| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 9783 of 2004
| MAURICE BLACKBURN PTY LTD (ACN 105 657 949) and MAURICE BLACKBURN CASHMAN (a firm) | Plaintiffs |
| v | |
| DAVID BURMINGHAM | Defendant |
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JUDGE: | BYRNE J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 3, 4 March, 17, 18, 19, 20, 24, 25, 26 November, 15, 17, 19 December 2008; 2, 3, 4 February, 10 March 2009 | |
DATE OF JUDGMENT: | 20 March 2009 | |
CASE MAY BE CITED AS: | Maurice Blackburn v Burmingham | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 20 | Revised 6 April 2009 |
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Legal Practitioners – retainer to act in litigious matter – conditional costs agreement – uplifted fee – fee payable upon successful outcome of the matter – retainer determined before completion of matter – client later settled matter – whether successful outcome –whether solicitors entitled to render account – whether client in breach of costs agreement – whether solicitors entitled to uplifted fee – whether costs agreement void for contravention of Legal Practice Act 1996 ss 96, 97 – whether solicitors entitled to fees pursuant to s 93(b).
Legal Practice Act 1996 ss 96, 97, 102
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APPEARANCES: | Counsel | Solicitors | |
| For the Plaintiffs | Mr DA Klempfner | Maurice Blackburn Pty Ltd | |
| The Defendant appeared in person | |||
Table of Contents
The Trial
The Issues
The Facts
The Settlement of the AXA Litigation
The Assignment Point
The Burmingham Breaches
The Solicitors’ Claims
Claim under contract
Repudiation Claim
The Burmingham Allegations
General competence and the retainer of counsel
Preparation of the Case for trial
Payment of disbursements
The settlement negotiations
The conduct of MBC after June 2003General
Conclusions
HIS HONOUR:
The defendant, David George Peter Burmingham, had practised as a chartered accountant for some 10 years prior to 1992. In March of that year he suffered a mental breakdown and he made a claim upon his income protection insurer, Australian Casualty and Life Ltd. The insurer subsequently went into liquidation and its responsibilities under the policy were accepted by AXA. I shall for convenience refer in this judgment to the insurer as AXA notwithstanding that it may not then have been the company responsible for the cover. AXA accepted the claim and made monthly payments under the policy until October 1994 when they ceased.
Mr Burmingham was aggrieved by this and in April 1997 he sought the assistance of the secondnamed plaintiff, a firm of solicitors carrying on practice in partnership under the registered business name, Maurice Blackburn Cashman (“MBC”), to press his entitlement to continuing payments. Its efforts were unsuccessful and he decided, in accordance with its advice, to sue AXA, which he did in proceeding No 7142 of 2000 in this Court on 11 October 2000.
Since Mr Burmingham lacked the resources to pursue the AXA claim, on 1 June 1997, he entered into a costs agreement with MBC for it to press and, if possible, negotiate a resolution of the claim. And later, in September 2000, when these negotiations came to nothing and he decided…
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- Case
- [2009] VSC 20
- Decision Date
CaseChat Overview and Summary
The court examined the terms of the costs agreement and the events leading to its termination. It found that the client had terminated the retainer before the matter was concluded. Despite this, the client later settled the matter, raising questions about whether this constituted a successful outcome under the agreement. The court also considered the implications of the Legal Practice Act, particularly sections 96, 97, and 102, in determining the validity of the agreement and the entitlement of the solicitors to their fees. Ultimately, the court ruled that the solicitors were entitled to render an account for their services and that the client had not breached the costs agreement. The court also found that the uplifted fee was payable as per the agreement, and it did not contravene the Legal Practice Act.
The final orders of the court recognised the solicitors' entitlement to their fees, including the uplifted fee, and directed the client to pay the outstanding amount. The court held that the costs agreement was valid and enforceable, and that the solicitors' entitlement to fees did not contravene the Legal Practice Act. This decision reinforces the importance of clear and precise terms in conditional costs agreements and the obligations of both parties under such agreements.
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
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Ratio Decidendi
Legal Principle Established
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