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[2015] VSC 627
Supreme Court of Victoria
2015-11-12
MACAULAY J
Original judgment source is linked above.
GLS v Goodman Group Pty Ltd t/as Goodman Group Lawyers (Unreported, Supreme Court of Victoria, Woods AsJ, 1 April 2015)
COSTS AGREEMENT - Solicitor and client - Appeal from decision of an associate judge constituting Costs Court - Whether payment of a discounted amount of costs for withdrawal of caveat and return of files amounted to an accord and satisfaction - Whether payment of discounted sum constituted a 'costs agreement' and was void due to s 3.4.31 Legal Profession Act 2004 (Vic) ('the Act') - Accord and satisfaction not the making of a 'costs agreement' - Beba Enterprises Pty Ltd v Gadens Lawyers (2013) 41 VR 590 applied - ss 3.4.26(5), 3.4.48A of the Act - Grounds of appeal dismissed.
EVIDENCE - Whether reasonably open for the associate judge to conclude there had been an accord and satisfaction in light of alleged phone call prior to payment - Associate judge did not conclude conversation did not occur - No error in reasoning - Grounds of appeal dismissed.
AGENCY - Whether the applicant's conveyancer was her agent with authority to bind applicant - Not raised before associate judge - Ample evidence of acting with applicant's ostensible authority - No error in associate judge not expressly making a finding of ostensible authority - Grounds of appeal dismissed.
1 Goodman Group Lawyers ('Goodman') charged their client, GLS,[1] around $173,000 in legal fees and disbursements for legal services rendered over a period of nearly 14 months between July 2012 and August 2013. Those services primarily related to litigation at the Victorian Civil and Appeals Tribunal, and an appeal in this court, concerning the sexual harassment of GLS in her workplace. A costs agreement was in place, and Goodman took a charge over GLS's house, secured by a caveat, for payment of the legal costs incurred. By October 2013 GLS had paid the majority of the costs billed: an amount of $58,749 was outstanding.
2 After GLS paid Goodman a discounted proportion of the outstanding fees on 24 October 2013, and her files were returned to her and the caveat was withdrawn, she applied to the Costs Court for a review of the costs under Division 7, Part 3.4 of the Legal Profession Act 2004 (Vic) ('the Act').[2] Goodman responded with an application for summary dismissal of her application on the footing that the parties had reached an accord and satisfaction in respect of the outstanding fees that precluded her rights of review.
3 The Costs Court, constituted by an associate judge, determined that Goodman made out its defence of 'accord and satisfaction' and summarily dismissed GLS's application for review. GLS now appeals under s 3.4.47 of the Act, which provides that a person may appeal a decision of the Costs Court in accordance with the Supreme Court Act 1986 (Vic) and the rules of the Supreme Court.
4 The applicable rule is r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).[3] Appeal from an associate judge (including when acting as the Costs Court) under r 77.06 is by way of rehearing; previously it was a hearing de novo.[4] In the absence of further evidence or a change in the law, ordinarily an appellant must show error on the part of the associate judge before appellate power may be exercised.[5]
5 For several months GLS had complained to Goodman about the level of costs she had been charged and sought more detail about them. She intimated she would seek a review of the costs if not satisfied.
6 When sending the last of the bills (in itemised form) on 27 August 2013 totalling some $24,783 and bringing the outstanding amount to $58,749, Goodman made a without prejudice offer that it would accept $40,368 to resolve any dispute between GLS and the firm. Because it held about $1,250 on trust, Goodman offered to accept a final $39,118, whereupon it would provide a discharge of the caveat.
7 GLS responded saying she would pay the $39,118 to receive the discharge of caveat, but also 'reserve her rights', including the right to seek a taxation. Goodman reiterated the original offer leaving it open for acceptance by 5pm Friday, 25 October 2013.
8 Meanwhile, GLS had engaged Collette MacEchern of Gordon Conveyancing to sell her house. To sell her house she needed the caveat removed. In days before 25 October, MacEchern communicated with James McIntyre of Goodman about the amount outstanding for costs to have the caveat removed. When McIntyre said it was $58,749, MacEchern replied saying she had been informed it was $39,118, open for acceptance until 25 October.
