Robinson v Berry
[2008] WADC 44
•31 MARCH 2008
ROBINSON -v- BERRY [2008] WADC 44
| Link to Appeal : | [2009] WASCA 41 |
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 44 | |
| Case No: | CIV:5/2006 | 4-5 MARCH 2008 | |
| Coram: | STEVENSON DCJ | 31/03/08 | |
| ALBANY | |||
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim allowed at $4 930.00 Defendant's counterclaim dismissed | ||
| PDF Version |
| Parties: | HAYNES ROBINSON ELSPETH BERRY |
Catchwords: | Claim for legal fees by solicitor Termination of solicitor and client retainer agreement Solicitor's duty when client does not accept legal advice |
Legislation: | Supreme Court Act 1935 s 32 |
Case References: | Dew v Richardson (unreported; SCt of Qld, Library No 9905088; 18 August 1999) |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ELSPETH BERRY
Defendant
Catchwords:
Claim for legal fees by solicitor - Termination of solicitor and client retainer agreement - Solicitor's duty when client does not accept legal advice
Legislation:
Supreme Court Act 1935 s 32
Result:
Plaintiff's claim allowed at $4,930.00
Defendant's counterclaim dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr M F Holler
Defendant : In Person
Solicitors:
Plaintiff : Haynes Robinson
Defendant : Not applicable
Case(s) referred to in judgment(s):
Dew v Richardson; unreported; SCt of Qld, Library No 9905088; 18 August 1999
(Page 3)
- STEVENSON DCJ:
Introduction
1 On 30 January 2003 the defendant (Mrs Berry) agreed to sell her home at 77 Adelaide Crescent, Middleton Beach in Albany. Within 24 hours she changed her mind. From then onwards, until the sale of the property was settled on 18 September 2003, Mrs Berry embarked on a course of action to try to prevent the sale from proceeding.
2 Initially Mrs Berry expressed frustration that she had been denied the opportunity to sell the property to her neighbours because of the conduct of the real estate sales agent. She then asserted that she had been pressured into signing the contract of sale. She later raised an allegation that the property had been sold at undervalue. This action is not concerned with any of these allegations.
3 Central to the issues raised by the defendant in this action and to understanding her course of conduct is cl 5 of the contract of sale. The defendant's desire to avoid the contract of sale and a later compromise agreement in respect of two Supreme Court actions commenced against her by the purchaser to specifically enforce the contract, was premised on an assumption by her that the contract would "lapse" if the purchaser did not cause a white ant certificate to be obtained within the time stipulated in cl 5, or by 26 May 2003 as contemplated by the compromise agreement.
4 The defendant's understanding of her legal position (which is contrary to the legal advice she received at the relevant time from the plaintiff) is demonstrated by the fact that in February 2003 the purchaser's settlement agent complained by letter dated 18 February 2003 that the defendant was not allowing the purchaser's pest control company access to inspect the property. This allegation was not disputed by Mrs Berry during the trial. It was also apparent from the objective evidence that Mrs Berry believed on 23 May 2003 that if a white ant certificate was not obtained by the purchaser by 26 May 2003 then he would be unable to legally enforce the contract of sale.
5 The defendant in the course of the trial and when giving evidence underlined her opinion that the contract of sale and the compromise agreement both lapsed and were no longer legally enforceable, because of the purchaser's failure to obtain a white ant certificate in the stipulated times. It is plain, for the reasons which follow, that Mrs Berry has conducted her affairs on this basis in the hope that the contract would not
(Page 4)
- settle. This is evidenced by her behaviour following 23 May 2003 when she, in effect, made herself uncontactable to her solicitors and evinced a clear intention to frustrate their ability to obtain her instructions and to represent her interests.
6 In the course of the trial the defendant articulated a conspiracy theory, namely that the plaintiff had conspired with the purchaser's solicitors to force her to settle the contract on 26 May 2003 in accordance with the compromise agreement which the plaintiff had negotiated on her behalf. In her evidence Mrs Berry referred to the plaintiff as "ruthless and unscrupulous" and described their conduct in advising her and attempting to represent her as constituting "extortion". It is disappointing that the defendant is prepared to make these allegations because of the seriousness of their nature, especially when there is nothing in the evidence before me to support any factual foundation or basis for them. This is especially so when Mrs Berry herself, for reasons which are completely understandable, was naturally upset about the nature of the allegations contained in the purchaser's solicitors' letter of 29 May 2003 about herself and her son arising out of an attempt by the purchaser's white ant inspector to inspect the property on 27 May 2003. Simply because the plaintiff forwarded this letter to Mrs Berry, she on her own evidence said this was further confirmation of her conspiracy theory. She had difficulty understanding, and did not accept, that the plaintiff by sending the letter on to her was duty bound to do so, but by doing so was not endorsing or accepting the allegations against her and her son as true. Regrettably Mrs Berry did not take up the opportunity offered by the plaintiff in its letter of 27 May 2003 to provide her instructions on the allegations or the further conduct of the matter (the purchaser's allegation was communicated to the plaintiff before the letter of 29 May 2003 was sent).
7 By this time Mrs Berry had already decided that she did not trust the plaintiff, which view she said became firm in her mind over the weekend of 24-25 May 2003. She said she decided from this point onwards that she would only communicate with the plaintiff in writing. Mrs Berry also adopted this position, and thereby frustrated the plaintiff's attempts to obtain her instructions so they could represent her interests, because she was upset that Mr Wallis had not sought to renegotiate an extension of the 26 May settlement deadline for one week "because he knew I needed more time", and because, even though it is inconsistent to the former reason, she believed that the purchaser's failure to obtain a white ant certificate by 26 May 2003 due to "his disorganisation" put an end to his right to legally settle on the contract of sale.
(Page 5)
8 It must be noted at the outset that Mrs Berry conducted her own counterclaim, and was not legally represented at the trial, and indeed does not appear to have had the benefit of legal advice at any time in respect of the action. As I understand her submissions, her defence to the plaintiff's claim for payment of legal costs for representing her up until 27 May 2003 is simply that she is entitled to set off her claim against theirs. She did not contest the enforceability of the plaintiff's retainer agreement of 8 May 2003 which she signed and did not contest the amount of the plaintiff's accounts or the reasonableness of the work done. The only basis of any possible set-off which might arise out of her evidence was that the plaintiff had a conflict of interest by representing her (which in turn gave rise to her conspiracy and extortion theories) because the plaintiff had obtained her agreement to permit its costs to be deducted from the sale proceeds to be received by her at settlement, but this is not plain from the pleadings or materials before me. In any event, in my opinion, there was nothing in the evidence which gave rise to any conflict of interest on the part of the plaintiff.
