reasonable value of their services.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows that even if the LPA (Qld) applies, instead of the LPA (NSW), Mr Douglas is only entitled to recover the fair and reasonable value of his legal services.Conclusion The evidence does not allow any conclusion to be reached as to whether the LPA (NSW) or the LPA (Qld) applies to Mr Douglas’ costs agreement in respect of the Review Proceeding. However, even if the LPA (NSW) applies, Mr Douglas is not disentitled by s 324(4) from recovering an amount in respect of his provision of legal services in the Review Proceeding. Whether the LPA (NSW) or the LPA (Qld) applies, Mr Douglas’ costs agreement in respect of the Review Proceeding is void for non-compliance with ss 324(4) or 324(3) respectively. The consequence is that he is entitled to, and is only entitled to, recover the fair and reasonable value of his legal services. It follows, that under the indemnity principle, the applicants’ liability to pay the respondents Mr Douglas’ costs under the costs orders of 2 December 2015 is confined to the fair and reasonable value of the services he provided. I will make a declaration to that effect. The parties have had a broadly equal measure of success in the present application. My preliminary view is that there should be no order as to costs, but I will allow the parties an opportunity to make submissions upon that issue if they wish to do so.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Mango Boulevard Pty Ltd v Whitton [2019] FCA 490

Most Recent Citation

Street v State of Western Australia [2024] FCA 1368

Cases citing this decision · 3 of 3 shown

Street v State of Western Australia
[2024] FCA 1368

…igation , 55 F.3d 768 (3rd Cir. 1995) Kuterba v Sirtex Medical Limited (No 3) [2019] FCA 1374 Mango Boulevard Pty Ltd v Whitton [2019] FCA 490 Mobil Oil Australia Pty Ltd v State of Victoria [2002] HCA 27; 211 CLR 1 Money Max Int Pty Ltd v QBE Insurance Group Ltd [2016] FCAFC 148; 245 FCR 191 O’Donnell v Commonwe…
Waller Family Lawyers Pty Ltd v AB
[2022] QCAT 362 Para 1

…on of a contract at common law. That is so. [82] Baker v Legal Services Commissioner [2006] QCA 145. [83] Mango Boulevard Pty Ltd v Whitton [2019] FCA 490.…
Mishra v Bennett & Philp Pty Ltd
[2021] QSC 158 Para 3

…to more than one retainer for a barrister to provide legal services.[18] [15] Challen v Golder Associates Pty Ltd at [35]. [16][2016] VSC 836. [17][2019] FCA 490. [18]At [85].…

View all 3 citing cases →

Cases cited in this decision · 17 of 17 shown

Mango Boulevard Pty Ltd v Whitton
[2018] FCA 399 Para 15

…g copies of documents that provide evidence of the terms of Mr Douglas’ costs agreement in the Review Proceeding: Mango Boulevard Pty Ltd v Whitton [2018] FCA 399.…
Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd
[2017] NSWCA 184 Para 25

…the operation of a taxing statute upon the facts as they actually occurred: see Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd [2017] NSWCA 184 at [6]–[15], [146]; Morley-Clarke v Jones at 331.…
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross
[2015] HCA 52 Para 30

…ce” (the judgment was overturned on appeal, but the High Court declined to address this issue: see Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [20]–[22], [53]). Adapted to a case where one legal practice (a solicitor) retains another (a barrister), a “matter” refers to the scope of legal advice and ass…
Mango Boulevard Pty Ltd v Whitton
[2015] FCA 1352 Para 12

…1169. On 2 December 2015, I ordered that the applicants pay the bulk of the respondents’ costs of the proceeding: Mango Boulevard Pty Ltd v Whitton [2015] FCA 1352.…
Mango Boulevard Pty Ltd v Whitton
[2015] FCA 1169 Para 12