9 Ultimately, after further communications between Goodman's office and MacEchern's office, a man called 'Steve' attended Goodman's Cranbourne office in the afternoon of 24 October, handed to staff a cheque for $39,118 and, in exchange, took possession of a discharge of caveat and an authority from Goodman to collect GLS's files and left. Pursuant to that authority Goodman has since provided a number of files to GLS.[6]
10 At the hearing before the associate judge the issue was whether the communications and conduct established an accord and satisfaction. GLS, a law graduate although apparently not admitted to practice, represented herself. Evidence was given by affidavit only and no witness was cross-examined. Critical to the associate judge's conclusion that the chain of events did establish an accord and satisfaction were the acts of payment and handing over of the discharge of caveat in the context of emails between Goodman and MacEchern in the days preceding those acts. Also debated by the parties was the significance of an alleged oral conversation between MacEchern and McIntyre.
11 In substance, Goodman argued that the events established that the payment was made and discharge of caveat given in exchange for implied promises that each party would make or accept the payment as the final disposition of all rights in respect of the legal costs, including any right of review under the Act. For her part, GLS argued that those events only established that a part payment was made to secure the discharge of the caveat, with her rights preserved to later seek a review of the costs.
12 The associate judge's findings and reasons in favour of Goodman are set out in more detail below.
13 After identifying the issue that was to be decided, the associate judge summarised the relevant principles relevant to a plea of accord and satisfaction,[7] drawing upon the summary set out by Emerton J in Gadens[8] which, in turn, was founded upon what had been said by the New South Wales Court of Appeal in El-Mir v Risk.[9] No issue was taken by the parties about his Honour's recitation of the relevant law on this point.
14 His Honour disposed of several other arguments that were extraneous to the point that was to be decided,[10] then considered the argument by GLS that s 3.4.48A of the Act prohibited parties to a costs agreement contracting out of the rights to a review under the Act. In dismissing the argument in the context of the case at hand, the associate judge applied the decision of the Court of Appeal in Beba Enterprises v Gadens Lawyers,[11] upholding the decision of Emerton J referred to above, saying:
[p]ut simply, the effect of the Court of Appeal decision in Beba is that a client in an accord and satisfaction scenario is not contracting out of review rights in a costs agreement.[12]
15 Having covered those matters of legal principle, his Honour turned his attention to the question of whether an accord and satisfaction was made out on the evidence before him. What follows is his Honour's chronological summary of the most relevant exchanges between the parties (or persons arguably representing the parties), together with his Honour's comments or findings (in parentheses) on the evidence:[13]
16 With that survey of the facts, his Honour concluded that it was 'clear that the payment of the discounted sum was always linked with a finalisation of all issues between the parties'.[29] His Honour found that GLS had unsuccessfully attempted to negotiate the payment of the discounted sum and retain review rights while Goodman had made it clear that only payment of the full sum would have preserved those rights. Thus, his Honour concluded that GLS had been left with two alternatives: (1) pay the sum in full, receive the caveat withdrawal and file, and retain the review rights; or (2) 'take advantage' of the discounted sum, receive the caveat withdrawal and file, but give up right of review.[30]
17 By GLS paying the discounted sum his Honour concluded that she had (at least impliedly) accepted the discount in fees in place of her right of review of the costs.
18 GLS's final articulation of her grounds of appeal, after amendments, was as follows:[31]
19 In summary, GLS's grounds of appeal amounted to three essential propositions:
(a) The associate judge was wrong to conclude there had been an accord of the kind contended by Goodman in the face of MacEchern's unchallenged evidence that she spoke to McIntyre on 22 October 2013 and told him GLS would be paying under protest and would reserve her rights; alternatively, the associate judge failed to explain how he reached the conclusion MacEchern's evidence was not to be accepted (grounds 1, 2 and 3) ( 'the evidence issue');
(b) The associate judge was wrong to attribute the acts of MacEchern or the man called 'Steve', paying the money and receiving the withdrawal of caveat, as those of GLS to conclude that GLS took advantage of the discount of fees and withdrawal of caveat; alternatively, the Judge failed to adequately explain how he reasoned to that conclusion (grounds 4, 5 and 6) (the 'agency issue');
(c) The associate judge was wrong to accept that Beba was authority for the proposition that, in the context of this case, a client could contract out of his or her rights for a review of costs or for not holding that the alleged accord was void for non-compliance with cost agreement provisions of the Act (grounds 7, 8 and 9) (the 'contracting out issue').
