Solomon Brothers (a firm) v WILLIAMS - [2002] WADC 48

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: SOLOMON BROTHERS (a firm) -v- WILLIAMS & ORS [2002] WADC 48

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 25 FEBRUARY 2002

DELIVERED : 12 MARCH 2002

FILE NO/S: CIV 1217 of 2001

BETWEEN: SOLOMON BROTHERS (a firm) (ACN 008 667 650)
Plaintiff
AND
RUTH EILEEN WILLIAMS
GALE CURTIS WILLIAMS
MARK CURTIS WILLIAMS
Defendants

Catchwords:

Practice - Western Australia - Application to set aside default judgment - Entitlement of solicitor to his fees - Costs agreements

Legislation:

Legal Practitioners Act 1893

Result:

Judgment set aside

Representation:

Counsel:

Plaintiff: Mr D H Solomon
Defendants: Mr J R B Ley

Solicitors:

Plaintiff: Solomon Brothers
Defendants: O'Connor Partners

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Benecke v National Australia Bank (1993) 35 NSWLR 110
Bowen v Stott [2001] WASC 219
Eng Mee Yong v Letchumanan [1980] AC 331
Evans v Bartlam [1937] AC 473
Mann v Carnell [1999] HCA 66
Miller v M (Murray) Franconi & Associates [2000] WASC 175
Palmer v Prince [1980] WAR 61
Rapoff v Rudder; unreported; SCt of WA; Library No 8353; 6 July 1990
Rawson v Samuel (1841) Cr & Ph 161
Rolland v Bank of Western Australia Ltd, unreported; FCt SCt of WA; Library No 980498; 3 September 1998
Silverstone Holding Pty Ltd v Edward [2000] WASC 290
Tay Bok Choon v Tahansan Sdn Bhd [1987] 1 WLR 413
Weng Ge Lou v Christianos, unreported; FCt SCt of SA; 1050 of 1980; 10 April 1990

DEPUTY REGISTRAR HEWITT: The matter for determination is the defendants' application to set aside a default judgment which was entered against the defendants on 11 September 2001. That default judgment was entered due to the failure of the defendants to file a defence within the time stipulated by the Rules. The reason for that failure has been explained by the solicitor representing the defendants in the action to be due to the fact that documents served upon him by the plaintiff became intermingled with other documents and misfiled as a consequence of which the defence was not filed in time and a default judgment was entered.
Prior to these events the defendants' solicitor had been put on notice of the fact that strict compliance with the requirements of the Rules would be required and additionally there is testimony by the solicitor handling the matter on behalf of the plaintiff that he attempted to ring the defendants' solicitor, and left a message for him to return the call without response.
I am well able to understand how such an administrative mishap may happen in a solicitor's office and I am satisfied that a sufficient explanation has been given for the failure to file a defence and I now turn to consider the merits of the proposed defences.
The plaintiffs are solicitors and the defendants their former clients for whom they acted in a number of actions in the District Court and in the Supreme Court including appeals within both of those…

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 Solomon Brothers (a firm) v WILLIAMS

Details

AGLC: Solomon Brothers (a firm) v WILLIAMS [2002] WADC 48
Case: [2002] WADC 48
Decision Date

CaseChat Overview and Summary

Solomon Brothers, a firm of solicitors, brought an action against Ruth Eileen Williams, Gale Curtis Williams, and Mark Curtis Williams seeking recovery of unpaid legal fees. The case was heard in the District Court of Western Australia. The primary issue for the court was whether the default judgment entered against the defendants could be set aside, and if so, on what grounds. Additionally, the court had to determine whether the defendants had viable defences to the plaintiff's claim for unpaid fees.

The court first addressed the defendants' failure to file a defence in time, which led to the entry of a default judgment. The defendants' solicitor explained that an administrative error led to the misfiling of documents, causing the defence to be missed. The court found the explanation sufficient and moved to consider the merits of the proposed defences. The defendants argued that the solicitors were negligent in their representation and that there was a conflict of interest, both of which could potentially serve as equitable set-offs against the fees claimed. However, the court found insufficient evidence to support these claims, as they were largely based on assertions rather than factual proof.

Further, the court examined the nature of the retainer agreement between the parties. The defendants contended that the retainer did not comply with the Legal Practitioners Act, as it was partly written, partly oral, and partly implied. The court agreed, stating that such an agreement could not be considered a valid costs agreement under the Act. The court also noted that the fees charged by the solicitors might exceed the permissible rates set by the Costs Committee, raising a triable issue. Additionally, the court found that the third defendant, Mark Curtis Williams, had a valid defence as he was charged for work that was not related to him.

Finally, the court considered the practice of the solicitors in issuing monthly accounts to the defendants. The court held that unless a costs agreement explicitly provided otherwise, the retainer was an entire contract, and fees were only payable upon completion. The monthly accounts issued by the solicitors without a valid costs agreement were therefore questionable. The court concluded that the defendants had demonstrated viable defences and that the default judgment should be set aside.

The court ordered that the default judgment entered against the defendants be set aside.

Orders