75 However, there are a number of other matters that have to be weighed in the balance. As I have said, the case for the defendants is that they relied upon the various representations which they contend were made to them by Mr Obeidat over a period of time and in particular on 10 March. The stark reality is that that evidence remains uncontradicted by the only person who is capable of doing so. As I have said, Mr Obeidat did not provide an affidavit and nor did he give evidence, notwithstanding the fact that he was made aware of the substance of the matters raised by the defendants as to what he had allegedly told them. Moreover, as I have observed, he was in Australia when he was made aware of them and was thus in a position to repudiate them had he chosen to do so.
76 Consequently, the only material that I have before me is the direct evidence of the defendants and whatever inferences I can draw from the balance of the evidence which is capable of shedding light upon the plausibility of their accounts.
77 Each of the defendants gave evidence in a fashion which gave me no reason not to accept it. Neither of them was shaken in cross-examination and particularly not in respect of the reasons which they advanced for not attending the hearing. Moreover, the second defendant candidly admitted that he had discussed his recollection of the March 10 meeting with the first defendant in order to refresh his memory. On the other hand, what clearly emerges from the evidence is that the defendants are each unsophisticated men who are quite unfamiliar with the intricacies of the litigation process, particularly in a case of the current kind. This is, as I have observed, a case in which the solicitors themselves formed the view that the assistance of counsel was required at every stage.
78 I am also satisfied that each of the defendants had little awareness of the way in which the proceedings were being conducted on their behalf. The difficulties for the first defendant were compounded both by his limited formal education and by his lack of familiarity with the English language. The second defendant was, as I have said, a very young man at the time these proceedings were instituted. Each of them understandably took comfort in the fact that Mr Obeidat, with whom they were able to converse in Arabic, had been recommended to them. In all those circumstances they were entitled to place their trust in him to act in their best interests and I am satisfied that that is indeed what they did. It is also to be recalled that at no stage of these protracted proceedings had the defendants attended, or been required to attend, at court.
79 There is a good deal of evidence concerning the fees which were paid by the defendants to the firm of solicitors Perla & Jordan. It is not easy to reach a definitive conclusion as to the precise amount that was paid. That is in large measure due to the somewhat unsatisfactory state of the firm's accounting records and to the fact that a number of dishonoured cheques were presented by the defendants. Nevertheless, it is common ground that both parties incurred very substantial legal expenses and that Perla & Jordan received in excess of $100,000 in fees from the defendants. From that fact alone it can be inferred that the defendants were very committed to doing what was necessary in order to properly defend the proceedings which had been brought against them.
80 It would appear that the decision by Perla & Jordan to issue the Statement of Liquidated Claim had the desired effect in that it pressured the defendants into reaching an agreement as to the outstanding fees. It is also clear that the defendants continued to make payments to Perla & Jordan in respect of those fees in the period following receipt of the claim. It was reasonable in the circumstances for the defendants to assume that the firm was still acting for them. There was no evidence before me to suggest that the proceedings in the Local Court in respect of the claim for counsel's fees were ever progressed. Moreover, the defendants were not given any reason, at least at that stage, as to why the firm was no longer intending to act on their behalf. They were certainly not informed, if it indeed be the reason, that Ms Perla intended closing the firm. It seems clear that they only learnt of that matter well after the hearing date had passed. One would have thought in the circumstances that the defendants were entitled to know that the firm was closing down and what consequences (if any) such a decision would have for their future representation, particularly at the March hearing.
81 If Ms Perla had formed the view that she was not going to continue acting for the defendants, then she should have expressly informed them of that fact (or had Mr Obeidat do so). A letter in those terms was after all sent to the plaintiff's solicitors. Ms Perla's explanation for not having written such a letter, namely that she did not have time, is plainly unacceptable. In all the circumstances, the defendants were entitled to believe that the Notice of Intention of Ceasing to Act would not have had any continuing operation.
82 Much of the difficulty in the present case arises from a lack of clear communication between Perla & Jordan and the defendants. It is not beyond the bounds of possibility that Ms Perla and Mr Obeidat themselves had different expectations in relation to the continuing representation of the defendants. It may also be the case that their respective views changed at different times. I am satisfied at the very least that there was a state of considerable confusion on the part of the various parties. Indeed, Ms Perla said herself that she was not sure if the firm was still representing the defendants at times because of the outstanding fees and the fact that dishonoured cheques had been sent by them to meet those fees. Ms Perla also conceded that there was confusion at one stage as to exactly what fees had been paid and what remained to be paid. There also appeared to be an absence of clear communication upon the important question of the terms and conditions upon which fees were to be paid. This was a case, regardless of any other professional obligations that may have existed, in which a written agreement as to those matters would have avoided any argument as to what was required.
83 This lack of clear communication was undoubtedly conducive to there having been a state of confusion on the part of the various parties. At one point in her evidence, Ms Perla refers to the fact that a "misunderstanding" of some kind must have been the reason why counsel did not appear at the hearing. In the circumstances which I have described, it is at least a reasonable possibility that that is what occurred. In my view a satisfactory explanation for the absence of the defendants from the hearing has been established, that is that they believed that their legal representative would be appearing on their behalf and that they need not appear at least until such time as they were informed that they were required. I am satisfied, particularly given the state of confusion which existed, that that belief was reasonably founded.
84 Accordingly, I have reached the conclusion that it is in the interests of justice to set aside the judgment entered on 21 April 2005. The parties are agreed that in that event the costs of the motion should be costs in the cause.
85 Counsel for the defendants raised a number of other matters which involved criticism of the conduct of Mr Obeidat, and to a lesser extent, Ms Perla. The criticism related to various areas of their practice and included in particular the unreasonableness of the fees which were charged. Except insofar as those matters bear upon the findings to which I have referred, I have not found it necessary to determine them, especially as I have not heard from Mr Obeidat.
Orders