20 Confined to their literal meaning, grounds 1, 2 and 3 are all premised upon an assumption that the associate judge made a finding that the conversation that MacEchern said she had with McIntyre on 22 October 2013 did not take place. But, as argument progressed, those grounds were broadened. The questions to be addressed are two-fold. First, was it reasonably open to his Honour to conclude, in the face of MacEchern's alleged conversation, that there had been an accord and satisfaction? Alternatively, did the associate judge adequately explain why he rejected MacEchern's evidence about the phone call on 22 October 2013?
21 The question of the occurrence of MacEchern phone call and its content was potentially relevant to whether there had been an accord and satisfaction and, if so, its terms. There is no need to recount the relevant principles of accord and satisfaction, which the associate judge set out (see [13] above). Centrally here, as his Honou[32]also said,32 the question whether there had been an accord and satisfaction is one of fact, turning upon the objective determination of the parties' intentions, which themselves may be discerned from the terms of any document said to constitute all or part of the agreement or in the surrounding ci[33]umstances.33
22 Having set out the chronology of the most relevant exchanges between the parties,[34] his Honour said:
It is clear that the payment of the discounted sum was always linked with a finalisation of all issues between the parties. The respondent held that position throughout. The applicant unsuccessfully attempted to negotiate the payment of the discounted sum and retain review rights. This was refused at all times by the respondent. There was no agreement that the applicant had the option of paying the discounted sum and retaining rights of review. It was clear that payment of the full sum would have involved a retainer of rights. The respondent signalled preparedness to do this when the full amount was communicated on 21 October 2013. The applicant had the option of paying the sum in full, obtaining a withdrawal of caveat together with her file and reviewing legal costs. The actions of taking advantage of the discounted sum, presenting a cheque for that amount, obtaining the file and a withdrawal of caveat after the respondent's email of 23 October 2013 has meant a waiver of rights of review.[35]
23 Clearly, his Honour characterised Goodman's position as having been consistent throughout. The evidence supported that characterisation. Goodman's case was that GLS ultimately yielded and accepted the offer contained in the letter of 27 August 2013, despite it not being formalised by way of a deed.
24 Whilst Goodman's position was consistent throughout, there was evidence before his Honour that GLS's position for most of the period was that she would pay the discounted sum but would also seek to have it taxed later. First, GLS responded to 27 August 2013 offer on 7 October 2013, saying that she would 'under extreme protest' pay the discounted amount and 'reserve my rights and ask that you immediately attend to the preparation of the bill pursuant to the Costs Order and file for taxation'.[36] Secondly, GLS emailed to MacEchern on 22 October 2013 saying that she would not sign the deed of release and 'I will reserve all my rights to take him to court for what he has done to me and how he has charged me'[37], although, of course, this was in the context of a private communication between GLS and her conveyancer.
25 However, the final agreement upon which the payment was made was not to be determined on the basis of GLS's subjective intention. The rights and obligations of parties to a contract are to be determined by a reasonable person's interpretation of the parties' words and actions.[38]
26 GLS (or her representative) handing over a cheque for the discounted sum whilst maintaining her right to dispute the legal costs was inconsistent with her also accepting Goodman's offer, as consistently expressed. In the last unanswered email from Goodman on 23 October 2013 sent before the cheque was handed over, Goodman confirmed its understanding that GLS 'will be paying the discounted amount and collecting her files by way of acceptance of the terms of the offer of compromise, despite this not being formalised by way of a deed of settlement'. Whatever GLS's actual subjective intention may have been, it was clearly open to the associate judge to conclude from her conduct (through her agents) in the face of that email that she had finally accepted Goodman's 27 August 2013 offer.
27 Appeal to common sense supports that view. Each of GLS and Goodman gave something and got something in return. As Goodman pointed out, it made no sense if the consideration it received for withdrawing the caveat and handing over its files was only the payment of the discounted sum without also the finality of any dispute in relation to costs. GLS would be having her cake and eating it too.
28 Both parties put argument as to who bore the onus of proof on the issue of whether the phone call took place and against whom should any adverse inference have been drawn due to the absence of any file note from either side. GLS's counsel, although working on the basis that this appeal was in the nature of a rehearing,[39] made no application for leave to adduce further evidence of a file note of MacEchern phone call (if one exists). In relation to the lack of a Goodman file note of the alleged conversation, GLS's counsel said there was no evidence that anyone had asked McIntyre whether the conversation occurred or that there had been an adequate search of the file. Counsel drew attention to the fact that Mr Goodman only said in his evidence, 'I have been unable to find any record of this alleged telephone attendance between MacEchern and Mr McIntyre'.[40] For what it is worth, to my mind this implies that a search had been conducted of the Goodman file. But, in any event, to take the matter further is, in my view, to give this issue more focus than it warrants.
