Nettle v Flint (Civil Disputes)

[2009] ACAT 6

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

NETTLE v FLINT (Civil Disputes) [2009] ACAT 6

XD 80155 of 2008

Catchwords:             CONVEYANCING – Completion of contract – conveyance or transfer – negotiation of multiple extensions of settlement date by client – real estate agent as client – experienced client

CIVIL DISPUTE – Claim for costs – payment of fees for legal services – conveyance – increase of fees for complication of conveyance – complication alleged to have been caused by default or negligence of solicitor

CIVIL DISPUTE – Claim for costs – relevant legislation – transitional provisions of Legal Profession Act 2006 – Legal Profession Act 1970

Legal Practitioners Act 1970 (ACT)

Tribunal:Phillip Thompson, Member

Date of Order:          17 February 2009

Date of Reasons
for Decision:              15 April 2009

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 80155 of 2008

GRAEME CHARLES NETTLE
trading as GRAEME C NETTLE &
ASSOCIATES
Applicant

AND

DENISE FLINT
Respondent

Tribunal:                   Mr P. Thompson

Date of Order:          17 February 2009

ORDER

1. Judgment for the applicant in the sum of $4,718.00 which includes costs of $108.00 plus interest before and after judgment.
2. Counter-claim dismissed.
3. The bank cheque held by Nettle & Associates to be refunded to respondent within 7 days.
4. Respondent allowed 28 days to pay.

…………………………
P R Thompson, Member

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )  XD 80155 of 2008

GRAEME CHARLES NETTLE
trading as GRAEME C NETTLE &
ASSOCIATES
Applicant

AND

DENISE FLINT
Respondent

REASONS FOR DECISION

1. On 1 February, 2008 the applicant commenced proceedings in the Small Claims Court against the respondent, claiming that he was owed $4,597.00 in respect of legal services provided by him to the respondent at her request. In his application, Mr Nettle stated that on 21 December 2007 an itemised tax invoice in relation to these services was served upon Ms Flint via registered post.

2. On 3 March, 2008  the respondent filed a Response disputing Mr Nettle’s claim on the grounds that whilst she had instructed Mr Nettle to provide conveyancing services to her to enable her to purchase a block of land, she had proceeded on the basis of a quote allegedly given to her by Mr Nettle’s secretary of $945.00 plus search fees of around $150.00  Further, that she was never asked to sign “an agreement of costs”  for such work, and that never at any time did she accept any such costs (as those claimed) as no such offer was ever put to her. In her response, Ms Flint also stated that she “...never at any time requested an assessment of costs, because I had never at any time agreed to any such costs, other than the quote I was given at the time of my purchase of the land”. She went on to state that she rejected that she was liable for the amount of $4,597.00 as charged by the applicant.

3. Ms Flint then counter claimed an amount of $6,672.95, being $2525.17 in respect of a cheque drawn in that amount for payment of land tax and general rates, and subsequently retained by the applicant under a lien, and $4,039.78 being penalty costs incurred by the respondent for not settling on the agreed date.

4. In her counter claim Ms Flint stated that the applicant, as the purchaser’s solicitor, was responsible for paying the land tax and general rates and that because he had retained the cheque (the Rates cheque), she had received overdue notices in respect of these amounts. She also stated that because Graeme Nettle failed to inform the seller’s solicitor that she had been given an extension of time for settlement, she had incurred the penalty costs as stated above. Both parties claimed interest at the prescribed rate on the respective amounts claimed.

5. On 26 August 2008, Ms Flint filed a document in which she detailed the particulars of her dispute to Mr Nettle’s claim and her counter claim.  That documented was then superseded by a more detailed and comprehensive document filed on 2 September entitled ‘Particulars of Disputed Claim and Counter Claim’.

6. In that document, Ms Flint states that she refused to pay Mr Nettle’s account as he had overcharged her and also charged her for work that he did not do. She also stated that this matter was a normal conveyancing matter where nothing out of the ordinary happened

7. Ms Flint also included a detailed basis for the reasons for her counter claim and her beliefs that Mr Nettle was negligent in not notifying the sellers that his client would not be settling on 14 September 2008, thus denying her of the opportunity to further negotiate an extension without incurring a penalty. That failure was stated to cause her to incur a Notice to Complete and a penalty of $4,039.68 for 21 days interest.

