Macdonald v Benjafield (Judgment No 3) [1999] NSWSC 41

New South Wales Supreme Court CITATION : Macdonald v Benjafield (Judgment No 3) [1999] NSWSC 41 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 12921/98 HEARING DATE(S) : 3 February; 1999 JUDGMENT DATE : 3 February 1999

(Plaintiff): Neil Macdonald PARTIES : v (Defendant): Peter Benjafield Trading as Benjafield Milne & Another JUDGMENT OF : Sperling J

COUNSEL : (Plaintiff): T J Morahan (Defendant): V R W Gray SOLICITORS : (Plaintiff): A R Conolly &Company (Defendant): David Milne & Associates CATCHWORDS : ACTS CITED : Legal Profession Act 1987 s 208L DECISION : Appeal pursuant to s 208 L is dismissed

1 This is an appeal from a cost assessment brought pursuant to s.208 L of the Legal Profession Act 1987. The assessment was of a solicitor and client bill of costs as between Mr Macdonald, the present plaintiff, and the firm Benjafield Milne, the present defendants. 2 It was Mr Macdonald's contention before the cost assessor that there was an agreement with the solicitors that in the event of the subject litigation being unsuccessful Mr Macdonald would not be liable for solicitors costs, as distinct from counsel's fees. 3 It appears to be common ground that the alleged agreement came into existence, if it came into existence at all, subsequent to a retainer which would have entitled the solicitors to charge. The agreement is said to have arisen from dealings between Mr Connolly, solicitor, on behalf of Mr Macdonald, and Mr Benjafield, on behalf of the defendant firm. Mr Connolly's role, in relation to the subject litigation, need not be spelt out for the purposes of this judgment. 4 It is common ground that there were dealings between him, on behalf of the plaintiff, and Mr Benjafield on behalf of the firm. The question between the parties was and is whether those dealings gave rise to an agreement, such as that to which I have referred. 5 Concerning the grounds of appeal, I am of the opinion that grounds 1 to 3 do not raise any question of law. 6 Leave was given to the plaintiff to supplement his grounds of appeal in a manner which is now recorded. That arose out of a dialogue between myself and counsel for the plaintiff. I must say that at that time I was not sufficiently alert to the terms of Ground 4 in the grounds of appeal annexed to the summons. It now seems to me that the additional ground of appeal may have been unnecessary, and that the point incorporated in the additional ground of appeal may well have been before the court pursuant to Ground 4 annexed to the summons as filed. The apparent duplication is not of any moment in what I now have to decide. 7 The material before the cost assessor, as disclosed by the evidence adduced before me, included statutory declarations by Mr Connolly and by Mr Benjafield and letters dated 16 and 19 September. 8 It is submitted on behalf of Mr Macdonald, that it was not open to the cost assessor, on the material before him, to accept what he took to be Mr Benjafield's account of events in preference to what he took to be the account proffered by Mr Connolly. 9 On behalf of the defendants it was submitted that there was evidence on which the cost assessor could have reached his decision and, accordingly, that his determination cannot be disturbed in an appeal limited to questions of law. 10 It is further submitted that there was no consideration moving from the defendants to support any such agreement as is alleged. 11 I will deal first with the last of the two points made on behalf of the defendants. I take the view that there was evidence before the cost assessor which, if accepted, was sufficient to support an agreement, such as is alleged. The consideration was that the defendants stood to gain the benefit of fees to be earned in the event that Mr Macdonald was successful in the subject litigation. By "to be earned" I mean to be earned after the asserted conversation between the solicitors. Had the defendants not made the agreement, on the plaintiff's case as to what transpired, it would have been open to the plaintiff to go elsewhere for legal representation subsequent to the dialogue between the solicitors. 12 I return to the plaintiff's argument. The fact is that there was evidence before the cost assessor which the cost assessor, was entitled to take into account as amounting to a denial by Mr Benjafield that the conversation between the solicitors was as Mr Connolly asserted. Mr Benjafield's evidence is in terms of his belief as to what he made clear and as to his intention in relation to what he meant to convey. In a determination which is not subject to the rules of evidence, that was material upon which the cost assessor could have found that what was asserted by Mr Connolly as having been said had not in fact been said. 13 There is, however, a more fundamental problem in the plaintiff's argument. It is this. In the case of an appeal limited to questions of law it is only in the most exceptional circumstances that an appellate court will hold that the tribunal below was bound to find facts on which the party so contending bears the onus, even where the evidence is all one way. This case presents no features which make it relevantly exceptional in that respect. The cost assessor was not bound in law to find that there was an agreement, such as has been asserted. 14 Accordingly the appeal pursuant to s.208 L is dismissed.