Chor Pee & Partners v Wee Soon Kim Anthony

• Jurisdiction: Singapore
• Judgment Date: 24 May 2005
• Date: 24 May 2005
• Docket Number: Petition of Course No 3 of 2005
• Court: High Court (Singapore)

Chor Pee & Partners

Plaintiff

and

Wee Soon Kim Anthony

Defendant

[2005] SGHC 101

Lai Siu Chiu J

Petition of Course No 3 of 2005

High Court

Legal Profession–Bill of costs–Petition of course for taxation of bills of costs–Whether petition should be struck out–Whether written agreement as to fees payable existing between parties–Whether petition requiring affidavit in support–Whether petition complying with s 120 of the Legal Profession Act–Sections 111 and 120 Legal Profession Act (Cap 161, 2001 Rev Ed)–Order 38 r 2 (2) Rules of Court (Cap 322, R 5, 2004 Rev Ed)

Chor Pee & Partners (“the Petitioner”) acted for the respondent in his action against a third party (“the Suit”) after his previous solicitors were discharged. The Suit was dismissed by the High Court, and the respondent's appeal to the Court of Appeal (“the Appeal”) was unsuccessful. The Petitioner subsequently filed Petition of Course No 3 of 2005 (“the Petition”) for leave to tax bills of costs in acting for the respondent in five matters.

The respondent applied for the Petition to be struck out on the grounds that: (a) the five tax invoices relied upon by the Petitioner were not valid bills of costs for the purposes of s 120 of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“the Act”); (b) it violated an alleged written agreement to cap legal fees at $275,000 as evidenced by an exchange of e-mails on 2 April 2003 between him and a senior partner of the Petitioner (“LCP”); and (c) it was not supported by an affidavit and therefore was not proved.

Held, granting the Petition and dismissing the respondent's application:

(1) The five tax invoices relied upon by the Petitioner were valid bills of costs for the purposes of s 120 (1) of the Act as more than one month but less than 12 months had lapsed since the invoices had been delivered to the respondent: at [40].

(2) Based on relevant case law and s 111 (2) of the Act, an agreement on legal fees had to be certain, contain the full terms of the bargain between a solicitor and his client, and be signed by the client. The e-mails on 2 April 2003 did not evidence any agreement at all. When LCP first e-mailed the respondent to confirm his proposed brief fee of $275,000, the respondent did not confirm it. Instead, he asked for a variation of LCP's proposal. LCP responded with a revised proposal which details were unknown because the attachment referred to in his e-mail was never sent. Since the respondent did not respond to LCP's latest e-mail, on basic contract principles alone, LCP's revised offer was never accepted by the respondent. Hence, no agreement came into effect on 2 April 2003: at [48], [51] and [52].

(3) The absence of any agreement on legal fees was reinforced by the respondent's own subsequent conduct. When LCP wrote to the respondent on 12 April 2004 confirming the agreed fee of $275,000 for the Suit and a further retainer of $75,000 for the Appeal, the respondent emphatically disagreed with the entire contents of the letter: at [53].

(4) In any event, any agreement on 2 April 2003 could only cover the Petitioner's fees for the Suit, because that was the only matter in existence at that time. The alleged agreement could not cover the fees for the Petitioner's future services in the other four matters, which arose after 2 April 2003. There was also no substance to the respondent's contention that LCP had agreed to do all future work for him on a pro bono basis: at [55].

(5) Order 38 r 2 (2) of the Rules of Court (Cap 322, R 5, 2004 Rev Ed), which set out the requirement for an affidavit to support, inter alia,any application begun by summons or motion, did not apply to a petition of course which was a creature of statute that appeared in s 120 (1) of the Act. In any case, LCP's first affidavit of 22 March 2005, wherein he deposed to the history behind the Petition, was sufficient: at [56] and [57].

Chamberlain v Boodle & King [1982] 1 WLR 1443; [1982] 3 All ER 188 (folld)

Shamsudin bin Embun v P T Seah & Co [1985-1986] SLR (R) 1108; [1986] SLR 510 (folld)

SM Integrated Transware Pte Ltd v Schenker Singapore (Pte) Ltd [2005] 2 SLR (R) 651; [2005] 2 SLR 651 (refd)

Bankruptcy Act (Cap 20, 2000 Rev Ed) s62

Civil Law Act (Cap 43, 1999 Rev Ed) s6 (d)

Electronic Transactions Act (Cap 88, 1999 Rev Ed) s 8

Legal Profession Act (Cap 217, 1970 Ed) ss 111, 113

Legal Profession Act (Cap 161, 2001 Rev Ed) ss 111, 120 (consd);s 112 (1)

Rules of Court (Cap 322, R 5, 2004 Rev Ed) O 38 r2 (2) (consd)

Andre Arul and Ling Leong Hui (Arul Chew & Partners) for the Petitioner

The respondent in person.

