PM Sulcs & Associates Pty Ltd v Oliveri - [2009] NSWSC 456

CITATION: PM Sulcs & Associates Pty Ltd v Oliveri [2009] NSWSC 456

HEARING DATE(S): 27, 28, 29 & 30 April 2009; 1, 5 & 11 May 2009

JUDGMENT DATE :
28 May 2009

JURISDICTION: Equity

JUDGMENT OF: Debelle AJ

CATCHWORDS: PROCEDURE – Costs – Taxation – plaintiff had succeeded in litigation – defendant submitted bill of costs based on alleged costs agreement – whether costs agreement had existed – whether defendant retained on void contingency basis – Held no costs agreement existed and costs payable on quantum meruit basis as assessed under Division 6 of Part 11 of the Legal Profession Act 1987 - TORTS - Trover and detinue – Remedies – Action of detinue – Files and documents in relation to earlier litigation held pending payment of costs and disbursements – Held defendant entitled to lien – Order that defendant deliver up files and documents on provision by plaintiff of security for the costs payable to defendant

LEGISLATION CITED: Evidence Act 1995
Legal Profession Act 1987

CATEGORY: Principal judgment

CASES CITED: A v B [1894] 1 All ER 265
Briginshaw v Briginshaw (1938) 60 CLR 336
Bechara v Atie [2005] NSWCA 268
Boland v Yates (1999) 167 ALR 575
Boyles v McCallum (1966) 85 WN (Pt 1) 281
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Doyles Construction Lawyers v Harsands Pty Ltd (NSWSC, McClelland CJ in Eq, 24 December 1996, unreported)
Empirnall Holdings v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Felthouse v Bindley (1862) 11 CB(NS) 869; 142 ER 1037
Giannarelli v Wraith (1988) 165 CLR 543
Ismail v Richard Butler (a firm) [1996] 2 All ER 506
Jankowski v Mastoris (1995) 7 BPR 14589
Pavey v Matthews Pty Ltd v Paul (1987) 162 CLR 221
PM Sulcs & Associates Pty Ltd v Daihatsu Australia Pty Ltd - Costs and Interest [2001] NSWSC 798
Rust v Abbey Life Assurance Co Ltd [1979] 2 Lloyd's Rep 334
Watson v Foxman (1995) 49 NSWLR 315

TEXTS CITED: Lawyers' Professional Responsibility 3rd ed (2005) Lawbook Co

PARTIES: PM Sulcs & Associates Pty Limited ( Plaintiff)
Dominic Oliveri (Defendant)

FILE NUMBER(S): SC 3548/2004

COUNSEL: R Aldridge SC/BJ Skinner (Plaintiff)
GC Lindsay SC/GPF Rundle (Defendant)

SOLICITORS: Connah, Steed & Co (Plaintiff)
Penelope Purcell Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING JUSTICE DEBELLE

THURSDAY, 28 MAY 2009

DOMINIC OLIVERI

JUDGMENT

1 HIS HONOUR: The central issues in these proceedings are what, if any, costs agreement was made between the plaintiff and the defendant solicitor for payment of legal fees and, if a costs agreement was made, was that agreement lawful. The plaintiff had retained the defendant to act on its behalf in a substantial action for damages. Its case is that the defendant orally agreed that his fees would be 10 per cent of the damages recovered after disbursements had been paid. The defendant denies such an arrangement. His case is that the plaintiff is bound by a written…

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.

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Details

Case: [2009] NSWSC 456
Decision Date: 28 May 2009

CaseChat Overview and Summary

The plaintiff, PM Sulcs & Associates Pty Ltd, was involved in litigation with the defendant, Oliveri. The dispute pertained to the recovery of costs incurred during the litigation and the entitlement to a lien over certain files and documents. The matter was heard in the Supreme Court of New South Wales. The central legal issues were whether a costs agreement existed between the parties, and if not, what basis the costs should be assessed on. Additionally, the court needed to determine if the defendant was entitled to a lien over the files and documents.

The court found that there was no formal costs agreement between the parties. Consequently, the plaintiff's entitlement to costs was assessed on a quantum meruit basis, in accordance with Division 6 of Part 11 of the Legal Profession Act 1987. The court also considered the defendant's right to a lien over the files and documents, which were being held pending the resolution of the costs dispute. The court concluded that the defendant was entitled to a lien for the costs and disbursements incurred during the litigation. The court ordered that the defendant would deliver up the files and documents upon the plaintiff providing security for the costs payable to the defendant.

The court's decision was that the plaintiff's costs would be assessed on a quantum meruit basis and that the defendant was entitled to a lien over the files and documents. The court ordered the defendant to deliver up the files and documents on the plaintiff providing security for the costs payable to the defendant.

Orders