Coombe v Whittle [1988] VULawRp 9; [1980-1994] Van LR 340 (16 June 1988)

[1980-1994] Van LR 340

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 51 of 1988

BETWEEN:

PETER ANTHONY COOMBE
Plaintiff

AND:

JAMES EDWARD MONTEITH WHITTLE
First Defendant

AND:

MURRAY LIMITED
Second Defendant

Coram: Chief Justice Cooke

Counsel: Mr P. Coombe, as plaintiff
Mr P. Crisp for defendants

JUDGMENT

[PRACTICE AND PROCEDURE - SOLICITORS]

In this case, the Plaintiff sues for fees which he alleges are due to him by the Defendants.

The Plaintiff submitted an account for the Defendants' Company for the sum of 582,010VT. The first two items in the account are not disputed by the Defendants.

It is the account headed:-

"Re: Purchase from Mr and Mrs McKendrick
Title Nos. 11/0712/002 and 11/0712/017"

and the charge of 452,010VT which is vigorously disputed by the Defendants and which they contend is excessive for the work carried out. The First Defendant, Mr Whittle, stated that he asked the Plaintiff to give him a rough idea of the cost and was told it would be about 120,000Vt for the conveyance of two blocks of land. That the restrictive covenants were similar on two blocks of land he had done for Sunrise Ltd. That he would charge 10,000VT each to place restrictive covenants on each of the two blocks which would be 20,000VT and that he would form a Company for him to purchase these blocks and would charge him 50,000VT exclusive of disbursements, being a total of 190,000VT. The Plaintiff denies this. I believed Mr Whittle as he said that he had been to Mr Gee and Mr Hudson and had obtained quotes similar to such figure.

Mr Whittle contended there was a general delay in the carrying out of the work given to Mr Coombe and that he was fobbed off from time to time when he made inquiries as to progress.

The final date for completion of the contract was early December but the final settlement did not take place until the 3rd February 1988. From the evidence, I am satisfied there was delay on the part of the Plaintiff in handling this matter. There was also a certain amount of untrue evidence as to matters relating to Vulcan.

Mr Whittle gave his evidence without hesitation and impressed me in the manner he did so. He from time to time accused Mr Coombe of lying and indeed from the general trend of events I was not satisfied the Plaintiff told the whole truth.

As to the actual account of 452,101VT, the Plaintiff stated that he followed the higher scale of the New South Wales scale of fees. I see no justification for this as it was not proved to the Court that the restrictive covenants were not similar to those used in the Sunrise Ltd matter. It would have been so easy to place both before the Court and let the Court judge whether there was any difference between the two. This was not done, hence I have no alternative other than to find that they were similar and higher fees should not have been charged.

The Plaintiff said he took the higher figure of 893 A$ under agreements for sale, Exhibit 'f' and multiplied that by 100 to give 89,300VT as it had been the practice of his firm to do so for eleven years. Again there is no justification for doing so. The Australian dollar against the Vatu in February 1988 was 74 Vatu to the dollar. That is the figure that should and has to be taken. Why should a client pay another 25% above the correct price just because a firm had been doing something completely wrong for eleven years. The figure of 89,300VT will therefore have to be remedied to 66,082VT, that is 23,218VT less than charged.

Again the same procedure was carried out for the mortgage when the figure of 833 A$ was taken and marked up to 83,300VT instead of 61,642VT, an excess of 21,658VT making up the sum total in these two items to be 44,876VT. The said items alone clearly show the account was excessive. There are other matters on the bill which require adjusting and this can only be done when the bill is taxed, as should have been done by the Plaintiff when requested by the Defendant.

The evidence of solicitors, Hudson and Vasaris that their bills would be about half that charged in this case and the events mentioned, satisfy me that the bill is excessive. I therefore find that the bill is indeed excessive.

The submissions made by Mr Crisp, Counsel for the Defendants, that Section 69 of the Solicitors Act 1974 of England applies to this country has some cogency in so far as an alternative is provided for under Article 93 of the Constitution.

There is a provision in the Legal Practitioners Act to make rules to cover the matter referred to in Section 69 aforesaid but no rules have been made, thus a litigant is denied the rights contained in Section 69. It would seem to follow that under Article 93 read with Article 45 of the Constitution, the Court could avail itself of the provisions of Section 69.

I shall, however, not make a ruling on that matter on this occasion as I have otherwise dealt with the issue before me.

I find no substance in the other matters of the parties before me and reject them.

I dismiss the action of the Plaintiff with costs and direct that the bill be taxed by the Registrar of the Supreme Court bearing in mind my comments and directing him to give consideration to the costs for restrictive covenants to be the same as that for Sunrise Ltd.

16 June 1988

FREDERICK G. COOKE
CHIEF JUSTICE