Supreme Court New South Wales

• Medium Neutral Citation: Fu Chen v Stephen Paul Firth trading as Firths, The Compensation Lawyers [2013] NSWSC 1873
• Hearing dates: 14 August 2013, 14 October 2013, 29 October 2013, 28 November 2013
• Decision date: 17 December 2013
• Jurisdiction: Common Law
• Before: Price J

Decision

1. Firths' Notice of Motion seeking leave for an order permitting withdrawal of the offer of compromise is dismissed.

2. Judgment for Fu Chen the plaintiff, in the sum of two thousand dollars against Stephen Paul Firth the defendant trading as Firths, The Compensation Lawyers in proceedings case number 2012/391980.

3. Firths are to pay Fu Chen's costs of the motions on an indemnity basis. Such costs are restricted to a hearing of not more than one day.

• Catchwords: PROCEDURE- withdrawal of an offer of compromise - suspicion of fraud - costs -indemnity costs
• Legislation Cited: Civil Procedure Act 2005 s 98(1)(c); Uniform Civil Procedure Rules 2005 r 14.24, r 20.26, r 20.26(11), r 20.27(1), r 42.1, r 42.2
• Cases Cited: Cumper v Pothecary [1941] 2 KB 58; Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76; Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336; Ji v Firth [2013] NSWSC 186; Leichhardt Municipal Council v Green [2004] NSWCA 341; Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528; Maule v Liporoni (No 2) (2002) 122 LGERA 216; [2002] NSWLEC 140; Minister Administering the Crown Lands (Consolidation Act) and Western Lands Act v Tweed Byron Local Aboriginal Land Council (1990) 71 LGRA 201; Mohamed v Farah [2004] NSWSC 482; Rufo v Hosking (2004) 61 NSWLR 678; [2004] NSWCA 391; Scanruby Pty Ltd v Caltex Petroleum Pty Ltd [2001] NSWSC 411; Spring v Sydney South West Area Health Service [2009] NSWSC 420; WA Sherratt Ltd v John Bromley (Church Stretton) Ltd [1985] 1 QB 1038; Young v Combe (NSWSC, 29 July 1993, unreported)
• Category: Principal judgment
• Parties: Fu Chen (Plaintiff/Respondent); Stephen Paul Firth (Defendant/Applicant)
• Representation: Counsel: Mr H Marshall SC & Mr Adelstein (Plaintiff/Respondent); Mr R Goodridge (Defendant/Applicant); Solicitors: Mr K Nath – Diamond Conway Lawyers (Plaintiff/Respondent); Mr A McQuilkin – Firths - the Compensation Lawyers (Defendant/Applicant)
• File Number(s): 2012/391980

Judgment

1 HIS HONOUR: By a Notice of Motion filed 18 July 2013, Stephen Paul Firth trading as Firths the Compensation Lawyers ('Firths') seeks leave pursuant to Uniform Civil Procedure Rules 2005 ('UCPR') r 20.26(11) for an order permitting the withdrawal of an offer of compromise. Directions are sought for the listing of the proceedings for hearing. In a Notice of Motion filed on the same day, Fu Chen seeks judgment in the sum of $2,000.00. This was the amount that was offered by Firths as a compromise on 6 June 2013 and Mr Chen sought to accept on 3 July 2013.

2 In this age of costly litigation, it might seem remarkable that a compromise in such an amount that finalises a claim in this Court would be controversial, but it was Firths' position that they had been apprised of information that suggested that Mr Chen's claim was a fraud upon the Court and the impugned conduct was relevant to other proceedings. I emphasise that there is no suggestion that Mr Chen's present solicitors Diamond Conway Lawyers have conducted themselves in any way that is fraudulent or improper.

3 During the proceedings, Mr R Goodridge appeared for Firths and Mr H Marshall SC with Mr G J Adelstein for Mr Chen.

4 Before venturing further it is convenient to recount the background to the motions.

Background

5 Mr Chen, was injured in a two-vehicle motor accident on 22 October 2007. His injuries were caused by the negligence of the other driver. Mr Chen pursued his motor accident claim against the CTP insurer.

6 Mr Chen's claim came to Firths in late May 2010 when Hong Liu, a solicitor, was employed. Prior to that time, Ms Liu had been a partner in Wang & Associates. Firths entered into an arrangement with Mr Wang to protect him for his professional costs on the completion of the matter. Mr Chen's case was one of approximately 70 personal injury files which Ms Liu brought to Firths.

