A judge has dismissed an appeal of a ruling that blocked five Westpoint Group units from requiring Corrs Chambers to turn over invoices for the work the firm performed for the companies’ receivers.
The companies sought the invoices for review by a taxing officer of the court.
Justices Martin, Mitchell and Beech, sitting for the Court of Appeal for the Supreme Court of Western Australia, upheld the ruling shielding Corrs Chambers from producing the invoices and shot down all the companies’ grounds for appeal.
The companies sought to use Western Australian law – the Legal Practices Act of 2003 – to compel Corrs Chambers to produce the invoices.
The judges disagreed with the companies’ contention that the lower court judge had wrongly found their claims arose from the costs agreement, which were subject to New South Wales law, and weren’t statutory in nature and subject to Legal Practices Act of 2003. The legislature did not intend the 2003 Act to override choice of law principle in relation to retainer agreements, the judges said.
“By 2003, a national market for the provision of legal services was well and truly established, corresponding to the establishment of national markets in many commercial fields. In a federal context in which each State and Territory separately regulated the provision of legal services, there is nothing in the language, subject matter or context of the 2003 Act which would sustain the proposition that the legislature intended to exclude the operation of choice of law principles to the legal regime governing retainer agreements and instead impose a parochial regulatory regime by reference to some other criterion not expressed in the Act or, perhaps, to be implied from the definition of ‘legal practitioner’.”
The judges also agreed with Corrs that the 2006 and 2015 retainer agreements covered all the work the firm performed for the receiver. The companies argued the agreement covered the provision of legal advice and not legal services.
“In any commercial context and, in particular, the commercial context in which the 2006 agreements were executed, attribution to the parties of an intention that the legal services to be provided would be confined to the expression of opinions on legal issues would not correspond with the commercial realities in which legal services are provided, and would give rise to difficult issues of differentiation between the formal expression of legal opinions and the implicit provision of legal advice in the course of the services provided,” the judges said.
In a 2011 ruling of first instance in a related case, Carey v Korda & Winterbottom, the Supreme Court of Western Australia said the receivers were shielded by legal professional privilege and did not have to produce the invoices. The court said the receivers were clients of the firm in their capacity as receivers, not as agents of the company, and could therefore claim privilege for the invoices.
The companies cited that ruling in their argument on appeal that the 2006 retainer agreement should only apply to legal services provided to the receivers as principals and not to those performed as agents of the company, but the judges again found the agreement applied to all services provided.
“It would not be commercially realistic or practical to attribute to the parties an intention that the 2006 agreements would apply to some, but not all, of the legal services provided in respect of a single transaction undertaken for the purpose of realising an asset secured in favour of the appointing creditor. There is nothing in the language of the 2006 agreements which would compel or even support such an uncommercial consequence.”
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