Date: 19971023 Docket: 24137 Registry: Kelowna
IN THE SUPREME COURT OF BRITISH COLUMBIA
BERGE & COMPANY
REASONS FOR JUDGMENT
OF MASTER BISHOP
Counsel for the Solicitors: Clay B. Williams
Appearing on her own behalf: Alexis Qually
Dates and Place of Hearing: October 22, 1996, May 28, 1997 July 9 and 16, August 11, September 24 and October 22, 1997 Kelowna, B.C.
 This unfortunate matter has been before the courts on numerous occasions since the solicitors first applied to have their accounts assessed.
 The first decision in these proceedings was rendered on October 4, 1994, the hearing having taken place on September 26, 1994.
 At that original hearing, Ms. Qually took the position that Mr. Berge and she had an agreement with respect to Mr. Berge performing services for an amount of $10,000.00 plus court fees. After hearing evidence from her and from Mr. Fletcher who was called on her behalf, I found as a fact that the retainer agreement, Exhibit 1 in these proceedings, was the agreement with respect to fees and disbursements in this matter. I rejected the evidence that there was an agreement or an estimate given by Mr. Berge in the sum of $10,000.00 plus disbursements.
 At that hearing, no issue was taken with the services provided and it was agreed by Ms. Qually that such services were reasonable and necessary in the complicated and difficult matter which faced Mr. Berge and Ms. Qually. I assessed the two accounts presented with interest as at the date of October 4, 1994 plus costs in the amount of $350.00 at $30,812.52.
 That decision was subsequently appealed by Ms. Qually and on the 13th of May, 1996 Mr. Justice Drossos handed down his reasons for judgment in dismissing the appeal.
 At page 4 of his reasons, the learned justice states: In my view, the questions decided by Master Bishop, as registrar, in the present case were questions of fact. I cannot say in my review of his Reasons on the record that he was clearly wrong or that he ignored the evidence of what was submitted before him when he reached his conclusion that the governing agreement was the retainer agreement, dated March 27th, 1992, signed by Ms. Qually.
Accordingly, under those circumstances it is not appropriate for me as an appeal judge to interfere with the findings of fact of the registrar. In this respect, I would refer as well to Caisse Populaire de Maillardville Credit Union v Spraggs (3 November 1989), Doc. No. Vancouver CA009935 (B.C.C.A.).
Accordingly, Ms. Qually's appeal that the governing agreement is the alleged contingency agreement, which she submitted was verbal and that it was up to ten thousand dollars, does not apply. It would be the retainer agreement as found by the Master. However, I am not satisfied where the Master refers to "no issue was taken with the services provided or that such services were not reasonable and necessary in this complicated and difficult matter," that it goes as far as to deal with whether the quantums charged for those services were appropriate. I accept the statement that what services were rendered were properly rendered and were reasonable and necessary in the matter that was being dealt with. However, it does not appear that the accounts were then examined as to the appropriateness of the charges.
Accordingly, there will be a direction that the account as rendered will be taxed as to its appropriateness as to the charges actually made, that is, the quantum of the charges in relation to the services rendered, and as the retainer agreement may apply regarding the agreed fees and disbursements as between the solicitor and client in this matter.
 Mr. Williams then set the matter down commencing October 22, 1996 and the hearing was adjourned from time to time for the most part due to Ms. Qually's health. The matter was finally commenced on August 11, 1997 and continued on October 22, 1997.
 Mr. Berge gave his evidence and it may be fairly summarized as follows. The services performed and billed less a discount of approximately $1,500.00 in fees are those services as set out in Exhibit 5 in these proceedings being the print-out from Berge & Company's computer records of time spent on the file. Mr. Berge was cross-examined extensively by Ms. Qually regarding the services and this writer allowed her to proceed, finally stopping her approximately an hour and a half into the second hearing indicating to her that her cross- examination was not to her advantage.
 The Master, as Registrar, indicated to her that she had agreed in the original hearing that the services performed were performed and were reasonable and necessary, that position was not challenged on the appeal, and it was not open to her now to question whether or not the services were performed, were reasonable and/or necessary.
 I had indicated on a number of occasions, in fact on each occasion that Ms. Qually appeared in front of me and the matter proceeded, that the purpose of this inquiry pursuant to the Honourable Justice's reasons was to inquire as to whether or not the amounts billed in the statement of accounts were in accordance with the retainer agreement. In other words, articling students were billed at those rates, junior lawyers were billed at their applicable rates, and Mr. Berge billed according to his rate. The court's function now was merely an accounting one.
 That exercise had been performed by me already prior to issuing reasons in the original application but again, as directed by the Justice, who had misapprehended the procedure in the first hearing, I allowed Ms. Qually the opportunity to pursue the matter of the charges for the lawyer's time as billed.
 Ms. Qually indicated that she had retained counsel to review matters but that counsel was not available today and approximately an hour into the hearing as reconvened, requested an adjournment. I refused that request as the matter was set peremptory on Ms. Qually on July 16, 1997. Unfortunately at that time Ms. Qually was in the hospital or otherwise medically unavailable and I instructed her that the hearing was to conclude today and that there would be no further adjournments. I instructed her that she had ample time to arrange whatever evidence that she wished to present and arguments and present it to the court.
 Ms. Qually proceeded to call Mr. Fletcher and I quickly ascertained that the purpose of calling Mr. Fletcher was again to go back into the time and charges to dispute items in there not related to the amount of money charged per lawyer for each lawyer's time.
 Although Mr. Fletcher conceded that he had only browsed through the account and the computer record, he could offer no insight into the matters as charged.
 As Mr. Fletcher had the opportunity at the original hearing, and again by affidavit on the appeal, I declined to hear evidence as to whether or not certain services were performed as that matter had already been decided by this Master and by Mr. Justice Drossos on appeal.
 In the result, the solicitors' accounts are allowed at, December 4, 1992 - $3,314.29 with interest thereon in accordance with the terms of the retainer agreement, 18% per annum after 30 days.
 The solicitors are also entitled to the amount of $27,148.23 as of the 15th day of March, 1994 with interest thereon at the rate of 18% per annum after 30 days.
 The solicitors are also entitled to the costs of the previous proceedings in the amount of $350.00 with post- judgment interest on that amount from the 4th of October, 1994.
 Any interest charged pursuant to the terms of the retainer agreement will end on October 29, 1997 and post- judgment interest will accrue on all sums thereafter.
 I repeat and emphasize the earlier statement contained in my first reasons for judgment in this matter: While I have sympathy for her financial predicament and the difficulties created by the purchase of the home, those difficulties ought not to be placed in the lap of Mr. Berge who performed his services in a competent manner.
 The solicitors are entitled to their costs of the proceedings before me subsequent to the order of Mr. Justice Drossos along with reasonable disbursements. Those costs will be taxed on Scale 3 if the solicitors intend to pursue them or in an amount as agreed between the parties.
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