New South Wales Supreme Court CITATION : Adamson v Miller [2005] NSWSC 971 HEARING DATE(S) : 27 September 2005 JUDGMENT DATE : 6 October 2005 JURISDICTION : Common Law Division JUDGMENT OF : Associate Justice Malpass at 1 DECISION : The summons is dismissed; the plaintiff is to pay the costs of the summons; the exhibits may be returned. CATCHWORDS : Appeal from costs assessor - ambit of appeal - natural justice - deed relied on as costs agreement - executed by others as purported agents for defendant - plaintiff performs legal services - costs assessor finds that defendant did not agree to pay plaintiff's costs - no legal liability because of expiry of relevant limitation period - assessment is not an action in a court. Conveyancing Act 1919 s38 LEGISLATION CITED : Legal Profession Act 1987 s208L CASES CITED : Baker v Kearney [2002] NSWSC 746 Christopher Michael Adamson (Plaintiff) PARTIES : Adrian Haigh Miller (Defendant) FILE NUMBER(S) : SC 11813/05 Mr C Adamson (Solicitor, in person) (Plaintiff) COUNSEL : Mr J Bartos (Defendant) In person (Plaintiff) SOLICITORS : Vladimir Gazdik & Co (Defendant) LOWER COURT JURISDICTION : Costs Assessor LOWER COURT FILE NUMBER(S) : 91947 of 2004 LOWER COURT JUDICIAL OFFICER : Mr T Stern - 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Associate Justice Malpass 6 October 2005 11813 of 2005 Christopher Michael Adamson v Adrian Haigh Miller JUDGMENT 1 His Honour: The plaintiff is a solicitor. He provided legal services for the defendant and others. 2 The defendant was an employee of Possam Holdings Pty Limited (Possam). His brother (Peter Miller) was the principal of Possam. Possam operated a restaurant and nightclub in Darlinghurst. 3 In or about February 1998, the defendant and others were convicted of offences under the Liquor Act 1982. Appeals were brought against the substantial monetary penalties imposed. The plaintiff was retained in or about March 1998. 4 Peter Miller and his de facto wife (Adelene Liu) executed a document which took the form of a deed poll (the document). It was headed "Deed: Solicitor Client Retainer; Mortgage Agreement and Assignment of Choses in Action and Authority to Deposit Monies into General Account". Both the defendant and the plaintiff were named as parties to the document. It was not executed by either of them. It contained the following provision:- 2. "Paclaw" shall communicate with and to receive instructions from all or any of the "client" from Peter James Miller and/or Adelene Liu (or their nominee) who warrant and guarantee "Paclaw" that they have the authority of each of the other "client" to enter into this agreement of their behalf and to issue the instructions on behalf of the "client". 5 The document purports to have been signed sealed and delivered on 13 March 1998. It also contained a provision that deemed it to have retrospective operation from 6 March 1998. All of the entities named as parties to the deed, save for the plaintiff, are described as "client". 6 The legal services provided for the defendant were completed by 1 April 1999. Since the providing of the services, there has been considerable activity concerning payment of costs. As a result, the plaintiff recovered part of the costs claimed by him for those services. 7 Some of the activity proved to be unsuccessful. In September 2001, the plaintiff made an application for assessment of costs in relation to Adelene Liu. This application was withdrawn in or about February 2002. Ms Liu successfully brought proceedings which saw certain of the provisions of the document being set aside. 8 Action against the defendant began on 12 October 2004, when the plaintiff served a bill of costs on the defendant. The bill substantially claimed costs in respect of work that had been the subject of the action taken against Adelene Liu. The plaintiff filed an application for assessment on 18 November 2004. The application was referred to a costs assessor (Mr Stern). The plaintiff relied on the document as a costs agreement. On 14 April 2005, the costs assessor made a determination and issued his certificate. The costs were assessed at "Nil". 9 On 6 May 2005, the plaintiff filed a summons in this court. He filed an amended summons on 28 July 2005. It seeks relief pursuant to s208L of the Legal Profession Act 1987 (the Act). 10 The section provides a narrow avenue of appeal. It is restricted to a challenge to a decision as to a matter of law arising in the proceedings to determine the application. The ambit of the appeal is not equivalent to error in point of law or the like. The onus rests with the plaintiff to demonstrate an entitlement to relief that justifies the disturbing of the decision. 11 It may be contrasted with the relief provided by s208M (which makes provision for the seeking of leave to appeal against "the determination of the application"). 12 The appeal was heard on 27 September 2005. Three grounds of appeal were argued. 13 Both parties relied on written submissions. These were supplemented by oral argument. 