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Jones v Schultz Toomey O'Brien Lawyers Pty Ltd QDC 207
DISTRICT COURT OF QUEENSLAND
Jones v Schultz Toomey O'Brien Lawyers Pty Ltd  QDC 207
JONES, Ian Michael
SCHULTZ TOOMEY O'BRIEN LAWYERS PTY LTD (ABN 77 136 676 714)
D 51 of 2016
Magistrates Court at Caloundra
12 August 2016 (Orders)
19 August 2016 (Reasons)
District Court at Maroochydore
12 August 2016
Long SC DCJ
APPEAL – s 45 Magistrates Courts Act 1921 – Where the appellant appeals against the decision that he pay a sum of money to the respondent, comprised of a judgment debt, together with interest and costs – Where the judgment in issue was a claim in contract, brought by an incorporated firm of solicitors against a former client, for unpaid fees – Where the only ground of appeal was that the Magistrate had made a factual error – Where the appellant made an offer to settle via email, for an amount less than the total sum owing – Where the respondent failed to respond to the email – Where the appellant contends that the failure to respond did not amount to a rejection of the offer – Whether the Magistrate had made an error
District Court of Queensland Act 1967, s 113
Magistrates Courts Act 1921, ss 45 and 47
Uniform Civil Procedure Rules 1999, rr 747(1)(b), 783, 785, 765(1), 766(1) and 766(1)(c)
Fox v Percy (2003) 214 CLR 118
Harpur v Ariadne Australia Ltd [No 2]  2 Qd R 623
Robinson Helicopter Company Incorporated v McDermott  HCA 22
Scrivener v DPP (2001) 125 A Crim R 279
Teelow v Commissioner of Police  QCA 84
The appellant appeared on his own behalf
A H Sinclair for the respondent
The appellant appeared on his own behalf
Schultz Toomey O'Brien Lawyers Pty Ltd for the respondent
- These are the reasons for the following orders, made at the conclusion of the hearing of this appeal, on 12 August 2016:
- The appeal is dismissed.
- The appellant is to pay the respondent’s costs of the appeal.
- Direct that the respondents are released from the undertaking given on 3 June 2016.
- By a Notice of Appeal filed on 26 April 2016, the appellant appealed against the decision given in the Magistrates Court at Caloundra on 19 April 2016, which in the notice, is stated to be a decision that the appellant pay a sum of money to the respondent, comprised of a judgment debt, together with interest and costs. The Notice of Appeal specified only one ground of appeal, that “the magistrate has made a factual error” and expressly sought the following orders from this Court:
“1. Appeal allowed.
2. Decision of the Magistrates Court at Caloundra dated 19 April 2016 set aside.
3. Costs of this application.”
- As the reasons for judgment of the Magistrate indicate, the judgment in issue was given on a simple claim in contract, brought by an incorporated firm of solicitors against a former client, for unpaid fees and pursuant to a costs agreement and interest pursuant to that agreement and costs. It may be noted that the Notice of Appeal is not strictly correct as to the judgment appealed against. Whilst it does reflect a statement made towards the end of the reasons of the Magistrate, it ignores the following and concluding words of those reasons: “I will hear the parties as to costs.” Nothing turns on this as it is clear that the appeal is brought against the final order made by the Magistrate, which was in the following terms:
“Defendant pay the plaintiff $42,261.69 for claim, $9,594.80 for costs and $8,617.31 interest, total $60,673.80.”
- Accordingly, this appeal is brought as a matter of right and “as prescribed by the rules”, pursuant to s 45 of the Magistrates Courts Act 1921 and this Court is relevantly empowered pursuant to s 47 of that Act to do any of the following:
“(a) draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed;
- (b)order a new trial on such terms as it thinks just;
- (c)order judgment to be entered for any party;
- (d)make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties;
- (f)make such order with respect to the costs of the appeal …. as it thinks proper.”
- Therefore, the appeal is one brought as prescribed by rule 783 of the Uniform Civil Procedure Rules 1999 (“UCPR”) and, pursuant to UCPR 785 and as further prescribed by UCPR 765(1), as an appeal by way of rehearing, and the Court is further given the powers set out in UCPR 766(1). In any event, s 113 of the District Court of Queensland Act 1967, provides that this Court has, for an appeal from a Magistrates Court, the same powers as the Court of Appeal has to hear an appeal and this also serves to pick up those provisions of the UCPR.
