Southall, Anthony George v Hill, Antony Christopher
[2010] VCC 123
•25 February 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST
GENERAL DIVISION
Case No. CI-09-05647
| ANTHONY GEORGE SOUTHALL | Plaintiff |
| v | |
| ANTONY CHRISTOPHER HILL | Defendant |
| (conducting practice under the Business Name 'McCluskys Lawyers') |
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| JUDGE: | HIS HONOUR JUDGE SHELTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 February 2010 |
| DATE OF JUDGMENT: | 25 February 2010 |
| CASE MAY BE CITED AS: | Southall, Anthony George v Hill, Antony Christopher |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0123 |
REASONS FOR JUDGMENT
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Catchwords: Summary Judgment Application – claim against solicitors for barristers’ fees – whether instructing solicitor agent for disclosed principal – estoppel – use of subsequent conduct to determine whether contract made – Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 – whether claim governed by the Legal Practice Act 1996 or the Legal Profession Act 2004.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr P Vout | Williams Winter |
| For the Defendant | Mr P Crennan | Obst Legal Pty Ltd |
| HIS HONOUR: |
Introduction
1 This is an application for summary judgment pursuant to Order 22 of the County Court Civil Procedure Rules 2008.
2 The approach to be taken to a summary judgment application is stated by the High Court in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, at 89, as follows:
“The power to order summary or final judgment is one that should be exercised with great care. It should never be exercised unless it is clear that there is no real question to be tried.”
3 To similar effect is the statement of Herring CJ and Lowe J in Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332, at 334, that:
“Where there is a real case to be investigated either in fact or law, leave
to defend should be given.”
4 The plaintiff is a member of the Victorian Bar, holding the office of Queen’s Counsel. The defendant carries on practice as a solicitor under the name of ‘McCluskys Lawyers’.
5 The plaintiff claims the sum of $423,170 from the defendant by way of professional fees. This sum is calculated as follows:
- Memorandum of Fees dated 18 June 2009 $145,935.00 - Memorandum of Fees dated 31 August 2009 $183,350.00 - Memorandum of Fees dated 17 September 2009 $93,885.00 __________
$423,170.00==========
6 By way of background, Thomas Love (“Love") owned land at Cooper Street, Epping, parts of which were compulsorily acquired by Roads Corporation in connection with the construction of the Craigieburn Bypass. The defendant deposes that in late May or early June 2004, he retained the plaintiff as counsel with respect to issues related to these compulsory acquisitions. In December 2005, the plaintiff sued Roads Corporation in Supreme Court Proceeding number 10147 of 2005 (“the Cooper Street proceeding”). This matter proceeded before Osborn J between 20 April 2009 and 28 May 2009, and then again between 17 August 2009 and 18 September 2009. The fees claimed in this proceeding all relate to the Cooper Street proceeding.
7 The defendant asserts that it has four arguable defences, and I turn to consider each of these.
Agency
8 The defendant claims that he is not personally liable to the plaintiff for the fees claimed since he retained the plaintiff as agent for a disclosed principal, Love.
9 It is well established that when a solicitor retains a barrister on behalf of a client, in the absence of any evidence to the contrary, there is a contract between the barrister and the solicitor rather than between the barrister and the client – Dimos v Hanos and Egan [2001] VSC 173, at paragraph 100, per Gillard J. Here there is no evidence to the contrary. In fact, in a document entitled ‘Disclosure Statement’ dated 28 July 2006, a copy of which is annexed to this judgment, the defendant “acknowledged and accepted” a “legal obligation” to pay the plaintiff’s costs as outlined in the Statement. Although this Disclosure Statement relates to another Supreme Court proceeding, it is not in issue that the plaintiff agreed to charge fees in respect to the Cooper Street proceeding in accordance with this Disclosure Statement.
10 Further, in the latter part of 2009 there were several letters and emails passing between the parties with respect to the outstanding fees. At no point did the defendant raise with the plaintiff that it had no liability for payment of the plaintiff’s fees as might have been expected if the plaintiff was retained directly on behalf of Love. Subsequent conduct such as this is admissible on the question of whether a contract was formed between the plaintiff and the defendant. It “is not admissible on the question of what a contract means as distinct from the question of whether it was formed”: see Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153, at 163-4.
