The amount of the debt
88As stated at [9] above, on 14 April 2010, Mr Branson sent a memorandum of fees in the form of a tax invoice for $29,205. The memorandum of fees was qualified by a note reciting a comment to junior counsel and referring to the fees not exceeding the sum of $20,000 plus GST, namely, a total of $22,000. As earlier recited, Mr Branson stated that it was "entirely a matter for Mr Maneschi as to whether he provides instructions to pay the sum of $29,205 or the sum stated by me to be the estimate of my fees."
89The assignment purports to assign the debt, which is defined as $29,205, inclusive of GST. The consideration for the assignment was a payment of $20,000 plus GST (namely, $22,000).
90It is unnecessary in this judgment to discuss the implications and effect of the above transactions on the amount of GST that would be paid. On a preliminary view, it would seem that Mr Maneschi, not being an entity with liability to pay GST, would not be required to remit GST to the Australian Taxation Office on the sum of $29,205. On the other hand, Paramount, if the assignment were effective, would be paying $29,205 ($2,655 in GST) and Mr Branson would be remitting only $2,000 in GST. It is unclear why GST would be charged for the assignment and even less clear why it would be payable. Each of these are interesting aspects to the arrangement that has occurred and may, if the arrangement were effective and implemented, result in possible action by the Australian Taxation Office. On the face of it, it may be a fraud on the ATO. On the other hand if Mr Maneschi remitted $2,655 to the ATO and Mr Branson remitted $2,000 to the ATO, $2,000 more than was payable and would have been remitted. However, the tax implications of this arrangement are irrelevant for any current purpose and are disregarded. Nice questions with which I do not deal, arise as to whether the amount of $2,655 was part of the debt to Mr Branson, if, as I suspect, no GST debt arises.
91As earlier stated, Mr Branson, by the addendum to his memorandum of fees, left the amount to be paid as a matter entirely for Mr Maneschi. It was for Mr Maneschi, through instructions to his solicitors, Paramount, to determine whether he would pay $22,000 or $29,205.
92As recounted at [21] and [23] above, Mr Maneschi did not provide instructions to Paramount, or anyone else, as to the amount to be paid. Indeed, as the terms of the correspondence extracted at [21] and [23] make clear, Mr Maneschi not only failed to give such directions, he consciously declined to give those directions. Further, it is more probable than not that Mr Branson's statement, to Mr Meakes at the Informal Settlement Conference, was relied upon to his detriment by Paramount and Mr Maneschi in reaching a settlement, in the amount referred.
93In those circumstances, the issue with which the Court must deal is the amount that Mr Branson was owed. Mr Branson's concession, on its face, involves the proposition that, if Paramount were to have paid Mr Branson $22,000, no further amount could be claimed by Mr Branson. The "debt" was $22,000 only. Notwithstanding the calculations that gave rise to a sum of $29,205, Mr Branson was insisting upon $22,000 only. The remaining $7,205 was to be a payment that was wholly discretionary, if it were paid, and not an amount due under the memorandum of fees and upon which Mr Branson would or could insist. Moreover, even without the concession, at least arguably, Mr Branson would be estopped from claiming more than $22,000, which, as has been said, was represented as the amount that the fees would not exceed.
94Mr Maneschi submits that he made it clear that the amount to be paid by Paramount to Mr Branson was the higher amount of $29,205. It is submitted that this is clear from the terms of the assignment and his failure to give Paramount instructions to pay the lesser amount ($22,000). It was unnecessary to give Paramount instructions to pay the lesser amount. It was necessary to give Paramount instructions to pay the higher amount. Absent those instructions, the lower amount was payable. Further, the terms of the assignment were not instructions to Paramount as to what it should pay Mr Branson. As stated, Mr Maneschi deliberately refused to give any instructions as to the payment of counsel's fees. Further, to the extent that there is any evidence of the amount Mr Maneschi was prepared to pay Mr Branson "for his services", it was $22,000, being the lower amount, and being consideration for the assignment and said to be (see [23] above) "for his services".