- As noted in Harpur v Ariadne Australia Ltd [No 2]  2 Qd R 623, at 528, such an appeal is not conducted as a hearing de novo but rather and as explained in Scrivener v DPP (2001) 125 A Crim R 279, at , by McPherson J, the appeal is conducted in the nature of a rehearing on the record, subject to the power expressed in UCPR 766(1)(c), to allow the receipt of further evidence. Also and in Teelow v Commissioner of Police  QCA 84, at , it was observed:
“ It is a normal attribute of an appeal by way of rehearing that "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error … At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance." On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.”
- Although there are decided cases that tend to highlight the requirement discussed in Fox v Percy, for this Court to conduct an independent and ‘real review’ of the evidence and proceedings below and to give effect to its own decision, after giving “due deference and weight” to the Magistrate’s view, there are other cases that tend to emphasise the that the underlying requirement is that an appellant must demonstrate some legal, factual or discretionary error in, or in respect of, the appeal decision. Such decisions are not inconsistent and simply emphasise different aspects of the considerations leading to the conclusion stated in Fox v Percy, that an “appellate court is obliged to give the judgment which in its opinion ought to have been given in the first instance”. Similarly, it may be noted that more recently, the High Court has restated the essential nature of this type of appeal, as follows:
“The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.” (citations omitted)
- Consistently with those principles and as required by UCPR 747(1)(b), the Notice of Appeal contains the grounds of appeal, but singularly stated as: “The magistrate has made a factual error.”
- The issue which is sought to be raised by that ground is not referable to anything pleaded in the defence. However and in the context that the appellant has, at all times, conducted this matter as a self-represented litigant, the respondent expressly took no issue as to this and conceded that the issue was litigated in the trial, whilst otherwise maintaining the position that the point was misconceived and untenable.
- The appellant contends that the following passage from the reasons of the Magistrate contains “a clear factual error”:
“That the failure by STO to lodge the withdrawal of caveat on his property had prevented him from obtaining finance and was somehow unlawful; whilst the evidence does support that the solicitors have still not lodged the withdrawal, Mr Jones’ mortgage broker’s evidence is that he was unable to secure finance for him due to his being a sub-contractor. There is no mention of the caveat presenting a bar.”
- This, it is contended, follows from an understanding that as a matter of uncontested fact, the respondent has held, for some time, by way of a lien or something in the nature of a lien for unpaid fees, a document which was designed to allow for the release of a caveat over property of the appellant and which had been lodged during the currency of the family law proceedings, in respect of which the respondent acted as the solicitor for the appellant and that Exhibit 1 at the trial, was a copy of an email dated 16 December 2013 and sent by the appellant to a solicitor at the respondent firm, which included the following in relation to the dispute which has progressed to being the subject of this litigation:
“Today got approval from bank to pay out my legal fees, of $32.928.37. then bank rings today, saying they have done a search on my house, realizing there is a caviet in place. i was told it is not bank policy to lend when there is a caviet in place. he told me that it would go through if when i pay you the $32,928.37 you realese caviet on the same day. plus they want you to write to the bank ensuring caviet will be lifted. if the caviet is not certain to be lifted, they will not lend me any money at all.” (errors as in original)
- The appellant contends that the Magistrate has erred in respect of her failure to appreciate and deal with this evidence, because it relates to a later attempt to obtain finance to pay the respondent and separate from the earlier attempt, to which the evidence of the appellant’s mortgage broker was directed. More particularly, the submission of the appellant is “that had the caveat been removed when requested in 2013 [he] would have been able to finalise his account with the respondent” and that therefore, the orders of the Magistrate “should be overturned”.
- The first point to note about the Magistrate’s reasons is that the impugned passage is one of a number of separate points noted, after the introductory words: “[A]dditionally Mr Jones argues”. Further, it may be noted that the following is recorded by the Magistrate by way of reasons, which are not in any way challenged or criticised and which adequately set out the essential nature of the dispute before her and her essential conclusions or findings:
This is a simple claim in contract by an incorporated firm of solicitors against a former client, pursuant to a costs agreement, for unpaid fees of $42,461.69, plus interest at the rate provided for in the costs agreement, calculated to the first day of hearing at this claim, 16 September 2015, at $7,271.63, and thereafter to the date of judgment.