7 On 10 June 2010 the CTP insurer offered to settle the claim for $230,000.00 all inclusive.

8 On 25 June 2010, Mr Chen attended Firths' office whereupon he signed a costs agreement. Prior to executing this agreement, Firths obtained instructions from Mr Chen to accept the CTP offer. On the same day, Firths advised the CTP insurer that the offer had been accepted.

9 On 2 August 2010, Mr Chen received a letter from Firths advising that a cheque in the amount of $164,918.14 for the settlement of the claim had been received and Firths' memorandum of professional fees and disbursements totalling $13,250.00 inclusive of GST was enclosed. The fees and disbursements were paid and the matter appeared to have been completed.

10 By a statement of claim filed on 18 December 2012, Mr Chen commenced proceedings in this Court seeking declarations that Firths' costs agreement be set aside and for aggravated and exemplary damages. The statement of claim inter alia records Mr Chen's address as 90 Rawson Street Fairfield and his solicitors as being Diamond Conway Lawyers.

11 On 6 June 2013, Firths served on Mr Chen's solicitors an offer to compromise the claim in the following manner;

"Judgment for the plaintiff in the sum of $2,000.00 excluding legal costs."

The offer was to remain open for 28 days.

12 On 27 June 2013, Firths wrote to Mr Chen's solicitors stating:

"As a result of further information coming to hand, we advise that we intend to seek the Court's order that the Offer of Compromise be withdrawn pursuant to UCPR 20.26(11)."

13 By a letter dated 1 July 2013, Mr Chen's solicitors wrote to Firths requesting particulars of the "further information" and seeking an indication as to when the application would be made.

14 On 3 July 2013, Mr Chen's solicitors wrote to Firths accepting the offer of compromise in accordance with UCPR r 20.27(1).

Matters of evidence

15 During the proceedings, the affidavits of Stephen Firth and Andrew McQuilkin were read by Firths and the affidavits of Krishneel Nath and Mr Chen were read in Mr Chen's case. Mr Nath is a solicitor in the employ of Diamond Conway Lawyers. Mr McQuilkin, Mr Chen and Mr Nath gave oral evidence.

16 The genesis of Firths' withdrawal of the offer of compromise is found in the affidavit of Andrew McQuilkin sworn 18 July 2013. Mr McQuilkin, a solicitor employed by Firths, states at pars 4-6:

"On 24 June 2013, Mr Firth and I had a conference with Mr Wang. In the course of that conference this matter that Mr Fu Chen had brought against Mr Firth came up.

Mr Wang informed me, and I verily believe, that he is a personal friend of Mr Fu Chen's daughter, Linda, and meets with her regularly on a social basis.

On 27 June 2013 Mr Firth and I met with Mr Wang again, at which time he informed me, and I verily believe, that he had recently spoken to Ms Linda Chen who had informed him that her father, Mr Fu Chen, was not aware of these proceedings in the Supreme Court in his name against Mr Firth. Mr Wang informed me, and I verily believe, that Mr Chen said to her that as far as he was concerned, Mr Firth had achieved a good result for him and he had no complaint, either about the work performed by Mr Firth or the charges he had made."

17 Mr McQuilkin examined the affidavit verifying the statement of claim and noticed several irregularities, namely (par 15):

(1) the place where the affidavit was sworn had not been completed;

(2) the identification certificate had not been validly completed by ruling through the parts which did not apply;

(3) the purported identification document, the plaintiff's driver licence, did not specify the licence number; and

(4) in the space provided for the signature of the witness, the name appeared to be printed rather than signed.

18 Similar irregularities were noted in the statements of claim of Hong Yu Cai ('Cai'), Shu Xin Zhang ('Zhang'), and Da Guo Yang ('Yang') commencing proceedings against Firths. Cai, Zhang and Yang had been former clients of Firths and had been introduced to the firm by Ms Liu.

19 In an affidavit sworn 9 August 2013, Mr McQuilkin annexed a report from Michelle Novotny, a Forensic Document and Handwriting Examiner, dated 7 August 2013. Ms Novotny undertook a comparison of the questioned signatures and handwritings in the witness name Jackie Chang and specimen signatures and handwritings attributed to Jackie Chang. Ms Novotny concluded that it was unlikely that the writer of the handwriting and signatures in the name of Jackie Chang reproduced in the affidavits of Cai and Mr Chen were written in the original form by the writer of the specimen writings (as opposed to signatures) attributed to Jackie Chang.