9 Mrs Berry will find this difficult to accept given her evidence about her attempts to obtain legal representation in Albany, her views on the legal profession as stated in her evidence, and her failure to appreciate the distinction in law between the plaintiff and HR Settlements as separate and distinct legal entities. I am inclined to the view that Mrs Berry elected to represent herself, which she is of course entitled to do.
10 In the course of the trial, because Mrs Berry was a litigant in person, I endeavoured to accommodate her needs and to obtain from her the best understanding I could of her case and the concerns she raised. For example, on many occasions Mrs Berry posited questions from which she was quick to draw conclusions. On occasions I tried to explain to Mrs Berry a possible alternative reason or explanation for a fact or matter, as did Mr Holler, counsel for the plaintiff, but unfortunately Mrs Berry was not open to listening to the responses and considering the possibility that there may be alternative explanations (as to why things were done or not done) and she chose to prefer her own assumptions, when there was a rational and logical explanation.
11 I note, of course, that it is difficult for a litigant in person to advocate his or her own case and to remain objective and impartial when assessing all the evidence which is put before the Court. As an aside, this is also difficult at times for solicitor advocates, given the direct solicitor-client relationship.
(Page 6)
The pleadings
12 The proceedings were commenced in the Local Court at Albany by the plaintiff by summons dated 9 September 2003. The plaintiff claimed $9,140.84, being the cost of legal services allegedly provided to the plaintiff, together with interest at the rate of 6 per cent per annum pursuant to s 32 of the Supreme Court Act 1935 and costs. On 9 November 2004 the plaintiff filed full particulars of claim.
13 At the commencement of the trial Mr Holler, counsel for the plaintiff, reduced the amount of the plaintiff's claim to $4,930.00, being the total amount of the plaintiff's accounts dated 7 May 2003 and 27 May 2003 less the $2,000 deposit paid by the defendant. Mr Holler indicated that the plaintiff’s claim was reduced because in his preparation of the matter for hearing he had observed that orders were made in the Supreme Court proceedings in favour of the plaintiff allowing it to recover its costs of ceasing to act for the defendant from the defendant. On this basis, the plaintiff's account dated 25 July 2003 for $4,210.84 was abandoned for the purpose of these proceedings only because the majority of the work done related to the plaintiff removing itself from the court record as the defendant's solicitors.
14 On 29 November 2004 Mrs Berry filed a notice of counterclaim in which she said:
"According to the means by which a settlement of sale of a property in my name was procured on 18 September 2003, I claim that Haynes Robinson should pay me the difference between the market value of that property as of that date and the settlement cheque that HR Settlements issued on that day."
15 Mrs Berry filed full particulars of her counterclaim on 17 February 2005. In order to understand the defendant's counterclaim it is necessary to set out some parts of the particulars. Mrs Berry pleaded that on 29 April 2003 she instructed the plaintiff to act on her behalf in relation to a real estate transaction. In accordance with this engagement she pleaded that on 8 May 2003 she signed a copy of the plaintiff's "mutually binding" terms of engagement agreement. She also said that on 8 May 2003 the plaintiff agreed to allow her to sign an authority to deduct its fees from the settlement proceeds of the property. Each of these three contentions is admitted by the plaintiff.
(Page 7)
16 The defendant's particulars of claim relevantly provided as follows:
"5. On 19 May 2003 the purchaser's inaction caused the Contract of Sale of 77 Adelaide Crescent of 30 January 2003 to effectively lapse. Documentary evidence will be referred to at trial.
6. After business hours on 23 May 2003 the Plaintiff renegotiated the terms of the Contract of 30 January 2003 without drawing up another document and without the Defendant's knowledge or consent. Therefore the Defendant claims that the Plaintiff officially ceased to act in her interests at that time and that the Plaintiff had never intended to act in her interests at any time. Documentary evidence will be referred to at trial.
7. On 27 May 2003 the Plaintiff notified the Defendant via a redirected mail service that she was obliged to sign the transfer documents of 77 Adelaide Crescent within 24 hours pending the Plaintiff's resignation.
8. The Defendant received the notice of 27 May 2003 on 4 June 2003 by which time the Plaintiff had ceased to act on her behalf. Supporting documentary evidence will be referred to at trial.
9. The Plaintiff was on the Supreme Court list as the Defendant's solicitor until 23 June 2003. In an affidavit sworn in support of an Application to Withdraw of 17 June 2003 the Plaintiff claimed to have no knowledge of the Defendant's whereabouts. A copy of the Plaintiff's Application was not served on the Defendant. The affidavit of 17 June 2003 will be referred to at trial.
10. The Defendant has been unable to obtain legal advice or representation in the matter since 23 May 2003. This matter will be referred to at trial.
11. On 18 September 2003 there was a discrepancy of at least seventy thousand dollars between the market value of 77 Adelaide Crescent and the purchase price of the Contract of Sale of 30 January 2003. Relevant Valuation Reports will be referred to at trial.
(Page 8)
- 12. On 12 September 2003 the Defendant hand-delivered a statement of claim to the Plaintiff in response to the Plaintiff's allegations of debt. The Plaintiff did not dispute any of this claim. This claim will be referred to at trial.
13. On 18 September 2003 a settlement agent employed by the Plaintiff's Company deducted thirty thousand dollars from the purchase price of the Contract of Sale of 30 January 2003 in response to the Plaintiff's allegations of debt. The Plaintiff did not dispute any of this claim. This claim will be referred to at trial.
14. The Defendant hand-delivered written requests for an account of the transaction of 18 September 2003 on 3, 11, and 26 November and 22 December 2003. These requests were denied and they will be referred to at trial.
15. On account of the Plaintiff's collusion with the illegal and forced sale of 77 Adelaide Crescent the Defendant claims:
(a) 18 September 2003 $70,000
(b) 18 September 2003 $30,000
TOTAL $100,000
16. The Plaintiff has not disputed the Defendant's claims of 12 September, 3, 11 and 26 November, and 22 December 2003 and 27 September 2004. The Plaintiff has neglected or refused to pay the Defendant the sum of $100,000."
17 Finally, Mrs Berry claimed interest on the amount of $100,000 at the rate of 7 per cent per annum according to the rate of real estate appreciation in the Albany area since 18 September 2003.
