IN THE SUPREME COURT OF WESTERN AUSTRALIA
IN THE SUPREME COURT OF WESTERN AUSTRALIA
HELD AT PERTH
CIV 123 of 2021
IN THE MATTER
BETWEEN
BERRY NICE PTY LTDPlaintiff
(AVN 62 782 603 780)
and
BRIGHT ORANGE PTY LTD Defendant
(ACN 34 586 923)
AFFADAVIT OF SAGE WISE
SWORN ON 4 MAY 2021
IN SUPPORT OF CHAMBERS SUMMONS
FOR SUMMARY JUDGEMENT
WITH ANNEXURES SW-1 TO SW-10
Date of Document: 4 May 2021
Filed on behalf of: The Plaintiff
Date of Filing: 5 May 2021
Prepared by: SBM Legal
SBM Legal
PO Box 789Telephone: (08) 6987 4536
Peppermint Grove WA 9696Facsimile: (08) 9451 6666
Email: reception@sbmlegal.co.zaRef: P432
________________________________
INDEX
Document No Description Page No.
1 Affidavit of Ms Sage Wise, sworn on 4 May 2021. 1 - 4
2 Annexure SW-1 is a true copy of the contract between Bright Orange Pty Ltd and Berry Nice Pty Ltd, dated 12 September 2020. 5 - 8
3 Annexure SW-2 is a true copy of the Invoice issued to Bright Orange Pty Ltd, dated 31 January 2021. 9
4 Annexure SW-3 is a true copy of the Email from Bright Orange Pty Ltd to Berry Nice Pty Ltd, dated 3 February 2021. 10
5 Annexure SW-4 is a true copy of the Email from Bright Orange Pty Ltd to Berry Nice Pty Ltd, dated 20 February 2021. 11
6 Annexure SW-5 is a true copy of the Email from Ms Sage Wise to Bright Orange Pty Ltd, dated 20 February 2021. 12
7 Annexure SW-6 is a true copy of the Email from Bright Orange Pty Ltd to Berry Nice Pty Ltd, dated 21 February 2021. 13
8 Annexure SW-7 is a true copy of the Email from Bright Orange Pty Ltd to Berry Nice Pty Ltd, dated 22 February 2021. 14
9 Annexure SW-8 is a true copy of the Letter of Demand sent to Bright Orange Pty Ltd, dated 9 March 2021. 15
10 Annexure SW-9 is a true copy of the Statement of Claim, filed on behalf of Berry Nice Pty Ltd on 6 April 2021. 16 - 17
11 Annexure SW-10 is a true copy of the Report published by Mr Larry Putt and dated 11 April 2021. 18 - 20
I, SAGE WISE, of 355 Samson Street, Fremantle, in the State of Western Australia, Manager of Berry Nice Pty Ltd, make oath and say as follows:
I am and have been the Manager for the Plaintiff since its establishment in 2007 and have full knowledge of the Action above in relation to the Application for a Summary Judgement in CIV 123 of 2021.
As the Manager, I am duly authorised to swear this affidavit on behalf of the Plaintiff in support of their Application for a Summary Judgement against the Defendant.
I dispose the contents of this affidavit from my own knowledge except where otherwise indicated. Where I have relied upon information, I have set out the sources of that information of which in each case I verily believe to be true.
The Plaintiff and the Defendant first entered a written contract (the Contract) on the 12 September 2020. The Defendant agreed to pay the Plaintiff $925,000 to perform earthworks and horticulture (the Works) on the Defendants new development, Lot 3365 off Paganoni Road. A true and accurate copy of the Contract is annexed to this affidavit marked SW-1.
The Works was completed by the Plaintiff pursuant to the Contract on the 28 January 2021.
On the 31 January 2021, the Defendant was issued an invoice (the Invoice) for the balance due pursuant to the Contract. A true and accurate copy of the Invoice is annexed to this affidavit marked SW-2.
On the 3 February 2021, the Defendant emailed the Plaintiff and confirmed that the Invoice was received. The Defendant stated that they were satisfied with the Works completed and that payment will be made pursuant to the Contract. A true and accurate copy of the email is annexed to this affidavit marked SW-3.
