Watson v Hewett & Lovitt Pty Ltd - [2022] WASC 184

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WATSON -v- HEWETT & LOVITT PTY LTD [2022] WASC 184
CORAM:   MASTER SANDERSON
HEARD:   ON THE PAPERS
DELIVERED          :   27 MAY 2022
PUBLISHED           :   27 MAY 2022
FILE NO/S:   LPA 5 of 2022
BETWEEN:   ANTONY JOHN WATSON
Applicant
AND
HEWETT & LOVITT PTY LTD
Respondent

Catchwords:

Legal practitioners - Application for extension of time to tax costs - Turns on own facts

Legislation:

Legal Profession Act 2008 (WA)

Result:

Time extended

Category: B

Representation:

Counsel:

Applicant	:	No appearance
Respondent	:	No appearance

Solicitors:

Applicant	:	Dwyer Durack
Respondent	:	Coulson Legal

Cases referred to in decision:

Frigger v Murfett Legal Pty Ltd [2012] WASC 447
Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112

MASTER SANDERSON:

By amended chamber summons filed 18 March 2022, the applicant seeks an extension of time for the assessment of the respondent's costs that were incurred when the respondent provided advice and assistance to the applicant during the administration of the estate of the late Shirley Ann Watson. The respondent provided the advice between 2010 and 2015. The respondent opposes the application. However, quite sensibly, counsel for the respondent suggested if the extension was granted the matter should proceed to a provisional assessment and only proceed to an assessment if the matter cannot be resolved at the provisional assessment stage. The parties agreed this is an appropriate course of action.
A number of affidavits have been filed by the applicant and the respondent. On behalf of the applicant, there is an affidavit of Antony John Watson sworn 15 January 2022, four affidavits of Daniel Ryan Gill, these affidavits being sworn on various dates between 9 February 2022 and 8 April 2022. The respondent relied on two affidavits. There was one affidavit of Amy Louise Pascoe sworn 2 March 2022 and an affidavit of Brian Richard Lovitt sworn 31 March 2022. Despite the fact there were eight affidavits, there was in large measure agreement as to the facts. Where it is necessary to do so, I will detail the factual conflicts between the parties.
The background to this application can be summarised as follows. Between 2010 and 2015, the respondent was engaged by the applicant and provided advice and acted in relation to three separate capacities. They were:
(a)advising the executor of the estate;
(b)advising the trustee of the Robert Watson Family Trust; and
(c)advising the beneficiary of both the estate and the trust.
The respondent sent all of its bills to the applicant in his capacity as executor of the estate. The bills intermingled work the respondent had undertaken for the applicant in each of his three capacities. All of the bills were paid from the estate.
Commencing in or about April 2015, the respondent on behalf of the applicant applied to the court to pass its accounts. After considering the matter, on 4 November 2016, Registrar S Boyle declined the respondent's application. The registrar's primary reason for not passing the accounts…

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: [2022] WASC 184
Decision Date

CaseChat Overview and Summary

In this case, the applicant, Antony John Watson, sought an extension of time to assess the costs incurred by the respondent, Hewett & Lovitt Pty Ltd, which provided legal advice and assistance during the administration of the estate of the late Shirley Ann Watson. The respondent opposed the application but suggested proceeding to a provisional assessment if the extension was granted. The case was decided on the papers with various affidavits submitted by both parties. The court had to determine whether an extension of time was justified under the Legal Profession Act 2008 (WA).

The court examined the length of the delay, the reasons for the delay, and whether it would be just and fair to grant the extension. The respondent initially intermingled costs for services provided in three separate capacities, which led to the Registrar declining to pass the accounts in 2016. The applicant and the respondent engaged in extensive consultations and negotiations to resolve the issue, which contributed to the delay. Additionally, the COVID-19 pandemic caused further delays in the process.

The court concluded that the applicant had established that an extension of time would be justified. Factors such as the lack of a costs agreement, the intermingling of costs, the respondent admitting to overcharging, the parties negotiating in good faith, and the respondent's earlier concession that an extension should be granted, all contributed to the decision. The court found that the delay did not prejudice the respondent as they still had all necessary information and material to deal with the assessment of costs.

The court granted the applicant's application for an extension of time and ordered that costs of the application be in the cause, unless the parties agreed otherwise or sought alternative costs orders within seven days of the publication of the reasons.

Orders