18 The plaintiff filed a reply and defence to counterclaim on 9 August 2006 by which it denied the defendant's allegations in par 5, 6, 8, 10, 11, 12, 13 and 14 as set out above. Paragraphs 7 and 9 of the counterclaim were admitted. In further response the plaintiff pleaded as follows:
"3. On 23 May 2003 the Defendant agreed by telephone discussion with solicitor, Mathew Wallis of the Plaintiff, to compromise a breach of contract and specific
- performance claim made against her as vendor of a property for damages for delayed settlement by agreeing to pay $8,974.30 and settle the sale on or as soon as possible after 26 May 2003.
The Defendant as vendor was party to a contract of sale made 30 January 2003 for 77 Adelaide Crescent with settlement date agreed for 28 March 2003. The Defendant refused to allow a white ant inspection to take place and refused to go to settlement. The purchaser took Supreme Court proceedings to compel performance of the contract of sale. The compromise is evidenced by contemporaneous telephone call file note by Mathew Wallis, confirming letter of 23 may 2003 by him to the Defendant and by facsimile letter of 23 May 2003 from him to the solicitor for the purchaser which letter was copied to the Defendant that day by post.
4. The Defendant in breach of the compromise agreement failed to allow a white ant inspection and failed to settle the property on or as soon as possible after 26 May 2003.
5. The Plaintiff ceased to act for the Defendant on 29 May 2003.
6. On or about 5 September 2003 the Defendant agreed with the purchaser to pay him $30,000 in settlement of his claim for legal costs, interest for delayed settlement and damages.
PARTICULARS
The agreement was reached in a telephone conversation between Lee Panotidis of Cocks Macnish for the purchaser and the Defendant and confirmed by email later that day from Cocks Macnish to the Defendant.
7. Accordingly the Defendant has no counterclaim against the Plaintiff as she was contractually obliged to settle the purchaser of 77 Adelaide Crescent and by failing to comply with the terms of the compromise agreement lost the opportunity to settle the claim with the purchaser for
(Page 10)
- $8,974.30 and by her own conduct in further delaying settlement paid $30,000 to the purchaser on 18 September 2003 pursuant to the agreement she reached with the purchaser on 5 September 2003."
19 On 12 September 2006 the defendant filed further and better particulars of her counterclaim. The particulars maintained that her communication with "the plaintiff on 23 May 2003 was limited to a telephone conversation that lasted approximately 60 seconds. The plaintiff did not advise the defendant of the status of the agreement of 15 May 2003 and the defendant did not enter another agreement" (par 2). Paragraph 5 of the particulars asserted:
"The contract of 15 May 2003 lapsed on 19 May 2003 and that lapse was not due to anything done or not done by the defendant. By failing to nominate another settlement agreement, and by engaging in extortion, the other party to the contract consolidated his position thus forfeiting any entitlement to a settlement of sale." (Par 5)
20 At par 6 Mrs Berry contended that "the court procedures against [her] of May-August 2003 were reliant on the full cooperation of the plaintiff and the plaintiff was fully aware that they were a travesty of due process". Mrs Berry then cites O 8 r 7 of the Supreme Court Rules and various revisions of the Law Society of Western Australia Professional Conduct Rules for the proposition that the plaintiff breached these provisions in ceasing to act on her behalf and "therefore … remains liable for loss, damage sustained by [her] as a consequence of being left without an advocate during a critical period of time" (par 7). At par 9 Mrs Berry set out the amount of her damages claim and contended that "according to an average 150 per cent increase since September 2003 the plaintiff's claim against the defendant is currently $250,000".
21 In view of the nature of the proceedings they were, up until trial, case managed by Registrar Kingsley. For this reason, presumably, two affidavits of Mrs Berry were included in the papers for the Judge. This case management assisted the parties to prepare an agreed bundle of documents for the purpose of the trial which became Exhibit 1. There was also an agreed bundle of documents containing documents not consented to which, although provided to me, were not agreed and were not received in evidence. Exhibit 1 consists of 117 documents which consisted of 395 pages.
(Page 11)
22 The pleadings indicated, and this was confirmed by Mrs Berry at the commencement of the trial, that she did not seek to defend or put in issue the amount of the plaintiff's claim but that she merely wished to set off against this amount the damages she claimed in her counterclaim. The defence was therefore one of set-off. Consistent with this position Mrs Berry did not question Mr Wallis about the work done in respect of the accounts and made no submissions about its reasonableness. The evidence at the trial was therefore primarily concerned with the defendant's counterclaim.
The evidence
23 The parties agreed a book of documents which was tendered by consent (Exhibit 1). The majority of the oral evidence involved a consideration of the documentary material contained in Exhibit 1.
Mathew William Wallis
24 Mr Wallis was the plaintiff's solicitor who was responsible for receiving instructions from Mrs Berry, advising her and negotiating on her behalf a compromise agreement with the purchaser's solicitors in relation to the Supreme Court proceedings. Mr Wallis said he met and obtained instructions from Mrs Berry at the end of April 2003, at which time she was the defendant to two Supreme Court actions instituted against her by the purchaser of the property, and was aware that she had already previously obtained advice from another firm of solicitors. There was a degree of urgency because there was a hearing to occur in respect of one of the Supreme Court applications about two days after he was instructed. Accordingly, he considered his first task was to seek and obtain, which he did, an adjournment so he could advise Mrs Berry in relation to all issues. At all material times the legal firm Cocks Macnish acted for the purchaser in respect of the Supreme Court proceedings. By facsimile dated 30 April 2003 to Mr Wallis, Cocks Macnish sought confirmation from Mr Wallis that Mrs Berry agreed to the originating summons for an extension of the caveat being adjourned for 21 days and the Chamber summons for admission to the expedited list and motion for injunction being adjourned for 14 days. On 1 May 2003 Mr Wallis wrote to Mrs Berry confirming her instructions and enclosing the firm's terms of engagement retainer agreement. Mrs Berry signed the costs agreement on 8 May 2003, and it was signed on behalf of the plaintiff by Mr Wallis.
25 Mr Wallis confirmed in his evidence that he wrote to Mrs Berry on 7 May 2003 referring to her first attendance on 29 April 2003 and setting
(Page 12)
- out the plaintiff's initial advice. Relevant to these proceedings, the advice on p 5 confirmed:
"As discussed at the initial appointment, our initial view is that Bairstow's applications will be successful and that the court will award him specific performance of the contract. That is, that you will have to proceed with the sale. A contract has been signed and witnessed and apart from the termite clearance is now unconditional. The property was placed on the market for $275,000 and has been sold for that amount."
"(a) allow the pest inspector to inspect the property;
(b) agree to the extension of the caveat until the property is settled; and
(c) agree to proceed to settlement in accordance with the contract."