20 In cross-examination, Mr McQuilkin accepted that Mr Chen's signature on the statement of claim bore a remarkable resemblance to Mr Chen's signatures that he had on the file when Firths was acting for him. He said (at T15/8/13 T8 L36-40):

"...Mr Wang also informed me of a course of conduct that was occurring in which he said that Ms Hong Liu and Mr Lee would approach Chinese- speaking clients, place documents before them and say, 'could you help me? Could you sign this?' My concern was whether Mr Chen knew the proceedings were, in fact, brought." (italics added)

21 Mr McQuilkin gave evidence that he suspected that Mr Chen may have signed the statement of claim, "but in circumstances where he was not aware, if he did, indeed, affix his signature to it of the contents of any of the documents upon which he was signing": T15/8/13 T15 L42-45. Mr McQuilkin said that he was not casting aspersions about Mr Marshall's instructing solicitors. On this topic, his evidence included the following (T15/8/13 T12 L35-50):

"Q. Your beef, if I could use the term in the vernacular, is with certain Chinese personnel who you believe are duping my instructing solicitors?

A. It goes further than that.

Q. How far does it go?

A. It goes to my employer, Stephen Firth, brought proceedings against the former partners of Keddies, being Russell Keddie, Tony Barakat and Scott Roulstone, and as a result of those proceedings each of those former solicitors are now no longer able to practise and as a result of those proceedings these proceedings were commenced and many others like it were commenced by Mr Barakat against Mr Firth for what I believe to be revenge and those involved in assisting that were Hong Liu and Mr Shu Sheng Lee, who formerly worked at Keddies, and Ms Liu formerly worked at Firths. Each of these matters, in particular Mr Chen's matter, Ms Liu had acted for Mr Chen at at least two other firms prior to being at Firths."

22 Mr McQuilkin agreed that his evidence raised very serious allegations about Ms Liu, a solicitor, which amounted to "a suspicion of fraud": T15/8/13 T13 L11.

23 In re-examination, Mr McQuilkin explained that Mr Wang had given him some insight into the Chinese community and the way they perceive things. Mr Wang had told him "that they would do anything to help somebody they know and would be prepared to sign anything without even knowing what was contained in them." T15/8/13 T21 L28-32.

24 In an affidavit sworn 25 July 2013, Mr Chen relevantly states (ex 1 pars 3-7 and 9):

"...

3. I communicate with my solicitors, Diamond Conway Lawyers, through an interpreter.

Commencement of proceedings

4. In about November 2012, I instructed my solicitors to commence these proceedings.

5. Exhibited to me at the time of swearing this affidavit and marked "FC-1" is a copy of the Statement of Claim filed (sic) these proceedings. On the second last page of the Statement of Claim, there is a short affidavit by me. I recall signing this affidavit once it was interpreted to me by Jackie Chang and recognise my signature where the signature of the deponent is required.

Offer of Compromise

6. On or about 6 June 2013, I was informed by my solicitors that

the Defendant had made an offer of compromise in the terms that there be judgment entered in my favour in the sum of $2,000.00 ("Offer of Compromise"). Now shown to me and interpreted is a copy of the Offer of Compromise. Annexed and marked "FC-2" is a copy of the Offer of Compromise.

7. On 3 July 2013, I instructed my solicitors to accept the Offer of Compromise.

...

9. I confirm that I wish to accept the Offer of Compromise."

25 A letter of instructions dated 2 July 2012 from Mr Chen to Barton Lawyers instructing them to commence proceedings against Firths was tendered (ex 2).

26 During his oral testimony on 28 November 2013, Mr Chen gave evidence that he had not discussed his cases with Linda Chen, his daughter. His daughter was married and had "her own affairs to look after and she doesn't need me to discuss things about her and I don't need her to discuss things about myself" T28/11/13 T28 L38-40. He said there was only one occasion when his wife and daughter accompanied him to Firths because "[he] was afraid of miscalculation at the settlement" T28/11/13 T29 L9-11.

