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Retired lawyer fails to recover $61k over email mishap
A Victorian lawyer who sought to recover $48,400 for legal services and $13,248 in interest plus the costs of the proceedings from a boutique firm has failed in his application due to an email mishap uncovered by the tribunal.
Naomi Neilson
Due to several small email mistakes that included mixing up the names of two of the firm’s principals, a retired Victorian solicitor has failed to convince the Victorian Civil and Administrative Tribunal (VCAT) to order a boutique firm pay him a total of $61,648 in addition to the costs of the entire legal proceedings.
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The solicitor contended that one of the firm’s principals was responsible for the legal fees as a result of contractually assuming joint and several liability for his fees. He alleged that the contract was formed with an email offer sent to the principal along with a scale of professional fees and expenses in August 2012.
However, the principal defended the claim on the basis that he never received the email in question and, as such – and despite the solicitor continuing to act for him and the firm – it did not amount to acceptance of the offer. VCAT ruled in the principal’s favour and dismissed the claim with costs reserved.
The solicitor originally relied on a version of the email offer, printed as a screenshot, and which contained various discrepancies pointed out by the defendants. It included that the only name shown as the recipient was a combination of one principal’s first name and the other principal’s surname despite it being suggested to be a reply to an earlier email sent from the respondent who had copied in the second principal.
In the original email, ordered by the tribunal on request of the defendant, the “to” line still records the recipient as a combination of both the principals’ names.
“Although [the solicitor’s] counsel may be correct to say that the courts (and the tribunal) are regularly presented with the evidence of email communications, and will often accept such evidence on its face, I consider that the various discrepancies with that email cast doubt on whether it was sent or received by the intended recipient,” VCAT determined in the judgement.
“Noting that the burden of proof rests with [the solicitor], the evidence is insufficient to satisfy me, on the balance of probabilities, that the email offer was sent to or, if sent, received by, [the principal].”
VCAT added that the difficulty of the solicitor is that he did not seek any confirmation from the principal that he had received the email offer and there is no subsequent correspondence from the principal that could suggest he had.
The tribunal also ruled that it was unnecessary to determine whether the invoice and remainders that the solicitor said he sent in 2013 and later years were ever received by the principal. Even if they were, the invoice and reminders – sent well after the completion of the work – “could not have rendered the solicitor liable for the fees, in absence of any contract under which he assumed that liability”.
“However, it is relevant to note that neither the invoice, nor the reminders, were addressed to the principal individually and did not reference the email offer by which it is now contended that the principal is jointly and severely liable for those fees,” VCAT said.