27 Based on this advice, the only live issue which then remained was the basis upon which the purchaser would be prepared to discontinue or settle the Supreme Court actions against Mrs Berry in view of the fact that he had obviously incurred legal costs in instituting those proceedings and possibly suffered loss and damage.
28 Based on this advice, and as instructed by Mrs Berry, the plaintiff wrote to Cocks Macnish on 8 May 2003 advising that Mrs Berry had instructed them to offer to settle the Supreme Court proceedings and the sale of the property on various terms including each party bearing its own costs of the actions and Mrs Berry granting immediate access to the property so the purchaser could, at his expense, carry out an inspection for termites in accordance with cl 5 of the contract, and subject to cl 5 of the contract, and the other terms and conditions settlement was to proceed on a date to be agreed. A copy of the letter was sent to Mrs Berry under cover of a further letter also dated 8 May 2003 confirming her instructions based on her attendance on Mr Wallis on that day. By letter dated 9 May 2003 Cocks Macnish acknowledged receipt of the settlement proposal and agreed to obtain their client's instructions but stated they could see no reason why the purchaser should not obtain his costs in respect of both actions.
(Page 13)
29 On 13 May 2003 Mr Wallis received a facsimile from Cocks Macnish setting out the proposed terms of settlement based on their client's instructions. Predictably the purchaser was not prepared to bear his own costs of the actions and the applications and indicated a willingness to discontinue only if Mrs Berry paid his costs. Importantly, having regard to the evidence of Mrs Berry at the trial, the letter of Cocks Macnish dated 13 May 2003 provided as a condition of the compromise agreement that settlement must proceed "on or before 26 May 2003" and "by no later than 26 May 2003" on the basis that the purchaser would "immediately arrange for the termite inspection to be completed and for a copy of the inspection report to be provided to" Mrs Berry.
30 Thereafter Mr Wallis said that he continued to negotiate the costs aspect of the proposed compromise agreement which resulted in an eventual offer by the purchaser to agree costs at $8,390.52. Copies of the relevant correspondence were sent to Mrs Berry by the plaintiff by letter dated 15 May 2003.
31 Mr Wallis refreshed his memory of his conference with Mrs Berry on 8 May 2003 by reference to his file note of that date. The file note records that Mrs Berry "wants to settle" and that he was instructed "to write to Cocks Macnish saying we won't impede the contract any further and want to proceed, ask for no order as to costs, but not really in position that can't have costs".
32 On 19 May 2003 Mr Wallis wrote to Mrs Berry noting that he had been trying to contact her by telephone on a number of occasions but the telephone continued to ring out. The primary purpose of the letter was to obtain Mrs Berry's instructions in relation to whether she was prepared to accept the purchaser's proposal to cap the purchaser's costs at $8,390.52. Instructions were also sought as to the maximum amount Mrs Berry was prepared to offer to pay the purchaser or whether she wished the matter to proceed to taxation.
33 The 19 May 2003 letter also enclosed an authority to be signed by Mrs Berry to authorise the deduction from the settlement proceeds of the plaintiff's legal costs which were outstanding at the time of settlement and to deposit a further sum into its trust account on account of future fees and disbursements in respect of a possible claim against the real estate agent or his or her employer. The letter stressed the urgency which existed at the time "bearing in mind settlement is to occur on 26 May 2003". I note that in the course of evidence and submissions Mrs Berry raised the possibility of the plaintiff having a conflict of interest in respect of the
(Page 14)
- requested authority and that other options were open to her at the time of which she had not been advised, for example obtaining a loan. In my opinion, and I find accordingly, there was no conflict of interest in the plaintiff seeking to obtain payment of its legal fee in the method and manner proposed in the circumstances of this case.
34 Also on 19 May 2003 Mr Wallis wrote to Cocks Macnish. It was put to him in cross-examination by Mrs Berry that this letter evidenced the conspiracy between the plaintiff and Cocks Macnish to force her to settle on the contract at all costs. Mr Wallis explained that the letter had been written based on his instructions that she intended to proceed to settlement before 26 May 2003 and, as noted in the letter, that he was seeking to obtain Mrs Berry's instructions in relation to the costs issues which was the only outstanding matter. In this regard Cocks Macnish sent draft bills of costs for the consideration of the defendant. On 20 May 2003 Mr Wallis sent a further advice to Mrs Berry in relation to her proposed purchase of another property for which she had signed a contract of sale.
35 On 20 May 2003 Mr Wallis wrote to Diana of HR Settlements enclosing the transfer of land document which had been signed by the purchaser and stamped, with a request that they arrange for Mrs Berry to execute and complete the documents on the basis that settlement would take place on 26 May 2003. By facsimile dated 21 May 2003 Cocks Macnish confirmed the terms of the proposed compromise agreement to Mr Wallis, except that they had been unable to obtain their client's instructions to agree costs at $8,974.30. For this reason it was proposed that the Supreme Court proceedings be adjourned sine die with liberty to apply on 24 hours notice. This communication was sent by Mr Wallis to Mrs Berry under cover of a letter dated 22 May 2003 requesting her to contact him as soon as possible.
36 23 May 2003 was a Friday. Mr Wallis refreshed his memory by reference to his file note dated 23 May 2003. His evidence was that he contacted Mrs Berry by telephone and, having explained the position to her, was "instructed to accept" (as noted in the file note) the purchaser's final offer, although he also noted that she was reluctant to deal with the costs issue. During this discussion Mr Wallis said that Mrs Berry agreed she would sign and deliver the plaintiff's authority to the plaintiff later that day. She also agreed to go to HR Settlements "after much discussion" to execute the transfer of land and deliver the certificate of title. His file note also recorded that the termite inspection had not yet been done. Based on these instructions Mr Wallis advised HR Settlements and Cocks Macnish of the position. In discussion with Cocks Macnish (after his
(Page 15)
- telephone conversation with Mrs Berry) Mr Wallis was informed that the purchaser had not yet organised the white ant inspection and was "trying to do now" (see Exhibit 4).
37 On 26 May 2003 Mr Wallis said he was unable to contact Mrs Berry. He contacted Telstra and was unable to obtain any current telephone number for Mrs Berry and was advised by HR Settlements that Mrs Berry had not been to see them in order to sign the transfer (see Exhibit 5).