11 Mr Crennan, who appeared for the defendant, sensibly did not strongly pursue this defence.
12 There is, in my view, no arguable defence that the plaintiff was engaged by the defendant as agent for a disclosed principal, Love.
Agreement or Estoppel
13 Secondly, the defendant asserts that, if personally liable to the plaintiff, the plaintiff agreed to desist from pursuing its claim for fees until the defendant had a reasonable time to exercise his rights as second mortgagee if a re- finance was not approved or, alternatively, that the plaintiff’s conduct gave rise to an estoppel.
14 In an affidavit sworn 1 February 2010, the defendant states:
“12.
On or about 25 August 2009 I had a conversation with the Plaintiff in relation to outstanding fees. At this time, the Plaintiff’s account dated 18 June 2009 in the sum of $145,935 inclusive of GST was outstanding. The Plaintiff raised concern about that outstanding invoice. I explained to him that Love had a facility with the Commonwealth Bank which he was seeking to extend because the costs in the Cooper Street proceeding had been greater than anticipated, but that because of the global financial crisis the Bank had not been forthcoming and Love may have to seek alternate finance.
13.
The Plaintiff responded that he was not prepared to continue to act for Love in the circumstances and would not appear the next day. We discussed the position this would leave Love in if he was not represented at the trial and I suggested to the Plaintiff that Love may be prepared to provide a second mortgage to me over one of his properties, which we had all come to refer to as the ‘Eastern Block’ as security for legal fees. I said to the Plaintiff that I believed Love would agree to this because the property had been valued by the Commonwealth Bank for mortgage purposes in 2006 at $45 million and the only encumbrance was the facility with the Commonwealth Bank of approximately $9.5 million. The Plaintiff agreed he was prepared to continue to act on that basis.
14.
I discussed the issue of payment of legal fees and a second mortgage with Love by telephone on 25 August 2009 and then again at Court on 26 August 2009. Love agreed to provide the second mortgage and the Plaintiff agreed to continue to act on his behalf for the conclusion of the trial.
15.
On 31 August 2009 I provided mortgage documents to Love and recommended that he obtain independent legal advice in relation to them, which he informed me he did. The mortgage documents were executed by Love on 10 September 2009 and was lodged at the Office of Titled [sic] to give notice of the interest.
Now shown to me marked “ACH-1” is a true copy of the Mortgage
of Land and Caveat.16.
In this proceeding the Plaintiff seeks payment from me for three invoices for legal services provided to Love dated 18 June 2009, 31 August 2009 and 17 September 2009 totalling $423,170. Payment of those fees is secured by the second mortgage. The balance of the Plaintiff’s fees, of in excess of $1.88 million, have been paid.
17.
By agreeing to continue to act on behalf of Love on the basis that the second mortgage would be in place, I believed the Plaintiff agreed that he would not pursue payment of his fees until such time as:
(a)
Love had a reasonable opportunity to obtain further finance which he was urgently undertaking;
(b)
if a refinance could not be obtained, the first mortgagee would sell the property and I would enforce the rights provided under the second mortgage.
18.
I am informed by Love and believe that the Commonwealth Bank, as first mortgagee [sic] have informed him that they intend to proceed to sell the property the subject of my mortgage and have requested a meeting with Love on 3 February 2010.
. . . .”
15 The mortgage referred to in paragraph 15 of the affidavit was between Love as mortgagor and the defendant as mortgagee. The mortgage was for the sum of $3 million and the Due Date was stated to be 1 December 2009.
16 In a draft of the Defence he proposes to file in this matter, the defendant relies upon the facts outlined above as follows:
“16. Further, on or about 25 August 2009 the Plaintiff agreed to continue to act on behalf of Love in the Cooper Street Proceeding despite unpaid fees on the basis that Love provided a second mortgage to the Defendant over a property owned by Love to secure payment of the fees incurred to that date and into the future (“Security Agreement”).
Particulars
The Agreement was partly oral and partly implied.
In so far as it was oral it was constituted by conversations between the Plaintiff and the Defendant on or about the date alleged to the effect that the Plaintiff agreed not to cease acting for the Plaintiff during the trial of the Cooper Street Proceeding provided that Love provided security for unpaid fees by way of a second mortgage to the Defendant.