On the 20 February 2021, the Defendant emailed the Plaintiff and confirmed a second time that they were highly satisfied with the Works completed, and that they would like to re-engage the Plaintiff for the second stage of the development. The Defendant also stated that the outstanding payment may be delayed due to minor liquidity issues. A true and accurate copy of the email is annexed to this affidavit marked SW-4.
On the 20 February 2021, I responded to the email (SW-4) on behalf of the Plaintiff and reminded the Defendant that any late payment will be subject to the interest clause pursuant to the Contract. A true and accurate copy of the email is annexed to this affidavit marked SW-5.
On the 21 Feb 2021, the Defendant replied to the email (SW-5) and assured the Plaintiff that the outstanding payment will be made at least 3 weeks late with interest paid pursuant to the Contract. A true and accurate copy of the email is annexed to this affidavit marked SW-6.
On the 22 February 2021, the Defendants Site Manager sent the Plaintiff an email stating that they have never seen such high standard of work in their 20 years of running such projects, with reference to the completed Works. The email further stated that the Defendants Site Manager was so impressed that they have nominated the Plaintiff for the prestigious Hot Horticulture award. A true and accurate copy of the email is annexed to this affidavit marked SW-7.
By the 2 March 2021, the outstanding payment pursuant to the Contract was due and no payment had been made in part or full by the Defendant.
On the 9 March 2021, I instructed the Plaintiffs solicitor, Dr. Stephen Shaw at SBM Legal, to send the Defendant a Letter of Demand (the Demand) for all outstanding payments, which I believe was received by the Defendant on the 10 March 2021. A true and accurate copy of the Demand is annexed to this affidavit marked SW-8.
By the 23 March 2021, no payment had been made by the Defendant. That same day I was informed by the Plaintiffs solicitors, and verily believe, that the Defendant is in breach of the Contract and has no defence to this claim. I instructed the Plaintiffs solicitors to file a writ and Statement of Claim to commence an action against the Defendant for breach of contract. A true and accurate copy of the Statement of Claim is annexed to this affidavit marked SW-9.
In early April 2021, I employed Mr Larry Putt, a reputable Golf Course Expert, to perform an independent assessment of the Works completed by the Plaintiff at Lot 3365. His report, published on 11 April 2021, stated that the standard of the Works was world class and at top tournament standard. A true and accurate copy of Mr Larry Putts Report is annexed to this affidavit marked SW-10.
Based on the Defendants correspondence and the independent review conducted by Mr Putt, I verily believe that the Defendant is satisfied that the Works have been completed to a high standard, and that the Plaintiff has fulfilled their obligations under the contract. On the advice of the Plaintiffs solicitors and the information relied on above, I verily believe that the Defendant is in breach of Contract and has no defence to the Plaintiffs claim. I further request that the Court grant the orders sought in the Application for Summary Judgement.
Sworn by the deponent, Ms Sage Wise at Perth }
399732511874500in the State of Western Australia on}
4th Day of May 2021}
_____________________________
SAGE WISE
before me:
Belinda Blinked, a legal practitioner who has held }
a practice certificate for at least 2 years and who }
367919016002000holds a current practice certificate.}
_____________________________
BELINDA BLINKED
25
Not much more I can say other than excellent work.
SUMMER CLERK BILLABLES
Date Work Completed Billable Hours Cost ($300/Hr)
4 May 2021 Summary Judgment Application 2 $600.00
4 May 2021 Affidavit 4 $1200.00
Total 6 $1800.00
In the Supreme Court of Western AustraliaLPUL 3 of 2022
Held at Perth
B E T W E E N:
LISA OLDS Applicant
-v-
SANDY BAY LEGAL PTY LTD Respondent(ACN 87 693 48)
________________________________________________________________________
SUBMISSIONS IN SUPPORT OF AN APPLICATION TO RECOVER LEGAL COSTS PURSUANT TO A COSTS AGREEMENT
________________________________________________________________________
Date of Document:24 January 2023
Date of Filing:24 January 2023
Filed on behalf of:The Respondent
Prepared by:SBM Legal
Address for Service:67A Watkins Street
WGVWA 6000
Phone:9220 6078
Fax:9220 6078
Ref: SBM/AP/03/16
Introduction
These submissions are made in support of an application by the Respondent to recover legal costs pursuant to a costs agreement, where the Respondent failed to give notice of intention to engage in legal practice in accordance with Section 104(1) of the Legal Profession Uniform Law (WA) (LPUL). This is a preliminary question only, as to whether or not Section 104 of the LPUL prohibits recovery of costs by law practices in breach of the section.