8. The matter came before me for hearing on 17 February 2009, with Mr R Barnett appearing on behalf of the applicant and with Ms Flint representing herself. Evidence was given by the applicant, Mr Graeme Nettle, and, in support of his claim, by Mr Michael Scott, a costs assessor. Mr Barnett also called, as an expert witness, Mr Ross Watch, who gave evidence in respect of the work carried out by the applicant and the counter claim lodged by Ms Flint

9. .Ms Flint was the sole witness in her defence of the applicant’s case and in the prosecution of her counter claim.

10. A preliminary issue canvassed by Mr Barnett was in regard to the relevant legislation under which Mr Nettle’s claim for costs was brought. According to Mr Barnett, the Legal Practitioners Act 1970 (ACT) (the Act) which preceded the Legal Profession Act 2006 (ACT) was the applicable legislation. I accepted that that was correct.

11. The Act provided that no action in respect of a claim for costs could be instituted by a solicitor unless it was first supported by an itemised account, a copy of which had been forwarded or delivered to the client.

12. According to evidence given by Mr Nettle, he was an experienced conveyancing lawyer and had handled in excess of 10,000 conveyances during his career, at a minimum rate of 350 per annum.

13. In this particular matter, Mr Nettle stated that he initially received instructions to act through the listing agent on 2 March 2007 with the matter being finally completed on 5 November 2007, some 7 months later. Mr Nettle also gave evidence that a normal conveyance could be expected to take considerably less time, with most being settled between 30 and 42 days.  I was then told that a conveyance involving the transfer of vacant land requiring the Land Minister’s consent to transfer sometimes could take a little longer, maybe even 4 weeks longer making a total of 3 months. Such consent was required in this instance.

14. According to the evidence given by Mr Nettle this was not a simple conveyance and involved an expensive block of land at O’Malley. There were a number of different attempts to change the proposed settlement date from the sales instructions and a good deal of negotiations between the receipt of those instructions and the eventual exchange of contracts. According to the evidence given by Mr Nettle there was also a great deal of negotiation in relation to buying more time for settlement. Whilst some of the extensions of the settlement date were approved, the final requested extension was not approved, which resulted in Ms Flint incurring the penalty costs referred to in the counter claim.  Mr Nettle had to deal with the default notice.

15. At the completion of the conveyance, Mr Nettle rendered a Memorandum of Professional Fees & Disbursements, dated 16 October 2007, to Ms Flint in the sum of $1920.50 inclusive of GST (Exhibit A).  According to Mr Nettle, he had done a number of matters for Ms Flint in the past, and in the hope of achieving more work in the future he had discounted his costs. This matter was no exception and he had heavily discounted his fees. Ms Flint, in response, forwarded Mr Nettle a cheque drawn in the sum of $995.00. Mr Nettle returned the cheque to Ms Flint.

16. Mr Nettle then instructed Rod Barnett & Associates to recover his costs. On 3 December 2007 Mr Barnett wrote to Ms Flint advising her that Mr Nettle was exercising what he called a valid lien over the Rates cheque and that he would continue to do so until his account was paid in full. Ms Flint was also advised that if that account was not paid within 7 days, Mr Nettle had been advised to have his file fully taxed by a cost assessor (Exhibit B).

17. Mr Nettle gave further evidence that he had the Rates cheque, the subject of the lien, subsequently converted to a bank cheque so that it would not become stale. The Rates cheque was also made payable to the ACT Revenue Office. Mr Nettle also gave evidence that he subsequently instructed Mr Barnett to retain Mr Michael Scott, as a cost assessor and to send him the file for the purpose of having it fully taxed.

18. On 12 December 2007, Mr Barnett forwarded Ms Flint a copy of the itemised bill drawn by Ms Scott totaling $4597.00, together with a pamphlet outlining her rights relating to such costs. Mr Nettle confirmed that he had still not received any payment from Ms Flint.

19. Next, Mr Nettle was asked a series of questions which related to Ms Flint’s counter claim and in particular the failure to complete on the settlement date.  I will return to that matter later. Mr Nettle was then crossed examined by Ms Flint however she mainly asked questions relating to actions or non actions taken by him concerning the requested extension of the 17 September 2007 settlement date. Again, I will deal with those matters later when I deal with my reasons for dismissing Ms Flint’s counter claim.

20. Apart from stating that she did not ask for the bill to be taxed or to be drawn in taxed form, Ms Flint did not really challenge Mr Nettle’s evidence in respect of his initial account or the reasons for having it taxed. She stated that she had not signed any cost agreement because she believed conveyances usually cost a standard amount of money and hence cost agreements were unnecessary. In her stated view, sometimes, “you get a quick one, sometimes you get one that takes longer” and presumably they should all be charged out at a similar amount.

