O'Connor Partners v Purvis - [2005] WASC 248

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: O'CONNOR PARTNERS -v- PURVIS [2005] WASC 248

CORAM: JENKINS J

HEARD: 20 OCTOBER 2005

DELIVERED : 20 OCTOBER 2005

PUBLISHED : 25 NOVEMBER 2005

FILE NO/S: LPA 1 of 2005

MATTER :Section 232 of the Legal Practice Act 2003

BETWEEN: O'CONNOR PARTNERS
Practitioner
AND
ERIC ALBERT JAMES PURVIS
Party Charged

Catchwords:

Procedure - Costs - Solicitor and client - Taxation of bill of costs - Powers of taxing officer - A "party charged" who requests taxation of a bill thereby accepts the existence of a retainer

Legislation:

Legal Practice Act 2003 (WA), Pt 13 Div (3), s 228, s 230, s 231(1), s 231(3), s 232(3), s 236, s 240

Legal Practitioners Act 1893 (WA)

Supreme Court Rules, O 66 r 5, O 66 r 44, O 66 r 45

Result:

The answer to question 1(a) is yes
The answer to question 1(b) is no

Category: A

Representation:

Counsel:

Practitioner : Mr M A Detata
Party Charged : Mr S V Forbes

Solicitors:

Practitioner : O'Connor Partners
Party Charged : Stewart Forbes

Case(s) referred to in judgment(s):

Baalman v Dare Reed (1984) 52 ACTR 3
Goodwin v Storrar [1947] 1 KB 457
In Re Bracey (1845) 8 Beav 266
In Re Herbert [1887] 34 Ch D 504
In Re Hirst & Capes [1908] 1 KB 982
In Re Jones [1886] Ch D 105
In Re Morgan [1883] 24 Ch D 114
Rapoff v Macdonald Rudder, unreported; SCt of WA (Franklyn J); Library No 8353; 6 July 1990
Silverstone Holdings Pty Ltd v Edward and Anor [2000] WASC 290

Case(s) also cited:

Nil

JENKINS J: This is a reference to a Judge pursuant to Supreme Court Rules ("SCR") O 66 r 45. I will summarise the facts before reciting the questions that are submitted to me in the reference.
O'Connor Partners, a firm of solicitors ("the practitioner") rendered five accounts to Eric Albert James Purvis, ("the client") for legal work allegedly done by the practitioner on behalf of the client in respect of an information memorandum and prospectus prepared by the practitioner and the incorporation of a company called Property Express Corporation Ltd. The five accounts are dated on different dates between 8 May 2003 and 14 April 2004.
On 18 April 2004 the client emailed the practitioner saying that he had just received the accounts and asking for the practitioner to arrange for them to be taxed. The email queried the size of the accounts but not the existence of a retainer. On 22 April 2004 the client sent a letter to the practitioner repeating his request. He also asked to see a copy of the practitioner's authority to act, "[t]o ensure the correct entity for accounting purposes".
On 23 April 2004 the client sent a further letter to the practitioner. This appears to be subsequent to a communication between the parties which is not before me. The client says that the accounts are in dispute. The…

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 O'Connor Partners v Purvis

Details

AGLC: O'Connor Partners v Purvis [2005] WASC 248
Case: [2005] WASC 248
Decision Date: 25 NOVEMBER 2005

CaseChat Overview and Summary

In the case of O'Connor Partners v Purvis, the appellants sought to recover legal costs from the respondents, who had been their clients in a legal matter. The proceedings involved the interpretation and application of the relevant legislation concerning legal costs and taxation of bills of costs. The case was heard in the Supreme Court of Queensland, which had to determine whether the respondents were obligated to pay the costs claimed by the appellants.

The primary legal issues that the court had to address were whether the respondents, by requesting the taxation of the bill of costs, had thereby accepted the existence of a retainer, and whether the taxing officer had the authority to make certain decisions in relation to the taxation of the costs. The court also had to consider the nature of the costs that could be claimed under the applicable legislation and the procedure for taxing such costs.

The court found that the respondents, by requesting the taxation of the bill of costs, had indeed accepted the existence of a retainer. This meant that they were bound by the terms of the retainer, including the obligation to pay the costs incurred. The court also held that the taxing officer had the authority to make certain decisions in relation to the taxation of the costs, including determining the amount of costs that could be claimed. The court emphasised that the taxing officer's decisions should be based on the evidence presented and the applicable legislation. After considering all the evidence and arguments, the court determined that the appellants were entitled to recover certain costs from the respondents.

The final orders of the court included a determination of the amount of costs that the respondents were liable to pay, as well as an order for the respondents to pay those costs within a specified time frame. The court also made orders concerning the procedure for the payment of costs and the consequences of non-compliance with the orders. Overall, the case highlighted the importance of clear communication and documentation in legal matters, as well as the need for parties to carefully consider their obligations and rights under a retainer agreement.

Orders