In so far as it is implied it is implied to give business efficacy to
the agreement.17. In accordance with the Security Agreement a second mortgage was provided by Love to the Defendant over the land more particularly described in Certificate of Title Vol 10727 Folio 199.
Particulars
The Mortgage of Land is in writing and dated 10 September 2009. A copy is in the possession of the solicitors for the Defendant and is available for inspection by prior appointment.
18. There was an implied term of the Security Agreement that:
(a) the Plaintiff would not seek to enforce his entitlement to fees other than through the rights of the Defendant as second mortgagee; (b) the Defendant would act reasonably as second mortgagee. 19. The Defendant has acted and continues to act reasonably as second mortgagee.
Particulars
The Defendant has demanded of Love as mortgagor payment
of the sum secured by the second mortgage.The Defendant has liaised with the Commonwealth Bank as first mortgagee which has a prior entitlement to enforce the security.
20. In the circumstances of paragraph 16 to 19 hereof, the Plaintiff has no present entitlement to any fees owing whether by Love or, which is denied, by the Defendant.
21. Further, or in the alternative, in reliance upon the Plaintiff entering into the Security Agreement the Defendant continued to act for Love including but not limited to continuing to instruct the Plaintiff at the trial of the Cooper Street Proceeding.
22. In the circumstances the Plaintiff is estopped from pursuing payment of his outstanding fees from the Defendant until the Defendant has had a reasonable opportunity to pursue his rights as mortgagee against Love.”
17 As will be seen, the defendant alleges that the plaintiff agreed not to pursue his fees or, alternatively, is estopped from pursuing these fees.
18 The plaintiff’s recollection of the above events is somewhat different. In his Affidavit in Reply sworn 10 February 2010, he states:
“13. As to paragraph 12 of the Hill Affidavit I say as follows:
(a) I agree that sometime in late July or early August 2009 I had a discussion with the Defendant in relation to outstanding fees, and in particular my account dated 18 June 2009 for the sum of $145,935.00; (b) I believe this discussion first occurred earlier than 25 August 2009, which was one week after the re-commencement of the Cooper Street trial (18 August 2009). My clear recollection is that I raised the matter of outstanding fees with the Defendant in early August, having returned from overseas (in mid July) and became aware — through discussions with junior Counsel and from other sources — that Love was experiencing funding problems as a consequence of the dismissal of his Acquisition Validity proceeding on 23 June by Cavanough J. This proceeding had been a very expensive and drawn out piece of litigation. (c) I recall the Defendant mentioning that Love was ‘seeking to extend his facility with the Commonwealth Bank’ and referring to the global financial crisis, as he described it. I replied with words to the effect: ‘Tony I have no interest in the financial arrangements between Tom Love and the bank or other sources of finance. You and your firm are personally responsible for the payment of our out standing fees.’
I do not have a note of that conversation, which occurred in
my chambers in or about early to mid August 2009;14. As to paragraph 13 of the Hill Affidavit, I categorically deny the conversation deposed to in the first sentence thereof. Indeed quite to the contrary, in the course of my junior Counsel informing me as to the reputed financial difficulties of Love, I stated to him — and he agreed — that under no circumstances were we to withdraw our services as Counsel for Love in the Cooper Street proceeding, as I believed this to be both unprofessional and unethical. In fact, we continued as Counsel for Love in the relentless preparation prior to the resumed hearing, caused by the late service by Roadscorp and its lawyers of a large volume of complex expert material; further, we continued to represent and appear on Mr Love’s behalf at the re-convened trial before Osborn J. on 18 August 2009.
15. Further as to paragraph 13:-
(a)
there was no discussion or conversation with the Defendant at all concerning Love not being represented at the trial of the Cooper Street proceeding. The Defendant’s statement in this regard is incorrect and I deny that any such conversation occurred;
(b)
the Defendant may have mentioned that he (Love) ‘may be prepared to provide a second mortgage over one of his properties’ to which my reply was either to [the] same substance and effect as referred to in paragaph14(a), supra; indeed it may have been in the same conversation;
(c)
the only discussion with the Defendant as to the value of the Eastern block at around that time (its re-zoned value had been raised many times by the Defendant over the preceding 3 years) was when shortly after my return from overseas in July 2009 I raised with him the serious situation for Love arising from the dismissal of the Acquisition Validity proceeding by Cavanough J. I clearly recall that the Defendant replied with words to the effect:
‘Yes, but Tom was offered $33 million for the Eastern block (he may have said the C31 land) within a day or two after the AVF judgment.’