Mr Jones engaged the plaintiff firm and specifically dealt with employed solicitor, accredited family law specialist Mr Stan Rafty, to advise and represent him in family law proceedings against his former wife, relating to their children and division of property. He signed a costs agreement on 8 December 2009. The file was at each stage independently assessed by a costs assessor, and the invoices issued and unpaid were endorsed under s 331 Legal Profession Act 2007, notifying the client of the right to apply for an assessment under the UCPR, and that unpaid accounts would attract interest. He never sought a costs assessment. He managed to pay all except the final three invoices as they were issued, and made regular instalment payments in discharge of his debt to the firm until 30 July 2014. The firm confirmed its preparedness to allow a reasonable time for payment (3 months was specified) after the Federal Circuit Court decision was handed down on 27 May 2013. On condition that payment was made in a reasonable time, the firm offered Mr Jones substantial discounts. The final three unpaid invoices are dated 23/5/2012 ref 13873, ($38,617), 8/8/2013 ref 19072, ($368.17), and 5/12/2013 ref 20447, ($13,165.15).
The original litigation in the Federal Circuit Court
Mediation of the family law issues between Mr Jones and his wife being unsuccessful, application was made by the wife to the Federal Circuit Court as it now is, for orders, including the payment to her of a substantial lump sum. The proceedings involved several interlocutory applications, including a successful application by the plaintiff’s solicitors for the release of part of the proceeds of the sale of the former matrimonial home to Mr Jones to enable him to purchase a home for himself, to form part of his ultimate share of the property pool.
The trial took place on 1 and 2 May 2012. During the 12 months that Mr Jones had to wait for the decision to be delivered, he and Mr Rafty exchanged considerable correspondence, speculating on the likely outcome, and on his prospects of making a successful application that the wife pay his legal costs. There was also discussion about his legal costs and the fact that if they were paid promptly after the decision, then the lawyers would allow substantial discounts, consisting of waiver of interest, uplift on the fees, and would not render any further fees, unless the costs application against the wife was unsuccessful.
Unfortunately the costs application was unsuccessful, and Mr Jones was not in a position to raise finance to take advantage of the solicitors’ offer, so it lapsed. The result is the present proceedings.
I am satisfied that Mr Jones executed a costs agreement with the plaintiff company, at the time he engaged him to represent him in family law proceedings relating to the care of his two daughter sand the division of property between himself and his wife.
I am also satisfied that the plaintiff carried out family law work at his request and on his behalf, to defend proceedings brought in the Federal Circuit Court by his former wife, in which she sought inter alia the payment to her of $150,000. I accept that Mr Rafty’s advice to Mr Jones was that he could expect the court to order the wife to pay him a substantial cash component of between $44,000 and $90,000, and that Mr Jones’ expectation was that that would be sufficient to pay the outstanding fees to his solicitors. In this he was disappointed, as the cash payment she was ordered to make was much less. Equally, his defence of her application was successful, in that he was not ordered to make any payment to her at all. Mr Rafty’s calculations were not given by way of guaranteed result, nor was the firm’s entitlement to fees dependent on a specific outcome being achieved.
I accept and I find, that the plaintiff orally and in writing, offered to forego interest and the uplift on the fees it was entitled to render, on very strict and specific conditions as to payment. The defendant was unable to satisfy those conditions, and thus to take advantage of the offered substantial discount.
Accordingly, I am satisfied that the plaintiff is entitled to be paid the total of its invoices in accordance with the costs agreement, being $42,461.69, together with interest of $7,271.63 to the date of trial as claimed and set out in Schedule 8 of the amended statement of claim filed by leave on 16th September 2015. Interest is also payable by the defendant from 17th September to 19th April inclusive at the rate of $6.23 per day, on the amount of the debt, pursuant to s 58 of the Civil Proceedings Act 2011, a total of 216 days $1,345.68.
I order the defendant pay the plaintiff $42,461.69 for claim, plus interest to the date of judgment of $8,617.31, a total of $51,079.
I will hear the parties as to costs.”
