Manonai v Burns
[2010] WADC 157
•15 OCTOBER 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MANONAI -v- BURNS [2010] WADC 157
CORAM: GOETZE DCJ
HEARD: 22 & 30 SEPTEMBER 2010
DELIVERED : 15 OCTOBER 2010
FILE NO/S: APP 18 of 2010
BETWEEN: KALAYA MANONAI
Appellant
AND
KHAMTIANG BURNS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE MICHELIDES
File No :FR 109 of 2009
Catchwords:
Unqualified interpreter in matrimonial proceedings claiming fees from litigant calculated by reference to a percentage of the settlement sum - Claim dismissed - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: In person
Respondent: Mr M T S Rennie
Solicitors:
Appellant: Not applicable
Respondent: HFM Legal
Case(s) referred to in judgment(s):
Fox v Percy (2003) 214 CLR 118
GOETZE DCJ:
The claim
By General Procedure Claim Form 3 issued out of the Magistrates Court at Fremantle, Ms Kalaya Manonai claimed $35,126 from Ms Khamtiang Burns, plus costs.
The claim was brought pursuant to an alleged oral contract made in November 2007 by which Ms Burns was alleged to have engaged Ms Manonai to act as her representative in matrimonial proceedings seeking a property settlement from Ms Burn's husband.
More specifically, Ms Manonai claimed to have been engaged to assist Ms Burns as her "language and business interpreter". Ms Burns is illiterate in written and spoken English.
Ms Manonai claimed that the agreement provided she would be paid 10% of the total settlement of Ms Burns' matrimonial claim, plus either one of the matrimonial motor vehicles or an all expenses paid holiday to Ms Burns' home town of Khankaen in Thailand.
The value of the claim Ms Manonai calculated was later set forth in a Statement of General Procedure Claim Form 19 as follows:
$12,00010% of $120,000 cash
$7,500 10% of $75,000 superannuation
$15,000Nissan Pulsar or holiday
$2,036 10% of jewellery
$100 10% of household furniture
$6,800 Legal fees
$43,436
$8,400 Less paid
$35,036
In addition to this $35,036, Ms Manonai sought 10% of the value of the house and property in Thailand plus costs.
The defence
The defence sets out a number of matters, including the following:
(1)Ms Burns separated from her husband in 2007.
(2)She engaged solicitors to act on her behalf in her property proceedings.
(3)In October 2007, Ms Manonai:
(a)told Ms Burns that she was a lawyer;
(b)told Ms Burns that she had worked with another lawyer, David Leask for many years;
(c)suggested that Ms Burns engage Mr Leask as her lawyer;
(d)told Ms Burns that Mr Leask would charge less if he were paid in cash as he would not have to pay tax on cash fees; and
(e)told Ms Burns she would assist her.
(4)On 26 October 2007, Ms Manonai took Ms Burns to Mr Leask, who thereafter acted for Ms Burns in the matrimonial property proceedings.
(5)Prior to this meeting, Ms Manonai told Ms Burns that Mr Leask would require a cash payment of $500 and she would also require payment of $300 for her services.
(6)Further payments were requested by Ms Manonai for Mr Leask as follows:
January 2008 $ 2,000
January – February 2008 $ 500
January – May 2008 $ 3,000
May 2008$ 5,000
$10,500
Thus, the total payments requested for Mr Leask as set out above amounted to $11,000.
(7)Further payments were requested by Ms Manonai for her own assistance as follows:
January 2008 $ 250
January – February 2008 $ 500
January – May 2008 $ 250
May 2008$ 150
May 2008$ 150
$ 1,300
(8)Ms Burns paid Ms Manonai:
29 October 2007 $ 800
January 2008 $ 2,250
January – May 2008 $ 3,250
January – May 2008 $ 1,000
May 2008$ 5,000
$12,300
The defence incorrectly totalled this amount to $11,500.
