Adamson v Ede

Adamson v Ede - [2008] NSWSC 767 - NSWSC 2008 case summary — Zoe

[21]

Solicitor (Adamson) not liable to Ede for expert witness fees in Walters matter in which Adamson acted for Walters. 14 Mr Adamson submitted that a solicitor is not liable for the fees of an expert witness when he has engaged that witness on behalf of a client unless there are special circumstances and that there were no such special circumstances in this case. 15 Mr Adamson relied on the decision of Robbins v Bridge (1837) M & W 114. Lord Abinger CB was called upon to decide the general question "whether an attorney, who has caused a witness to be subpoenaed, without any express contract and without any circumstances from which a special contract can be inferred, is liable to be sued by the witness for his expenses at the trial." He held: (at 119): "there is no implied contract by the attorney to pay the witness. The attorney is known merely as the agent - the attorney of the principal, and is directed by the principal himself. The agent, acting for and on the part of the principal, does not bind himself, unless he offers to do so by express words; he does not make himself liable for any thing, unless it is for those charges which he is himself bound to pay, and for which he makes a charge. … It is known the marshal does not receive his fees from the party, but on the contrary from the attorney, who is daily practising there, and who is bound to pay, and not his client. But in the case of a witness, it is different; he has no course of dealing with the attorney, he knows it is for the party that he is to give evidence; his obligation is to the party, and if he fails to attend, it is to the party's loss." 16 The magistrate referred specifically to the excepting words in the general question posed by Lord Abinger "without any express contract and without any circumstances from which a special contract can be inferred." 17 In Lee v Everest (1857) 157 ER 118 an expert witness sued the attorney for the witness' charges as to surveys and plans he made to qualify himself to give evidence at the trial, and also for the expense of his attendance. Bramwell B delivering the judgment of the Court said (at 121): "It is undoubtedly more convenient that the engagement of the witness should be supposed to be with the party rather than with the attorney. The attorney may die, or be changed before the witness has finished the entire duty of qualifying himself to give evidence, and giving it. Then suppose he gives unfair evidence, dishonestly suppressing something for the benefit of the party, or does not properly qualify himself by the previous survey which he has undertaken, and thereby the party sustains a loss; who is to sue him for breach of duty, the party or the attorney, for the engagement must be taken to be with him if he has to pay for its performance? We are of opinion, therefore, that prima facie the party, and not the attorney is liable for such a claim as the present."

[26]

Appeal Ground 5 - If there was any such agreement the Local Court erred in law in finding that the set off agreement was repudiated as no such claim of frustration or repudiation was pleaded or such claim was contrary to the pleading or there was no evidence or insufficient evidence to support such findings. 24 Mr Ede maintained his earlier submission that his case was advanced and defended as a quantum meruit claim. 25 At T46 on 1/11/07 Mr Adamson at lines 25-28 described the tit for tat agreement Mr Ede was alleging as a costs agreement and asserted that neither could enforce it. At lines 54-55 Mr Adamson asserted that there was no costs agreement because any costs agreement Mr Ede alleged was void. At T47 Mr Adamson described the agreement alleged as "obliterated". 26 At T56 lines 1-3 counsel for Mr Ede accepted that there was not an enforceable costs agreement. Counsel for Mr Ede put the matter this way at T56, lines 12-18: "They [Adamson and Ede] had an arrangement for one reason or another it's either not enforceable or it's been walked away from, abandoned. They are now each entitled to a fair and reasonable assessment of the work they did for each other. And that's the essence of the quantum meruit claim. And that's what their Honours are saying in that paragraph." (He was referring to Mason and Wilson JJ at the bottom of p 227 of Pavey & Matthews) 27 I doubt whether the magistrate accurately summarises counsel's concluding submissions when he recorded him as submitting that Mr Ede was entitled to bring the action as a claim for reasonable remuneration under an oral agreement and that the original agreement was frustrated or avoided when Mr Adamson elected in 2004 to issue a bill of costs for his legal work and to seek to recover those costs, but this is of no moment. Counsel made it plain in his concluding submissions that Mr Ede was claiming as on a quantum meruit and there was sufficient evidence to support such a claim. This ground of appeal should be rejected. It does not advance Mr Adamson's defence.