Both the Applicant and Respondent are based in Tasmania. The Respondent engaged in legal practice in Western Australia and did not file notice of intention to engage in legal practice in Western Australia.
The Respondent is seeking a declaration that it is entitled to recover costs pursuant to a costs agreement entered into with the Applicant on 3 July 2022 (the costs agreement).
Summary of Submissions
The Respondents primary submission is that it is not in breach of an obligation to provide notice of intention to engage in legal practice in Western Australia, because it is not an incorporated legal practice or an unincorporated legal practice for the purposes of the LPUL.
In the alternative, the Respondent submits the relevant provisions of the LPUL operate only to punish the prohibited conduct, and not to render an associated costs agreement void (or voidable). Section 104 does not prohibit law practices in breach of the section from recovering costs and does not render the retainer void for illegality.
Legal Principles
Section 37(1) of the Supreme Court Act 1935 (WA) confers discretion on the Supreme Court to determine the costs of and incidental to all proceedings in the Supreme Court, subject to the provisions of the Supreme Court Act 1935 (WA) and to the express provisions of any other Act.
The Legal Profession Uniform Law Application Act 2022 (WA) (LPULAA) and the LPUL apply to costs agreements entered into after 1 July 2022. Accordingly, the LPUL applies to the costs agreement entered into by the Applicant and Respondent on 3 July 2022.
Prior to the commencement of the LPUL on 1 July 2022, the (repealed) Legal Profession Act 2008 (WA) (LPA) had a clear provision that rendered a costs agreement void where there was failure to give proper notice of intention to engage in legal practice in WA. The position under the LPUL is less clear. Section 102(5) of the LPA disallowed the recovery of any amount for anything a corporation did in default of Section 102; and a legal practitioner in contravention of Section 102 was not entitled to retain any moneys paid to them for their work, as the same was made recoverable by the client as a debt due to that person. This was confirmed in the recent Western Australian Supreme Court case of Carr v Larussa Pastoral Holdings (Carr), in which Curthoys J considered the meaning and operation of s 102 of the LPA in relation to the indemnity principle.
The objectives of the LPUL are described in Section 3 as being to promote the administration of justice and an efficient and effective legal system by: providing and promoting interjurisdictional consistency, ensuring competent and ethical provision of legal services, protecting clients of law practices and the general public, empowering clients of law practices to make informed choices and promoting efficient, targeted, and proportionate regulation of the legal profession.
Section 7(1) of the LPUL provides that the Interpretation of Legislation Act 1984 (VIC) applies to the interpretation of the LPUL, and of the Uniform Regulations and Uniform Rules, in the same way it applies to the interpretation of legislation and statutory instruments of Victoria.
Section 104(1) of the LPUL provides that:
If an entity intends to engage in legal practice in this jurisdiction as a law practice to which [ch 3 pt 3.7 div 1] applies, it must give the designated local regulatory authority notice of that intention within the period specified in the Uniform Rules.
Section 104(2) of the LPUL prohibits entities from engaging in legal practice in contravention of Section 104(1) and imposes a civil penalty of 50 penalty units. From 1 July 2022 to 30 June 2023, the fixed value of a penalty unit is $184.92. Pursuant to Section 452(2) of the LPUL, a contravention of a civil penalty provision is punishable by an amount not exceeding the penalty set out at the foot of the provision.
