JUDGMENT (Amend Statement of Claim
- separate determination of issues)
1 HER HONOUR: By notice of motion filed 16 November 2006, the plaintiff seeks orders that firstly, he have leave to file an amended statement of claim (ASC); secondly that the Court hear the matter pleaded in paragraphs 1-21 of the ASC; and thirdly that after determination of paragraph 1-21 of the ASC, the Court give directions to Alec Goldman to proceed with the costs assessment of the plaintiff's bills of costs in Supreme Court proceedings 90378/2006 commenced under the Legal Profession Act 1987 (NSW) (LPA). This judgment is similar to my judgment in proceedings 14621/2006 Turvey To v Alan Robert Conolly t/as AR Conolly & Co Solicitors & 2 Ors [2007] NSWSC 482. Glen Miller QC and Turvey To are barristers.
2 The plaintiff is Glen Miller QC. The first defendant in both matters is Alan Robert Conolly t/as AR Conolly & Co Solicitors (Conolly). The second defendant in both matters is Elizabeth Ramsay t/as AR Conolly & Co Solicitors. The third defendant in both matters is Lara Mynott t/as AR Connolly & Co Solicitors. The defendants have filed a cross claim. The cross defendant in both matters is Walter Turnbull Pty Ltd. Mr Elliott appeared for the cross defendants and supports the application provided the issues raised in the cross claim are determined at the same time.
3 Mr Miller QC pleaded that in July 2004, he was retained by the defendants to act in the matter of Hypec Electronics Pty Limited (in liquidation) to remove Mr David Watson as liquidator of that company. Mr Miller QC accepted the brief in the matter, delivered to him by the defendants.
4 On 16 July 2004, Mr Miller QC wrote to Conolly with a fee retainer setting out his standard fees and charges. The retainer was in writing and recorded a costs agreement between Mr Miller QC and Conolly. On 19 August 2004, Elizabeth Ramsay on behalf of the defendants asked Mr Miller QC, by fax, for an update estimate of the fees. The hearing time of the matter was estimated at 5 days, and the fees were therefore estimated as $99,900.00. Mr Miller QC claims that Conolly continued to brief him in the matter after 19 August 2004.
5 A signed statement of memoranda of fees was delivered to the defendants via document exchange (DX), enclosing a total of $210,065.00. Mr Miller QC pleaded that the defendants have not paid his memorandum of fees.
6 Mr Miller QC pleaded that, on 2 November 2004, his retainer was terminated by the plaintiff, which Mr Miller QC accepted in writing on 3 November 2004. He pleaded that the defendants have never sought to have his memorandum of fees assessed.
7 On 17 December 2004, the memorandum of fees was reissued to Conolly in the amount of $188,815.00, with an endorsement stating that interest is payable as prescribed by the Supreme Court Act 1970 (NSW) (SCA) unless the amount is paid within 31 days. It also stated that costs may be assessed under Part 1 of the LPA within 30 days after the bill of costs is sent. A further memorandum of fees for the same amount was sent on 17 February 2005, with materially the same endorsement.
8 Mr Miller QC claims that the sum of $188,815.00 is owed to him by the defendants in breach of the retainer between Mr Miller QC and the defendants.
9 By amended defence, the defendants put in issue the question of whether or not in retaining the plaintiff as a barrister, the defendants did so as a agents for their disclosed principal Walter Turnbull Pty Limited. Mr David Watson, the liquidator of Hypec Electronics Pty Limited (in Liq) was the person who was seeking that advice as a relevant party, not the firm of Walter Turnbull Pty Limited.
10 It is common ground that Hypec Electronics Pty Limited was a company being wound up by the Court and that Mr Watson, not Walter Turnbull Pty Limited, was its liquidator and that the services were provided in fact to Mr Watson in his capacity as liquidator and not in any other capacity.
11 The plaintiff applied to the Manager Costs Assessment under the LPA for assessment of the costs. On 29 May 2006 the costs assessor Mr Alec Goldman raised the question of his lack of jurisdiction to make any determination as to the question of liability as against calculation/assessment of costs referring to the judgment of Muriniti v Lyons [2004] NSWSC 135. In Muriniti, Dunford J at [56]-[57] stated:
"56 Having regard to the status and powers of Costs Assessors and the ordinary meaning of the word "assessor", I am satisfied that the powers of Costs Assessors are limited to determining the value of the work done or services rendered in circumstances where there is no dispute that costs are payable and the only issue is as to the amount. It is no part of their function to determine whether or when such costs are payable. The matters set out in s 208A which they must, and in s 208B which they may, take into account are all matters relevant to putting a value on the work done or services rendered and the fairness or justice of the amount claimed; but are not matters which relate to the terms of a costs agreement (particularly if oral) and whether any conditions precedent to payment have been fulfilled. The determination of such questions requires the reception of sworn evidence, which can be tested by cross-examination, and an assessment of such evidence. Costs Assessors do not have the power to deal with such matters.