…On 2 November 2015, I dismissed the Review Proceeding: Mango Boulevard Pty Ltd v Whitton (2015) 242 FCR 331; [2015] FCA 1169. On 2 December 2015, I ordered that the applicants pay the bulk of the respondents’ costs of the proceeding: Mango Boulevard Pty Ltd v Whitton [2015] FCA 1352.…
Mainieri v Cirillo
[2014] VSCA 227 Para 5

…’s costs is obliged to pay only those costs which the other party is legally obliged to pay to his or her lawyers: Mainieri and Another v Cirillo (2014) 47 VR 127 at [43].…
Russells v McCardel
[2014] VSC 287 Para 3

…In Russells Solicitors v McCardel [2014] VSC 287, Bell J rejected an argument that under the equivalent Victorian provision, identification of a percentage for the uplift fee was adequate, saying: 39 The estimate of the uplift fee, being legal costs (excluding disbursements), that is required by s 3.4.28(3) must…
Bobby v Daniliuk
[2012] VSC 575 Para 30

…td v BNP Paribas (2004) 218 CLR 451 at [22]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [35]-[36], [40]; Bobby v Damiliuk [2012] VSC 575 at [32] (dealing with a costs agreement). In any event, that recent assertion of intention is quite inconsistent with the 3 November 2009 letter, which says…
Paroz v Clifford Gouldson Lawyers
[2012] QDC 151 Para 23

…Judge McGill SC of the District Court of Queensland confronted a similar situation in Paroz v Clifford Gouldson Lawyers [2012] QDC 151. In that case, a solicitor entered into a costs agreement with a client with retrospective effect, and which purported to provide the necessary disclosures required by the statute…
Tabtill No 2 Pty Ltd v DLA Phillips Fox (a firm)
[2012] QSC 115 Para 24

…a single costs agreement that applies to more than one retainer for a barrister to provide legal services: cf Tabtill No 2 Pty Ltd v DLA Phillips Fox [2012] QSC 115 at [70]. Whether that is so would depend upon the terms of the costs agreement. For example, if there were several proceedings pending or anticipated…
Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd (No 4)
[2011] NSWSC 720 Para 29

…In Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd (No 4) [2011] NSWSC 720, Slattery J held at [24] that where s 327(4) of the LPA (NSW) applied, it excluded the possibility of recovering fees on a quantum meruit or any other restitutionary basis. That may be accepted, but the initial question must be whether tha…
Cross v Certain Lloyds Underwriters
[2011] NSWCA 136 Para 30

…The word “matter” appeared in s 327(4), but was not defined in the LPA (NSW). In Cross v Certain Lloyds Underwriters [2011] NSWCA 136, Basten JA held at [19], that “matter” in the LPA (NSW) may be understood to refer to “the scope of any advice or assistance in respect of which a client seeks legal services from a…
Keesing v Adams
[2010] NSWSC 336 Para 6

…The impact of the legislation was explained by Brereton J in Keesing v Adams [2010] NSWSC 336 at [13]–[35], and that analysis was approved in Branson v Tucker [2012] NSWSCA 310, where Campbell JA (with whom Beazley JA agreed) said at [69]: Brereton J also correctly observed, at [25], that an agreement as to the cos…
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd
[2004] HCA 52 Para 30

…as to what he intended it to mean: cf Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [35]-[36], [40]; Bobby v Damiliuk [2012] VSC 575 at [32] (dealing with a costs agreement). In any event, that recent assertion of intention is quite incon…
Pacific Carriers Ltd v BNP Paribas
[2004] HCA 35 Para 30

…ouglas’ letter of 3 November 2009, not by reference to his assertion as to what he intended it to mean: cf Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [35]-[36], [40]; Bobby v Damiliuk [2012] VSC 575 at [32] (dealing with a costs agreem…
Stringer v Flehr and Walker
[2003] QSC 370 Para 14