- The copy of the email dated 16 December 2013, was first identified in the evidence of Mr Callow, a solicitor and director of the respondent, and was tendered by the respondent and marked as Exhibit 1. Mr Callow was cross-examined upon it but upon an assumption that $32,928.37 was the “payout figure at the time”. This was established, by other evidence, to be an incorrect assumption and, as the Magistrate found, the outstanding debt was $42,461.69. Mr Callow was unsure as to whether he had replied to the appellant’s email but did give the following evidence:
“Okay. Did you take any action to ensure that the caveat was removed from the property so that I could obtain finance to settle my account with the applicant to avoid further costs?---
- In the evidence-in-chief of the appellant, he gave the following evidence, in addition to his affidavit:
“…with Michael Callow, that I arrange my own finance through the bank. The bank approved the money to me until he realised there’s a caveat on the house, a caveat that’s been put in place illegally. The bank manager said he would allow the loan to be award to me, providing he had something in writing from Schultz Toomey O'Brien saying that they would release the caveat the same time as the money was forwarded to them. This was in December of 2013… Mr Callow as a partner of the firm did not respond to my offer to finalise this mess, not the decency to just reject it, accept it. He just ignored it, and what I say, your Honour, is I think the figure from memory was 32-odd thousand dollars and the figure that I supposedly owe now is substantially more than that and I say that is the reason that Mr Callow did not accept the offer because he wanted more money and that’s his – that’s their whole aim.”
- In the cross-examination of the appellant and although he would not accept that the figure in Exhibit 1, effectively only paid the costs to the end of the trial in the Federal Circuit Court, he did agree that he had not paid that outstanding amount: “because he didn’t respond”. However, he was also not prepared to agree that he owed that money. That was because he said, that the respondent had not performed what had been said would be performed. There was also the following exchange:
“I will suggest to you that those emails contained a response from Mr Callow where he rejects your offer?--- Well, I’ve sent him an email and I never got a reply to it.”
- Subsequently, another copy of the email dated 16 December 2013 together with part of a responsive email from Mr Callow, dated 24 December 2013 and which was produced by the appellant, was tendered by the respondent and became part of Exhibit 1. That response, as far as it was thereby proved, read:
“Ian, I have not had the opportunity to work through your emails. I will address your concerns in the New Year. All recovery action is my responsibility I will ensure I review your…”
- Accordingly and as the matter was left, there was no evidence of any express rejection of what the appellant had himself described as his “offer”. But the appellant’s own contention that there had been no response, is inherently inconsistent with any notion that the offer had been accepted, whether by word or any conduct. Further, the appellant’s email dated 16 December 2013 is, in its full context, expressed in the tenor of an offer and the appellant’s later subsequent email sent, on 7 May 2014 (Ex. 2), is both consistent with this proposition and inconsistent with any suggestion that the appellant’s offer had been in anyway accepted by the respondent.
- Whilst it may be concluded that the reasons of the Magistrate do not deal with any issue arising out of this evidence and tends to conflate any issue as the failure to act to remove the caveat into the separate issues as to an earlier attempt to finance the appellant’s debt and as to which the evidence of Mr Wandrey related, the appellant’s effective contention that the ultimate decision of the Magistrate is compromised or undermined by such error, is indeed misconceived and untenable.
- As is correctly pointed out by the respondent:
- (a)there is no challenge to the findings of the Magistrate, that by email dated 26 August 2013, the appellant was unequivocally notified that any concessions that had been earlier offered as to compromise of the debt owing, no longer applied; and
- (b)the sum owing at the date of the appellant’s offer, 16 December 2013, was no less than the sum for which judgment was given: $42,461.69.
- Although, it is also correctly pointed out for the respondent that the only evidence of any bank approval, even as referred to in Exhibit 1, comes from the appellant, in circumstances where the Magistrate found him “to be an unreliable witness, prone to making assertions with no evidence to support them, or where the evidence directly contradicts the assertion”, there is no need for reliance on that finding. At best for the appellant, the evidence to which the Magistrate has not directly made reference, evidences an unaccepted offer by him to compromise or settle his outstanding debt. As such, there is no demonstrated error in the decision or judgment of the Magistrate.
- The evidence, as it was accepted by the Magistrate, justified her finding as to the debt owing and the interest claimed by the respondent and she, uncontroversially, awarded costs to the respondent, as the successful party in the proceedings before her.
- Similarly in these proceedings, the successful respondent was awarded costs and in the event of the conclusion of this Court in dismissing the appeal, it was also appropriate to make it clear that the respondent was released from the undertaking given on 3 June 2016, to not take any steps to give effect to an enforcement warrant obtained in respect of the Magistrate’s order and which then underpinned the orders of this Court in refusing the appellant’s application for stay of enforcement of that warrant and in reserving the costs of that application.