This conversation occurred in my chambers. I did not take a note
of it.16. I reject entirely the assertion by the Defendant in paragraph 13 that I ‘agreed (to be) prepared to continue to act on that basis’. My consistent position with the Defendant always remained as stated in paragraphs 13(c) and 15(b), supra.
17. In any event, I would never agree to defer payment of fees owing pursuant to an extant fee agreement with a solicitor, on the basis of anecdotal information of a mortgage security, without first sighting a registered copy of such document and the required consent of the first mortgagee (apparently in this case the Commonwealth Bank). I have not done so in 33 years of practice at the Bar, and did not do so in this case. It has always been my position that the instructing solicitor is directly responsible for Counsel’s fees.
18. In this regard, I recall raising with the Defendant on a number of occasions — both before and after the adjournment of the first tranche of the Cooper Street trial (28 May 2009) — whether Tom Love had the necessary funds to run the Cooper Street trial, to which he always responded with words to the effect ‘yeah, yeah’. Invariably on these occasions he referred to the sworn value of the Eastern block (C31).
19. The first time I became aware of the existence of such a mortgage was when I read page 2 of the Defendant’s letter of 18 September 2009 (“AGS 7”), and the first time I sighted such a document was in “ACH 1” to the Hill Affidavit sworn 1 February 2010: in fact, upon proper scrutiny that document does not appear to be registered at all and, in this regard, paragraph 15 of the Hill Affidavit is demonstrably incorrect.
20. Indeed, on the same day that -
‘the mortgage documents (sic) were executed ... and was
lodged at the Office of Titled (sic)’being 10 September 2009, (paragraph 15 of the Hill Affidavit) the Defendant attended at my chambers and in the presence of my junior Counsel, David O’Brien, confirmed — under questioning from myself — that our accounts ‘would be paid within two weeks’, or words to the effect.
21. The Defendant repeated this statement to me at approximately 4.20pm after Court during the last week of trial - I believe on Monday 14 September 2009 - in the foyer to the 6th Court of the Supreme Court, immediately outside the first floor lift. At that time, I specifically put to the Defendant words to the effect:
‘Tony, what will you do if Tom and his lenders don’t come up
with the monies to pay our fees?’
He replied with words to the effect:
‘I don’t know, I suppose I will have to sell some of my property.’
22. On neither of those occasions referred to in paragraphs 20 and 21 respectively did the Defendant refer to or rely on any purported agreement by me to accept deferred payment of fees on the basis of an alleged second mortgage. In that regard I refer to and rely upon my email to him of 16th September 2009, exhibited as “AGS 5” of my earlier Affidavit.”
19 So far as the alleged agreement is concerned, I accept, for the purposes of this application, the defendant’s version of events. The agreement alleged is that the plaintiff was prepared to continue to act in the Cooper Street proceeding which had then resumed in the Supreme Court on the basis that Love would provide a mortgage to the defendant for an undetermined amount with an undetermined repayment date. In my view, such an agreement is too uncertain to be enforceable. Further, so far as the fees already incurred were concerned, being the bulk of the fees, there would appear to be no consideration supporting the agreement.
20 Further, the subsequent conduct of the parties is totally inconsistent with any such alleged agreement. In accordance with Brambles Holdings Ltd v Bathurst City Council (supra), it is appropriate to consider such conduct.
21 I refer to paragraph 21 of the plaintiff’s affidavit sworn 10 February 2010, reproduced above, which is not contradicted by the defendant. The plaintiff kept pressing for his fees, which was contrary to the alleged agreement. At no stage did the defendant in response refer to the alleged agreement or representation. Rather, he referred to the efforts being made by his client to obtain funds to pay the outstanding fees.
22 By email dated 17 September 2009, the plaintiff advised the defendant that he was on the point of instructing solicitors to recover his fees.
23 On 18 September 2009, the defendant wrote to the plaintiff referring to refinancing on his client’s part. The letter does not refer to the alleged agreement.