(9)A number of the statements made by Ms Manonai were false in that:
(a)she was not a lawyer;
(b)she had not worked for Mr Leask;
(c)Mr Leask had not rendered accounts to Ms Burns as Ms Manonai had claimed;
(d)Mr Leask had not authorised or requested Ms Manonai to obtain payment of his fees; and
(e)Mr Leask had not required payment in cash, nor had he sought to avoid tax.
(10)Mr Leask rendered three accounts to Ms Burns being:
1 November 2007 $ 350
3 April 2008 $ 300
23 October 2008 $ 6,890
$ 7,540
(11)From the monies paid by Ms Burns to Ms Manonai, she paid $7,540 to Mr Leask for his fees, plus $750 to Ms Burns' previous solicitors to obtain their file for Mr Leask, thus making a total of $8,290 paid by her from monies provided by Ms Burns.
(12)Mrs Burns:
(a)denied any agreement to pay a percentage to Ms Manonai or to give to her a car or a house in Thailand or to pay for a holiday;
(b)volunteered to give Ms Manonai 'something' when the matrimonial proceedings were finalised. This voluntary offer did not constitute a contract or any intention to enter into legal relations with Ms Manonai;
(c)denied Ms Manonai was her agent in matrimonial proceedings, but says that she acted as a conduit and an interpreter;
(d)says that such assistance ceased in May 2008; and
(e)otherwise denied the particulars of claim.
(13)Ms Burns said that if there was any agreement as alleged, it was void or voidable as being contrary to public policy, or it was unconscionable.
(14)In any event, any agreement would be an entire agreement, and Ms Manonai ceased work in May 2008 prior to settlement, which was not achieved until October 2008.
(15)Alternatively, Ms Manonai has been adequately remunerated by the $1,300 already paid to her as set out at (7) above.
Ms Burns also filed a counterclaim for $3,960 being monies paid by her to Ms Manonai which can not be accounted for. This sum was calculated on the basis that Ms Burns had paid the sum of $11,500 to Ms Manonai, who in turn paid $7,540 therefrom to Mr Leask, leaving a balance of $3,960.
Ms Burns subsequently also filed a statement of intended evidence revealing that she had paid various amounts totalling the sums of $11,500 and $1,050 for the services of Mr Leask and Ms Manonai respectively.
The magistrate's decision
The action came on for trial on 20 January 2010 at Fremantle before his Honour Magistrate Michelides. He reserved his decision, which he delivered on 10 February 2010. By that decision, Ms Manonai's claim was dismissed and judgment was granted on the counterclaim, but not for the full amount claimed as set out above.
The learned magistrate found that:
(1)Ms Manonai did help Mr Leask to represent Ms Burns in her matrimonial proceedings.
(2)Between October 2007 and May 2008, Ms Burns paid Ms Manonai $11,500 by instalments as follows:
October 2007 $ 500
November 2007 $ 500
November 2007 $ 500
February 2008 $ 2,000
April 2008$ 3,000
April 2008$ 5,000
$11,500
(3)Ms Manonai paid Mr Leask the sum of $7,540 as follows:
1 November 2007 $ 350
3 April 2008 $ 300
23 October 2008 $ 6,890
$7,540
Ms Manonai also paid Ms Burns' previous solicitor's fees of $750. Thus she paid out the sum of $8,290 on behalf of Ms Burns for her legal fees.
(4)Fair recompense for Ms Manonai's services would be $1,050.
(5)Ms Burns had paid the total sum of $11,500 for the services of Mr Leask, the previous solicitors and for Ms Manonai's services. After allowing for the $8,290 referred to at (3) above and the $1,050 referred to at (4) above. Ms Manonai still held $2,160 for Ms Burns' use and which had not been accounted for.
In passing, it should be noted that in delivering his oral reasons, the learned magistrate may have meant to find that in addition to the sum of $11,500, Ms Burns also paid instalments of $1,050 to Mr Burns as set out in his oral reasons for decision at ts 6. However, no point is made of this by Ms Burns. Ms Manonai is not prejudiced by it. Indeed, it works in her favour.