29 The fundamental point is that associate judge did not make any finding that MacEchern did not have the alleged phone conversation. True, his Honour was sceptical as to whether the conversation took place as all other communication was in writing and there was no obvious reason why a file note of the conversation (if it existed) could not have been produced. But, the associate judge did not find it necessary to conclude that the conversation did not occur. Rather, his Honour found (as set out in paragraph (k) above) that even assuming that the alleged phone call took place, its effect was overtaken by the email sent to Ms MacEchern on 23 October 2013 at 12.36 pm. There could be no error in not explaining why he rejected the evidence of the conversation: his Honour did not actually reject the evidence.
30 These grounds are all ultimately answered by finding, as I do, that on the evidence that the parties chose to present it was open to the associate judge to reach the conclusion that he did, even assuming the accuracy of MacEchern's account of that phone call. It is clear that, in so far as he contemplated that the MacEchern phone call took place, his Honour saw it as but a component of GLS having 'unsuccessfully attempted to negotiate the payment of the discounted sum and retain review rights'.[41] There was no logical inconsistency in that view, gap in the reasoning or anything else denoting error.
31 In those circumstances, on the whole of the evidence presented there was no legal error in holding that the parties reached an accord and satisfaction in relation to the legal fees and rights of review. Grounds 1, 2 and 3 fail.
32 GLS's counsel argued that the conveyancer had no authority to bind GLS. He further argued that it could not follow from the fact that GLS allowed her position to be communicated through Ms MacEchern that Gordon Conveyancing was or could reasonably have been taken to be her agent for the purposes of resolving the costs dispute with Goodman. Counsel for GLS was critical of his Honour's reasons, arguing that there must have been an erroneous implicit finding that MacEchern, Gordon Conveyancing or a person named 'Steve' had GLS's ostensible authority.
33 It is important to clarify that the so-called agency issue does not involve the question whether MacEchern (or 'Steve') had authority to make the agreement on behalf of GLS. Neither purported to do so. The issue, if there is one, is whether they had her ostensible authority to pay over the money and receive the withdrawal of caveat. As shown above, it was those actions, if attributed to GLS, which gave rise to the accord and satisfaction when viewed objectively and in the context of all communications.
34 This issue, and the grounds associated with it, has no merit.
35 First, the agency issue was not raised at all before the associate judge. Goodman's counsel was correct in saying that ostensible authority did not have to be addressed below given the several concessions made by GLS in open court and on affidavit. For example, in GLS's affidavit sworn 23 February 2015 she said:
I paid the discounted amount of $39,117.69 under extreme protest as I had every intention of pursuing this matter and hold him accountable.[42]
36 On appeal, GLS's counsel argued that this particular statement needed to be considered in context as MacEchern, also on affidavit, said that she had arranged for a bank cheque to be drawn from her own savings and delivered to Goodman.[43] According to GLS's counsel, the conclusion to be drawn was that the only time that GLS 'paid' the discounted sum was when she paid MacEchern back upon settlement of her home.
37 I do not accept that reasoning. At no stage did GLS suggest that MacEchern was acting on some personal frolic of her own or otherwise suggest that MacEchern lacked her authority to make the payment for her. MacEchern's statement did not of itself, or in context with any other evidence, require that the question of her authority ought to have been expressly considered by the associate judge.
38 Secondly, and in any event, there was ample evidence from which the associate judge could reasonably conclude that MacEchern and Steve acted with the ostensible authority of GLS. Goodman drew attention to several concessions made by GLS on affidavit and before his Honour, such as:
(a) Conceding that she instructed Gordon Conveyancing to undertake her conveyance;[44]
(b) Referring to communications from MacEchern as constituting counter-offer on her behalf[45] confirming that MacEchern was acting under GLS's authority, and as a conduit of information; and
(c) Acknowledging she paid the discounted sum, and that it was her cheque.[46]
39 Moreover, MacEchern twice emailed Goodman (first on 18 October 2013 and secondly on 22 October 2013) saying that 'our client' or 'her representative' will provide or deliver a bank cheque for the discounted amount for the withdrawal of caveat and all files.[47] It was MacEchern who emailed Goodman on 21 October 2013, saying that the applicant had advised her the outstanding amount was $39,117.69. MacEchern could only have got this information from GLS.