38 On 27 May 2003 Mr Wallis wrote to Mrs Berry at her address of 77 Adelaide Crescent, Middleton Beach, Albany. The letter confirmed the previous agreement of Mrs Berry that she would attend the plaintiff's office on 23 May 2003 to sign the authorities and that she would also attend HR Settlements on the same date to sign the transfer document and provide them with the certificate of title. The letter noted that the defendant had done neither of these things. The letter also noted that Mr Wallis had been informed by the purchaser's conveyancer that on 26 May 2003 she was not at the premises to allow the pest inspector to inspect the property and, further, on 27 May 2003 when the pest inspector returned to the premises, although she was at the premises, her son had forced the pest inspector to leave the premises. The plaintiff's letter says:
"We have attempted to contact you on a number of occasions to discuss these issues. Your telephone has been disconnected. You have not instructed us what your new home telephone number is. Accordingly, we cannot obtain your instructions in relation to allegations or the further conduct of your matter."
39 The letter requested Mrs Berry to contact the plaintiff within 24 hours and to do the things which she had previously agreed to do, otherwise they would "have no option but to cease acting for" her.
40 Mr Wallis said that he received a letter dated 28 May 2003 from Mrs Berry which she had personally delivered to the plaintiff's reception. The content of Mrs Berry's letter is consistent with the view which she adopted at the time, and continued to express at trial, namely that the contract of sale was subject to a white ant certificate and because the purchaser had not fulfilled "this particular clause" before the agreed settlement date of 26 May 2003 he was no longer legally entitled to enforce the contract of sale, and "that in order for the sale of my property to proceed a new contract would have to be drawn up".
41 The letter is self-serving with respect to the attendance of the white ant inspector at the defendant's property and that "no-one contacted me
(Page 16)
- concerning the certificate before the settlement date". She referred to the visit by the pest inspector on 27 May 2003 "and the brief conversation we had made it clear to me that no effort had been made to contact me prior to this visit". The letter noted Mrs Berry's address as 77 Adelaide Crescent, Albany.
42 Mr Wallis, on receipt of the letter, responded in writing that same day, 28 May 2003, disputing her statement that she had complied with the advice to prepare for settlement. The plaintiff's letter to Mrs Berry said:
"You state that you have complied with our advice in preparing for settlement. That is not entirely correct. You have not completed the items referred to at paragraphs 1 and 2 of our letter of 27 May 2003.
You state that in your view the contract is at an end as a pest inspector was not instructed by 26 May 2003. Your contention is misconceived. The failure to instruct a pest inspector merely extends the time for settlement. It does not constitute a substantial breach of contract. Accordingly, the contract is not at an end.
Once again, we require your immediate attention to the matters raised in our letter of 27 May 2003, failing which we will have no option but to cease acting for you."
43 The letter was addressed to Mrs Berry at 77 Adelaide Crescent, but also copied to her care of the Albany Post Office.
44 On 29 May 2003 Mr Wallis wrote to Mrs Berry, again at both addresses, noting that she had not contacted the plaintiff and had not made it possible for them to speak with her. In the circumstances Mr Wallis advised that the plaintiff had "no option but to immediately cease acting for" the defendant effective from the date of the letter and that an application would be made to the Supreme Court to get off the record as her solicitors. In order to minimise the costs to the defendant of this course of action, the plaintiff advised the defendant that she could sign a notice of intention to act in person or appoint another solicitor.
45 Mr Wallis's letter also enclosed a copy letter received from Cocks Macnish dated 29 March 2003 which contained allegations to the effect that the purchaser's pest control inspector had been unable to inspect the property on 26 May 2003 since the defendant was not at home on two occasions he visited in the morning and afternoon and, when he attended
(Page 17)
- on 27 May, that he had been threatened by Mrs Berry's son "who was brandishing 'a chunk' of wood. When the controller asked to speak directly with your client she allegedly told him to 'piss off'.". Based on questions put to Mr Wallis in cross-examination by Mrs Berry it is plain that she regarded the fact that Mr Wallis had forwarded the letter to her from Cocks Macnish dated 29 May 2003 as evidence of the plaintiff's collusion with Cocks Macnish against her and the alleged conspiracy to force her to settle on the contract of sale at all costs. Mrs Berry was unable to accept that Mr Wallis was, in doing so, merely acting in accordance with his legal duty even though he had indicated in his covering letter that the plaintiff had ceased to act on her behalf.
46 Mr Wallis said that he next received from Mrs Berry a letter dated 4 June on 5 June 2003 which was delivered to the plaintiff's office by hand by a male person. The letter raised a number of issues and concerns irrelevant to the trial of this action but, to the extent that it did respond to the position of the defendant relevant to these proceedings, this is referred to below. The plaintiff responded by letter dated 6 June 2003 stating that it was completely unacceptable to drop letters off at their office without making it possible for them to communicate with her directly and in person. The letter confirmed that the plaintiff no longer acted for Mrs Berry but offered to do so again provided certain conditions were met.
47 Thereafter Mr Wallis proceeded with an application on behalf of the plaintiff in the Supreme Court for the plaintiff to be removed as solicitors on the record for the defendant. This application was supported by an affidavit sworn by Mr Wallis on 10 June 2003. As mentioned below, Mr Wallis was cross-examined in relation to why correspondence attached to his affidavit was deleted in certain parts. Again and unfortunately, Mrs Berry appears to have perceived this act on the part of the plaintiff as further evidence of its conspiracy against her. Instead, as mentioned below, Mr Wallis explained why this action had been taken, namely to protect solicitor-client privileged information which was of course entirely necessary and appropriate in the circumstances. Formal orders were made in the Supreme Court allowing the plaintiff to cease acting for Mrs Berry in respect of those matters.
48 Mrs Berry cross-examined Mr Wallis at length. One line of questions was to the effect that he knew how pressed for time she was and her complaint appeared to be based on the concern that she had not been given another and later date for settlement because the purchaser had not arranged for the inspection of the property by the pest control company.
(Page 18)
- In response Mr Wallis explained that the plaintiff had been unable to obtain her further instructions but that in any event she had not agreed to do what she had said she would do with respect to signing the transfer of land form and provision of the certificate of title to her settlement agent. For this reason she was not, in his opinion, in a position to take advantage of any possibility of further delay of settlement by reason of the purchaser's failure to obtain an inspection of the property.
49 In her questions Mrs Berry was focused on the purchaser's "disorganisation" as the reason for the failure of the settlement to proceed on 26 May 2003. However, in her own evidence she said she had formed the view, following her telephone discussion with Mr Wallis on 23 May 2003 and the fact that she had not been contacted with a view to a time being set for the inspection, that settlement could not proceed on 26 May 2003. Accordingly, she considered the purchaser would be unable to enforce the contract of sale. Although the issues and concerns raised by Mrs Berry in her questions indicated how she felt at the time, it was, in my opinion, no answer in law to the legal position.