Pursuant to Section 18 of the LPULAA, this jurisdiction means the State of Western Australia. Section 102 of the LPUL provides that the Division applies to a law practice that is an incorporated legal practice or an unincorporated legal practice. Section 20 of the LPULAA provides that the relevant designated local regulatory authority is the Legal Practice Board of Western Australia; and pursuant to Rule 28 of the Legal Profession Uniform General Rules 2015, the notice of intention to engage in legal practice must be given at least 14 days before starting to engage in legal practice.
Section 184 of the LPUL makes a costs agreement enforceable in the same way as any other contract, subject to any other provisions of the LPUL.
The question of whether a statutory prohibition makes a contract void and unenforceable is a question of statutory construction that depends upon the mischief which the statute is designed to prevent, its language, scope and purpose, the consequences for the innocent party and other relevant considerations. As explained by Mason J in Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (Yango), where a statutes objectives can still be achieved by penalising the prohibited behaviour, the underlying contract may still be valid and enforceable. The general rule is that [a] court should not hold that any contract or class of contracts is prohibited by statute unless there is a clear implication, or necessary inference that the statute so intended. Unless a statute specifically makes it clear that a contract is not to be enforced, the court retains a discretion to enforce it, despite its illegality, if it is necessary to do justice.
Application of Legal Principles
A. The Respondent does not meet the definition of an incorporated legal practice pursuant to the LPUL
It is the Respondents primary submission that on the literal reading of the Section 6 of the LPUL (titled Definitions), Sandy Bay Legal (SBL) is neither an incorporated legal practice nor an unincorporated legal practice and cannot be in breach of Section 104 of the LPUL.
In accordance with the legal principles above, the obligations, prohibitions, and penalties in Section 104 of the LPUL apply to a law practice that is an incorporated legal practice or an unincorporated legal practice. An incorporated legal practice is defined in Section 6 of the LPUL. The requisite criteria includes that an entity is a corporation that has given notice of its intention to engage in legal practice in Australia pursuant to Section 104(1) of the LPUL, and that notice is still operative. (An unincorporated legal practice is also defined in Section 6 of the LPUL and also requires notice of an intention to engage in legal practice in Australia pursuant to s 104(1) of the LPUL, however excludes an incorporated body.)
The Respondent is an incorporated body, but has not given notice of intention to engage in legal practice pursuant to Section 104(1) of the LPUL. It follows that the Respondent is neither an incorporated legal practice nor an unincorporated legal practice as defined in the LPUL.
As the requirement to have given s 104 notice forms part of the definitions of Incorporated Legal Practice and Unincorporated Legal Practice, it is impossible for an entity to engage in legal practice in Western Australia as an Incorporated Legal Practice (or Unincorporated Legal Practice) without having given s 104 notice.
Notwithstanding, the Respondent concedes this logic is somewhat circular, and unlikely to reflect the intention of the legislature at the time of drafting. The Respondent further concedes that, in considering the surrounding provisions, the objectives of Chapter 3 and the overall objectives of the LPUL, it is likely the legislature did intend to capture SBL in Sections 102 and 104.
B. Section 104 of the LPUL does not prohibit costs recovery
In light of these concessions, and should the court find SBL in breach of Section 104 of the LPUL, the Respondent submits that recovery under the costs agreement should be allowed as Section 104(3) seeks only to punish the prohibited conduct and does not expressly void (or make voidable) the contract.
Carr is distinguishable from the current matter in that it considers a different provision from a different (repealed) statute which expressly forbids the recovery of legal fees. Section 104 of the LPUL contains no such express provision. The old law (the LPA) was intended to be restrictive, whereas the new law is inclusive. As such the position in Carr should not be followed.
C. Section 104 of the LPUL does not render the retainer void for illegality
The Respondent submits that neither the Applicant, nor the general public, has suffered any prejudice by way of SBL's failure to give notice in accordance with Section 104, and that allowing recovery under the costs agreement is consistent with the intention and overall objectives of the LPUL.