40 MacEchern was clearly engaged to act in relation to the conveyance of GLS's house. As part of that kind of engagement, it is perfectly common place (indeed necessary) that the conveyancer would negotiate with third parties to ensure the removal of any impediments to the sale, such as caveats. Such a negotiation would naturally encompass the settling of any terms for that removal and exchanging money and documents to carry it out. In this way, at the very least, GLS armed MacEchern or Gordon Conveyancing with ostensible authority to communicate with and attend upon Goodman to do the very things that were done.[48]
41 To argue, as GLS did on appeal, that Goodman should have given more evidence about the identity of 'Steve' who happened to turn up with a cheque for the precise amount required and who took away the discharge of caveat which must have been used later on GLS's behalf to cause the Registrar to remove the caveat from title, was revealing. It was a patently weak argument.
42 There was no error in his Honour not expressly making a finding of ostensible authority. Further, his implicit finding of such authority was well justified and never in issue.
43 GLS's main argument on this appeal was that the agreement to pay the discounted sum for the withdrawal of caveat and legal files in October 2013 constituted a 'costs agreement', and was thereby void due s 3.4.31 of the Act. Relevantly, s 3.4.31 provides that a costs agreement that contravenes, or was entered in contravention of, any provision of Division 5 of Part 3.4 the Act is void.
44 Division 5 contained s 3.4.26 which concerned the making of costs agreements. Section 3.4.26(5) provided -
(5) Except as provided by s 3.4.48A, a costs agreement cannot provide that the legal costs to which it relates are not subject to costs review under Division 7.
3.4.48A Contracting out of Division by sophisticated clients
A sophisticated client of a law practice, or an associated third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned, may contract out of this Division.
46 Definitions of 'sophisticated clients', 'third party payer' and 'associated third party payer' were set out in ss 3.4.2 and 3.4.2A of the Act. GLS was none of those. Essentially, GLS argued that, because she did not fall within the category of a client who could contract out of Division 7, neither did she fall within the exception in s 3.4.26(5). Consequently, no costs agreement between her and Goodman could provide that the legal costs to which that agreement related were not subject to costs review. Implicit in her arguments was the proposition that the alleged accord and satisfaction amounted to a 'costs agreement' or some variation of the costs agreement she had entered with Goodman. If that were the case, she argued, the accord and satisfaction must be void because its term precluding any costs review contravened s 3.4.26(5).
47 Put succinctly, the associate judge was correct to hold as he did as set out at [14] above. The making of the accord and satisfaction was not the making of a costs agreement as defined by the Act. This simple proposition is the complete answer to GLS's arguments.
48 The most relevant decisions on this principle are Beba and Gadens (which was affirmed in Beba). The associate judge referred to both decisions. Beba was a non-associated third party payer which had a right under s 3.4.38(2) to apply for a costs review of legal costs payable. After reaching a compromise of the sum payable for legal costs, paying the compromised sum and receiving certain benefits from doing so, Beba later sought to review the costs in the Costs Court. In Gadens, the trial judge allowed an appeal from the Costs Court, denying Beba the right to review. The Court of Appeal in Beba upheld her Honour's decision finding:
the judge was correct to conclude that section 3.4.48A did not preclude Beba entering into an agreement which finally compromised legal costs as between itself and the lender, such as to shut out its right to request information under section 3.4.38(7) and to apply for a costs review under section 3.4.38(2).[49]
49 As the understanding of the decision in Beba is vital to the outcome of this appeal, I set out the most relevant paragraphs. Ashley JA (with whom Redlich and Priest JJA agreed) said:
50 In paragraph 74 of that passage Ashley JA was addressing a distinction between categories of third party payers that does not arise in this case. But the conclusion in paragraph 75 was determinative in that case as it is here. It is important to understand the temporal distinction Ashley JA was making. His Honour's statement that the provisions of ss 3.4.26(5) and 3.4.48A must be read in step in paragraph 73 is to be taken as meaning that they must be read as being concerned with the same point in time: that is, they are both concerned with the time of the making of the costs agreement. His Honour rejected an extended ambit of operation of s 3.4.48A which would also apply to an agreement made after the making of the relevant costs agreement.
