Mohammed Islami v Sayar Dehsabzi trading as Dehsabzi Lawyers [2020] NSWSC 47

Supreme Court New South Wales

Medium Neutral Citation: Mohammed Islami v Sayar Dehsabzi trading as Dehsabzi Lawyers [2020] NSWSC 47 Hearing dates: 7 February 2020 Date of orders: 07 February 2020 Decision date: 07 February 2020 Jurisdiction: Equity - Applications List Before: Parker J Decision: See [19] Catchwords: CIVIL PROCEDURE – access to former solicitor's file - costs Legislation Cited: Legal Profession Uniform Law (NSW), ss 472, 472(1)(b) Cases Cited: Wentworth v De Montfort (1988) 15 NSWLR 348 Category: Principal judgment Parties: Mohammed Islami (Plaintiff) Sayar Dehsabzi trading as Dehsabzi Lawyers (Defendant) Representation: Counsel: C Street (Plaintiff)

Solicitors: S Dehsabzi (in person) File Number(s): 2019/280873 Publication restriction: Nil

Judgment – EX TEMPORE Revised and reissued 10 February 2020 1. The plaintiff in these proceedings, Mohammad Islami, is a former client of the defendant, Sayar Dehsabzi. Mr Dehsabzi practises as a solicitor under the name Dehsabzi Lawyers at Parramatta. 2. In February 2015 Mr Islami was injured in a motor vehicle accident. Following the accident he instructed a firm of solicitors known as Thomas Booler Lawyers to act on his behalf. In October 2017 he withdrew instructions from Thomas Booler Lawyers and instructed Mr Dehsabzi's firm. 3. The costs agreement between Mr Islami and Mr Dehsabzi was dated 12 October. Less than two months later the proceedings were settled. In the costs agreement Mr Dehsabzi had provided an estimate of fees and disbursements of $90,000. The authority signed by Mr Islami to settle the claim authorised deduction of $90,000 in professional administrative fees for acting in the matter. However, subsequently, in January when payment under the settlement was completed Mr Islami signed an authority to transfer $65,860.70 by way of professional fees to Mr Dehsabzi's firm. A further authority was signed for the payment of $27,250 for the same invoice but it may be that that amount included payment for other matters where Mr Dehsabzi acted for Mr Islami. 4. Subsequently, Mr Islami consulted the firm who now acts for him, Harrow Legal. On 25 April 2019 Naushad Husaini of that firm wrote to Mr Dehsabzi seeking copies of the costs agreement, trust account statement, the itemised account, a bill of costs and signed settlement instructions. According to the evidence before me there was no response to that letter and there were various follow-up letters in June, July and August. In a letter of 7 August Mr Husaini requested that Mr Dehsabzi "furnish the full file without any further delay". 5. After a further follow-up on 15 August, Mr Marcel Joukhador of Harrow Legal wrote to Mr Dehsabzi on 30 August noting that there had been no response and that a Summons would be filed in the Supreme Court. That occurred on 9 September. In the Summons an order was sought pursuant to s 472 of the Legal Profession Uniform Law (NSW) that "the defendant give to the plaintiff all correspondence, documents and other records in their legal file in relation to" the motor vehicle accident claim. Costs were also sought on an indemnity basis. 6. The proceedings came before the Registrar and a mediation was directed. By consent it was agreed that the parties would share the costs of the mediation. As a result of the mediation the parties agreed that the Court should make a consent order in the terms sought in the Summons. But the matter was still fixed for hearing in order to deal with the remaining question of costs. That issue has come before me today. 7. Counsel for Mr Islami seeks an order that Mr Dehsabzi pay the costs of the proceedings, although not on an indemnity basis. Counsel also sought to have the Court discharge the consent order as to the sharing of the costs of the mediation. The effect would be that Mr Dehsabzi would have to pay all of the costs of the proceedings including the mediation. 8. Shortly before the hearing Mr Dehsabzi filed written submissions in response to the application for costs. He also appeared at the hearing and made further oral submissions. 9. Mr Dehsabzi acknowledged that the correspondence between April and August which preceded the institution of proceedings was addressed to him at his DX box but asserted that none of the correspondence had been received. However, he provided no evidence in support of that assertion. 10. Mr Dehsabzi also referred to a handwritten document apparently signed by Mr Islami under another name by which he is known in January 2018. The document reads: I, Faramarz Rajabi, want my solicitor Mr Dehsabzi to not pay $21,000 and I received this money. I recivied [sic] all my document[sic]." 1. Mr Dehsabzi asserted that this was an acknowledgement from Mr Islami that, in fact, he had received the whole of the file. However, on the wording I do not consider that is clear and Mr Dehsabzi gave no evidence himself of having provided the file to Mr Islami. 2. On the evidence before me it is clear that the cause of these proceedings was the failure by Mr Dehsabzi to respond to the correspondence requesting a copy of the file. 3. An order for production of documents by a solicitor under s 472 is discretionary. Some of the documents generated by a solicitor in the course of acting for a client may in law belong to the client in any event (see Wentworth v De Montfort (1988) 15 NSWLR 348), but not all of them do. 4. It cannot be said that the client has an absolute right to production of his or her solicitor's file, or at least the whole of it. Moreover, in the present case there might have been other ways in which Mr Islami's new solicitors could have set out to investigate the propriety of the charges made by Mr Dehsabzi. I interpolate that such investigation is clearly justified in circumstances where over $65,000 was charged for less than two months' work. 5. Rather than immediately seeking production of the file, it would have been open to Mr Islami's instructing solicitors to seek to have Mr Dehsabzi produce an itemised bill of costs for his services. That will presumably need to be done at some point if there are to be assessment proceedings. 6. However, given Mr Dehsabzi's attitude as disclosed by the correspondence in evidence before me (in fact he was asked for a copy of his bill but that only emerged before the Court today and it is not a proper itemised account in any event) I do not think it lies in Mr Dehsabzi's mouth to complain about the way in which Mr Islami's solicitors have pursued the application. 7. In my view, although the proceedings have been settled, this is a case where Mr Dehsabzi has effectively capitulated by providing something he should have provided long before the proceedings were commenced. Accordingly, Mr Dehsabzi should pay the general costs of the proceedings. 8. The costs of the mediation give rise to separate considerations. Counsel for Mr Islami did not point to any reason why the consent order should be set aside other than the fact that Mr Dehsabzi has now capitulated. I do not see this as a sufficient reason to discharge an order which was made presumably upon advice and in accordance with Mr Islami's instructions. I decline to discharge the order. 9. The Court makes the following orders: 1. Pursuant to the Legal Profession Uniform Law (NSW) s 472(1)(b) the defendant produce to the plaintiff all correspondence, documents and other records comprising his legal file in relation to the plaintiff's motor vehicle accident on 4 February 2015. 2. Order that the defendant pay the plaintiff's costs of the proceedings other than the costs of the mediation pursuant to the order made by the Court on 5 November 2019.