Simmons v Story - [2001] VSCA 187

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 6711 of 1995

JOHN BRIAN SIMMONS and WESSEX CHEMICALS PTY. LTD.
	Appellants
v.
DAVID STORY	Respondent

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JUDGES:	WINNEKE, P., PHILLIPS and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	21 and 22 May 2001
DATE OF JUDGMENT:	26 October 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 187

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Contract – Retainer by client of solicitor – Whether evidence sufficient to prove implied retainer – Finding by trial judge that evidence failed to prove implied retainer upheld.

Appellant seeking to raise issues neither pleaded nor argued before trial judge – Circumstances in which appellate court will entertain and decide such issues discussed.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr. M.D.G. Heaton, Q.C. and Mr. P.J. Hannan	Henty Jepson & Kelly
For the Respondent	Mr. P.J. Riordan	Middletons Moore & Bevins

WINNEKE, P.:

The Background

The first appellant John Brian Simmons (“Simmons”) is an industrial chemist. In or about 1980 he was the controlling director of and major shareholder in a company called Wessex Chemicals Pty. Ltd. (“Wessex”) which imported industrial chemicals into Australia for use by a variety of industries. Wessex, the second appellant, traded successfully throughout the 1980’s and, by 1988, its business attracted the interest of investors who wished to buy it. Throughout this period Wessex engaged the services of a Mr. Tony Shirley (“Shirley”) as its accountant. Shirley practised, under the name and style of “A.J. Betts”, from an office in Moonee Ponds. He did the accounting work for Wessex and, from time to time, gave advice to Simmons on matters relevant to his professional expertise. Wessex had its head office at premises in St. Kilda Road, Melbourne and, occasionally, Simmons would consult with Shirley in St. Kilda Road. At all relevant times Simmons lived in Gisborne to the north west of Melbourne. In the latter part of the 1980’s, Shirley conducted his practice on one day a week from a room in Gisborne which was part of premises occupied by solicitors Story & Telford in which David Story (the respondent to this appeal whom I shall call “Story”) was the sole practitioner. Again from time to time Simmons would consult with Shirley at these premises. In the action from which this appeal emanates, which had been commenced in 1995, Shirley had been named as a defendant. When the trial of the action commenced in the latter part of 1999, Shirley had become “a man of straw” and could not be located. Accordingly, the action proceeded against Story alone and no claim was pursued against Shirley, although – as shall become apparent – his absence was conspicuous and left large gaps in the evidence.

In 1988 an investment company called Forteoh Investments Pty. Ltd. wished to buy the business of Wessex. Negotiations were conducted between the managing director of Forteoh (Mr. Gooie) and Simmons, who enlisted the aid of his accountant Shirley. The negotiations were successful and, in December 1988, “heads of agreement” were drawn and signed. The agreement…

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 Simmons v Story

Details

AGLC: Simmons v Story [2001] VSCA 187
Case: [2001] VSCA 187
Decision Date: 26 October 2001

CaseChat Overview and Summary

Simmons brought an appeal against the decision of Story, questioning the validity of a retainer agreement between the two parties. The dispute was heard in the Supreme Court of Victoria. The core issue revolved around whether the evidence presented was sufficient to prove an implied retainer agreement between the appellant and the respondent. Additionally, the court had to consider whether the appellant could raise issues that were neither pleaded nor argued before the trial judge, and under what circumstances an appellate court would entertain and decide such issues.

The court found that the evidence provided was not enough to substantiate an implied retainer agreement. The judge's conclusion that the evidence failed to prove such a retainer was upheld. The court further discussed the principle that an appellant may not raise issues that were neither pleaded nor argued before the trial judge. It was noted that an appellate court will only consider such issues if it is necessary to do so to ensure justice is served and the appellant's rights are protected. In this instance, the appellate court did not find it necessary to address the unpleaded issues.

The appeal was dismissed, and the trial judge's decision was affirmed. The court maintained that the evidence was insufficient to prove an implied retainer and that the unpleaded issues were not to be considered in the appeal.

Orders