[30]

Ground 7A Res judicata 33 This does not appear in the Further Amended Summons filed 11 April 2008. It does appear in Mr Adamson's submissions and it was raised in the Court below. 34 Mr Adamson submitted that the claims brought by Mr Ede in the Local Court proceedings were such as could and should have been brought before the costs assessor in the course of the costs assessment. Mr Adamson relied on the decision of Patten AJ in Wentworth v Rogers [2005] NSWSC 143 Mr Adamson further submitted: "(1) The issue as to whether the alleged agreement is an enforceable agreement as to the provision of costs which aught (sic) to be in writing, an assessor is a peculiarly suitable person to make such a determination as it is a common issue in assessments. That issue therefore could easily and should have been put before the assessor. (2) If the alleged agreement is otherwise enforceable as an agreement to set off costs against [Mr Ede's] work, or there were grounds for a claim of quantum meruit, such a determination would have merely been a matter of law: there being no dispute that work was done by [Mr Ede], the contest being really one of how much work was done and the reasonable value of that work and whether [Mr Ede] could reasonable (sic) charge (approx $10,000) [Mr Adamson] for travelling back and forth from the Gold Coast to Sydney when he had his only residence in Sydney and his children resided in Sydney and had other building work in Sydney. A Costs Assessor in the Supreme Court commonly deals with and is suitable (sic) qualified to assess the reasonable value of the services claimed in the Local Court proceedings below. In the proceedings below [Mr Ede] claimed for a building inspection report and witness fees for the purposes of local court proceedings for William John Walters v Cosmopolitan Constructions and for legal clerk's services for the plaintiff in respect of a hearing of a Supreme. (sic) Whilst [Mr Adamson] submits that [Mr Ede] should have made all of his claims and was estopped from taking further proceedings, at the very least some of these issues should have been claimed before him." (The "him" probably refers to the costs assessor)" 35 Mr Ede submitted that as the parties agreed at the hearing that the agreement was unenforceable and/or void there was no agreement that he could have relied upon before a costs assessor. 36 Patten AJ held that if legal practitioners chose to enter into a written costs agreement that would be given force and effect subject to s 208(D) which empowers a costs assessor to determine whether a term of a particular costs agreement is unjust and lists a wide range of matters which the costs assessor may or must take into consideration in considering the question. If the legal practitioners choose to enter into no costs agreement, or an oral one rendered void by s 184(4) then the rights of the parties will be governed by the general law. It was desirable to avoid the anomaly of an enforceable retainer agreement under which the legal practitioner could be required to perform services, but he or she would have no entitlement to remuneration for such services. 37 Patten AJ reviewed a number of earlier decisions at [20] and following and referred to the issues which a costs assessor has to consider. The specific issue resolved at [29] was that the costs assessor was entitled in law to find that the solicitor for Mr Rogers, and counsel, undertook the work on a "no win/no pay" basis pursuant to an oral costs agreement. 38 Mr Ede has not finally sued Mr Adamson pursuant to an agreement but on the basis of reasonable remuneration for work done by Mr Ede for Mr Adamson and accepted by Mr Adamson. Mr Ede's claim was based on restitutionary principles. In his reasons at [21] the magistrate pointed out that Mr Ede did "not allege that Mr Adamson was negligent in carrying out the legal work on his behalf. He relies on a completely separate claim for work done on behalf of Mr Adamson not related at all to the work which Mr Adamson did for Mr Ede in the Family Law proceedings. There is absolutely no way that the present claim could have been brought before the assessor".

[35]

