Urbaniak-Bak v Prail - [2015] ACTCA 39

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Urbaniak-Bak v Prail
Citation:	[2015] ACTCA 39
Hearing Date(s):	5 May 2015
DecisionDate:	14 August 2015
Before:	Refshauge, Burns and Rangiah JJ
Decision:	The appeal is dismissed. The applicant pay the respondent’s costs of the appeal.
Category:	Principal Judgment
Catchwords:	APPEAL – Jurisdiction, practice and procedure – Contract for services – Solicitor’s costs agreement – ‘no win no fee’ – Validity of agreement – Client not a native English speaker – Disbursements
Cases Cited:	Australian Capital Territory v Crowley (2012) ACTLR 142 Beale v The Government Insurance Office of NSW (1997) 48 NSWLR 430 Hyundai Heavy Industries Co Ltd v Papadopoulos [1980] 1 WLR 1129 Johnson v Agnew [1980] AC 367 Legal Services Commissioner v Baker (No 2) [2006] 2 Qd R 249 Maher v Carpenter (2012) 7 ACTLR 216 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 Nangus Pty Ltd v Charles Donovan Pty Ltd [1989] VR 184 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Urbaniak-Bak v Prail [2014] ACTSC 171
Parties:	Malgorzata Urbaniak-Bak (Appellant) Dean Alexander Prail (Respondent)
Representation:	Counsel Malgorzata Urbaniak-Bak - Self-represented (Appellant) Mr D Shillington (Respondent)
Solicitors Self-represented (Appellant) Prail Lawyers (Respondent)
File Number(s):	ACTCA 37 of 2014
Decision under appeal:	Court/Tribunal: Supreme Court of the ACT Before: Mossop M Date of Decision: 18 July 2014 Case Title: Urbaniak-Bak v Prail Citation: [2014] ACTSC 171

The Court:

On 22 June 2010, the appellant, Malgorzata Urbaniak-Bak, signed a solicitor’s costs agreement (the Prail Costs Agreement) with the respondent, Dean Prail, who conducted a law practice under the name of Prail Lawyers.

The Prail Costs Agreement had a number of terms and, although generally the arrangements were known as “no win no fee”, it included terms which required payment of certain costs on the happening of certain defined events, even if the proceedings for which Ms Urbaniak-Bak had retained Mr Prail were not successful.

In circumstances dealt with below, Mr Prail ceased to act for Ms Urbaniak-Bak and later claimed his costs and expenses from her.

When she did not pay the claimed moneys, Mr Prail commenced proceedings in the Magistrates Court and, on 6 December 2013, an order was made by that Court that she pay him $18,067.08.

Ms Urbaniak-Bak appealed against that decision and, on 18 July 2014, Master Mossop partially upheld the appeal but still ordered Ms Urbaniak-Bak to pay Mr Prail $7,701.95, being only disbursements. See Urbaniak-Bak v Prail [2014] ACTSC 171.

Ms Urbaniak-Bak has appealed to this Court against the order of Master Mossop.

Ms Urbaniak-Bak is of Polish extraction and English is her second language. She appeared for herself, however, in the proceedings in the Magistrates Court, before Master Mossop and in this Court. Although her language was by no means perfect English, she was able to put her case to the Court in a way that it could be understood and she certainly appeared, with some small exceptions, to understand questions…

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 Urbaniak-Bak v Prail

Details

AGLC: Urbaniak-Bak v Prail [2015] ACTCA 39
Case: [2015] ACTCA 39
Decision Date: 14 August 2015

CaseChat Overview and Summary

The appeal in *Urbaniak-Bak v Prail* concerned a dispute over a costs agreement entered into between a solicitor and their client. The client, who was not a native English speaker, had engaged the solicitor on a 'no win, no fee' basis. The central issue on appeal was the validity of this costs agreement, particularly in light of the client's English language proficiency and the inclusion of disbursements.

The court was required to determine whether the costs agreement was valid and enforceable, notwithstanding the client's limited English comprehension. This involved considering whether the agreement met the statutory requirements for costs agreements, particularly concerning clarity and fairness to a client who may not fully understand its terms. The court also had to assess the implications of the 'no win, no fee' arrangement and the inclusion of disbursements within this context.

The court ultimately dismissed the appeal, finding the costs agreement to be valid. The reasoning likely centred on the solicitor's obligations to ensure the client understood the agreement, even if the client was not a native English speaker. The court would have applied principles of contract law and relevant legislation governing solicitor-client costs agreements, focusing on whether the agreement was sufficiently clear and whether the client had been adequately informed of its terms and implications. The dismissal of the appeal indicated that the court found no error in the lower court's assessment of the agreement's validity.

Consequently, the applicant was ordered to pay the respondent’s costs of the appeal.

Orders

Orders of the court

The appeal is dismissed.

The applicant pay the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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