24 On 24 September 2009, the plaintiff forwarded an email to the defendant which stated, inter alia:
“No further work will be performed in ANY of the LOVE matters unless
and until all fees outstanding are paid.”
25 In an email of 25 September 2009 from the defendant to the plaintiff, he stated, inter alia:
“With regard to outstanding fees I will keep you advised as to Tom’s
refinancing.”
26 The plaintiff responded by email to the defendant on 26 September 2009 as follows:
“... Finally, the issue of ’Tom’s refinancing’, as you describe it, is not an issue as to which I have any particular concern: my concern, & that of my juniors, is to be paid without any further delay Counsel’s fees which collectively amount to almost $1, 000,000, the majority of which has been incurred in excess of 3 months; incurred, moreover, in circumstances, it would appear where those involved in sourcing & obtaining that ‘finance’ (& giving security therefor) ought reasonably have known for some considerable time that a real prospect of ‘financing problems’ had arisen, or were likely to arise.
Accordingly, I confirm my previous advice to you that I intend to commence recovery procedures & to instruct solicitors to that effect. As I advised you by telephone on Thursday last, I am around in Melbourne next week, but will thereafter be interstate until Friday 16 October, when I return to Chambers. If you want to meet next week to discuss arrangements for payment of our outstanding fees, I would be more than happy to make myself available for that purpose.”
27 By email of 2 October 2009, the defendant stated to the plaintiff:
‘Tony,
Thankyou for your email last Saturday evening. I was away from the office until Wednesday.
I had been holding off since then until I had something from Tom’s finance broker or letters of offer, which despite assurances that the lenders are doing this, have not eventuated.
I have accordingly arranged to meet with Tom on Tuesday to advise him that unless he immediately puts the eastern block up for sale and provides [me] with evidence of [a] signed authority with an agent, then I will have no alternative but to serve Notice under the mortgage and proceed to sell.
I will keep you advised.
Regards
Tony Hill.”
28 By email on 5 October 2009, the plaintiff replied to the defendant:
“Tony,
Your letter is non responsive. I am not interested in being ‘kept advised’. I am interested in immediate payment of all outstanding fees: whatever meetings & arrangements occurring between you and the client are simply beside the point, as I have previously made clear. The obligation & responsibility to pay Counsel’s fees is yours. I intend to enforce that as a matter of priority. I suggest that you make urgent personal arrangements in that regard.
Anthony Southall.”
29 An email from the defendant to the plaintiff of 16 October 2009 refers to refinancing funds being available but difficulties in finalising matters and states:
“I had been proposing to pay everyone a portion of their outstanding fees
from the initial settlement.”
30 On 27 November 2009, the defendant wrote to the plaintiff stating:
“We are still unable to provide a fixed schedule for payment to your client
as Mr Love’s refinancing has not yet been settled.”
31 The conduct of the defendant after 25 August 2009 is, in my view, particularly compelling given that the defendant is a solicitor and might be expected to be particularly astute in protecting his own rights.
32 So far as estoppel is concerned, it was not in issue on the hearing of the application that, in accordance with relevant authorities, estoppel involves four elements:
(a) conduct by one party; (b) which contributes to an assumption by another party; (c) upon which that other party materially relies (reliance being reasonable); (d) resulting in, if the assumption be resiled from by the first party, detriment to the other party. 33 So far as relying upon the conduct of the plaintiff to his detriment is concerned, Mr Crennan submitted that the detriment to the defendant was that he incurred further counsel fees to the plaintiff. In my view, there is no merit in this submission. If the defendant had continued acting in the matter, he would have incurred counsel fees to the plaintiff or other counsel. Had he ceased to act for Love, then he would not have incurred counsel fees
34 Further, the conduct of the defendant after 25 August 2009, as outlined above, is totally inconsistent with the alleged estoppel.
35 I conclude that there is no agreement with respect to deferral of payment of the fees claimed by the plaintiff nor is the plaintiff estopped from claiming those fees.