As explained in Baxter and Yango, the question of whether a statute implies a prohibition on contracts is a question of statutory construction. In accordance with the Section 35(a) of the Interpretation of Legislation Act 1984 (VIC), where the answer is not clear from the words of the legislation itself (and remains unsettled in case law), it is appropriate to adopt the purposive approach.
The Respondent submits that on their ordinary everyday meaning, the words of Section 452(2) of the LPUL expressly limit the punishment for contravening Section 104 to an amount not exceeding 50 penalty units. There are a number of provisions in the LPUL that expressly suspend or disallow recovery, and had the legislature intended Section 104 to operate in that way, they could have simply adopted or adapted Section 102(5) of the LPA.
This interpretation is consistent with the purpose set forth by the Victorian, New South Welsh, and Western Australian Attorneys General in their respective second reading speeches of the LPUL, being to simplify and standardise regulatory obligations, cutting red tape for law firms, especially those operating across jurisdictions, while still providing for a significant degree of local involvement in the performance of regulatory functions
The interpretation is also consistent with the LPULs chief rationale, being to encourage interjurisdictional practice. Were the court to impose an additional penalty, it would be both contrary to the objective of achieving efficient and proportionate regulation of the legal profession, and a deterrent to interjurisdictional practice.
The maximum penalty under the current fixed value for penalty units is $9,246 (50 penalty units). This is significantly less punitive than under Section 102 of the LPA in which the fixed penalty was $25,000, plus prohibition on recovering costs and disentitlement to retain any moneys paid. The Respondent submits this is indicative of the Parliaments more inclusive approach to interjurisdictional practice and supports the argument that Section 104 of the LPUL seeks only to punish the conduct and not the making of contracts. As per Mason J in Yango, Parliament has provided a penalty which is a measure of the deterrent which it intends to operate in respect of compliance with [the provision].
These arguments reflect the public policy position of the LPUL and are consistent with the reasons in Yango, being that where a statutes objectives can still be achieved by penalising the prohibited behaviour, the underlying contract may still be valid and enforceable. Invalidating a costs agreement where there has been a breach of Section 104 is neither efficient nor proportionate and may have significant implications for the administration of justice.
Orders Sought
The Respondent submits that the Court should make the following orders:
A declaration that the Respondent is entitled to recover costs pursuant to the costs agreement concluded between it and the Applicant on 3 July 2022.
Parties to pay their own costs.
Any other order the honourable Court deems fit.
__________________________
Solicitors for the Respondent
List of Authorities
A. Cases
Bevan v Bingham [2022] NSWSC 863
ACCC v Baxter Healthcare Pty Ltd (2007) 232 CLR 1
Caffery v Nepean Co-operative Dairy & Refrigerating Society Ltd (1960) SR 57 (NSW)
Nelson v Nelson (1995) 184 CLR 538
Anna Carr as administratrix of the estate of Giuseppe Larussa v Larussa Pastoral Holdings Pty Ltd as former trustee of the Larussa Pastoral Trust [No 3] [2022] WASC 139
Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410
B. Legislation
Interpretation of Legislation Act 1984 (Victoria)
Legal Profession Act 2008 (WA) s 102(5)
Legal Profession Uniform General Rules 2015 (WA) r 28
Legal Profession Uniform Law (WA) ss 3(a)(e), 6, 10(2), 102, 104(1)(3), 184, 185(1) and 452(2)
Legal Profession Uniform Law Application Act 2022 (WA) ss 18 and 20
Legal Profession Uniform Law Application Regulations 2022 (WA)
Monetary Units Act 2004 (VIC)
Sentencing Act 1991 (VIC) s 110
Supreme Court Act 1935 (WA) s 37
C. Other
Extract from Hansard [Assembly] Wednesday, 23 June 2021 [Second Reading Speech] Mr John Quigley (Attorney General)
Extract from Hansard [Council] Wednesday, 4 August 2022 [Second Reading Speech] Mr Matthew Swinbourn (Parliamentary Secretary)
LLB202 Costs
Summer 23/24
Assignment
Preliminary
You are to approach this assignment as if you are a junior lawyer working for SBM Legal. SBM Legal does costs work. You are being given a task by the principal of the firm (me) and I expect you to draft submissions in relation to a matter SBM has been retained for. You are also to provide a short affidavit from the client to support the submissions. I have provided a sample of such submission in the unit materials. I have also provided a draft affidavit. I will be doing video recordings on both tasks and those will be provided with the unit.