The court erred in law by rejecting and not accepting the defendant's evidence from a suitably qualified cost surveying expert as to the reasonable market of a building report and the only of (sic) evidence of the appropriate award setting the reasonable rate for a law clerk in NSW in 2002. 11. The court erred in law making findings in respect the value of a quantum meruit claim not based upon any proper admissible objective evidence of what was a reasonable market value of the services in all the relevant circumstances. 44 There are two issues being raised, namely, Mr Ede's claim for inspections, attendances and preparing a building report in the Walters matter and Mr Ede's claim for rendering clerical assistance in Adamson v Liu. Mr Adamson submitted that the magistrate erred in admitting and subsequently accepting the evidence of Mr K Collins as to the reasonableness of the charges of Mr Ede for the work he had done in relation to the building dispute in the Walters matter. Mr Collins considered whether the time allegedly spent was reasonable and whether the charges were reasonable. Mr Adamson contended that Mr Collins was not suitably qualified to express these opinions. It appeared that Mr Collins had spent 50 years in the building industry, starting as an apprentice carpenter, working as a building contractor and subsequently as a construction manager. He was involved in a wide variety of work. Since about 1972 he had been much involved in the construction of pools and subsequently in writing articles, making reports and acting as an expert witness in matters involving swimming pools and related matters. Since November 1997 he had provided building consulting and inspection services to legal firms in the Manning River District and for several major insurance companies. He has been appointed to the Consumer Trader and Tenancy Tribunal as a Residential Building Assessor. Mr Collins has made many inspections and written many reports over many years. 45 The magistrate was entitled to accept Mr K Collins as a well qualified expert and to overrule Mr Adamson's objections to Mr Collins' qualifications. Mr Adamson did not request Mr Collins to attend for cross-examination. The magistrate records that Mr Collins was present at Court and that Mr Adamson did not seek to cross-examine him on his report which the magistrate found to be well reasoned. The report was accepted. 46 Mr Adamson's criticisms do not sufficiently allow for the depth and breadth of the experience of Mr Collins who has been asked to undertake work in various parts of the State. A quantity surveyor was not the only person qualified to express an opinion on the issues. Mr Adamson complained that his expert was a quantity surveyor and aware of the market value of the report which was given. The magistrate gave detailed reasons why he did not find the evidence of the quantity surveyor to be of assistance - he did not take into account (and may not have known) the facts which the magistrate found existed and which would have borne on the amount to be awarded. It was for the magistrate to find the facts and in this regard, he accepted Mr Ede's evidence. 47 The Court's own scale of witness charges was not, on the facts found by the magistrate, a matter to which regard should have been had. 48 As to the matter of Adamson v Liu the magistrate accepted that Mr Adamson contacted Mr Ede and said: "I need assistance with the paper work and setting out the files in the Adeline Liu case. If I get someone else in to do it, it is going to cost me around $120.00 per hour. 49 The magistrate accepted the evidence of Mr Ede that he worked during the day and night of 28 August 2002 and that he in effect acted as an instructing officer in Court for Mr Adamson. This was corroborated by the solicitor for Ms Liu. The magistrate rejected Mr Adamson's propositions in cross-examination that Mr Ede was of very little assistance and did very little work in court. 50 The magistrate attached importance to the extended hours which Mr Ede was required to work and the intensity of the work undertaken and that it was done under considerable pressure. 51 Mr Adamson submitted that the Court was not entitled to accept the evidence of the costs assessor retained by Mr Ede's solicitors as to the clerical and legal assistant range of rates of charge on most assessments in Supreme Court matters to be reasonable, namely: 1. Paralegal from $100 to $150 per hour 2. Clerical form $100 to $120 per hour. This material was but a guide. 52 Mr Adamson submitted that Mr Ede should be remunerated substantially in accordance with the Clerical And Administrative Employees Legal Industry (State) Award. These rates would apply to permanent employees and not casual consultants or assistants who would be entited to greater remuneration. The Award would produce a much lesser sum. I do not know what penalty and overtime rates would apply. There was no evidence as to these. 53 The magistrate considered the circumstances were exceptional. It is hard to imagine any court or tribunal applying the award rates for the casual engagement in question. These are questions of fact 54 The magistrate allowed:

[37]

The findings and decisions of the Local Court were procedurally unfair, as they were against and contrary to the weight of evidence and principles of natural justice. 55 There was evidence to support the many findings of fact of the magistrate. He reviewed the evidence and the course of proceedings. He was alert to the basis on which the case was conducted. None of the grounds of appeal should be upheld. 56 I raised with counsel for Mr Ede whether Mr Adamson could be said to have accepted the benefit of the work done by Mr Ede in the Walters matter. Mr Adamson had contended that he obtained no benefit from the work done by Mr Ede in respect of the building report. Counsel for Mr Ede submitted "where Mr Ede performed work at Mr Adamson's request, pursuant to a contract between the parties (as was found by the magistrate at judgment paras 26-29), Mr Adamson cannot deny that such work constituted a benefit to him: 'In other words, where a contract is executed, and the defendant's request is fully satisfied, there may be a constructive acceptance of the benefit of the work, on the basis that the defendant cannot deny that the work was beneficial. The acceptance concept does not, at least in this context, require unconscionable conduct at the time of receipt.' Mason and Carter Restitution Law in Australia (1995) at pp 342-343. 'The benefit whose receipt falls into one of the categories of case which the law characterizes as unjust enrichment may be actual. Alternatively, it may be constructive as, for example, where it involves full or partial performance of something requested to be done.' Foran v Wight (1989) 168 CLR 385 at 438 per Deane J. 'Where a person pays money to another it is not difficult to see that a benefit has thereby accrued to the recipient. Services present greater difficulty. If the law of restitution is available to oblige the recipient of the benefit of services to make restitution, it must acknowledge that such benefit may take many forms. … In my opinion, 'benefit' in this context must be seen from the perspective of the recipient who is, after all, the person to be charged. It may be that for some idiosyncratic reason a defendant seeks performance of work which another would see as without benefit or, indeed, as a positive dis-benefit. … But where a person requests another to do something, it is not unreasonable for the law to conclude that the former sees some benefit in its performance, however wrong this view may be on an objective basis and for the law to act upon the perception of the recipient.' Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221 at 257-258 per Byrne J cited with approval in Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa [2007] NSWSC 228 at [245]-[246] per Bergin J. 57 Counsel pointed out that at T50.53-51.25 of 1/11/07 the magistrate in argument did not accept Mr Adamson's submission that the work performed by Mr Ede in respect of the building report was of no benefit to Mr Adamson. I doubt whether I would agree with all the magistrate's observations. They were not repeated in his reasons., 58 I must follow the observations of Deane J in Foran v Wight that the benefit "may be constructive as, for example, where it involves full or partial performance of something requested to be done."

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