The learned magistrate dismissed Ms Manonai's claim and entered judgment for Ms Burns in the sum of $2,160, plus 6% interest per annum thereon, and costs on the counterclaim to be taxed.
Ms Manonai now appeals this decision.
The appeal
By r 50(1) of the District Court Rules, this is an appeal by way of reconsideration of the evidence. In Seaman, Civil Procedure Western Australia vol 2 at 16.307.10, this is said to be 'clearly by way of rehearing', as to which see Fox v Percy (2003) 214 CLR 118, [23] and [25]. The appeal is on the record.
This appeal came on for hearing on 22 September 2010. Ms Manonai appeared on her own behalf. She sought an adjournment so as to enable her to instruct a solicitor. I was not persuaded that that would have been of any benefit to her and traversed each ground of appeal with her so that she could understand potential problems facing her on those grounds of appeal as drawn. Then, at the end of that process, the appeal was adjourned for written submissions from Ms Manonai to be filed by 29 September 2010, and for the hearing to resume on the following day in the hope that she had then instructed her solicitor on the appeal.
Submissions were received, however they merely repeat what was said by Ms Manonai on 22 September 2010.
On 30 September 2010, Ms Manonai appeared in person. Further oral submissions were received from her on that occasion when appeal grounds 1(a) and 3(f) and (g) were again discussed. Ms Manonai again sought an adjournment of the appeal to enable her to obtain legal representation, but it seems to me that it would be an act of mercy to now proceed to finalise this matter rather than to allow the parties to incur further costs.
Observations on the magistrate's reasons for rejecting the evidence of Ms Manonai and accepting the evidence of Ms Burns
Before dealing with the appeal grounds, it is to be noted that the learned Magistrate had the opportunity to see and hear each of Ms Manonai and Ms Burns give evidence. He also had the opportunity to see Ms Manonai cross‑examine Ms Burns. Ms Manonai was acting in person. She is not legally qualified and so she could not have been expected to cross‑examine as effectively as might be done by a legal practitioner.
Unfortunately, the transcript does not fully contain Ms Manonai's evidence. However, I have had the benefit of the learned magistrate's handwritten notes.
Ms Burns gave evidence of specific payments made by her which were detailed in her witness statement, but which differ from those set forth with the defence. Ms Manonai did not agree with this evidence. She gave evidence of the payments that she said were received by her.
In cross-examination, Ms Manonai said that she agreed to assist Ms Burns for 10% of her matrimonial property settlement, which Ms Manonai thought to be a 'fair amount'. The learned magistrate was not persuaded that such an agreement had been made.
Further, in cross-examination, Ms Manonai said that all correspondence to Ms Burns from Mr Leask was sent to Ms Manonai until May 2008. Accordingly, she received the two accounts directed to Ms Burns to that time from Mr Leask for the sums of $350 and $300 respectively.
Ms Manonai said that Mr Leask authorised her to collect money on his behalf, but that is inconsistent with the evidence of Mr Leask and his account for $6,890 dated 23 October 2008 addressed to Ms Burns at her home. It is also inconsistent with Mr Leask's letter dated 26 November 2008 to Ms Manonai enclosing a copy of his account dated 23 October 2008 and asking for a statement of funds paid to her by Ms Burns. Ms Manonai paid this account on 11 December 2008 by a cheque drawn on her own account.
The learned magistrate found that Mr Leask does not seek money on account of costs, such that there was therefore no need at all for Ms Manonai to have sought Mr Leask's fees from Ms Burns in advance. He further found that Mr Leask did not request Ms Manonai to obtain money on account of his costs, nor did he tell Ms Manonai that Mr Leask's fees would be less if he were to be paid in cash because he would not have to pay tax. Mr Leask did not know before June 2008 that Ms Manonai had collected fees for him.
There were therefore reasons for the learned magistrate to not accept the evidence of Ms Manonai. But that does not mean that he should have then have automatically accepted the evidence of Ms Burns. Nonetheless, he did make findings about what payments she said were made by her to Ms Manonai. Those findings should be paid due regard on appeal. This is not an appeal in which inferences are to be drawn from proved facts. Rather, it is an appeal from a trial in which the learned magistrate determined that he would accept certain evidence of Ms Burns and, for reasons he has disclosed, he has rejected certain evidence of Ms Manonai. As noted above, he had the benefit of seeing and hearing the witnesses give their evidence before coming to his decision.