Lai Siu Chiu J

The background

1 M/s Chor Pee & Partners (“the Petitioner”) is a firm of solicitors practising in Singapore. Anthony Wee (“the respondent”) was a client of the Petitioner at the material time.

2 The respondent had sued UBS AG in July 2001 in Suit No 834 of 2001 (“the Suit”) for misrepresentation. His solicitors then were M/s Engelin Teh & Partners (“Engelin Teh”). Sometime in March 2003, when the Suit was part-heard, the respondent approached Lim Chor Pee (“LCP”), the senior partner of the Petitioner, and inquired whether LCP would agree to take over conduct of the Suit from Engelin Teh with whom the respondent had a dispute on fees. The respondent and LCP had known each other for many years. LCP, who is a very senior member of the Singapore Bar, agreed. I should add that before he ceased practice and/or retired some years ago, the respondent was also a very senior practitioner at the Singapore Bar.

3 LCP took over conduct of the trial in the Suit from Engelin Teh until its conclusion. The respondent's claim was dismissed by Kan Ting Chiu J on 8 December 2003. The respondent appealed against Kan J's judgment in Civil Appeal No 1 of 2004 (“the Appeal”). LCP also acted for him in the Appeal. The appellate court heard and dismissed the Appeal on 27 May 2004.

The applications

4 On 16 March 2005, the Petitioner filed Petition of Course No 3 of 2005 (“the Petition”) through another firm of solicitors. The Petitioner prayed for leave to tax bills of costs in acting for the respondent in the following five matters:

(a) the Suit;

(b) the Appeal;

(c) bill of costs of Thomas Sim (Engelin Teh LLC);

(d) complaint against Gerald Godfrey QC; and

(e) Bill of Costs No 112 of 2003 in Civil Appeal No 114 of 2002 relating to the (unsuccessful) application for the admission of Gerald Godfrey QC.

5 On 21 March 2005, the respondent applied by way of Summons in Chambers No 1480 of 2005 (“the respondent's application”) for the Petition to be struck out on the following grounds:

(a) it was not supported by an affidavit to verify the truth of its contents;

(b) it was a violation of a written agreement between the parties to cap the fees for legal services at $275,000, which fees the respondent had already paid; and

(c) the tax invoices upon which the Petitioner relied were not valid bills of costs for the purposes of s 120 of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“the Act”).

6 The Petition and the respondent's application came up for hearing before me on 28 March and 1 April 2005. I granted the Petition but dismissed the respondent's application. The respondent wrote in for further arguments on 7 April 2005. I did not accede to his request. The respondent has now filed a notice of appeal (in Civil Appeal No 43 of 2005) against my decision.

The facts

7 In his first affidavit filed on 22 March 2005, LCP deposed to the history behind the Petition. Since he was aware (from the respondent) that the respondent had a dispute with Engelin Teh on fees (which was on-going), LCP tried in April 2003 to get the respondent to agree in writing on the legal fees payable to the Petitioner. However, the respondent was not prepared to discuss the subject. As they were on friendly terms and there was an indication from the respondent at one stage that he might join the Petitioner as a partner or consultant, LCP did not push the issue of agreed fees too hard.

8 LCP acted for the respondent for 27 days of trial in the Suit, for which the Petitioner issued invoice no 99001 to the respondent in the amount of $367,915. For the Appeal, the Petitioner issued invoice no 99002 in the sum of $183,645. For work done in the taxation of the bill of costs of Thomas Sim, the Petitioner issued invoice no 99003 in the sum of $20,160. For work done in relation to the complaint against Gerald Godfrey QC, the petitioner billed the respondent $39,060 under invoice no 99004. For Bill of Costs No 112 of 2003 and Civil Appeal No 114 of 2002, the Petitioner billed the respondent $24,958.50. The first four invoices were hand-delivered to the respondent on 13 January 2005 whilst invoice no 99005 was delivered to him on 1 February 2005. The five invoices totalled $635,738.50 (LCP's computation of $634,780.50 is incorrect).

9 LCP added that for the Suit, the Petitioner had rendered interim bills to the respondent in respect of the retainer in the sum of $275,000 which sum had been paid by the respondent, along with disbursement bills. The Petitioner had also rendered interim bills (for disbursements incurred) to the respondent for the other four matters.

10 LCP further deposed that disputes arose between him and the respondent over loans made by the respondent to him and over the Petitioner's legal fees to the respondent. This...