50 Mrs Berry asked Mr Wallis why he did not courier his correspondence to her. His response was that he was not aware at the time of any mail redirection order in place or, in fact, where she was living.
51 Mr Wallis denied that he had conspired with Cocks Macnish to take her by surprise with respect to the inspection.
52 Mr Wallis denied in cross-examination by Mrs Berry that by reason of the failure of the purchaser to obtain the white ant inspection by 26 May 2003 the contract had "lapsed". Mr Wallis said in cross-examination that another settlement date had not been organised because, in effect, Mrs Berry had frustrated the position by not giving him instructions to continue to act on her behalf. In respect of the telephone discussion on 23 May 2003 Mr Wallis said in cross-examination that he had told Mrs Berry that she could not avoid the contract of sale simply because the white ant certificate had not been obtained at that point in time.
53 Finally, Mrs Berry suggested in cross-examination to Mr Wallis that because the plaintiff had not responded to the contentions in her letter of 12 September 2003 it therefore did not contest the allegations made by her. Mr Wallis disagreed and said that it was not necessary for the plaintiff to attempt to deal with all the issues she had raised. I note this
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- was a common contention by Mrs Berry in the course of the trial, that where a party had not responded to an allegation made by her in writing then so far as she was concerned there was "no contest". I endeavoured to explain to her that this was not always necessarily the case and that at some point it was always open to parties not to attempt to deal with everything raised by the other party.
54 Mr Wallis was not re-examined.
55 In my assessment, Mr Wallis was a prudent and careful witness. He was careful to understand the questions put to him and gave his answers in an open and professional manner. Notwithstanding the serious nature of the allegations made against him by the defendant, he maintained his calmness and responded to her questions in a respectful and appropriate manner and, as encouraged by me, in a conversational style. When needed he refreshed his memory from his file notes and the correspondence, the events having occurred nearly five years ago. His evidence was clear and I have no hesitation in accepting it.
Elspeth Berry
56 In her opening address, Mrs Berry indicated that the only issue to be tried was that referred to in par 3 of the plaintiff's reply and defence to counterclaim as set out above. Mrs Berry said that the 13 May and 21 May 2003 letters of Cocks Macnish set out the terms of the compromise agreement and complained that Mr Wallis had demonstrated a failure to renegotiate the agreement on her behalf (presumably because the white ant certificate was not obtained before 26 May 2003) and that she "was not consulted and informed about further arrangements". Mrs Berry maintained that the plaintiff tried to obscure what went on between 23 May and 23 June 2003 and that the plaintiff was trying to smear her character because, in effect, it had accused her of reneging on the compromise agreement. In this regard, she said she was never given anything in writing and her position appears to be that she was entitled to be asked to agree a convenient time for the inspection before 26 May 2003. Because it did not occur in any event before 26 May 2003, she says she was entitled to not proceed to settlement on the contract of sale of the property.
57 Mrs Berry gave evidence on oath. In her evidence, Mrs Berry maintained that the purchaser had caused the compromise agreement to lapse by his own "disorganisation" in not arranging for the white ant certificate to be obtained before 26 May 2003. She said that the
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- compromise agreement had lapsed due to no fault of hers but that both solicitors had "conspired" to effect the settlement.
58 In response to my question as to whether she had informed the plaintiff of her contact details (e.g. change of address or mobile telephone number), she responded in the negative and made the statement why should she. Her course of conduct was predicated on the basis of her evidence that she "knew settlement could not possibly occur on 26 May 2003" and that Mr Wallis "could have easily restructured an agreement" on her behalf. She described her telephone conversation with Mr Wallis on 23 May 2003 as "unsatisfactory". She regarded the urgency as "a mirror of 30 January 2003" when she signed the contract of sale and was concerned that Mr Wallis was "blaming me for a failed settlement" which she said was due to the other party's disorganisation. In her opinion, according to her evidence, the only reason she was being blamed was to deflect attention away from the situation that the purchaser had caused the contract to lapse. She felt that this was done as a "means of intimidating" her which she regarded as part of the plaintiff's extortion and conspiracy, notwithstanding her evidence, that she agreed Mr Wallis could not do anything without her authority and instruction.
59 Somewhat inconsistently with the contention that the plaintiff should have renegotiated an alternative settlement date on her behalf, Mrs Berry argued that the compromise agreement had "lapsed by then". The difficulty in understanding the defendant's position is that on the one hand she complains that the plaintiff did not renegotiate an alternative later date which would have been more convenient to her, because it appears she had no alternative accommodation arranged at the time, she also maintains that the contract of sale had lapsed and was no longer enforceable by the purchaser. Mrs Berry indicated that she had evinced an intention to move from the premises by reason of the fact that she had prepared for settlement to occur on 26 May 2003 by moving her belongings from the property, but such a position is of course inconsistent with the proposition that the contract of sale had lapsed and was no longer enforceable by the purchaser. I note the purchaser is highly unlikely to have commenced two Supreme Court actions to specifically enforce the contract and then entered into a compromise agreement with a proposed settlement date of 26 May 2003 which, if not achieved, would result in the loss of the contract.
60 Mrs Berry described the settlement on 18 September 2003 as an "illegal settlement". Mrs Berry did not counter or reject the accuracy of the letter from HR Settlements to her dated 12 November 2003 in which
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- HR Settlements advised her that the purchaser's solicitor had advised that she and the purchaser had settled their disputes on the basis that she would pay the sum of $30,000 in full and final settlement of the purchaser's claim for legal costs, interest and damages and that this amount was to be deducted from the purchase price at settlement. It confirmed that on 15 September 2003 she had visited HR Settlements and had been given a copy of the settlement statement which provided for the deduction of the $30,000 at settlement. It further confirmed that she had been taken through the statement and specifically pointed to the $30,000 and that at the time she advised she agreed to this amount being withheld at settlement. The letter confirmed that settlement occurred on 18 September 2003 and that Mrs Berry collected and signed for her cheque of the sale proceeds on 19 September 2003. The evidence is contained in Exhibit 1 that Mrs Berry negotiated the settlement sum of $30,000 with the purchaser's solicitors acting by herself.
Elaine Short
61 The defendant called Ms Short who gave evidence that in May 2003 she had just returned from overseas. She said that on 23 May 2003 she recalled being present at the defendant's property and was unpacking some of her stuff in a shed because the defendant was getting ready to move out of the house. She said that one of the defendant's sons came up and said to the defendant that the real estate agent was on the telephone. She remembered it was a "very brief conversation" after which she said the defendant told her that the agent was trying to get her to come in to sign the papers. Ms Short said that the defendant had raised the fact that there had been no white ant inspection and had discussed the "legality" of this and that Mrs Berry was "in the negative" before hanging up on the other person.
