Soia v Bennett

In the case of Soia v Bennett, the appellant, Mr Soia, sought to appeal against the decision of the trial judge, contending that the judge had erred in several respects, including by failing to take into account post-contract conduct and by dismissing an application to amend the pleadings to rely on section 9 of the Fair Trading Act 1987 (WA). The trial judge had found that no contract was reached on 30 June 1999, and that there was no agreement for Mr Soia to be paid a management fee. The appellant argued that the conduct post 30 June 1999 should have been examined to find that there was a different contract from that which was pleaded. The appeal also raised issues regarding fiduciary duties and the entitlement to costs for a successful litigant who is a lawyer.

The court had to decide whether the trial judge erred in not taking into account post-contract conduct and in dismissing the application to amend the pleadings to rely on section 9 of the Fair Trading Act. The court also had to consider whether any relevant fiduciary relationship existed between the parties and whether a successful litigant in person who is a lawyer is entitled to costs, applying the Chorley exception, and whether Dobree v Hoffman should be overruled. The court noted that the evidence of conduct after an alleged contract can be taken into account to ascertain whether a contract was entered into and the terms of that contract. The court also noted that the law permits access to extrinsic evidence of the conduct of the parties for the limited purpose of ascertaining whether a contract, with the terms contended for, existed. However, the court found that the conduct post 30 June 1999 could not be used to find a different contract from that which was pleaded, as it was not the subject of any evidence to support it.

The court found that the trial judge did not err in refusing to allow further amendments to the amended statement of claim to refer to and rely upon section 9 of the Fair Trading Act. The court noted that in an appeal from a final order, an appellate court may correct interlocutory orders made before judgment which affect the final result. However, the court found that the proposed amendments to allow the appellant and PTS to plead reliance on section 9 of the Fair Trading Act would not have affected the final result, as the conduct in question was not pleaded at trial, not the subject of any proposed amendment to the pleadings, never alleged by the appellant at trial, and not the subject of any evidence to support it. The court also found that there was no relevant fiduciary relationship between the parties, and that a successful litigant in person who is a lawyer is not entitled to costs, applying the Chorley exception. The court did not consider it necessary to overrule Dobree v Hoffman.

The appeal was dismissed, with the appellant ordered to pay the respondent's costs of the appeal.