27 Mr Chen was shown two photographs (ex E) of what was said to be Ms Liu's firm at Ashfield, but Mr Chen's evidence was that he never paid attention to these things. Mr Chen said that Ms Liu had been his solicitor for the last six years but he had had other solicitors. Ms Liu had worked for three solicitors' firms but he was unable to remember which firm she was working for when he commenced the proceedings. He said that he had left the address at 90 Rawson Road Fairfield two years ago. He agreed that would have been on or about 31 October 2011. When cross-examined on the address in the statement of claim, he said that "[he] would always use the address on [his] ... driver's licence": T28/11/13 T30 L22-23. The address on his driver's licence was "never the address in Fairfield, Rawson Street" T28/11/13 T30 L27-28.

Argument

28 Mr Goodridge submitted that Mr Chen said that his solicitor is Ms Liu and he had attended an office in Ashfield. He contended that a sufficient suspicion was raised in Firths' mind to withdraw the offer of compromise. He argued that "[w]hat was put in [Firths'] mind [was] that ... the current solicitors were not retained but merely [Ms] Liu was an agent provocateur going around organising these and other proceedings": T28/11/13 T31 L15-18. Mr Goodridge submitted that the Court's discretion to allow an offer of compromise to be withdrawn, would be exercised where after a party makes an offer, "some matter has occurred to place sufficient doubt in that party's mind that the understanding and belief they had at the time of making the offer of compromise was incorrect or had changed": T28/11/13 T32 L15-19.

29 Mr Goodridge contended that Mr Wang's conversation with Mr McQuilkin set him upon a line of inquiry comparing signatures and apparent irregularities. Firths' belief was that Ms Liu, possibly in connection with Mr Lee, "merely put documents before certain members of the Chinese community...[who did] not understand the nature or effect of the documents they are signing": T28/11/13 T32 L47-50. Mr Goodridge pointed to Mr Chen's address in the statement of claim and argued the evidence was that Mr Chen did not appreciate that he had engaged Diamond Conway. He contended that there was a reasonable basis for Firths' suspicion. Mr Goodridge drew the Court's attention to Spring v Sydney South West Area Health Service [2009] NSWSC 420.

30 Mr Marshall argued that Spring did not stand for the proposition that leave ought to be granted where some matter arises to cast sufficient doubt in a party's mind. He submitted that Firths' attempt to enliven the Court's discretion by reference to mere suspicion was insufficient. There was, Mr Marshall contended, no evidence of fraud and if there had been, Firths were obliged to amend their defence to allege fraud. Furthermore, if there had been a real concern about the attestation or verification of the affidavit to the statement of claim, Firths should have availed themselves of the procedure under UCPR r 14.24.

Decision

31 The offer of compromise was made in accordance with UCPR r 20.26. On 3 July 2013, the offer was accepted pursuant to UCPR r 20.27(1).

32 The Court has a discretion to grant leave to withdraw an offer of compromise. UCPR r 20.26(11) provides:

"Unless the court orders otherwise, an offer may not be withdrawn during the period of acceptance for the offer."

33 Adams J's ex tempore judgment in Spring does not provide authority for Mr Goodridge's proposition that the discretion under UCPR r 20.26(11) should be exercised when subsequent to an offer of compromise, some matter has occurred to place sufficient doubt in the offeror's mind that the understanding and belief at the time of the offer was incorrect or had changed. Spring was a medical negligence case that involved the possibility that the plaintiff might receive damages on the basis of the loss of chance. At the time the offer was made, the decision of the Court of Appeal in Rufo v Hosking (2004) 61 NSWLR 678; [2004] NSWCA 391 to the effect that damages for loss of chance were available in a medical negligence case was of significance to the parties. However, on the day the defendant's offer of compromise was made, the Court of Appeal handed down the judgment in Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 which held the judgment in Rufo v Hosking was wrongly decided. It is evident from Spring that a recent judicial decision, or a change in law due to retrospective legislation, may provide a basis for the exercise of the discretion.

34 Other than a change in law, mistake in formulating the offer which should have been apparent to the opposite party or fraud impacting upon the original offer are considerations that might allow an offer of compromise to be withdrawn: Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528; Mohamed v Farah [2004] NSWSC 482. Relevantly to the present application, the discovery of additional evidence after an offer has been made, which puts a wholly different complexion on the case has been held to be a proper reason for the withdrawal of an offer: Cumper v Pothecary [1941] 2 KB 58 69-70; WA Sherratt Ltd v John Bromley (Church Stretton) Ltd [1985] 1 QB 1038 1046-1047; Scanruby Pty Ltd v Caltex Petroleum Pty Ltd [2001] NSWSC 411 [12]. As was said by Hodgson J (as his Honour then was) in Young v Combe (NSWSC, 29 July 1993 unreported) at 9:

"...apart from matters such as fraud or mistake affecting the original offer, the Court should consider whether there is a sufficient change in circumstances since the offer was made to make it just that the defendant should have an opportunity to withdraw it."