62 Ms Short was not cross-examined. I note her evidence is that the telephone conversation referred to appears to have been with the real estate agent. It is not clear whether this was the same telephone conversation that Mrs Berry had with Mr Wallis at about 8.30 am on 23 May 2003 or with her settlement agent.
Joseph Wunnamurra Berry
63 Mr Berry is the defendant's son. He said that on 27 May 2003 he was on the driveway playing with a piece of wood which was carved in the shape of a children's gun. He said he took the white ant inspector to see his mother and that she had told him other arrangements would need
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- to be made because he was out of time. He said the inspector left. He was not cross-examined.
Discussion
64 Mrs Berry raised a number of concerns which she perceived based on her understanding and interpretation of events. Her conduct and actions are perhaps best understood from her starting point, namely that she did not want to settle on the contract of sale. Consequently, she formed views and took positions without listening to the legal advice she obtained, in the hope she could avoid the contract.
65 Mrs Berry in her evidence went to some lengths to say that, on 26 May 2003, she had ordered her affairs to move out of the property. She had arranged for her mail to be redirected and had her telephone cut off. Mrs Berry maintained she was preparing to vacate the premises.
66 However, she said in evidence that she considered that the purchaser had forfeited his legal entitlement to settlement of the contract because of his breach or failure to obtain a white ant certificate before 26 May 2003, the proposed date of settlement pursuant to the compromise agreement. I find during 23-26 May 2003 (notwithstanding her telephone conversation on 23 May 2003 at about 8.30 am with Mr Wallis and his advice to the contrary), Mrs Berry formed the view that the purchaser had forfeited the legal right to enforce settlement of the contract of sale and the compromise agreement because both were "conditional" on the purchaser obtaining a white ant certificate, and because he had not done so within the stipulated time set out in the contract or alternatively 26 May 2003, he could not settle and was therefore in breach.
67 If this position was legally correct, then Mrs Berry's proposition was that the purchaser would have to negotiate a new settlement agreement for the purchase of the property, assuming she was a willing seller.
68 Because Mrs Berry had formed this view and had concluded from her conversation with Mr Wallis on 23 May 2003 that he was no longer acting in her best interests, she said in evidence that she decided she would only communicate with her solicitors in writing.
69 However, the fact remains that Mrs Berry did not expressly advise Mr Wallis of her changed contact details and she did not attend the plaintiff's premises, when it was obviously open to her to do so if she had wanted to, to enable Mr Wallis to advise her and for her to give him instructions. I find that, by her actions, she deliberately chose to frustrate
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- the plaintiff's ability to obtain her instructions and thereby to continue to represent her.
70 In her closing submissions, Mrs Berry questioned why the plaintiff had ceased to act for her. It is difficult to understand why she has any doubt about the answer, given her own admitted course of conduct and especially when it is clear that she received the plaintiff's letters of 27 May, 28 May, 29 May and 6 June 2003 explaining that unless she contacted them and provided them with instructions, they would have no choice but to cease acting for her.
71 Mrs Berry said in her opinion, based on hindsight after becoming aware of the plaintiff's letter of 19 May 2003 to the purchaser's solicitors (although the letter was copied to her at the time and, as Mr Wallis explained in evidence, it was written for her benefit and to protect her interests) that she considered that the plaintiff had ceased to act for her from 19 May 2003.
72 Mrs Berry, unfortunately, considered that almost everything the plaintiff did or did not do after she had become convinced the plaintiff was conspiring against her, or was in collusion with the purchaser's solicitors to force settlement of the contract at any price, had a sinister motive. For example, Mrs Berry did not appear to understand or was willing to accept that Mr Wallis acted entirely properly in deleting certain portions of the correspondence which contained solicitor-client privileged material in his affidavit of 10 June 2003 for leave for the plaintiff to withdraw from the court record as her solicitor. In fact, I would observe for Mrs Berry's benefit that if Mr Wallis had not deleted the privileged material, he arguably would have breached his solicitor-client duty to her (which still continued in this respect even though he had already advised her by letter dated 29 May 2003 that the plaintiff was no longer acting on her behalf) and which was further stated in the plaintiff's letter to Mrs Berry dated 6 June 2003.
73 Another example of Mrs Berry's unfortunate interpretation of her solicitors' conduct in performing its duties properly was evidenced by her stated reaction to the fact that the plaintiff had forwarded onto her (as it was duty bound to do even though it had ceased acting for her) the purchaser's solicitor's letter of 29 May 2003 containing the allegations about her son and herself which she described in evidence as an absolute fabrication with no foundation. I have no doubt, and accept and find accordingly, that she was greatly upset by the allegations which she
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- described in her letter of 4 June 2003 to the plaintiff (received on 5 June 2003) as "fallacious and libellous".
74 But Mrs Berry's assumption was that the mere sending on of the letter to her proved that her solicitors were involved in a conspiracy with the purchaser’s solicitors. Obviously such an inference cannot reasonably be drawn in all the circumstances. I also note that Mrs Berry in her letter of 4 June 2003 seems to have drawn the conclusion that, because the allegations in the letter of 29 May 2003 were not true, it was demonstrative of the purchaser not "standing on solid ground", and that because the inspector was late in time, he (the purchaser) must have "felt threatened enough … to concoct a story". Finally, in respect of this issue, which does not appear to me to be relevant to any matter in dispute between the plaintiff and the defendant, I would say that I am satisfied on the balance of probabilities, having heard the evidence of Mr Berry (the defendant's son) that he did not threaten the inspector with a chunk of wood. In making this finding I would observe that I have proceeded on the evidence before me and note, for example, that I have not heard the inspector give oral evidence about his version of the events.
75 It seems that the defendant's contention is that the plaintiff should have continued to represent her interests (whatever they were perceived to be) without instructions and that in some way the plaintiff is liable because she did not heed the advice of Mr Wallis at the time. This of course assumes that there was not already an underlying legal liability on Mrs Berry to settle the contract of sale.
