Stevenson v Zafra Pty Ltd - [2021] WASCA 181

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   STEVENSON -v- ZAFRA PTY LTD [2021] WASCA 181
CORAM:   BUSS P
MURPHY JA
HILL J

HEARD:   26 AUGUST 2021
DELIVERED          :   13 OCTOBER 2021
FILE NO/S:   CACV 62 of 2020
BETWEEN:   CANDICE MARGARET STEVENSON
Appellant
AND
ZAFRA PTY LTD
First Respondent
WILSON & ATKINSON PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER SANDERSON
Citation: STEVENSON -v- ZAFRA PTY LTD [2020] WASC 160
File Number            :   CIV 3027 of 2019

Catchwords:

Legal practitioners - Solicitors - Costs agreements - Fiduciary duty of solicitors - Whether costs agreements 'fair' - Whether costs agreements 'reasonable' - Proper construction of s 288 of the Legal Profession Act 2008 (WA) - Whether non‑disclosures by solicitors under s 260 of the Legal Profession Act - Whether failure to explain that charging in minimum six‑minute units benefited the law practice made the costs agreements not fair - Where solicitor acted in proceedings in the Federal Court - Alleged failure to disclose that there was no applicable costs determination in that regard - Whether such failure to disclose rendered costs agreements not fair or not reasonable

Legislation:

Federal Court of Australia Act 1976 (Cth), s 23
Legal Profession Act 2008 (WA), s 260, s 271, s 275, s 288, s 301, s 302, s 303
Legal Profession Regulations 2009 (WA), reg 80(1)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	D J Garnsworthy
First Respondent	:	P G McGowan
Second Respondent	:	P G McGowan

Solicitors:

Appellant	:	David Garnsworthy
First Respondent	:	Zafra Legal
Second Respondent	:	Zafra Legal

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

Alman v Macdonald Rudder (a firm) [2001] WASC 65
Alman v Macdonald Rudder (a firm) [2001] WASCA 375
Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 4) [2007] FCA 963; (2007) 160 FCR 35
Batterham v Goldberg [2014] FCAFC 136; (2014) 226 FCR 166
Bear v Waxman [1912] VLR 292
BGM v Australasian Lawyers Group Pty Ltd t/as Butlers Barristers & Solicitors [2014] WASC 290
Breen v Williams [1996] HCA 57; (1996) 186 CLR 71
Brown v Talbot & Oliver (1993) 9 WAR 70
CCOM Pty Ltd v Jiejing Pty Ltd (Unreported, Federal Court, 10 February 1994)
Cerini v McLeods (a firm) [2004] WASC 45
Chan v Batemans [2009] WASC 177
Clare v Joseph [1907] 2 KB 369
Computer Accounting & Tax Pty Ltd v Bowen Buchbinder Vilensky [2009] WASC 171
De Mol v WHL Legal Pty Ltd [2017] WASC 354
Duckworth v Chopra [2001] WASC 146
Frigger v Madgwicks [2018] VSC 281
Frigger v Murfett Legal Pty Ltd [2012] WASC 447
Frigger v Shepherd [2014] WASC 477
Groeneveld Australia Pty Ltd v Nolten (No 3) [2010] VSC 533; (2010) 80 ACSR 562
Harrison v Hocking [2000] WASC 188
House v The King [1936] HCA 40; (1936) 55 CLR 499
In Re Stuart [1893] 2 QB 201

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.

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Details

Case: [2021] WASCA 181
Decision Date

CaseChat Overview and Summary

Mrs Candice Margaret Stevenson sought to have two costs agreements set aside, one with Wilson & Atkinson Pty Ltd and the other with Zafra Pty Ltd, on the basis that they were not fair or not reasonable. The costs agreements were in relation to proceedings in the Federal Court in which Mrs Stevenson was a defendant. The applications were dismissed by the master of the Supreme Court of Western Australia. Mrs Stevenson appealed against the decision of the master. The appeal was dismissed. The appeal was dismissed for two reasons. First, none of the grounds of appeal were made out. Second, even if the appeal had been successful, it would not have served the interests of justice to exercise the power to set aside the costs agreements. The latter was so because Mrs Stevenson had effectively received an indemnity for her legal costs, in the form of shares, cash, and insurance proceeds. The appeal was dismissed on all grounds.

Orders