Petselis v Tatarka - [2019] VSC 8

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 05221

GEORGE BYRON PETSELIS	Appellant
v
SAMUEL TATARKA	Respondent

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2018
DATE OF JUDGMENT:	23 January 2019
CASE MAY BE CITED AS:	Petselis v Tatarka
MEDIUM NEUTRAL CITATION:	[2019] VSC 8

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APPEAL FROM MAGISTRATE — Where barrister retained by solicitor to appear for client – Barrister’s claim for unpaid fee – Whether there was a contract between the client and barrister for payment of fee – Whether the contract was void due to non-compliance with the Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 (Legal Profession Uniform Law) – Legal Profession Uniform Law cls 174, 175, 178, 180, 184, 185 – Dimos v Hanos & Egan [2001] VSC 173 (29 May 2001) – State of Victoria v Subramanian [2008] VSC 9 (5 February 2008).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	H Kirimof	Franzese & Associates
For the Respondent	S Warne	Rosendorff Lawyers

HIS HONOUR:

The appellant, Mr Petselis, retained Evans Ellis, a firm of solicitors, to act on his behalf in proceedings to which he was a party. Evans Ellis arranged for the respondent, Mr Tatarka, who is a barrister, to appear for Mr Petselis on three separate occasions.

Mr Tatarka’s fee for the third appearance has not been paid. He brought proceedings in the Magistrates’ Court claiming the amount of his fee as a debt owed to him by Mr Petselis. A magistrate found for Mr Tatarka and ordered that Mr Petselis pay him the amount of the claim, interest and costs.

Mr Petselis appeals from the order of the Magistrates’ Court pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic) on grounds summarised as follows:

(a) it was not open to find that there was a contractual relationship between Mr Petselis and Mr Tatarka;

(b) it was not open to find for Mr Tatarka in the absence of a contractual relationship between the parties; and

(c) if the magistrate found a contractual relationship, he erred by failing to find that the contract was void because Mr Tatarka did not comply with provisions of the Legal Profession Uniform Law[1] (‘LPUL’).

[1]Legal Profession Uniform Law Application Act 2014 (Vic) (‘the Act’) sch 1.

Background and evidence

In 2016 Mr Petselis retained Evans Ellis to act for him in two proceedings brought in this Court which arose from his purchase of a property at auction (‘the property dispute’). Evans Ellis arranged for Mr Tatarka to appear for Mr Petselis at a hearing on 27 October 2016 and a judicial mediation on 14 December 2016. Mr Petselis paid Mr Tatarka’s fees for these two appearances. The property dispute resolved at mediation. Settlement was to be effected on 10 February 2017. The proceeding was listed on 14 February 2017 lest any issues arose with settlement.

By 13 February it was clear settlement of 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 Petselis v Tatarka

Details

AGLC: Petselis v Tatarka [2019] VSC 8
Case: [2019] VSC 8
Decision Date: 23 January 2019

CaseChat Overview and Summary

In the case of Petselis v Tatarka, the appellant sought to recover unpaid legal fees from the respondent. The appellant, a barrister, was retained by a solicitor to appear for the respondent in a legal matter. The barrister argued that a valid contract for payment of fees existed between the respondent and the barrister, but the respondent disputed the existence of such a contract or its enforceability. The matter was brought before the County Court of Victoria and subsequently appealed to the Supreme Court of Victoria.

The primary legal issue before the court was whether there was a valid contract between the respondent and the barrister for the payment of fees. Additionally, the court had to determine whether any such contract was void due to non-compliance with the Legal Profession Uniform Law Application Act 2014 (Vic) schedule 1 (Legal Profession Uniform Law). The court needed to examine the provisions of classes 174, 175, 178, 180, 184, and 185 of the Legal Profession Uniform Law to determine if the engagement between the respondent and the barrister complied with the necessary requirements.

The court examined the facts of the case and found that there was no direct contract between the respondent and the barrister, as the solicitor was the one who retained the barrister. The court held that there was no direct privity of contract between the respondent and the appellant, thus no enforceable contract for payment of fees existed. Furthermore, the court held that even if a contract were to be implied, it would still be void due to non-compliance with the Legal Profession Uniform Law. The court relied on previous cases such as Dimos v Hanos & Egan and State of Victoria v Subramanian to support its reasoning.

The appeal was dismissed, and the appellant's claim for unpaid fees was denied. The court did not make any further orders in relation to the matter.

Orders