The grounds of appeal
Ground 1 challenges a number of the learned magistrate's findings of fact. First, ground 1(a) challenges the finding that Ms Manonai received $11,500 from Ms Burns for Mr Leask. She admitted receiving only $8,400 – ts 11, and annexure C to statement of Mr Leask – exhibit 8.
On the hearing of this appeal, Ms Manonai simply reiterated her evidence at trial that she had only received $8,400 from Ms Burns. However, the fact is that the learned magistrate made an adverse finding upon the credibility of Ms Manonai's evidence and he found that Ms Burns had in fact paid more than that which was alleged by Ms Manonai. No reason has been enunciated by Ms Manonai as to why the learned magistrate was wrong in his findings about her lack of credibility or why he should not have accepted the evidence of Ms Burns as to the amounts of money she paid to Ms Manonai. Appeal ground 1(a) is not made out.
Appeal ground 1(b) challenges a finding that Ms Manonai paid $6,890 to Mr Leask. However, she admitted this – ts 11. This ground is not made out.
Appeal ground 1(c), challenges the finding that payments of $1,050 were made for services rendered to Ms Burns by Ms Manonai and that these payments were consistent with the requests from time to time of Ms Manonai for recompense for her services. This ground apparently challenges that finding as if the $1,050 had been a fee set in advance. It was not, as the learned magistrate's reasons reveal. As noted, the $1,050 related to requests for payments from time to time which ultimately totalled $1,050. This in itself is contrary to the claim for 10% of the settlement as alleged.
This is a finding based on credibility of the two main witnesses and cannot be successfully attacked.
Appeal ground 1(d) complains of the finding that payments made by Ms Burns were inconsistent with the agreement as alleged by Ms Manonai. It is true that these payments by way of instalment are inconsistent with the claimed 10% of the matrimonial settlement. Nothing turns on it in this appeal in favour of Ms Manonai.
Appeal ground 1(e) complains of the finding that the payments totalling $1,050 to Ms Manonai amounted to reasonable remuneration for the work performed by her.
Ms Manonai stopped working for Ms Burns in May 2008. Prior thereto, requests for payment had been made by her from time to time depending on what work was required to be done by Ms Manonai. She is an unqualified interpreter. Mr Leask's fees were $7,540. He is a legal practitioner. Therefore, comparison of his fees with the total amount paid to Ms Manonai shows the sum of $1,050 to be reasonable.
Appeal ground 2 complains of Ms Burns' witness statement and evidence not being interpreted. The statement is however just a statement, not an affidavit. It need not have been interpreted to her before filing. Her solicitor Mr Rennie told me that it had. It should have been because she signed it. However, in evidence, the statement was translated to her and confirmed by her. Further, all of the evidence from Ms Burns was translated by a qualified interpreter. This ground is not made out.
Appeal grounds 3(a) to 3(e) inclusive complain that documents were likewise not interpreted for Ms Burns, but there was no requirement for that. In any event, nothing turns on it.
Appeal grounds 3(f) and 3(g) complain that Ms Manonai did not receive $12,550 from Ms Burns. I have dealt with that above with appeal ground 1(a).
Appeal grounds 4 to 7 inclusive complain that witness statements were not signed. The learned magistrate heard evidence from the relevant witnesses. This ground is not made out.
Appeal ground 8 complains that the counterclaim was not verified by affidavit. Such is not required. There was however a statutory declaration made by Mr Rennie as solicitor for Ms Burns regarding the counterclaim, as required. This ground is not made out.
Appeal ground 9 merely states the orders made by the learned magistrate and ground 10 states what orders Ms Manonai says that he should have made. They are therefore not grounds of appeal at all.
Disposition of this appeal
This appeal is dismissed.
0
1
1