ROBINSON -v- BERRY [2008] WADC 44

Link to Appeal :

[2009] WASCA 41

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 44
Case No:	CIV:5/2006	Heard:	4-5 MARCH 2008
Coram:	STEVENSON DCJ	Delivered:	31/03/08
Location:	ALBANY
No of pages:	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

LOCATION : ALBANY CITATION : ROBINSON -v- BERRY [2008] WADC 44 CORAM : STEVENSON DCJ HEARD : 4-5 MARCH 2008 DELIVERED : 31 MARCH 2008 FILE NO/S : CIV 5 of 2006 BETWEEN : HAYNES ROBINSON

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)…

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 Robinson v Berry

Details

AGLC: Robinson v Berry [2008] WADC 44
Case: [2008] WADC 44
Decision Date: 31 MARCH 2008

CaseChat Overview and Summary

The matter of Robinson v Berry involved a dispute between a former client, Robinson, and their former solicitor, Berry. Robinson sought to recover legal fees amounting to $4,930.00 after the termination of the solicitor and client retainer agreement. Berry, on the other hand, counterclaimed for fees related to a subsequent matter, which he argued were incurred due to Robinson's failure to accept his legal advice.

The primary legal issue before the court was whether the solicitor was entitled to recover legal fees from the client after the termination of the retainer agreement. This issue necessitated a consideration of the circumstances surrounding the termination of the retainer, the nature of the legal advice provided, and the client's obligations under the retainer agreement. The court also had to determine if the client's decision not to accept the solicitor's advice justified any additional fees.

The court held that the solicitor was entitled to recover the legal fees claimed. It found that the retainer agreement was valid and binding, and the client was obligated to pay the agreed fees for services rendered. The court further determined that the client's decision not to accept the solicitor's advice did not absolve them of their financial obligations. The client's failure to follow the solicitor's advice did not negate the fact that the services were provided and were necessary under the circumstances. Consequently, the court dismissed Berry's counterclaim, finding no basis for additional fees.

In summary, the court allowed Robinson's claim for legal fees and dismissed Berry's counterclaim. The orders of the court were for Robinson to be paid $4,930.00 by Berry, with no further liability on either party regarding the counterclaim.

Orders

Orders of the court

Plaintiff's claim allowed at $4

930.00

Defendant's counterclaim dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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