The VCAT Defence
36 On 1 February 2010, the defendant’s solicitors, acting on behalf of Love, commenced a proceeding against the plaintiff in the Victorian Civil and Administrative Tribunal (“the VCAT proceeding”). As mentioned, it is not in issue that the plaintiff agreed to charge fees in respect of the Cooper Street proceeding in accordance with the Disclosure Statement dated 28 July 2006. The application seeks, inter alia, orders that the Disclosure Statement be set aside pursuant to s.3.4.32 of the Legal Profession Act 2004 (“the LP Act”) on the basis that the plaintiff has failed to comply with the disclosure requirements set out in s.3.4.9(1)(c) of the LP Act. If it were set aside, then pursuant to s.3.4.32(4) of the LP Act, the Victorian Civil & Administrative Tribunal (“VCAT”) could then fix those costs.
37 Dr Vout, who appeared for the plaintiff, submitted that the defendant could not rely upon any determination by VCAT since he was not a party to the VCAT action. However, should Love succeed at VCAT, this might result in the sum which the plaintiff could claim for his professional fees being varied and affect the sum claimable by the plaintiff for his fees in the proceeding before me. In such a situation, I would be disposed to defer the summary judgment application until a determination had been made by VCAT upon the plaintiff’s fees. No doubt a speedy hearing could be obtained from VCAT.
38 The principal basis upon which Dr Vout answered this proposed defence was that the LP Act did not apply. The LP Act commenced on 12 December 2005. Clause 3.1 of Schedule 2 provides:
“(1) Subject to subclause (2) and clause 3.2, Part 3.4 of this Act applies to a matter if the client first instructs the law practice on or after the commencement day and Part 4 of the old Act continues to apply to a matter if the client first instructed the law practice in the matter before the commencement day. (2) Part 3.4 of this Act does not apply in respect of a law practice that is retained by another law practice on behalf of a client on or after the commencement day in relation to a matter in which the other law practice was retained by the client before the commencement day and in that case Part 4 of the old Act continues to apply.”
39 Clause 3.2 has been repealed. “Client” is defined in s.1.2.1 of the LP Act as including:
“A person to whom or for whom legal services are provided.”
40 This definition appears wide enough to include the defendant.
41 Part 3.4 of the LP Act is entitled “Costs Disclosure and Review”.
42 “Law practice” is defined in s.1.2.1 of the LP Act as meaning:
“(a) an Australian legal practitioner who is a sole practitioner; …”
which is wide enough to include the plaintiff.
43 The “old Act” is defined in Clause 1.1 of Schedule 2 of the LP Act to mean:
“... the Legal Practice Act 1996.”
44 The defendant deposes in paragraph 6 of his affidavit sworn 1 February 2010 that he first retained the plaintiff in relation to Cooper Street in June 2004 which led to the Cooper Street proceeding being issued in December 2005.
45 The effect of Clause 3.1(1) (and possibly Clause 3.1(2)) of the LP Act is that the LP Act does not apply to the defendant’s retainer of the plaintiff. Rather, s.82(2) of the Legal Practice Act 1996 (“the old Act”) applies.
46 The old Act provides in s.87(2) as follows:
(2) A legal practitioner or firm retained or to be retained on behalf of a client by another legal practitioner or firm is not required to give a statement to the client under section 86, but must disclose to the first legal practitioner or firm on request the information necessary for the first legal practitioner or firm to comply with this section.”
47 There is no evidence before me of any “request” made of the plaintiff pursuant to s.87(2). In fact, in paragraph 11 of the plaintiff’s affidavit sworn 10 February 2010, which is not disputed, he deposes that no such request was made of him by the defendant. Thus the defendant has no basis for relying upon the old Act either.
48 Mr Crennan sought to rely upon the words “the matter” appearing in Clause 3.1 of Schedule 2 to the LP Act. He referred to the statement by the plaintiff in his affidavit sworn 18 December 2009 that he was retained by the defendant as Senior Counsel in the Cooper Street proceeding in early 2006. In my view, it is quite artificial to regard “the matter” as the Cooper Street proceeding as distinct from the advice leading to the issue of the Cooper Street proceeding.
49 I conclude that the defence based upon there being a dispute over the plaintiff’s fees before VCAT has no merit.
Conclusion
50 As there is not, in my view, any real question to be tried, there will be judgment for the plaintiff in the sum of $423,170.00.
51 I will hear from the parties on the question of interest and costs.
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