Gurau v Porritt [1956] WSLawRp 1; [1950-1959] WSLR 58 (17 May 1956)

[1950-1959] WSLR 58

IN THE HIGH COURT OF WESTERN SAMOA

GURAU

v.

PORRITT

HIGH COURT Apia. 1956. 10, 17, May.
MARSACK C.J.

Claim for legal costs in respect of transaction between plaintiff and defendant - no agreement as to liability of defendant for costs - draft agreement prepared but not signed - no express or implied agreement of defendant - defendant not liable.

This was a claim for legal costs arising out of a motor vehicle transaction between the plaintiff and the defendant. The defendant was difficult to negotiate with and the plaintiff had then instructed his solicitor to prepare an agreement setting out terms to which it was hoped the defendant would agree. The agreement was in draft form and was never signed and at no stage did the defendant state to the plaintiff or his solicitor that he would sign it.

Held: That in the absence of express or implied agreement, the defendant was not liable to pay the costs of preparing the agreement.

Phillips, for plaintiff.
Metcalfe, for defendant.

Cur. adv. vult.

MARSACK C.J.: This is a claim for £10.10.0 representing legal costs incurred by the plaintiff in respect of certain proceedings arising out of the sale of a motor car from the plaintiff to the defendant, and of non-payment of part of the purchase money by the defendant. The amount of £10.10.0 is made up of £4.4.0 in respect of the preparation of an instrument by way of security, and £6.6.0 in respect of a later agreement as to the disposal of the motor car. Neither of those documents was executed.

The defendant admits liability to pay a reasonable fee in respect of the instrument by way of security. In the later agreement, prepared by the plaintiff's solicitor, the costs of this instrument were fixed at £3.3.0. The plaintiff gives no explanation for the increase in his claim from £3.3.0 to £4.4.0, and does not state in evidence that he has been called upon by his solicitor to pay the sum of £4.4.0 as costs of preparation of the instrument. There seems therefore no reason for altering the original assessment of the defendant's liability, as stated in the subsequent agreement. The defendant acknowledges liability for £3.3.0 and that is the amount for which the plaintiff will have judgment under this heading.

It appears from the evidence that considerable negotiations took place after judgment had been obtained against the defendant for the balance due on the motor car, a judgment which carried not only the costs of the action but also of certain proceedings under Rule 88 of the Rules of the High Court. The defendant proved to be a very difficult person with whom to negotiate, and the plaintiff quite properly instructed his solicitor to prepare a document setting out the terms to which it was hoped the defendant would agree and thus reach a settlement of outstanding matters in dispute. These instructions were given after the plaintiff had received a telephone message from inspector Philipp to the effect that he had discussed matters the defendant at the hospital, and that the defendant was willing to enter into a proper agreement.

The plaintiff's solicitor prepared the agreement in respect of which the plaintiff is claiming the sum of £6.6.0, and this was perused by Mr Metcalfe who had, somewhat spasmodically, acted for the defendant. Mr. Metcalfe sent the agreement back with certain suggested amendments and a note saying, inter alia, "I think this is enough to protect Porritt ...... He will call at G.T.J's Office this afternoon." No amendment was proposed by Mr Metcalfe to clause 4 of the draft agreement which provides that the legal costs of the plaintiff in respect of the instrument by way of security, £3.3.0, and the legal costs of the plaintiff in respect of the agreement, £7.8.0, should be paid from the proceeds of the sale of the motor vehicle, or in the case of deficiency, by the defendant personally.

The question arises as to whether the defendant expressly or inferentially agreed to pay the plaintiff's costs of this agreement, now assessed at £6.6.0. It is clear that the defendant himself at no tine stated to the plaintiff or to his solicitor that he would sign this particular agreement, thereupon rendering himself liable for the costs of it, nor did he actually sign. The plaintiff contends that Inspector Philipp spoke as the defendant's agent when he stated that the defendant was prepared to sign an agreement, and that this would render the defendant liable for the costs. Inspector Philipp's, evidence makes it clear, however, that the purpose of his conversation with the plaintiff was to advise him that the car in question now at the Police Station; and that his recollection of his conversation with the defendant is vague as to details. I can find nothing in Inspector Philipp's evidence establishing his authority to render the defendant liable for the costs of the written document.

The plaintiff's strongest argument is derived from the fact that the agreement was perused by Mr Metcalfe, who at that time was acting for the defendant, and returned with some suggested amendments not including any amendment to clause 4. However Mr Metcalfe's note to the plaintiff's solicitor seems to me carefully non-committal. He does not say "I now return draft agreement approved on behalf of my client as amended," or anything to that effect. The history of the case showed that the defendant entrusted very little authority to his solicitor, who in fact did not act for him continuously throughout the proceedings. Mr. Metcalfe's note returning the draft seems to me to be little more than an expression of opinion that the draft agreement as amended would appear to be satisfactory, but that it would have to be discussed with the defendant when he called at the office later in the afternoon. I am unable to spell out from Mr Metcalfe's note, and from the evidence generally, generally, any definite acceptance by the defendant or his solicitor of an obligation to meet the costs of the agreement. The fact that the agreement was not signed by the defendant shows that Mr Metcalfe was wise in refraining from committing either the defendant or himself.

For those reasons I think that the defendant at no time agreed expressly or by implication to pay the plaintiff's costs of the preparation of the agreement; and I know of no authority in law whereby he can be compelled to pay the costs in the absence of such expressed or implied agreement.

The plaintiff will therefore have judgement for £3.3.0. Although liability for this amount has always been admitted there was no payment into Court or such formal acknowledgement as would deprive plaintiff of his right to some costs. There will be judgement for plaintiff for £3.3.0, with Court costs 10/- and solicitor's fee £2.2.0.