95It is fundamental to the validity of an assignment that, in relation to a debt, it be for an amount that is certain or ascertainable. Certainly, at common law, the amount assigned must be defined. Nevertheless, if the debt were otherwise identified and ascertainable, an assignment would be valid: International Leasing Corporation (Vic) Ltd v Aiken (1966) 85 WN (Part 1) (NSW) 766; [1967] 2 NSWR 427, at 450; W F Harrison & Co v Burke [1956] 1 WLR 419.
96In this case, the debt is misstated in the assignment itself. This is not a case involving a defect in the notice of assignment: see Van Lynn Developments Pty Ltd v Pelias Construction Co Ltd [1969] 1 QB 607. A more realistic outlook is taken by courts as to the validity of the assignment based upon an error in the notice: see Bunbury Foods Pty Ltd v National Bank of Australasia Limited (1984) 153 CLR 491.
97The terms of the assignment, for it to be valid, require that the property assigned be ascertained and identified. Even where a sum is specified, but is not identified by the fund from, or the debt for which, it is to be paid, the assignment will not be valid, in law or in equity: Percival v Dunn (1885) 29 Ch D 128.
98Counsel for Paramount submitted that, because the amount of the debt was misstated, the assignment was invalid. Counsel for Mr Maneschi sought to defend the accuracy of the stated amount ($29,205), but did not take issue with the legal proposition advanced.
99Earlier judgments dealing with an assignment at common law, and with formalities of notice, require precise identification of the property assigned. A misstatement of the property at least at common law, on those authorities, would or may invalidate the assignment: International Leasing, supra; W F Harrison, supra. The requirement, nevertheless, was to identify the property assigned: Tailby v Official Receiver (1883) 13 App Cas 523 at 528, 543; Bakewell v Deputy Federal Commissioner of Taxation (SA) (1937) 58 CLR 743 at 761-2; Akron Tyre v Kittson (1951) 82 CLR 477 at 493; Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 at 25; Shepherd, supra.
100However, an equitable assignment requires no such formality. Equity treats as done that which ought to be done. Provided there is an intention to assign and sufficient description of the property being assigned and its identification together with consideration (or some other factor which would cause equity to bind the assignor, e.g. unconscionability of declining to do so), equity will regard the assignment and enforce rights under it: Re Latham (1857) 1 DC Cr & J 152, 44 ER 681; Thayer v Lister (1861) 30 LJ Ch 427. Where the debt is identified and, as here, the assignment is of the entire debt, or a specified part, it is unnecessary to state the amount of the debt: Bank of Australasia v Annie Hertz (1937) 54 WN (NSW) 179; Shepherd v Federal Commissioner of Taxation (1965) 113 CLR 385 and see Brice v Bannister (1878) 3 QBD 569; Re Gunsbourg (1919) 88 LJKB 479.
101Of course it is necessary to identify the debt, but there is only one debt that arises under the costs agreement and the entirety of that debt was intended (and purported) to be assigned. The submission as to strict precision of the amount, even where the debt were otherwise identified, would render nugatory the capacity of the obligor to raise "equities" to set-off against the debt. In this case, a memorandum of fees was rendered for an amount that was sought to be assigned. It is for the entirety of the debt owing under the costs agreement for the performance of services thereunder. That the Court has held that only $22,000 is owing does not render the debt any less the entirety of the debt owing under the costs agreement.
102Lastly, in terms of the validity of the assignment, I note that even though the performance of services under a costs agreement would be, or may be, personal and, as a burden, unassignable (without agreement) (see Tolhurst v The Associated Portland Cement Manufacturers (1900) Ltd [1903] AC 414; Cooper v Micklefield Coal & Lime Co Ltd (1912) 107 LT 457, Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd (St Martins Corporations Case) [1994] 1 AC 85, at 103; Bruce v Tyley [1916] HCA 34; (1916) 21 CLR 277), the debt owed as a result of the performance is not, without express restriction, unassignable: Devefi P/L v Mateffy Pearl (1993) 113 ALR 225 at 235, (1993) 37 IPR 477, per Northrup, Gummow and Hill JJ. The debt arising from the costs agreement was assignable and was assigned.