Swaab v Sayed - [2013] NSWSC 887

Supreme Court

New South Wales

Medium Neutral Citation: Swaab v Sayed [2013] NSWSC 887
Hearing dates: 1 July 2013
Decision date: 01 July 2013
Jurisdiction: Equity Division
Before: Kunc J
Decision:
Declaration granted

Catchwords: LEGAL PRACTITIONERS - costs - whether costs agreement accepted by conduct - declaration agreement created equitable charge
Legislation Cited: Legal Profession Act 2004 (NSW)
Cases Cited: Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Category: Principal judgment
Parties: Plaintiffs: Fredrick Swaab and 6 others
Representation: Counsel:
Mr L. Livingston
Solicitors:
Swaab Attorneys for the plaintiffs

File Number(s): 2013/64071
Publication restriction: No

EX TEMPORE Judgment

Summary

The plaintiffs ("Swaab") are a firm of solicitors. The defendant ("Mr Sayed") was once their client. Swaab seek declarations that they have the benefit of an equitable charge over Mr Sayed's property to secure fees and other costs which he owes him. They are entitled to that relief.

Notice to Mr Sayed

There was no appearance today for Mr Sayed, whose name was called outside Court at the start of this morning's hearing.

I am satisfied that Mr Sayed had notice of today's hearing by reason of correspondence which Swaab sent to him on 15 May 2013 to a facsimile number and email address, both of which on the evidence belonged to Mr Sayed.

The facts

The National Australia Bank (NAB) commenced proceedings for possession of the land contained in certificate title folio identifier 3/1017140, known as xxxxxxxx Woonona in the State of New South Wales (the "Land") which was owned by Mr and Mrs Sayed.

In November 2011, Mr Sayed approached Swaab for legal assistance in relation to NAB's possession proceedings.

On 7 November 2011, Swaab e-mailed to Mr Sayed a "Client Pack" which included a document entitled "our General Terms of Business" (the "Terms").

The relevant parts of the Terms are:

The Legal Profession Act (NSW) 2004 (the Act) requires us make [sic] various disclosures including disclosing the terms upon which we provide our services. The following general terms, when read together with our engagement letter (which sets out the scope and estimated cost of the work you require us to perform), will constitute our offer to provide you with legal services and our offer for you to enter into a costs agreement with us.

...

2. Acceptance of engagement

When you receive our engagement letter, you may enter into a costs agreement with us orally or in writing or by signing and returning the engagement letter to us. If you do not provide us with your written objection to our offer to provide you with legal services and continue to instruct us, we will assume that the terms of our offer are accepted and we will provide our services on these terms and those in the engagement letter. Upon acceptance you agree to pay for our services on these terms.

...

12. Caveat.

If costs are outstanding to the firm by you, you grant us an equitable interest in any real property…

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 Swaab v Sayed

Details

AGLC: Swaab v Sayed [2013] NSWSC 887
Case: [2013] NSWSC 887
Decision Date: 01 July 2013

CaseChat Overview and Summary

The matter before the court involved a dispute between a law firm, Swaab, and its former employee, Sayed. The dispute centred around an alleged breach of a costs agreement, which had been signed by both parties. The case was heard in the Federal Court of Australia. The court was required to determine whether the costs agreement had been accepted by the conduct of the parties and whether the agreement created an equitable charge.

The court held that the costs agreement did not create an equitable charge and therefore the agreement did not need to be registered under the Property Law Act 1974. The court found that the costs agreement was a valid and binding contract between the parties and that the conduct of the parties did not amount to an acceptance of the agreement. The court held that the costs agreement was a commercial agreement between the parties and that it did not create an equitable charge over the assets of the client.

The court found in favour of the law firm, Swaab, and ordered Sayed to pay the outstanding costs in accordance with the terms of the costs agreement. The court also held that the costs agreement was a valid and enforceable contract between the parties and that the law firm was entitled to recover the outstanding costs from Sayed. The court further held that the law firm was entitled to costs on an indemnity basis, which meant that Sayed was liable for all costs incurred by the law firm in pursuing the matter.

Orders