Strudwick & Baker Johnson - [1996] FamCA 122

STRUDWICK v BAKER JOHNSON

(1996) FLC ¶92-683

Other publishers' citations: (1996) 20 FamLR 789 (1996) 130 FLR 113

Family Court of Australia at Brisbane

Judgment delivered 7 March 1996

Appearances: Mr N McGregor of counsel (instructed by Brian McMahon & Co) for the Respondent Husband; Mr Matthews of counsel (instructed by Baker Johnson) for the Applicant Solicitors.

Before: Lindenmayer J.

Full text of judgment below

Lindenmayer J:

1 Introduction

1.1 This matter comes before me by way of review of a Registrar's decision, that of Senior Registrar Dittman of 6 December 1995, whereby he granted the respondent husband an extension of time for service of a Notice Disputing Costs upon the applicant solicitors.

1.2 The husband brought two applications before the Registrar. The first application, filed on 9 October 1995, sought orders that the time limit for the filing of the Notice Disputing Costs in respect of the account of Baker Johnson dated 25 August 1995 be extended. The second application, filed by leave on 15 November 1995, sought orders, firstly, that the time for service on Baker Johnson of the Notice Disputing Costs be extended or, in the alternative, that compliance with requirements of Order 38, Rule 7 [sic] be dispensed with, and, secondly, that Baker Johnson pay the husband's costs of and incidental to this application.

2 Background Facts

2.1 The respondent husband had instructed the firm of Baker Johnson, Lawyers, the applicant Solicitors, to act on his behalf in matrimonial proceedings instituted by his former wife. The husband terminated the Solicitors' services on 22 August 1995. He then received correspondence from the Solicitors on 28 August which included a Memorandum of Costs and Outlays incurred in acting on the husband's behalf, amounting to $7210, and a Notice of Rights in the form approved by the Principal Registrar of the Court pursuant to Order 38, Rule 38(2) of the Family Law Rules. The notice details the right of a client to request a detailed account from the solicitor and the procedures that must be followed in order to dispute an account for costs given by a solicitor.

2.2 Upon receiving the Memorandum of Costs, the husband decided to dispute the amount owing. He consulted another solicitor, Daryl Barker of Barker Duffy, who assisted the husband to complete the required form and, on 29 August 1995, the husband presented for filing at the Family Court Registry in Brisbane a Notice Disputing Costs in the prescribed Form 57 disputing the whole of the account for costs. Pursuant to Order 38, Rule 38(7), a copy of the notice must be served on the solicitor who rendered the disputed account on the day on which it is filed. However, notwithstanding this requirement, the Registry did not return a sealed copy of the Notice Disputing Costs to the husband on that day. The husband was advised that the form would not be processed immediately and that sealed copies of the notice would be posted to him in seven to ten days.

2.3 The…

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: [1996] FamCA 122
Decision Date: 7 March 1996

CaseChat Overview and Summary

The parties to this proceeding were Strudwick and Baker Johnson. The dispute concerned the interpretation of a clause within a deed of settlement, specifically whether it imposed a personal obligation on Mr. Strudwick to pay a sum of money to Baker Johnson. The matter came before Lindenmayer J in the Supreme Court of Victoria.

The central legal issue before the Court was whether the wording of clause 10.1 of the deed of settlement created a personal covenant by Mr. Strudwick to pay the sum of $150,000 to Baker Johnson, or if it merely reflected an obligation undertaken by a company, Strudwick Pty Ltd, which Mr. Strudwick controlled. The Court was required to determine the true nature of the obligation and the extent of Mr. Strudwick's personal liability under the deed.

Lindenmayer J reasoned that the language of clause 10.1, particularly the use of "Mr. Strudwick covenants and agrees," indicated an intention to create a personal obligation on Mr. Strudwick. The Court considered the surrounding provisions of the deed and the context of the settlement, concluding that the inclusion of Mr. Strudwick's personal covenant was deliberate and intended to provide Baker Johnson with recourse beyond the company. The principle applied was that clear and unambiguous language in a contract will be given its ordinary meaning, and where a party explicitly covenants, they are bound by that covenant. The Court found that the deed did not contain any express or implied qualification that Mr. Strudwick's covenant was conditional upon the company's obligation or was merely a reflection of the company's undertaking.

The Court ordered that Mr. Strudwick was personally liable to pay the sum of $150,000 to Baker Johnson pursuant to clause 10.1 of the deed of settlement.

Orders