76 The plaintiff cites Dew v Richardson (unreported; SCt of Qld, Library No 9905088; 18 August 1999) where Chesterton J said at par 42:
"In these circumstances the defendant was not negligent. A solicitor who has accurately explained the position to his client but is nevertheless instructed to proceed with a particular course of action is not responsible in law for loss the client suffers by reason of that conduct. This is the view of Halsbury's 'Laws of England', 4th ed, volume 44, paragraph 136 citing as authority Lee v Dickson (1863) 3 F&F 744. It is also the view of the authors of 'Jackson & Powell on Professional Negligence', 3rd ed, paragraph 4-71 who say:
'The solicitor has a duty to advise on the legal hazards of the transaction but no more'.
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- Relying upon the judgment of Lincoln J in Dutfield v Gilbert H Stephens & Sons (1988) 18 Fam Law 473 at 474 to this effect:
'It was the duty of the solicitor to inform and advise, ensuring that the information and advice was understood by the client. It was not part of his duty of care to force his advice on the client'.
I agree with these views. A solicitor's role is to advise. In the absence of express instructions he does not undertake the conduct of the client's affairs. The court should be most reluctant to recognise any exception to this principle in the case of compromises of litigation. The policy of the courts has consistently been to encourage litigants to come to terms rather than insist upon curial adjudication. Consensual outcomes reduce the level of disharmony in society and conserve the resources both of litigants themselves and the community which funds the courts. The court should not discourage settlement by making solicitors liable in damages to a client who was adequately advised about a compromise but later regrets his bargain."
Findings of fact
77 Based on the evidence, both documentary and oral which is before the Court in this action, I make the following findings of fact:
1. On 30 January 2003 Mrs Berry executed a contract for the sale of her property at 77 Adelaide Crescent, Albany whereby she agreed to sell the property to Mr Bairstow for $275,000 with settlement to occur on 28 March 2003.
2. The contract of sale was conditional on the purchaser obtaining finance, which he did. Thereafter the contract was unconditional and Mr Bairstow, the purchaser, was entitled to obtain specific performance of the contract at any time until settlement was completed on 18 September 2003.
3. Clause 5 of the contract of sale in respect of "termite clearance" was operative and, on its proper construction, applied for the benefit of the purchaser.
4. Within 24 hours of signing the contract of sale Mrs Berry changed her mind and thereafter embarked on a course of action to try to frustrate the contract with a view to persuading the purchaser not
- to proceed with settlement. Her conduct in this regard included preventing the purchaser's pest control inspector from having access to inspect the property on the erroneous assumption that the purchaser's failure to obtain such a report would cause the contract to "lapse" because the opening words of cl 5 state: "The contract is conditional upon a report being obtained".
- 5. Mrs Berry was advised consistently and constantly by her solicitors, the plaintiff, that the contract did not "lapse" for the reason she contended, especially as the reason for the purchaser not being able to obtain the termite report was because at the relevant times before 13 May 2003 she had prevented the purchaser obtaining access for this purpose. It is trite law that a party to a contract cannot take the benefit of a deliberate act which is intended to prevent the other party from complying with a contractual obligation.
6. On 13 May 2003 and thereafter until 23 May 2003, the plaintiff, and in particular Mr Wallis, with the full authority and instructions of Mrs Berry negotiated a compromise agreement whereby Mrs Berry agreed:
(1) she would pay the purchaser $8,974.30 on account of his costs incurred as a result of the two Supreme Court proceedings which it had been necessary to institute to obtain specific performance of the contract of sale;
(2) settlement would proceed on or as soon after 26 May 2003 as possible;
(3) the Supreme Court actions would be discontinued against her on the basis there would be no order as to costs; and
(4) to grant "immediate access" to the property to enable the purchaser to arrange for a pest control company to inspect the property, and to the extent it might be necessary to waive any time limit in cl 5, thereby preserving the full operation of the clause for the benefit of the purchaser;
7. Through no fault of Mrs Berry's, the purchaser's pest control inspector did not attend the property until Monday, 26 May 2003 and, again, on 27 May 2003.
8. On 27 May 2003 Mrs Berry did not permit the pest control inspector to undertake an inspection because in her opinion "he was too late" and, in any event, she considered she had a right to be notified first and asked to set a time that was convenient to her.
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- 9. On 23 May 2003, and certainly by 27 May 2003, Mrs Berry considered that the purchaser had lost the legal right to enforce the contract of sale, and the compromise agreement. This is because he had not obtained a termite report in the time stipulated in the contract or, alternatively, by 26 May 2003.
10. By her conduct Mrs Berry deliberately put the plaintiff in a position where after at least from 26 May 2003 (probably immediately following her telephone conversation with Mr Wallis on Friday, 23 May 2003 at 8.30 am) the plaintiff could not obtain her instructions thereby causing the plaintiff to adopt the position as stated in its letter of 29 May 2003 that it had "no option but to immediately cease acting".
11. Further, that it was open at all material times for Mrs Berry if she had chosen to, to properly instruct the plaintiff by attending its office, but that she on her own volition decided not to.
12. That in advising the defendant on and after 23 May 2003, the plaintiff acted properly and in accordance with its solicitor-client duty. It acted properly and appropriately in obtaining orders from the Supreme Court to cease acting for Mrs Berry in those two proceedings.
13. The sale of the property settled with the full consent and agreement of Mrs Berry on 18 September 2003, which included the deduction of $30,000 in favour of the purchaser. The sum of $30,000 was in substitution and to the same effect as the sum of $8,974.30 which had been negotiated by the plaintiff on behalf of Mrs Berry pursuant to the compromise agreement, that the settlement would occur "on or as soon after 26 May 2003 as possible".
14. The plaintiff has proved that it is entitled to recover from Mrs Berry the sum of $4,930.00 in respect of legal fees pursuant to the retainer agreement signed by Mrs Berry on 8 May 2003 for services provided to her to 27 May 2003. In my opinion, the plaintiff should be limited to interest at the rate of 6 per cent per annum pursuant to s 32 of the Supreme Court Act for a period of 18 months, being a reasonable period within which the claim should have been resolved if the plaintiff had sought to press its claim to a hearing with reasonable expedition.
15. The defendant has not established how any loss, on whatever basis it is claimed and calculated (which is not entirely clear), was caused or contributed to by the conduct of the plaintiff.
- Unfortunately, in this case the defendant can only look to herself for the loss of $30,000 deducted at settlement by the purchaser because it was her conduct by refusing to settle the contract of sale which was the direct cause of the loss, notwithstanding the clear and consistent legal advice she obtained to the contrary. Her own conduct was causative of the loss.
Conclusion
78 For these reasons I would allow the plaintiff's claim of $4,930.00 against the defendant and I would dismiss the defendant's counterclaim. I will hear the parties as to the appropriate form of orders and any application for costs before entering judgment.