51 Ashley JA reinforced his construction of the provisions by considering the practical consequences of the alternative view. After referring to them, he continued:
the consequences which I have outlined make it extremely improbable that Parliament could have intended them. Whilst it must be recognised that Pt 3.4, and specifically Div 7, is designed to protect persons obliged to pay legal costs, it does not follow that the desirability of parties bringing an end to a legal dispute, including its costs ramifications, and whether or not involving litigation, should be ignored. Nor would it do much for the administration of justice if agreements settling costs issues (whether solely relating to costs, or part of a wider resolution), entered into in apparent good faith, could be at risk of being partly set aside at the instance of the payer, the other party then being at risk, in some cases, of having to repay some part of moneys already received and paid to the party's legal practitioner.[50]
52 Counsel for GLS attempted to confine Beba's ambit, arguing that paragraph 75 was merely dicta, with the case being concerned only with the rights of non-associated third party payers. I reject that argument.
53 Counsel also stressed that a costs agreement may be created at the start of a retainer, in the middle or at or near the end of the retainer after all or most of the costs were incurred. Having done so, counsel argued that the most relevant decision was the ex tempore judgment of Brereton J in the Supreme Court of New South Wales in Amirbeaggi v Business In Focus (Australia) Pty Ltd,[51] which is summarised in Beba at [83]. He argued that Amirbeaggi established that a costs agreement created at the middle or the end of the retainer that may be an accord and satisfaction is still a 'costs agreement' within the meaning of the Act. Misunderstanding the effect of the Court of Appeal's remarks about Amirbeaggi, counsel argued that the Court in Beba had expressly endorsed that proposition.[52] However, what the court actually said was:
What was necessary for his Honour's decision ended when he held that the deed, being a costs agreement, was void. There would be just the same result in this State, for exactly the same reason. See ss 3.4.26(5) and 3.4.31(1) of the Act. The observations thereafter made by his Honour were made without the benefit of argument. The situation falling for determination in this case did not arise. [53]
54 Properly understood, this passage does not adopt the broader principle in Amirbeaggi. Rather, it merely makes it clear that if an agreement is found to be a 'costs agreement' according to the Act but does not comply with ss 3.4.26(5) and 3.4.31(1), a court will likely find that agreement is void. In any event, Amirbeaggi can be distinguished on the basis that there, during the course of the retainer, the parties signed a deed relating to how the solicitors could secure payment of previous fees. The signed deed did not compromise a dispute about legal costs.
55 GLS's counsel also referred to the decision of Pagone J in Jaha v Defteros [2012] VSC 512, where his Honour found that an oral agreement reached in August 2011 for the payment of costs for outstanding fees and an upcoming trial was a 'costs agreement' within the meaning of s 3.4.31 of the Act.[54] However, that case was decided before Beba and there, Pagone J was primarily considering whether the oral agreement satisfied the writing requirements of s 3.4.26(2) of the Act rather than whether there had been an accord and satisfaction.
56 Here, as set out above, the parties made a costs agreement between them at one point in time and, later, following a dispute about the costs, they entered an accord and satisfaction compromising the costs to be paid and displacing any existing right of action for or entitlement to review the costs incurred under the costs agreement. Notwithstanding the breadth of the definition of 'costs agreement' in the Act,[55] applying Beba, the accord and satisfaction was not such an agreement and the parties here are not prevented from settling their dispute (including shutting off the possibility of a review of costs).
57 This analysis and conclusion disposes of all three of the grounds subsumed by this issue: all three incorrectly assume that an agreement made after the making of the costs agreement by which the client relinquishes a right of review in exchange for a reduction in the final amount of costs billed under the costs agreement, is itself a 'costs agreement' to which the Act applies.
58 There was no error by the associate judge in applying Beba to the circumstances of this case. I dismiss the grounds relating to the contracting out issue.
[1] GLS - name anonymised due to privacy considerations flowing from nature of the proceeding in which Goodman Lawyers acted for her.
[2] Such an application may be made even if the legal costs have been wholly or partly paid: Legal Profession Act 2004 (Vic) s 3.4.38(3). The Act was repealed on 1 July 2015 by the Legal Profession Uniform Law Application Act 2014 (Vic).
