HOGARTH & ORS v GYE & ANOR [2002] NSWSC 32

HOGARTH & ORS v GYE & ANOR [2002] NSWSC 32

The confirmatory letters executed by the plaintiffs constituted enforceable costs agreements under the Legal Profession Act 1987. The provisions for a 'success fee' were void as inconsistent with s 188, but this did not render the remainder of the agreement void. The Act did not require that disclosure of rights be included in the cost agreement itself, and the evidence established that adequate disclosure had occurred. There was no duress or unconscionability. The claims for relief by the plaintiffs failed; the cross-claim for certain declarations succeeded in part.

Parties
First Plaintiff: Robert Martin Hogarth; Second Plaintiff: Lakatoi Universal Pty Ltd; Third Plaintiff: Barbara Florence Hogarth; Fourth Plaintiff: Janenne Anne Kidd; Fifth Plaintiff: Geoffrey William Kidd; Sixth Plaintiff: Mary-Lou Hogarth; Seventh Plaintiff: Bradley William Kidd; Eighth Plaintiff: Curtis Hogarth; Ninth Plaintiff: Sharon Anne Kidd; Tenth Plaintiff: Dingera Pty Ltd; Eleventh Plaintiff: Ensile Pty Ltd; Twelfth Plaintiff: Genepa Investment Trust; Thirteenth Plaintiff: Highfield Grove Pty Ltd; Fourteenth Plaintiff: Lady Carrington Estates Pty Ltd; Fifteenth Plaintiff: Lerota Pty Ltd; Sixteenth Plaintiff: Otford Valley Farm Pty Ltd; Seventeenth Plaintiff: R & B Hogarth Investments Pty Ltd; Eighteenth Plaintiff: RM Hogarth Pty Ltd; Nineteenth Plaintiff: Rosamond Pty Ltd; Twentieth Plaintiff: Universal Properties Pty Ltd; Twenty First Plaintiff: Brash Corporation Pty Ltd; Twenty Second Plaintiff: The Kidd Family Trust; First Defendant: Clement Anthony Gye; Second Defendant: Harah Pty Ltd
Jurisdiction
Australia
Judgment Date
12 February 2002
Procedural Posture
Civil / Judgment
Outcome
Plaintiffs' claim dismissed; cross-claim succeeded in part.
Legal Topics
Costs Agreements, Disclosure by Solicitors, Assessment of Legal Costs, Duress, Unconscionability, Success Fees, Enforceability of Agreements
Legal Profession Costs Costs Agreements Disclosure by Solicitors Assessment of Legal Costs Duress Unconscionability Success Fees +1 more

Case Brief

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Parties

Robert Martin Hogarth

First Plaintiff

Lakatoi Universal Pty Ltd

Second Plaintiff

Barbara Florence Hogarth

Third Plaintiff

Janenne Anne Kidd

Fourth Plaintiff

Geoffrey William Kidd

Fifth Plaintiff

Mary-Lou Hogarth

Sixth Plaintiff

Bradley William Kidd

Seventh Plaintiff

Curtis Hogarth

Eighth Plaintiff

Sharon Anne Kidd

Ninth Plaintiff

Dingera Pty Ltd

Tenth Plaintiff

Ensile Pty Ltd

Eleventh Plaintiff

Genepa Investment Trust

Twelfth Plaintiff

Highfield Grove Pty Ltd

Thirteenth Plaintiff

Lady Carrington Estates Pty Ltd

Fourteenth Plaintiff

Lerota Pty Ltd

Fifteenth Plaintiff

Otford Valley Farm Pty Ltd

Sixteenth Plaintiff

R & B Hogarth Investments Pty Ltd

Seventeenth Plaintiff

RM Hogarth Pty Ltd

Eighteenth Plaintiff

Rosamond Pty Ltd

Nineteenth Plaintiff

Universal Properties Pty Ltd

Twentieth Plaintiff

Brash Corporation Pty Ltd

Twenty First Plaintiff

The Kidd Family Trust

Twenty Second Plaintiff

Clement Anthony Gye

First Defendant

Harah Pty Ltd

Second Defendant

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether certain documents constituted costs agreements under the Legal Profession Act 1987
  2. 2 Whether failure to disclose certain information rendered costs agreements void or unenforceable
  3. 3 Whether the provision for a 'success fee' was void

Ratio Decidendi

The confirmatory letters executed by the plaintiffs constituted enforceable costs agreements under the Legal Profession Act 1987. The provisions for a 'success fee' were void as inconsistent with s 188, but this did not render the remainder of the agreement void. The Act did not require that disclosure of rights be included in the cost agreement itself, and the evidence established that adequate disclosure had occurred. There was no duress or unconscionability. The claims for relief by the plaintiffs failed; the cross-claim for certain declarations succeeded in part.

Court Disposition

Plaintiffs' claim dismissed; cross-claim succeeded in part.

Orders

  • The Summons is dismissed with costs.
  • Declarations in terms of claim 1(a) and claim 2 in the Cross-claim.