14 One of the grounds was a denial of natural justice. The costs assessor had before him a letter dated 28 February 2005 from the defendant. The plaintiff contends that he was unaware of the letter until after the decision had been made. The plaintiff claims as a consequence that he was denied the opportunity of making submissions in relation to it. 15 If this was the case, it seems that the situation may have arisen because of fault on the part of the defendant or his solicitor (a copy of the letter intended for the plaintiff may have been mistakenly also sent to the costs assessor). 16 The letter of 28 February 2005 extends to five pages. It concludes with a representation that a copy of the letter has been sent to the plaintiff. It was accompanied by a thick bundle of documents. 17 The plaintiff had been given earlier opportunity to make submissions. He was not called upon by the costs assessor to make any further submissions in relation to the letter. Section 208 of the Act provides that a costs assessor should not determine an application unless, inter alia, he has given the parties a reasonable opportunity to make written submissions. There may be debate between the parties as to whether or not the letter raised fresh material that called for the making of further submissions by the plaintiff. It is not a matter that needs to be further pursued in this case. 18 Whatever may be the position, a denial of natural justice is not an avenue of challenge available pursuant to s208L (it may provide a basis for challenge pursuant to s208M). Accordingly, it does not assist the plaintiff in these proceedings. 19 It is also contended that the costs assessor erred in finding that the defendant had no liability under the document. 20 The plaintiff relied on clause 2 thereof. He contended that the document had been executed by the defendants' agents. This contention is linked to the third ground relied on by the plaintiff. 21 The brief argument put by the plaintiff was that clause 2 was valid until set aside, a party seeking to set aside a retainer bears the onus of disproving it and that this was not satisfied simply by the defendant denying the written retainer. No question of estoppel was raised. 22 Save for what appeared in clause 2, there was no evidence of actual agency. The defendant took the stance that he had not instructed the plaintiff to act for him. He said that he had never seen the document and that he did not give the purported authority set forth in clause 2 thereof. 23 I shall later refer to problems arising from the provisions contained in the Conveyancing Act 1919. These were not ventilated during the assessment. 24 It was the plaintiff who was asserting that the document constituted a costs agreement made with the defendant. In my view, the plaintiff had the onus of proving that assertion. It seems to me that the costs assessor correctly found that the plaintiff had failed to discharge the requisite burden. 25 The costs assessor formed the view that the defendant had not entered into an agreement for payment of legal services with the plaintiff. Whilst I am not satisfied that the costs assessor did err in the forming of that view, any error made in relation to that decision would not assist the plaintiff in this case. It would fall outside the narrow ambit of s208L of the Act. 26 In his reasons, the costs assessor said:- There is no dispute that the Cost Applicant acted for the Cost Respondent in the severity appeal proceedings. The dispute is about who was obliged to pay for the services and I am of the view that the Cost Applicant was looking to Peter James Miller and Adelene Marie Liu and them alone. I distinguish the subject case from Adams v London Improved Motor Coach Buildings Ltd [1921] 1 KB 495 to which the Cost Applicant referred as supporting the proposition that there was a retainer and an obligation to pay for the work as, contrary to Adams case here, the Cost Applicant had made express arrangements for payment for his work with Peter James Miller and Adelene Marie Liu and had secured his position by a personal guarantee and mortgage. He had no need to, not did he look to the Cost Respondent for payment for his work. Only years later did this assertion arise. [p4] 27 The plaintiff contends that the costs assessor erred in purporting to distinguish Adams. This was expressed to be the principal ground of appeal. 28 The argument was put as follows:- Adam's Case is applicable because: 1. The Assessor found that an agreement had been made between the Defendant and Peter Miller and Adeline Liu for the payment of the legal fees of the Defendant because he was a licensee of a restaurant nightclub called "the Orb" and was employed by Possam Holdings Pty Ltd: See Assessor's Reasons page 1 and 2; and 2. The Assessor also found that the Defendant in the Appeals instructed the Plaintiff and that the Plaintiff acted for the Defendant in the Appeals: See page 3 para. g and page 4 para. iii (i) of the Assessor's Reasons; and 3. There was no finding of an agreement that the Defendant would not be liable for the Plaintiff's costs in any circumstances. [Plaintiff's written submissions] 29 Any significance that Adams may have had disappeared in the light of the findings made by the costs assessor (as earlier mentioned, he had found that no agreement was ever made between the parties for the payment of legal services by the defendant). His findings were made having regard to the material and the circumstances of the case that was before him. The reference made by him to Adams was presented merely as one of the many reasons which led to his findings. 