This is a claim by the Plaintiff, who took by assignment two alleged debts owed by the Defendant ("Mr Warne") to a firm of solicitors that carried on practice as such under the name Chandlers International Lawyers, the principal of that firm being a Mark Errol Treisman ("The Solicitors").
The claim is for unpaid fees said to be payable to the Solicitors by Mr Warne.
Ms Granger of counsel, who has appeared for the Solicitors and has presented the case in a very comprehensive, and I may say so in light of the fact that Mr Warne is self-represented, fair manner, and Mr Warne has appeared for himself, and again, subject to having a quite natural desire to make submissions that range beyond the issues before me, has done a very effective job in presenting his position.
The Solicitors were, and I do not think this is overstating things, fastidious in their compliance with the various provisions of the Legal Profession Uniform Law (NSW) No 16a of 2014 ("LPUL") concerning costs agreements and disclosure of estimates from time to time, and there has been tendered before me a raft of correspondence to that effect commencing on 12 October 2018 when Mr Warne first consulted them about the two potential claims that he felt he had, and going all the way through to 3 September 2020, which I think is the last relevant ones of those communications, although I might have missed some.
The issues for determination can be simply stated. There are three.
The first is, was there an oral agreement between the solicitors and Mr Warne in October 2018 to the effect that whatever the actual legal fees incurred might turn out to be, they would be capped at $60,000.
Mr Warne has given evidence before me both in affidavit and in the witness box to the effect that there was a conversation where such an agreement was reached on 10 October at the offices of the solicitors. Mr Treisman denies such an arrangement was ever part of the retainer.
I accept unreservedly that today Mr Warne honestly believes that there was such a conversation and that the legal effect of the conversation was that he would never have to pay more than $60,000 in fees. I also accept Mr Treisman's evidence is entirely honest. Courts have for many years recognised the fallibility of human memory and the ability of people's memory, no matter how honest the memory might be, to misremember events, especially in circumstances where they have had to go over the event many times, and in the context of when, with the benefit of hindsight, the person would prefer what they remember to have happened to be the fact rather than what actually happened.
I think in this case the best and most reliable indicator as to what actually happened in that early meeting in October 2018 is by reference to the documents that were created contemporaneously by the Solicitors, and which were sent to Mr Warne at the time and not contested in any way, shape or form by Mr Warne.
I will not in this judgment set out in detail those documents. MFI 2, which is a helpful chronology handed up by Ms Granger, sets them out in detail with reference to where they can be found in the evidence.
Suffice to say every document created by the solicitors after 10 October meeting is entirely inconsistent with Mr Warne's recollection of what he says was said at the meeting and are entirely consistent with Mr Treisman's evidence.
This leads me to two conclusions. Firstly, I think it is very unlikely that anything along the lines that Mr Warne remembers was said, but secondly, even if it was, it was clearly superseded by the written contract that was created when the solicitors issued their costs agreement and invited Mr Warne to either sign it and return it or, if he did not sign it and return it, to accept if he continued to instruct the solicitors that the costs agreement was the contractual basis of the arrangements between them.
For those reasons, I am not satisfied that Mr Warne's defence based on the alleged oral conversation of October 2018, to the effect that there was a $60,000 cap in relation to the fees, has been made out.
Without acceptance of that aspect of the defence, all of the evidence that has been tendered on behalf of the plaintiff leads inevitably to the conclusion that there was in place an agreement between the solicitors and Mr Warne to the effect that he would be charged on an as and done basis at certain rates for the legal work. There is no suggestion by Mr Warne that the amounts actually charged are unreasonable. Moreover, none of the steps prescribed by the Legal Profession Act in relation to disputing bills within time limits and seeking to have cost assessments have been taken up by Mr Warne. I think Mr Warne does not take any issue with the actual quantum of the amount claimed; it is more to do with his contention that regarding the agreement, that there be a cap of $60,000.
The second issue is whether there was an agreement reached between the solicitors and Mr Warne in May 2019 to the effect that there would be payment over time on terms allowed.
The Solicitors' position in this regard is that there was such an agreement and that it is set out in a letter of 13 May 2019 which is in evidence before me.
Mr Warne says that the terms of the agreement were different to that contained in that letter. He relies on an oral conversation that he says took place I think that morning or if not that same day as that letter, very shortly before 13 May 2019. Mr Treisman denies any such conversation other than one consistent with what he wrote in the 13 May letter.
Again, and without in any way suggesting that Mr Warne is being dishonest when he tells me that he believes that there was a different agreement made, I think the contemporaneous record is compelling. I am satisfied that the arrangement as set out in the 13 May 2019 letter is the only arrangement that was put in place around that time that could be described as a payment arrangement concerning the Sydney Harbour Tall Ships aspect of the retainer.
The consequence of that finding is that the claim as propounded by the plaintiff before me is entirely consistent with that arrangement and therefore I am not satisfied that Mr Warne has made out a defence based on an oral agreement made some time in May 2019.
The final issue is whether there was another oral agreement made between Mr Warne and the solicitors in September 2020 to the effect - and I will use the words used by Mr Warne - that from that point on the solicitors were prepared to "punt" their fees. Again, Mr Treisman denies any such conversation.
The fundamental problem with this aspect of the claim is again the contemporaneous documents created by the Solicitors demonstrate to me that on 3 September 2020, the Solicitors' position was diametrically different to any such arrangement. They wrote to Mr Warne and said, amongst other things:
"We are, however, presently unable to offer you any further financial accommodation and therefore fees and disbursements in this matter moving forward will have to be paid as and when due in the normal manner."
Then on 6 November the solicitors wrote another letter to Mr Warne which, amongst other things, contained the following:
"You have not provided additional funding to enable me to properly conduct your matter despite my requests for same…"
Whilst it is of course possible that between those two dates Mr Treisman said something contrary to those two statements to the effect that he was prepared to proceed on a no win no fee basis, I think it is highly unlikely to the point of close to implausible that he would have done so. Again, without making any findings or suggesting that Mr Warne is being dishonest, I just am not satisfied that such an agreement was reached some time in 2020.
What that means is that the three issues for determination have been resolved, each in favour of the plaintiff and against Mr Warne.
I am also satisfied as to the legality of the assignment, and as to the appropriateness of the interest rate claimed by the Plaintiff which is a rate agreed in writing - that I will enter a judgment in favour of the plaintiff of $113,588.87 together with interest as at the rates prescribed by the Contract.
I will order Mr Warne pay the Plaintiff's costs of the proceedings.
A short discussion regarding interests and costs
My orders are:
1. Judgment for the Plaintiff in the sum of $121,724.
2. Defendant to pay the Plaintiff's costs of the proceedings.
3. Grant liberty to either party to apply to my chambers to relist the matter if there is any application for a lump sum cost order.
[2]
Amendments
15 July 2024 - Quote in para [21] fixed
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Decision last updated: 15 July 2024
Parties
Applicant/Plaintiff:
ACN 603 541 411 Pty Ltd Trading as Chandlers International Lawyers