21. Evidence was then given by Mr Michael Scott in relation to the bill of costs drawn by him in this matter. He initially gave evidence in relation to his qualifications and experience as a costs assessor, which basically amounted to some 14 years, following on from almost 26 years as a practicing solicitor.

22. Mr Scott gave evidence that because of the transitional provisions of the Legal Profession ACT 2006, the subject matter came under the old 1970 Act and that Act required that before one could sue for costs, an itemised bill had to be served on the person from whom the monies were claimed.  The scale of costs he used were the ACT Supreme Court scale as at the date the work was performed. The Supreme Court Scale of costs and the actual Bill of Costs were then tendered (Exhibits FF &GG).

23. Mr Scott also gave evidence that he prepared his bill of costs off the file and only included charges for items that could be substantiated. Under cross examination from Ms Flint, Mr Scott gave a more detailed account of exactly how he draws a bill. Ms Flint asked Mr Scott whether he had instructions to assess it (the work done) or to cost it. Mr Scott replied that he did what he was asked to do, that is prepare a bill of costs in taxable form, in an itemised form capable of being taxed, if necessary, on the basis of the documents  presented to him, and in accordance with the scale.

24. Ms Flint then asked him a number of questions in relation to the appropriateness or otherwise on the size of the bill for a conveyancing matter. Basically Mr Scott was reluctant to comment on that as in his opinion it would depend on the nature of the work undertaken and any agreements between the parties. He did however, in answer to a question posed by me, state that the original account rendered by Mr Nettle was more than reasonable, having regard to the file and the amount of work done. In Mr Scott’s opinion, this had been a difficult matter involving problems with obtaining finance for the property and notices to complete or threats of such notices.

25. It was more than obvious from statements made by Ms Flint and from questions posed to Mr Scott that she had little knowledge of the applicable laws in the ACT relating to accounts rendered by a solicitor or her rights in respect of such accounts should she wish to dispute them, despite having been provided with the relevant law society pamphlets. Ms Flint was in fact relying, for her defence, on the provisions of NSW legislation, which she produced to the Tribunal. She was also confusing Mr Scott’s instructions and the task required of him with the role and responsibilities of a taxing officer both in NSW and the ACT.  That confusion, in my opinion was to Ms Flint’s detriment, and led to her incurring substantial increased costs.

26. The last witness to give evidence on behalf of the applicant was Mr Ross Watch, a legal practitioner with some 35 years experience. Mr Watch also advised the Tribunal that he was the Chair of the ACT Law Society Property Committee from 1990 until 2005. That committee handles matters relating to property law matters within the society. Mr Watch also stated in evidence that he was a member of the ACT Law Society professional conduct board and a member of the Legal Practitioners Disciplinary Committee.

27. In answer to questions posed by Mr Barnett, Mr Watch confirmed that he was instructed by Rod Barnett & Associates to prepare an expert opinion with regard to the carriage of a file on work carried out by Graeme Nettle &Associates which was, according to Mr Barnett “...engendered by the fact that there was an allegation by Ms Flint that there had been negligence involved” Mr Watch’s report was subsequently tendered (Exhibit HH).

28. In his Report, Mr Watch extensively sets out the dealings between all the parties to this conveyance. He concluded that nothing the applicant did was other than what a competent and prudent solicitor would do, faced with an informed and experienced real estate agent as a client and one whose ability to comply with the terms of the contract she entered into was questionable throughout the transaction.

29. Further, were the client other than an experienced real estate agent, the applicant may have chosen to take a more proactive role and, given that the respondent claimed to have insider contact with the seller, the applicant was, in Mr Watch’s view, entitled to let her conduct her own negotiations, within reason.

30. Finally, Mr Watch concluded that on the material presented to him, he believed that the applicant had acted in a competent and professional manner, during the conduct of the transaction.

31. Mr Watch was extensively questioned in respect of his Report. Leaving aside for the moment, his evidence specifically relating to Ms Flint’s cross claim, it is important to note that Mr Watch stated that in the absence of a negotiated agreement between the parties, as to the rate to be charged, the Supreme Court scale of costs would be an appropriate rate.

32. Later, Mr Watch was questioned by Ms Flint as to what he charged for a conveyancing matter.  His answer was that, in respect of an ACT domestic conveyance, he charged $900 plus GST plus disbursements for a purchase.  It was his practice however, to include in his letter to the client, a paragraph advising that if the matter became other than standard, such as a notice to complete being issued or the matter gets into extensive negotiations or difficulties with finance, the client would be charged an hourly rate of $400 plus GST.