35 In Young, the defendant established that there was significant new evidence since the offer was made which Hodgson J held was a sufficient change in circumstances making it just for leave to be granted.

36 Matters that are relevant to the exercise of the discretion include the desirability of offers of compromise being adhered to: Spring at [9] and the overriding purpose of the Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

37 It is well established that an acceptance of an offer of compromise during its currency, does not prevent the discretion under UCPR r 20.26(11) being exercised prior to a judgment being entered: Spring at [1]; Scanruby at [18].

38 The principal basis of Firths' application to withdraw the offer of compromise was Mr McQuilkin's concern that Mr Chen was not aware of the contents of the statement of claim and did not know that the proceedings had been commenced against Firths, even though he may have signed the affidavit verifying the allegations of fact in that pleading. Mr McQuilkin's concern was founded on the conversation that he had with Mr Wang who told him of the information he had received from Mr Chen's daughter that her father was not aware of the proceedings against Firths. This was hearsay upon hearsay. Neither Mr Wang nor Linda Chen swore an affidavit in the proceedings or were called to give evidence. The apparent irregularities in the witnessing of the statement of claim and Mr Chen's address do little to enhance Firths' case as there was no evidence that Mr Chen did not sign the document.

39 It is clear from Mr Chen's affidavit that he was aware of the contents of the statement of claim before the proceedings against Firths were commenced and of the offer of compromise, which he wishes to accept. None of these matters nor the letter of instructions (ex 2) that Mr Chen gave to Barton Lawyers were challenged in cross-examination by Mr Goodridge. The evidence does not demonstrate that Mr Chen was unaware of the proceedings.

40 Mr McQuilkin's concern amounts to no more than a suspicion of fraud. There is simply no evidence which supports Mr McQuilkin's belief that Diamond Conway was being duped or that there was some conspiracy against Mr Firth for bringing proceedings against the former partners of Keddies. In this case, the evidence does not establish, at the time of the withdrawal of the offer or at the hearing, a sufficient change in circumstances since the offer was made to make it just for the offer of compromise to be withdrawn.

41 In the present circumstances, the overriding purpose of the Civil Procedure Act and the dictates of justice are best served by the rejection of the application to seek leave to withdraw and the finalisation of the proceedings against Firths for the sum of $2,000.00.

Costs

42 Mr Marshall submitted that Firths should be ordered to pay Mr Chen's costs on an indemnity basis and that costs should include the retention of senior counsel. He pointed out that Firths have known since 25 July 2013 that Mr Chen deposed to being aware of the proceedings, that he instructed the proceedings be commenced and was aware of the offer of compromise which he wished to accept. Notwithstanding the contents of Mr Chen's affidavit, Mr Marshall said that Firths had persisted with the theory of a "conspiracy" involving the Chinese community, Ms Liu and others for the ulterior purpose of embarrassing Mr Firth. In Mr Marshall's submission, Firths' conduct should be "severely censored" by the Court (WS par 28).

43 Mr Goodridge submitted that the letter of instructions to Mr Barakat had only been adduced during the hearing on 27 November and the non-attendance of Mr Chen on 15 August raised many questions. The estimates of counsel had been that the hearing of the motions would take two to three hours and the blame for the growth of the proceedings lay "within [Mr Chen's] camp" (T28/11/13 T42 L27). Mr Goodridge argued "for those reasons, regardless of the outcome, [Firths] seeks costs": T28/11/13 T42 L28-29. Mr Goodridge further contended that if Firths were unsuccessful, the Court should follow Campbell J's judgment in Ji v Firth [2013] NSWSC 186 that each party bear his own costs. Before moving on from that submission, I should mention that I found that case to be of little assistance as Campbell J's decision was tailored to the facts of the case.

44 Although costs are in the discretion of the Court, the general rule is that costs follow the event and unless the Court orders otherwise, costs will be assessed on the ordinary basis: UCPR r 42.1- 42.2. However, the Court has the power to award costs on an indemnity basis: s 98(1)(c) Civil Procedure Act 2005. I recognise that caution must be exercised when making an order for indemnity costs: Leichhardt Municipal Council v Green [2004] NSWCA 341.

