New South Wales Supreme Court CITATION : The Owners - Strata Plan No. 61162 v Andreones Pty Ltd [2009] NSWSC 1461 HEARING DATE(S) : 13 November 2009 JUDGMENT DATE : 13 November 2009 JURISDICTION : Equity Division JUDGMENT OF : Rein J EX TEMPORE JUDGMENT DATE : 13 November 2009 DECISION : Declaration made that the defendant is not entitled upon termination of its retainer by the plaintiff to require the plaintiff to pay professional and photocopying costs incurred after termination of the retainer. Order made that the defendant make available for collection by the plaintiff the files in relation to the proceedings the subject of the retainer. CATCHWORDS : PROFESSIONS AND TRADES – lawyers – liens – whether the client should pay the solicitors professional and photocopying costs incurred after termination of the retainer – construction of retainer agreement – where there is no distinction to be drawn between this case and another case considering the same form of retainer LEGISLATION CITED : Legal Profession Act 2004 CATEGORY : Principal judgment CASES CITED : Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 The Owners of Strata Plan No 45205 v Andreones Pty Limited [2009] NSWSC 1189 PARTIES : The Owners - Strata Plan No. 61162 (Plaintiff) Andreones Pty Ltd (Defendant) FILE NUMBER(S) : SC 5130/09 COUNSEL : J Wheelhouse SC (Plaintiff) no appearance (Defendant) SOLICITORS : Doyle Edwards Anderson Lawyers Pty Ltd (Plaintiff) no appearance (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION Rein J 13 November 2009 5130/09 The Owners of Strata Plan 61162 v Andreones Pty Ltd JUDGMENT (EX TEMPORE) 1 REIN J: This is a summons by which the owners of Strata Plan No 61162, the plaintiffs, seek an order that their former solicitors, Andreones Pty Ltd, to whom I shall refer to as "Andreones", deliver up documents, being the files held by that firm in relation to three separate matters that the plaintiffs had on foot. Initially, the summons sought wider relief than is now sought because the plaintiffs were seeking an itemised bill from Andreones, which Andreones had not at that point supplied. 2 That information has now been supplied, but the documents have not been handed over. The essence of Andreones' position seems to be that they have incurred costs of photocopying and costs relating to dealing with the matter since their retainer was terminated, and they have provided a bill to the plaintiffs, being bill number B21130 for a total of $20,149.37 of which almost $9,000 is for photocopying. 3 The plaintiffs say they did not ask for that photocopying to be undertaken, and that the agreement gave no right for the solicitors to make those copies, nor are the costs which are sought costs which were sought at the request of or in connection with the retainer which had been terminated. 4 The matter revolves around the construction of the retainer. That retainer is to be found at pages 113 to 115 of exhibit A on these proceedings. The matter commenced this morning with an application made by a solicitor acting on behalf of the defendant for an adjournment. This was opposed by the plaintiffs. The matter had been previously fixed to be determined before the Duty Judge on 6 November 2009. Application was made for an adjournment by the defendant on that occasion, which was consented to. The matter was before Palmer J this week on 11 November. The plaintiff was ready to proceed. The defendant, I am informed, sought an adjournment on the basis of the defendant's ill health. The plaintiff consented to that adjournment, but indicated that they would wish to see medical evidence in support of contentions made by the defendant on that occasion through its solicitors. No such evidence was provided. 5 There was also an extension of the time within which the defendant was to put any evidence on in opposition to the summons. That further material was to be served by 10 am yesterday on 12 November. That was not done. 6 I refused the application for an adjournment this morning. The solicitor, Ms Maynard, appeared for the defendant and sought leave to withdraw. Initially I refused such leave, but subsequently I granted that leave, although I note Ms Maynard has remained in court at the back during this hearing of the summons. 7 Three affidavits have been relied on by the plaintiff – two by Mr David Edwards, sworn 30 November and 30 October, and an affidavit of Mr Jelani dated 30 October, and I have exhibits A and B. 8 Importantly, this question of the retainer and its meaning have already been determined in another case between another Strata Plan owner and the defendant. Those proceedings are entitled The Owners of Strata Plan No 45205 v Andreones Pty Limited [2009] NSWSC 1189, a decision of Slattery J delivered on 13 October 2009. His Honour considered a retainer in the same form of retainer that is the subject of these proceedings. His Honour, in a detailed judgment, considered the terms of the retainer and the arguments puts by the defendant, and held that there is a difference between the conditions where there is a closed file and a situation where the retainer is terminated before the matter is completed. 9 His Honour held that the defendant had no right to charge for photocopying the files after the termination of the retainer, and no right to retain documents on the basis that costs relating to that work had not been paid. 10 In my view, there is no distinction to be drawn in this case. The evidence is that the only outstanding invoice claimed by the defendant is the bill to which I have referred which relates to costs incurred, or said to have been incurred, after the termination of the retainer. 11 There is a suggestion in the letter from the defendant's solicitors that this case is different to that decided by Slattery J, because the matters were all completed. The evidence of Mr Edwards, however, is to the contrary, and no evidence to the opposite effect has been filed. 12 I am satisfied in all the circumstances that the defendant had no right to resist handing over the files or to claim payment of the invoice that I have referred to for $20,149.37. In the circumstances, I think it is appropriate that an order be made under s 728(1)(b) of the Legal Profession Act 2004, and I shall make orders for the delivery up of the files held by Andreones. 13 I make a declaration in terms of paragraph 1, and in terms of paragraph 7 and I now deal with the questions of costs. The plaintiffs seek the costs of this matter on an indemnity basis and I indicated that if I were to grant costs on an indemnity basis, it would only be from the date or a reasonable period after the defendant's solicitors were provided with a copy of the judgment of Slattery J. They were present in court when the reasons for judgment were delivered orally on 13 October, and were provided with a copy of the reasons for judgment subsequently, when those reasons were reduced to writing and produced in the usual course. But on 13 October the defendant was aware of his Honour's decision, allowing a reasonable time following that decision to consider it and hence to consider its application to this matter, I would take as the date after which indemnity costs should apply as 20 October. In my view Andreones' refusal to provide the file had no proper basis and thus it makes the matter one in which an order for indemnity costs is appropriate: see Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353. 14 The defendant should pay the plaintiff's costs on the usual basis up until 20 October, and thereafter on an indemnity basis. This order should include reserved costs. 15 I would expect that the file should be handed over very promptly. ******* 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.