Claudia Leung in her capacity as Executrix of the Estate of the late Robert Ho v Paul Mervyn Fordyce t/as Pmf Legal Trading [2019] NSWSC 18

Claudia Leung in her capacity as Executrix of the Estate of the late Robert Ho v Paul Mervyn Fordyce t/as Pmf Legal Trading [2019] NSWSC 18

The plaintiffs are entitled to declarations that the specified Disputed Engagement Letters (including the 31 January 2012, 3 April 2012, 4 July 2012, 27 April 2012, and 4 September 2013 letters) were not sent to Mr Ho or the plaintiffs. The court found that the usual practice was that all sent engagement letters were recorded in the mail-book; none of the disputed letters were recorded, although other correspondence in the same periods was. The court rejected fraud allegations, finding the evidence did not sufficiently establish fraud, but accepted that non-sending was proved on the balance of probabilities. Therefore, costs assessment should proceed as if there were no costs agreements...

Jurisdiction
Australia
Judgment Date
29 January 2019
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Plaintiffs entitled to declarations that Disputed Engagement Letters were not sent and to consequential relief; costs assessment to proceed on basis of no costs agreements in relation to those letters.
Legal Topics
['costs Disclosure' 'solicitor Client Costs' 'onus of Proof' 'evidence of Usual Practice' 'fraud' 'costs Assessment']
['equity'] ['costs Disclosure' 'solicitor Client Costs' 'onus of Proof' 'evidence of Usual Practice' 'fraud' 'costs Assessment']

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Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 ['Whether several costs agreements (engagement letters) were created and sent on or about the dates alleged by the defendants' 'Whether Pmf Legal made mandatory costs disclosure in accordance with the Legal Profession Act 2004 (NSW)' 'Whether the Disputed Engagement Letters were created fraudulently and backdated' 'Whether usual practice and absence of records proved the occurrence or non-occurrence of sending the disputed letters' 'Appropriate onus and evidential burdens where a negative fact (non-sending) is sought to be declared']

Ratio Decidendi

The plaintiffs are entitled to declarations that the specified Disputed Engagement Letters (including the 31 January 2012, 3 April 2012, 4 July 2012, 27 April 2012, and 4 September 2013 letters) were not sent to Mr Ho or the plaintiffs. The court found that the usual practice was that all sent engagement letters were recorded in the mail-book; none of the disputed letters were recorded, although other correspondence in the same periods was. The court rejected fraud allegations, finding the evidence did not sufficiently establish fraud, but accepted that non-sending was proved on the balance of probabilities. Therefore, costs assessment should proceed as if there were no costs agreements...

Court Disposition

Plaintiffs entitled to declarations that Disputed Engagement Letters were not sent and to consequential relief; costs assessment to proceed on basis of no costs agreements in relation to those letters.

Orders

  • ['Declarations that the defendants did not send the Disputed Engagement Letters to the plaintiffs on or about the dates alleged and did not make disclosure in accordance with Division 3 of the Legal Profession Act 2004 (NSW) in relation to those matters.' 'Costs for work under the scope of those Disputed Engagement...