Date: 19971023
Docket: 24137
Registry: Kelowna
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
BERGE & COMPANY
SOLICITORS
AND:
ALEXIS QUALLY
CLIENT
REASONS FOR JUDGMENT
OF MASTER BISHOP
(AS REGISTRAR)
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.
[1] This unfortunate matter has been before the courts on
numerous occasions since the solicitors first applied to have
their accounts assessed.
[2] The first decision in these proceedings was rendered
on October 4, 1994, the hearing having taken place on September
26, 1994.
[3] 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.
[4] 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.
[5] 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.
[6] 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.
[7] 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.
[8] 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.
[9] 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.
[10] 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.
[11] 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.
[12] 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.
[13] 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.
[14] 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.
[15] 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.
[16] 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.
[17] 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.
[18] 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.
[19] 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.
[20] 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.
[21] 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.
"Master Bishop"
Master Bishop
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