Swaab v Sayed [2013] NSWSC 887

Swaab v Sayed [2013] NSWSC 887

Mr Sayed was bound by the costs agreement because the Terms and Letter made clear that acceptance could occur by continued instructions, and a reasonable bystander would regard Mr Sayed's continued instructions to Swaab and payment of some invoices after receiving those documents as acceptance. Clause 12 of the Terms therefore created an equitable interest, mortgage or charge over Mr Sayed's real property securing outstanding costs and interest. A declaration confirming the equitable charge had utility, but a declaration fixing a specific amount was not appropriate because the secured amount might vary and could be affected by later assessment.

Jurisdiction
Australia
Judgment Date
01 July 2013
Procedural Posture
Equity Division Proceedings Seeking Declarations Concerning an Equitable Charge and Caveat Securing Solicitors' Unpaid Costs / Ex Tempore Judgment on Summons; Defendant Did Not Appear
Outcome
Declaration granted
Legal Topics
["solicitors' Costs" 'costs Agreement Accepted by Conduct' 'equitable Charge' 'caveat' 'declaratory Relief']
['legal Practitioners' 'equity' 'contract Law' 'property Law'] ["solicitors' Costs" 'costs Agreement Accepted by Conduct' 'equitable Charge' 'caveat' 'declaratory Relief']

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Procedural Posture

Equity Division Proceedings Seeking Declarations Concerning an Equitable Charge and Caveat Securing Solicitors' Unpaid Costs / Ex Tempore Judgment on Summons; Defendant Did Not Appear

Legal Issues

  1. 1 ['Whether a costs agreement arose between Swaab and Mr Sayed despite Mr Sayed not returning an executed engagement letter.' 'Whether Mr Sayed accepted the Terms and Letter by continuing to instruct Swaab and making some payments.' "Whether the costs agreement created an equitable charge or interest over Mr Sayed's real property securing unpaid costs, interest and recovery costs." 'Whether the Court should make declarations confirming the equitable charge and specifying the amount secured.']

Ratio Decidendi

Mr Sayed was bound by the costs agreement because the Terms and Letter made clear that acceptance could occur by continued instructions, and a reasonable bystander would regard Mr Sayed's continued instructions to Swaab and payment of some invoices after receiving those documents as acceptance. Clause 12 of the Terms therefore created an equitable interest, mortgage or charge over Mr Sayed's real property securing outstanding costs and interest. A declaration confirming the equitable charge had utility, but a declaration fixing a specific amount was not appropriate because the secured amount might vary and could be affected by later assessment.

Court Disposition

Declaration granted

Orders

  • ["Declaration confirming Swaab's equitable charge created by the costs agreement." "Liberty to apply to the duty judge on two days' notice to fix by declaration the amount secured by the equitable charge."]