45 It is fundamental to the ethical practice of litigation that lawyers do not raise allegations of fraud without an appropriate evidentiary foundation: Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336; Minister Administering the Crown Lands (Consolidation Act) and Western Lands Act v Tweed Byron Local Aboriginal Land Council (1990) 71 LGRA 201. Court cases are not to be used to convey allegations of mala fides based on speculation or suspicion. The assertions of improper conduct in this case had the ability to tarnish the reputation of Ms Liu, a solicitor, and others who were said to be involved in a conspiracy against Mr Firth. As Lloyd J observed in Maule v Liporoni (No 2) (2002) 122 LGERA 216; [2002] NSWLEC 140 at 229:

"In my opinion, the making of a serious allegation of mala fides without evidence to support it is equivalent to making allegations of fraud without any basis, amounts to an abuse of process and is deserving of the severest condemnation."

46 Mr McQuilkin's assertions of mala fides were made on suspicion and without evidence. True it is that Mr Chen's non-attendance at Court on 15 August 2013 may have enhanced the suspicion, but when his absence was subsequently explained, Firths should have discontinued the application. Firths had been previously served with Mr Chen's affidavit (ex 1) which was not challenged in cross-examination. It ought to have been obvious to Firths that their application had little prospect of success. In my opinion, the order for costs against Firths should be on an indemnity basis.

47 Firths, however, are not responsible for prolonging the proceedings. When the notices of motion first came before me on 15 August 2013, it was anticipated that the hearing would be completed well within the day. Mr Chen's non-attendance necessitated an adjournment and the subsequent adjournment resulted from Mr Chen's travel arrangements. In my view, the dictates of justice require that the order for indemnity costs be confined to a hearing of one day. This costs order embraces the hearings on 14 August 2013, 29 October 2013 and 28 November 2013.

48 Mr Marshall invited me to include in the costs order the retention of senior counsel. I do not propose to do so as the proceedings were not such that necessitated that senior counsel be briefed. Mr Adelstein, who appeared for Mr Chen on 29 October 2013 demonstrated that the plaintiff could be well-represented by junior counsel.

49 Mr Marshall submitted that the costs order on 14 October 2013 should be vacated. He argued "[t]he fact that [Mr Chen] was not contacted by anyone is not to the point. It may well be the case that Ms Hong Liu did not contact him, but that is no reason why Mr Chen should be made to bear the costs of that day. Nor should any criticism be levied at his solicitors." (WS par 31).

50 The hearing on 14 October 2013 involved Mr Chen's application to vacate the hearing that had been fixed for 29 October 2013. This date had been set after consultation with counsel on 15 August 2013. However, Mr Chen had made arrangements to travel to China on 17 October 2013 and intended to return to Australia on 22 November 2013. Firths opposed the application to vacate, but asked if the application was successful that the date be maintained for subpoenas to be called upon, which was opposed by Mr Chen. In the result, the hearing date was vacated but the date was preserved for the return of subpoenas. Neither party was totally successful on the motion.

51 It became apparent, however, that there had been no communication with Mr Chen on 15 August. If enquiries had been made of Mr Chen before the hearing date was set, his travel arrangements would have been ascertained. Mr Chen gave evidence that his phone "was always on ...that day, and nobody contacted [him]": T 14/10/13 T8 L 25-26. Nevertheless, a client bears some responsibility for the conduct of his litigation and it was open to Mr Chen to contact his solicitors, through Ms Liu, to ascertain what was occurring. A client is not obliged to remain mute. Simply stated, the sole reason that Firths were obliged to attend the hearing on 14 October 2013 was the lack of communication between Mr Chen and his solicitors. I do not propose to vacate the order for costs made in favour of Firths. Such costs are to be assessed on the ordinary basis.

Orders

52 I make the following orders:

(1) Firths' Notice of Motion seeking leave for an order permitting withdrawal of the offer of compromise is dismissed.

(2) Judgment for Fu Chen the plaintiff, in the sum of two thousand dollars against Stephen Paul Firth the defendant trading as Firths, The Compensation Lawyers in proceedings case number 2012/391980.

(3) Firths are to pay Fu Chen's costs of the motions on an indemnity basis. Such costs are restricted to a hearing of not more than one day.

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Decision last updated: 19 September 2014