- Although and in the circumstances, nothing turns on this, it should also be noted that, as may be allowed pursuant to UCPR 766(1)(c), “on special grounds”, the appellant sought leave to read on this appeal, his further affidavit filed on 11 August 2016. That question was reserved but in the light of these reasons, leave should be refused. Apart from the annexures referred to, the affidavit is brief and states:
“1. I brought an action in the Supreme Court of Queensland at Brisbane for orders that my wife Kyle Therese Jones remove her caveat over the property 13 Rhodes Place Aroona in Queensland.
- Schultz Toomey Obrien Lawyers (A Firm) (ABN 77 136 676 714) brought an application in that case to intervene to argue that they had a lien over that caveat.
- The matter was heard before his honour Judge Lyons on 5 August 2017, who dismissed that application by Schultz Toomey O'Brien Lawyers and awarded me costs. Now Produced and shown to me and marked “Annexure 1” is a true copy of those orders.
- Judge Lyons also ordered that the caveat be removed. Now produced and shown to me and marked “Annexure 2” is a true copy of those orders.” (errors as in original)
- It need only be further observed that the order in “Annexure 2” was directed at the appellant’s former wife and that even if these subsequent facts were, in any way, relevant to any issue raised in this appeal, there was nothing to support any conclusion as to any error in the Magistrate’s conclusion and accordingly, no special grounds for the admission of this evidence.
 Record book, at p 174.
 Allesch v Maunz (2000) 203 CLR 172, at 180-181.
 (2003) 214 CLR 118.
 E.g. Rowe v Kemper  QCA 175, at  and Mbuzi v Torcetti  QCA 231, at .
 Apart from Teelow, see: Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police  QCA 181, at ; Commissioner of Police v El Shakarji  QCA 319, at ; White v Commissioner of Police  QCA 121, at  and Burke v Commissioner of Police  QCA 184.
 (2003) 214 CLR 118, at .
 Robinson Helicopter Company Incorporated v McDermott  HCA 22, at ; with specific references to Fox v Percy  HCA 22; (2003) 214 CLR 118, at 126  and 128 -; Devries v Australian National Railways Commission (1993) 177 CLR 472, at 479-481;  HCA 78 and Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357, at 381.
 See Record Book at pp169 – 170, where a copy of the written decision of the Magistrate is reproduced, except that it should be noted that a page is missing between pp 171 and 172. The full version of the Magistrate’s decision is found in the Magistrates Court File.
 See Record book, p 173.
 Record book, pp 17.30-18.25.
 Record book, pp 23.5-25.1.
 Record book, pp 25.3-10.
 Record book, pp 121.15-28 and cf: affidavit of I M Jones, sworn 06/11/15, at .
 Record book, pp 134.28-47.
 Record book, pp 134.25-26.
 Record book, pp 135.23-136.35.
 See Ex. 1.
 Cf: Latec Finance Pty Ltd v Knight  2 NSWLR 79.
 See affidavit of D Wandrey, sworn 06/11/15.
 Magistrate’s written decision, the 4th page, 3rd paragraph from the bottom of the page [Note: this is the page which is not included in the record book].
 Affidavit of W. Faithful, Ex. A, p 2. Whilst it may be noted that receipts or payments are acknowledged up to 30/07/14, the outstanding balance of $42,461.69 is in respect of the noted invoices, the last of which is dated 05/12/14 and which all therefore predate the email dated 16/12/13.
 Record book, at p 172, last paragraph.
- Published Case Name:
Jones v Schultz Toomey O'Brien Lawyers Pty Ltd
- Shortened Case Name:
Jones v Schultz Toomey O'Brien Lawyers Pty Ltd
 QDC 207
19 Aug 2016
|Event||Citation or File||Date||Notes|
|Primary Judgment||Magistrates Court at Caloundra (No Citation)||19 Apr 2016||Judgment on claim for unpaid legal fees.|
|Primary Judgment|| QDC 207||19 Aug 2016||Appeal under s 45 of the Magistrates Court Act dismissed: Long SC DCJ.|
|QCA Interlocutory Judgment|| QCA 268||20 Oct 2016||Application for stay refused: Gotterson JA.|
|QCA Interlocutory Judgment|| QCA 308||23 Nov 2016||Application for security for costs and freezing order granted: Fraser JA.|
|Notice of Appeal Filed||File Number: Appeal 9155/16||08 Sep 2016||-|
|Appeal Discontinued (QCA)||File Number: Appeal 9155/16||06 Dec 2016||-|