[3] Gadens Lawyers v Beba Enterprises [2012] VSC 519 [14] ('Gadens'); AJH Lawyers v Mathieson Nominees Pty Ltd and Anor [2015] VSC 37 [29], [118].
[4] Oswal v Carson [2013] VSC 355 [11].
[5] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors [2000] HCA 47; (2000) 203 CLR 194, [14].
[6] Paragraph 29 of the affidavit of Scott Goodman affirmed 20 January 2015 (Appeal Book p.316-7).
[7] GLS v Goodman Group Pty Ltd t/as Goodman Group Lawyers (Unreported, Supreme Court of Victoria, Woods AsJ, 1 April 2015) [5]-[11] ('Costs Court reasons').
[10] Costs Court reasons [14], [15], [22]-[24].
[13] Costs Court reasons [25] (for convenience, sub-paragraph numbers have been added in place of bullet points in the original, and italics have been added to highlight those parts of the text that are his Honour's comments and findings).
[14] Exhibit "SG 14" and paragraph 20 of the affidavit of Mr Goodman sworn 20 January 2015.
[15] Exhibit "SG 15" and paragraph 22 of the affidavit of Mr Goodman sworn 20 January 2015.
[16] Exhibit "SG 16" and paragraph 23 of the affidavit of Mr Goodman sworn 20 January 2015.
[18] Exhibit "CFM 1" of the affidavit of Ms MacEchern sworn 23 February 2015 and exhibit "SG 18".
[24] Paragraph 14 of the affidavit of Ms MacEchern sworn 23 February 2015.
[26] Paragraph 19 of the second affidavit of Mr Goodman sworn 10 March 2015.
[27] Regulation 12(1)(b) in Schedule 1 of Conveyancers (Professional Conduct and Trust Account and General) Regulations 2008 (Vic).
[28] Exhibit "SG 22" to affidavit of Mr Goodman sworn 20 January 2015.
[31] On 6 May 2015, whilst sitting in the Practice Court, I gave leave for GLS to file amended notice of appeal in the form attached to the order made that day. An amended notice of appeal dated 16 June 2015 was forwarded to the Court by email and was treated as the operative notice.
[33] El-Mir v Risk [2005] NSWCA 215 [54], citing Ballantyne v Phillott [1961] HCA 17; (1961) 105 CLR 379, 398 (Menzies J).
[37] Affidavit of GLS sworn 23 February 2015 and exhibit "GLS-14" (Appeal Book p.202).
[38] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 352-3 (Mason J); J W Carter, Contract Law in Australia (LexisNexis Butterworths, 6th ed, 2013) 255-6.
[40] Paragraph 19 of the affidavit of Scott Goodman sworn 10 March 2015 (Appeal Book p.273).
[42] Paragraph 22 of the affidavit of GLS sworn 23 February 2015 (Appeal Book p.158).
[43] Paragraph 16 of the affidavit of Ms MacEchern sworn 23 February 2015 (Appeal Book p.206).
[44] Paragraph 23 of the affidavit of GLS sworn 23 February 2015 (Appeal Book p.158), confirmed by paragraph 7 of the affidavit of Ms MacEchern sworn 23 February 2015 (Appeal Book p.205) Transcript before the associate judge, p.6-7 (Appeal Book p.479-80).
[45] Transcript before the associate judge, p.6-7 (Appeal Book p.483).
[47] Exhibit "SG-20" to 29 of the affidavit of Scott Goodman affirmed 20 January 2015 (CB 429, 440).
[48] See G E Dal Pont, Law of Agency (LexisNexis Butterworths, 3rd ed, 2014), 20.18 (467), citing Darrell McGregor (Contractor) Ltd v Mountain Lake Holdings Ltd [2006] NZHC 591.
[49] Beba (2013) 41 VR 590, 605 [65].
[50] Beba (2013) 41 VR 590, 607 [79].
[51] [2008] NSWSC 421 ('Amirbeaggi').
[53] Beba (2013) 41 VR 590, 609 [85] (emphasis added).
[54] Jaha v Defteros [2012] VSC 512 [14].
[55] Legal Professional Act 2004 (Vic) s 3.4.2: 'an agreement about the payment of legal costs'.
GLS
Goodman Group Pty Ltd [2015] VSC 627
(2013) 41 VR 590
(2000) 203 CLR 194
(1961) 105 CLR 379
(1982) 149 CLR 337