33. Mr Watch went on to state however that if the client is someone he dealt with regularly, such as a commercial or business client, he did not always send an engagement letter, because the client knew what his charges were. Ms Flint then stated that she had been a client of Mr Nettles for many years and that she knew what his charges were. Obviously, in my opinion, she would not have expected to receive a letter from him in which he set out his charges before engaging him.

34. In her evidence in chief, in respect of her counter claim, Ms Flint advised the Tribunal that she did in fact have finance approved from the outset, however she did not have finance approved from the bank that she wanted to use, hence her reasons for wanting the various extensions. Specifically, she had finance approved from the Bank of Queensland which enabled her to exchange contracts, but according to Ms Flint, she did not want to go with that bank because of the conditions they wanted to impose.

35. Ms Flint advised me that she requested extensions “…not because I hadn’t arranged the finance, but because the longer I’ve got to settle the better. Now it’s a block of land. You can’t get a tenant on it. I was wanting to get the plans drawn up”. According to Ms Flint’s evidence, the original settlement day offered to her by Mr Dino Nikias, a director of the selling company, was 7 July 2007. However, evidently on 10 April 2007, Ms Flint negotiated a new settlement date directly with Mr Dino Nikias, who, according to Ms Flint’s evidence, she knew as a business associate of long standing.  Ms Flint stated that the two of them had agreed on 15 August “…because I think I had to go away on a trip somewhere…”.

36. In the documentation filed in the Tribunal in support of her claim Ms Flint stated that two settlement dates were changed. The first one, set down for 15 August 2007, was changed due to the seller’s solicitors not being ready and the second, due on 14 September 2007, because she was not ready to settle. Ms Flint further stated that she did all the negotiations herself in regard to changing these settlement dates as she knew the seller personally.

37. In respect of 15 August 2007, Ms Flint stated that Clayton Utz, the seller’s solicitors, wrote to Mr Nettle on 15 August saying that they had still not received documentation from him which was required prior to settlement. Ms Flint goes on to state that the settlement date was subsequently changed to 20 August 2007 through “... no fault of mine”.

38. In her evidence before the Tribunal, Ms Flint again stated that the seller’s solicitor was not ready to settle on 15 August 2007, but, according to Mr Nettle’s evidence, that was not correct, in that he had not sent back the consent documents because he was looking to buy time. That was done because finance had not been arranged. On the evidence, I am satisfied that that was the case. 

39. In any event, according to documentation filed by Ms Flint, on 28 August 2007, she e -mailed someone called George, requesting an extension of time to settle as she had a problem with the bank. The issue of stamp duty and the trees were mentioned.  On 5 September 2007 Mr Nettle e-mailed Ms Flint advising her that the sellers will give her until 14 September to settle, without penalty. Ms Flint replied to him, advising that she was now ready and would be going with the Bank of Adelaide.

40. Subsequently however, Ms Flint negotiated a further extension of the settlement date until 28 September 2007 with Mr Dimitri Nikias, who was Dino’s son.  On 11 September Ms Flint e-mailed Mr Nettle advising that she had spoken to Dimitri Nikias explaining that she could not settle on the 14^th. She could not get a definite date from the Bank of Adelaide at the time. She also advised that she would have a definite date the next day, and had promised to phone Dimitri.

41. I am satisfied on the evidence, that a print-out of that e-mail was endorsed by Mr Nettle’s secretary the next day as follows:

12/9        

2.15       Phone call from Denise [shorthand symbol] to be 28/9

D.M. to contact CV & advise – no penalty until after 28/9

(Presumably the shorthand symbol refers to the settlement)

42. Although in her sworn evidence, Ms Flint for the main part, disputes this, I am satisfied that those notations were to the effect that Ms Flint advised Debbie Kensey, who was Mr Nettle’s secretary, that Dimitri Nikias had undertaken to inform Clayton Utz that there would be no penalties incurred by her until after 28 September 2007.

43. Later that night, Ms Flint forwarded an e-mail to Mr Nettle confirming the new settlement date of 28 September 2007.  She also advised Mr Nettle that she was not going to reveal the new settlement date to the bank “so that they would get a move on”, as she could not now ask for any more extensions. Also, that she  “might try to settle earlier as I need the deposit money and the stamp money back urgently”.