…In Stringer v Flehr [2003] QSC 370, Philippides J held at [72]: It is clear that in addition to a retainer arising by express agreement, a retainer may be inferred from the acts and conduct of the parties as well as or in the absence of their express words… [T]he question in the latter class of case is whether th…
[1969] 1 AC 191
[1969] 1 AC 191 Para 5

…d Territory, the law was that, “a barrister may not and does not enter into any contract which enables him to sue for his fees”: Rondel v Worsley [1969] 1 AC 191 at 236. Following the commencement of those Acts, as ss 83(3) and 326 of the LPA (NSW) made plain, a barrister was able to enter into a contract with a s…

Legislation cited in this decision · 5

Legal Profession Act 2004 (Vic)
237, 3, 302, 303, 305, 306, 319, 322, 32... 13 mentions (from Para 6)
Legal Profession Act 2007 (TAS)
302, 305, 319, 323, 324, 327 7 mentions (from Para 8)
Acts Interpretation Act 1987 (NSW)
5(2), 8(b) 3 mentions (from Para 32)
Federal Court Rules 2011 (Cth)
40.17 2 mentions (from Para 13)
Family Law Act 1975 (Cth)
1 mention (from Para 22)

File number:	VID 1183 of 2010
Judge:	RANGIAH J
Date of judgment:	11 April 2019
Catchwords:	COSTS – indemnity principle – barrister’s contingent costs agreement with uplift fee in relation to claim for damages – whether costs agreement void – whether barrister entitled to recover costs – where separate costs agreements for separate proceedings – barrister not precluded from recovering costs – where costs agreement did not include an estimate of the uplift fee – applicant only required to pay the respondents the fair and reasonable value of barrister’s services
Legislation:	Acts Interpretation Act 1987 (NSW) s 5(2) and 8(b) Legal Profession Act 2004 (NSW)(repealed) ss 3, 83, 237, 302, 303, 305, 306, 319, 322, 323, 324, 326 and 327 Legal Profession Act 2007 (Qld) ss 302, 305, 319, 323, 324 and 327 Federal Court Rules 2011 (Cth) r 40.17
Cases cited:	Bobby v Damiliuk [2012] VSC 575 Branson v Tucker [2012] NSWSCA 310 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 Chief Commissioner ofState Revenue v Smeaton Grange Holdings Pty Ltd [2017] NSWCA 184 Cross v Certain Lloyds Underwriters [2011] NSWCA 136 Keesing v Adams [2010] NSWSC 336 Legal Services Commissioner v Baker (No 2) [2006] 2 Qd R 249 Mainieri and Another v Cirillo (2014) 47 VR 127 Mango Boulevard Pty Ltd v Whitton (2015) 242 FCR 331; [2015] FCA 1169 Mango Boulevard Pty Ltd v Whitton [2015] FCA 1352 Mango Boulevard Pty Ltd v Whitton [2018] FCA 399 Morley-Clarke v Jones (Inspector of Taxes) [1986] 1 Ch 311 National Acceptance Corporation Pty Ltd v Benson (1988) 12 NSWLR 213 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Paroz v Clifford Gouldson Lawyers [2012] QDC 151 Rondel v Worsley [1969] 1 AC 191 Russells Solicitors v McCardel [2014] VSC 287 Stringer v Flehr [2003] QSC 370 Tabtill No 2 Pty Ltd v DLA Phillips Fox [2012] QSC 115 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd (No 4) [2011] NSWSC 720 Roger Quick, Quick on Costs (Thomson Reuters Westlaw AU, subscription service) at [20.280] (update 78)
Date of hearing:	4 October 2018
Date of last submissions:	28 November 2018 (Respondent) 8 January 2019 (Applicant)
Registry:	Victoria
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Category:	Catchwords
Number of paragraphs:	136
Counsel for the Applicants:	Mr D Butler
Solicitor for the Applicants:	Carter Newell
Counsel for the Second and Third Respondents:	Mr PA Freeburn QC with Mr SP Colditz
Solicitor for the Second and Third Respondents:	Delta Law