30 Adams is a decision that turned on its own particular facts (inter alia, the terms on which the solicitors were engaged, including a term that under no circumstances should they look to the plaintiff (p500). The starting point was that the solicitor had performed legal services for the client with his knowledge and assent. 31 In the present case, there are factual differences (inter alia, there was a written retainer of which the defendant had no knowledge). Subsequently, the plaintiff came to perform legal services. This was done in a context where the defendant was an employee of the entity that ran the business that gave rise to the offences and the plaintiff was retained to provide legal services for that entity and others. There was no discussion concerning retainer (including payment of fees). 32 In the circumstances of this case, the real issue was identified as being whether the plaintiff and the defendant entered into an agreement having a term that the defendant would pay for legal services. Findings were made that the defendant did not do so and that an agreement was made only with Peter James Miller and Adelene Marie Liu for payment of legal services. These are findings that cannot be challenged under s208L of the Act. 33 It may be that the presentation of the plaintiff's case was misconceived. Perhaps, it may have had better prospects if the claim had been founded on the subsequent conduct rather than the document. Be that as it may, those considerations may be put aside. 34 For completeness, I should mention that the written submissions challenged the decision made by the costs assessor as to non-disclosure pursuant to the Act. This contention was not pressed in oral argument. 35 This ground was doomed to failure because the material placed by the plaintiff before the costs assessor conceded that the only disclosure that took place was with Peter Miller and Adelene Liu. 36 The defendant, by way of notice of contention, relies on an argument that whatever claim the plaintiff may have, it is in any event statute barred. This was an issue which although raised before him was not dealt with by the costs assessor. It seems to me that for this reason alone, there can now be no liability to pay the costs claimed by the plaintiff. 37 The notice of contention was filed on 9 September 2005. On the day of the hearing, the defendant sought to supplement the contention by additional argument which went to the question of whether or not it had been executed by the defendant which brought about a limitation period of 12 years. It relied on provisions of s38 of the Conveyancing Act 1919. 38 It would be untenable to contend that the document complied with the statutory requirements for the valid execution of a deed. In the circumstances, the document could give rise to no cause of action against the defendant which was propounded on the basis that it accrued pursuant to a deed. 39 Accordingly, the relevant limitation period is one of six years. It is common ground that any cause of action had by the plaintiff accrued at least by 1 April 1999. The relevant limitation period has now expired. 40 The proceedings before the costs assessor are not proceedings in a court. The bringing of the application would not constitute the bringing of an action in a court within the limitation period. 41 Even if the plaintiff had succeeded on any of the grounds argued earlier, there would be no utility in remitting the proceedings back to the costs assessor as there could not now be any legal liability to pay whatever claim the plaintiff may have had against the defendant (see Baker v Kearney [2002] NSWSC 746). 42 In my view, the appeal fails. 43 The plaintiff was desirous of protecting his position on costs, should the appeal fail. It was suggested that costs be reserved by reason of the late raising of the limitation considerations. 44 I have given that matter consideration. It seems to me that no good purpose would be served by reserving costs for future argument. The appeal has essentially failed because none of the grounds relied upon by the plaintiff were made out. The limitation considerations merely provided additional reasons to support the view that the appeal must fail. The appeal would have been unsuccessful whether or not they had been raised. 45 The summons is dismissed. The plaintiff is to pay the costs of the summons. The exhibits may be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.