44. Unfortunately, it is very clear from the evidence that Mr Dimitri Nikias did not have the authority to change the settlement date, so therefore this extension was not approved. That left Ms Flint in default under the terms of the contract.  Whether or not he conveyed the advice as set out above to Clayton Utz is not known, but in any event on 17 September a Notice to Complete was issued to Ms Flint appointing 25 September 2007 as the new settlement date.

45. In an e-mail forwarded to Mr Nettle on 24 October 2007 Ms Flint refers to a further extension negotiated by her with Dino Nikias who had returned from overseas. The new date was to be 5 October 2007 but she had agreed with Mr Nikias this time to pay the 10% penalty together with costs. The settlement eventually took place on that date.

46. In that e-mail, Ms Flint strongly expressed her view that had Mr Nettle contacted the other side to advise them that she had been given confirmation by the owner’s son, that she had been given an extension until 28 September 2007, to settle, she could have been advised that he did not have such authority.  In her view she could then have contacted the father who would have given her permission to extend the settlement date without penalty.

47. In fact, Ms Flint produced a letter from Mr Nikias to this effect, dated 23 April 2008. I had difficulty in accepting that that was, in fact, the case and therefore gave little weight to the contents of that letter. Mr Nikias insisted on the penalty clause being included in the final extension, and was well aware at the time, that Ms Nettle had acted to her detriment on the advice of his son. No action had been taken by him to remedy the harm done to her as a result. The penalty interest paid by Ms Flint remained in his company’s hands.  Taken together with Ms Flint’s advice that the seller’s company had not offered her the opportunity to have ‘free stamp duty’, it is fairly apparent that the company was not prepared to do any favors for her, and Dino Nikias’ statement may well have been an empty boast.

48. In her evidence before me, Ms Flint was steadfast in her views that it was Mr Nettle’s responsibility to contact Clayton Utz and that she rejected testimony from him and from Mr Watch to the contrary. Clearly, she held him responsible for her default under the contract, for which she also rejected any self responsibility, even though she acknowledged that she did all the negotiations herself in relation to the settlement dates.

49. She also refused to accept that Mr Nettle was at liberty to just accept what she told him, without further action on his part, even though he had done so in the past, because he “was in contact with Clayton Utz all the time about settlement and documents and things…”. Ms Flint stated in evidence that in her view Mr Nettle should have told the other solicitor, who supposedly would then tell the company. She flatly rejected the evidence on more than one occasion, that she had informed Mr Nettle’s office that Dino or his son would perform this task. I have already stated my contrary view on that matter.

50. In my view, stated at the time, Ms Flint relied on her own expertise and good relations with the Nikias family to get a number of extensions, including the one which incurred the penalty because it suited her, as it was in her stated interest to delay the final settlement as long as possible, as she was still deciding which bank to use.

51. Mr Nettle’s evidence in relation to the various extensions was that there was a continuous need for Ms Flint to seek alternative sources of finance and that the final documents were not signed for the requisite loans until about four days preceding the actual settlement. Mr Nettle further stated that Ms Flint had gone through a number of applications with the various banks.

52. Mr Nettle had also previously confirmed in his evidence that Ms Flint had advised him that she had been speaking to Mr Nikias senior’s son who had indicated to her that there would be an extension of time for settlement and that he, Dimitri Nikias would contact Clayton Utz to tell them the new date.

53. In answer to a question asked by me as to whether it was rare or unusual for a buyer to be negotiating settlement dates, Mr Nettle replied that in his experience it was rare, but this matter was a particular kind of transaction where Ms Flint was a very established and competent real estate agent and had taken the mantle of doing many of the negotiations herself. In this case, he did not write to Clayton Utz for the reasons given above.  Unfortunately, Mr Nettle was subsequently advised that no proposal for a further extension had been put before the board of the seller’s company and hence that was the reason for the issuing of the Notice to Complete.

54. Mr Nettle also gave evidence that the sellers eventually required interest to be paid for the period 14 September to 5 0ctober 2007, together with $300 to be paid towards legal costs in accordance with the relevant clauses in the contract.  Mr Nettle went on to state that the only way penalty interest can be waived was through the grace of the seller or because the seller was at fault for the delay. In the past he had  been successful in getting such penalty provisions waived, only very occasionally, maybe one in four or five attempts, and then only with good reason.

55. In answer to a question put to him under cross examination by Ms Flint, Mr Nettle advised me that he was never in contact with the Nikias family and that he had no right to be in contact with them. He once more confirmed that all the negotiations in respect of the first one or two settlement dates were undertaken by Ms Flint without his input, and the one with the son was no different.