I want you to provide me with submissions and an affidavit that are ready to be filed in the court. That said, I am used to not getting what I want. As a junior lawyer you would expect your work to be settled (checked and corrected) by a more senior practitioner. I would not expect you to do a first draft that was ready to go. I would expect you to do a basically competent job that needed tweaking.
While the work you submit must be your own, I strongly suggest you discuss this task with other students. A fair few of the lawyers who get struck off are sole practitioners and the not having anyone to run it by leads them to some pretty strange places. You can also ask me any reasonable questions as we are on the same side and want a good job done. Such questions can be asked in notice board I create only though as I want everyone to be able to see the questions and the answers. If I decide what you are asking is something you should work out yourself I will say so.
PO Box 734, Fremantle, WA 6959
steve@sbmlegl.net.au 08 93356125
SGS/SBM/23/ Gatti
Submissions and supporting affidavit.
We have been retained by Gatti Partners (Gatti) in relation to a costs assessment that one of their clients has filed against them. The matter number is LPUL 27 of 2023.
Gatti has just rendered their final bill for a retainer (the Grasstree/Anderson retainer) that centred in Magistrate Court litigation. The matter ran over a total of six years. The retainer commenced in June 2017 so it is the old 08 LPA that provides the governing law. For what it was worth Gattis client was successful at trial. The client has filed for costs assessment well within time for doing so.
Gattis client is a small company, Grasstree Pty Ltd (Grasstree) that is owned by its sole director, Jen Turner (Turner). Grasstree makes souvenir products and sells them through a range of stores. Gatti has done debt collection and other work for Grasstree for years. In this matter Grasstree was chasing a dept of just over 32k from Anderson Pty Ltd and there was a long delay in commencing the litigation as the matter seemed very likely to settle. Once litigation ensued there was again delay as the Defendants lawyer was struck off early in the proceedings and it took about a year to sort that out.
Gatti has provided us with all the invoices for the retainer. There were a lot of months where nothing was charged on the file. What charges I have seen are reasonable and in line with Gattis usual costs agreement, which we drafted for them. That said, they are well above Magistrates Court scale. I note that Gatti provided excellent ongoing costs disclosure throughout the matter.
Gattis client is alleging that the retainer was not covered by a costs agreement. It appears that no costs agreement was ever sent out in relation to the retainer, so they have a point. If the assessment is at scale Gatti will wind up having refund the client a substantial sum of money.
Gatti informs us that there are identical standard costs agreements on 5 other Grasstree files and 3 other identical costs agreements on retainers with Turner in person. These agreements are all signed by Turner as either company director (the first 5) or on her own behalf (the other 3) and are dated between 2016 and 2022. I note that there are signed costs agreements with Grasstree and with Turner in both 2016 and 2017. All four of those agreements were signed within six months of the first work done on the Grasstree/Turner retainer.
I want you to draft submissions arguing that in such circumstances the court should make a declaration that Gattis standard costs agreement as used in all other Grasstree or Turner retainers should apply to the Grasstree/Anderson retainer.
Please also do an affidavit for Jim Gatti to attest to the fact that he was the practitioner who did the bulk of the work on all the Grasstree or Turner files. He tells me that he met with Turner regularly and that she always paid her bills promptly. He tells me that Turner sometime questioned some of the charges on the invoices and that he explained to her that the charges were in accordance with the costs agreement and she accepted that.
I am meeting with Jim tomorrow and will see if I can get anything else useful out of him. His full name is James Horatio Gatti and he lives at 14 Krissy Street in Leederville. He was admitted in 2003 and has owned his own firm for 15 years.
I will let you know anything further that I find out and feel you need to know.
Please get back to me if you have any questions relating to all this.
Steve Shaw
