Rouhana v Parichatr & Anor [2001] NSWSC 103

New South Wales Supreme Court

CITATION : Rouhana v Parichatr & Anor [2001] NSWSC 103 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11130/00 HEARING DATE(S) : 21 February 2001 JUDGMENT DATE : 21 February 2001

Millad Rouhana (Plaintiff) PARTIES : v Vichai Parichatr and Varakorn Parichatr (Defendants) JUDGMENT OF : Davies AJ at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT 1907/96 FILE NUMBER(S) : LOWER COURT Magistrate Heagney JUDICIAL OFFICER :

COUNSEL : P: Mr M V Sahade Ds: Mr C B Simpson SOLICITORS : P: Michael Chahoud Ds: Jack Rigg CATCHWORDS : Professional fees agreement - whether magistrate could be satisfied that document was executed on date specified - whether magistrate could find that the document was legally binding agreement - no error of law CASES CITED : n/a DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DAVIES AJ

WEDNESDAY, 21 FEBRUARY 2001 11130/00 - MILLAD ROUHANA v VICHAI PARICHATR & ANOR JUDGMENT 1 HIS HONOUR: This is an appeal of a judgment of Magistrate Heagney given at the Local Court at Burwood. The matter before the learned Magistrate was a claim for professional fees in respect of the preparation of plans for a property development and the lodgement with the local council of a development application. 2 The plaintiff contended that he had entered into an agreement with the defendants to do the work for a fee of $22,200. The defendants contended that the fee agreed was a total fee of $3,525. The plaintiff relied upon a document on the plaintiff's letterhead which has a handwritten date of 4 October 1995. This document recorded fees of $22,200 and required a deposit of $1,000. The defendants relied particularly upon a sheet in the plaintiff's handwriting, Exhibit 2, which sets out a fee structure including council fees, surveyor fees and a design fee, a total of $3,525. It shows an amount paid of $2,500. 3 The Magistrate rejected the plaintiff's claim. The substance of his Worship's reasons was that he was not satisfied that the document, which carried the date 4 October 1995, ever constituted a binding agreement between the plaintiff and defendants. He was also not satisfied that, if it were the case that the document did at one stage constitute a binding agreement, it was not superseded by later arrangements which were entered into and which were reflected in the handwritten document, Exhibit 2. 4 I have read quickly through the transcript of the proceedings. I must say that the evidence of the defendants and their witnesses seems to me to be some of the most unreliable that I have ever been privileged to read. It seems to me, that the cross-examination of the first defendant and of the witnesses was successful cross-examination. 5 However, most cases are won and lost, not by the cross-examination, but by the preparation and delivery of the evidence-in-chief. It appears to me that not enough attention was given to the plaintiff's evidence-in-chief. Relevant documents, including Exhibit 2, were not referred to, at least in the first statement. There was not enough material put into the plaintiff's statement to set out clearly the sequence of events which occurred pursuant and pursuant to which the agreement of 4 October 1995 was said to have come about. It seems to me that the plaintiff's evidence-in-chief was not adequate to carry the impression of inherent cogency. And, because he had not given enough attention to thinking about his case, the plaintiff found himself in difficulties in cross-examination. In particular, he agreed that the document carrying the date 4 October 1995 may have been signed at an earlier date. He was not able to specify what that earlier date may have been. 6 On the evidence, the Magistrate considered that the matter had proceeded in accordance with the financial arrangements set out in Exhibit 2. There was material upon which the Magistrate could make that finding. In particular, the fees set out in Exhibit 2 were the fees referred to in the letter of 22 February 1996, which the defendants wrote in response to the claim of the plaintiff for fees totalling $22,200 and, on the plaintiff's evidence, the $2,500 referred to in Exhibit 2 was paid. The Magistrate commented on the fact that the document carrying the date 4 October 1995 required a minimal deposit of $1,000, and that there was no evidence that any such sum was ever paid. 7 The plaintiff has raised many objections to the manner in which the reasons of the Magistrate were expressed. However, it seems to me that none of them raise a question of law. 8 In my opinion, the Magistrate made it clear that he was rejecting the plaintiff's claim because he was not satisfied by the plaintiff's evidence that the document of 4 October 1995 was ever a binding agreement, or the agreement pursuant to which the consultancy proceeded. The Magistrate was not bound to make precise findings as to when the document, with the date 4 October 1995, came into being or as to how it came into being. The evidence in the case was so confused that the Magistrate was, in my opinion, entitled to say, as he did, that, "It is difficult to know what to make of the document which is annexure "A" to the plaintiff's claim" and "I am not satisfied that it represents a relevantly operative agreement between the parties". 9 If the document was not signed on 4 October 1995, it is very difficult to know when it came into existence for there were other documents in the preceding months which set out quotations for the work to be done. One of those documents was Exhibit 2. 10 In my opinion, it was open to the Magistrate to find that he was satisfied that the document relied upon by the plaintiff was not executed on 4 October 1995. It was open to him to find that he was not satisfied, in the circumstances, that the document was ever a legally binding agreement. 11 Nothing has been said to me by counsel for the plaintiff which satisfies me that there was an error of law in the Magistrate's judgment. 12 For these reasons, the appeal is dismissed with costs. **********