56. When giving evidence on this point, Mr Watch’s recollection was that Mr Nettle had informed Clayton Utz, but at the end of the day, as he read the file

…absolutely nothing turned on that. The penalty was being imposed. The matter, as it turned out Ms Flint’s bank was not in a position until either 4 or 5 October, well past the 28 September date, and so there was no - I looked at that question very closely, because clearly that was the nub of the matter. I don’t believe anything turned on the failure of Nettle to tell Clayton Utz of that conversation quickly.

It was also rare in Mr Watch’s experience for a vendor to agree to waive penalty costs when the settlement dates kept blowing out. He also agreed with Mr Barnett that it was not unusual for solicitors acting on both sides to renegotiate a penalty rate, for the penalty which might be imposed, with the background of a notice to complete having issued, if that was what the parties wanted. It is important to note that that did not happen in this case. In my view, in light of the involvement of the younger Nikias, that was warranted.

57. Under cross examination by Ms Flint, Mr Watch read out the relevant paragraphs of the terms of his engagement. I will quote them as follows:

The premise of your brief is confined to providing an opinion as to whether or not during the conduct of the conveyance, Graeme Nettle in his duty to act adequately, failed to do anything which a normal conveyancing solicitor would do in bringing this conveyance to a satisfactory conclusion.

The question of negligence is a matter for the court. Would be grateful if your opinion would avoid any comments in relation to negligence.

58. Notwithstanding those instructions, with which Mr Watch had complied, I asked him directly; if in his opinion there had been any negligence on the part of Mr Nettle. Mr Watch gave a simple answer of “No” After reading his Report, and hearing all the evidence in this matter, I agreed with him.

59. In my view, Ms Flint was the author of her own misfortune and solely responsible for the additional costs she incurred and the situation she now found herself in.

60. She had, in my view, an unreal expectation as to the total of solicitors’ costs she was going to incur as a result of turning what may have initially been a fairly uncomplicated conveyance, into one that dragged out over some 7 months.

61. When Mr Nettle was in the witness box, Ms Flint had an opportunity to examine him in respect of a quote she claimed to have been given by his secretary. She chose not to do so. To my mind, it appeared that she had based her assertions that Mr Nettle’s bill was excessive, not on a quote, but on her own previous experiences, and information given to her by others as to what a normal conveyance costs.  She was also well aware that conveyancing matters did not at the time normally require a costs agreement.

62. On all the evidence, this was not a simple conveyance and I was satisfied that Mr Nettle’s original account that he rendered to Ms Flint was more than reasonable in the circumstances. That fact is confirmed by the significant increase in the bill, once the file was fully taxed by Mr Scott. I also believed that the decision to have the bill drawn in taxable form was the correct decision and the only one open to Mr Nettle, apart from accepting the cheque forwarded by Ms Flint. I also noted at the time of my decision, that it had been open to Ms Flint to have Mr Scott’s bill taxed by a taxing officer in the Supreme Court. She had not availed herself of that opportunity. I had no alternative in the circumstances but to order that Ms Flint was liable for the full amount of Mr Nettle’s claim and I entered judgment accordingly in the sum of $4597.00 plus costs of $108.00 together with interest.

63. It was also clear to me that Ms Flint incurred the penalty, or more correctly the default interest costs, because she was unable or unwilling to settle on the due dates, and was thus in breach of the terms of her contract with the vendor, and not because of any default or negligence on the part of Mr Nettle. I therefore dismissed her counter claim

64. Finally, I ordered that the bank cheque held by Mr Nettle’s firm was to be refunded to the respondent within 7 days with her being allowed 28 days to pay Mr Nettle’s account in full. That was actually remiss of me as Mr Nettle had a lawful lien over the cheque. My order should have stated that the cheque was to be forwarded to Ms Flint within 7 days of the judgment debt being paid.

…………………………
P R Thompson, Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      XD08/80155

APPLICANT:                GRAEME CHARLES NETTLE T/AS GRAEME C NETTLE & ASSOCIATES

RESPONDENT:            DENISE FLINT

COUNSEL APPEARING:       APPLICANT:          

RESPONDENT:      

SOLICITORS:  APPLICANT:          MR R BARNETT

RESPONDENT:      

OTHER:  APPLICANT:          MR G C NETTLE

RESPONDENT:      MS D FLINT

TRIBUNAL MEMBER/S:       MR P THOMPSON

DATE OF HEARING:   17 FEBRUARY 2009            PLACE: CANBERRA

DATE OF DECISION:  15 APRIL 2009  PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: