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[2016] ZAGPPHC 521
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TH Restaurents (Pty) Limited v Picabiz 48 CC t/a Baby Cucina and Another (51502/2012) [2016] ZAGPPHC 521 (24 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA)
Case
no. 51502/2012
DATE:
24 JUNE 2016
IN THE MATTER
BETWEEN:
TH RESTAURANTS
(PTY)
LIMITED
.............................................................................
PLAINTIFF
And
PICABIZ 48 CC t/a
BABY
CUCINA
........................................................................
1st
DEFENDANT
MARKOULA
TSONGAS
........................................................................................
2ND
DEFENDANT
JUDGMENT
LEGODI J:
JUDGMENT HANDED
DOWN ON : 24 June 2016
[1] Firstly, the
court apologises for not having this matter disposed of as speedily
as possible. The delay is greatly regretted.
[2] This is a taxing
review application brought in chambers before a judge as provided for
in terms of the Uniform Rules. The issue
before me is whether the
Taxing Master erred in finding that a tacit fee agreement existed
between attorney and client in terms
of which an hourly rate of the
R2200.00 plus vat was agreed upon.
[3] An attorney, Mr
Allschwang who apparently represented Picab 12 48 cc t\a CIAO Baby
Cucina and Marroula Tongas sued by the plaintiff,
(TH Restaurants
(Pty) Ltd (formely TH Restaurant CC), submitted a bill of costs based
on an attorney and own client scale to Taxing
Master for taxation.
[4] The defendants
objected to items 1,8,27 and 60 which are stated as follows:
“1. 27.8.12
Consultation with the client and other franchisee discussing the
matter (AA) 1 hour 2200.00
2. 8.2.10.12
Consultation with counsel and client discussing the matter 1.5 hrs
3300.00
27. Consultation
with counsel and client, discussing the matter (SS) 3600.00.
60. Consultation
with client advising of the set down, discussing prospects of success
and explaining court procedure 1hr 2200.00”.
[5] The Taxing
Master having heard argument during taxation proceedings found for
attorneys Allschwang. Paragraph 2.3 of the defendants1
notice in
terms of Rule 48 (1), dealt with the finding inter alia, as follows:
“2.3 After
hearing arguments from both parties, the Taxing Master made the
following findings of fact, which the first and
second defendants
objected to on the grounds set out hereunder:
“2.3.1 That an
account\tax invoice rendered by attorney Allschwang to first and
second defendant’s afforded grounds
for construing a tacit
agreement by the first and second defendants’ to pay attorney
Allswang’s hourly rate of R2 200,00.
2.3.2. The Taxing
Master then proceeded to allow attorney Allswang an hourly fee of
R1491,00 and reduced items 1,8,27 and 60 accordingly,
pro rata.
2.3.2 The Taxing
Master then proceeded to allow attorney Allswang an hourly fee of R 1
491.00 and reduced item 1,8,27 and 60 accordingly.
Pro rata. This
constituted an application of the hourly consultation rate as per the
then prevailing tariff, plus 75%.
2.3.3 The first and
second defendants objected to the finding of fact regarding the
existence of a tacit agreement by the first
and second defendants to
pay attorney Allswagen’s hourly rate of R2 200.00 on the basis
that the evidence in the form of
the account\tax invoice did not
support such a finding.
2.3.4. The first and
second defendants objected to the application of the hourly fee rate
of R1 710.00 on the basis that it was
not consistent with, and was in
fact contradictory of, the Taxing Master’s finding of fact
(which was also objected to) that
there was a tacit agreement by the
first and second defendants to pay attorney Allswang’s hourly
rate of R2 200.00 and furthermore
that if (as also appeared to be the
case), the Taxing Master found the matter to be an extraordinary or
exceptional case strict
adherence to the tariff would be inequitable
and had increased the hourly sum permitted by the tariff, then this
finding of extraordinary
or exceptional; circumstances and resultant
inequity was not supported on the facts."
[6] The Taxing
Master in coming to her conclusion stated in her report in terms of
the Rule 48(5) as follows:
"6.3 The bill
presented for taxation was drawn on an hourly tariff of R2 200.00 per
hour for a senior attorney in Alan Allswang
and Associates Inc.
(herein after referred to as AA Attorneys) and R1800.00 per hour for
a junior Attorney in AA Attorneys.
6.4 It was confirmed
during the taxation that accounts were already issued to the client
i.e the first and second Defendants on
the hourly fee mentioned in
paragraph 4.3 above before any monies were ever deducted from the
first and second Defendants deposit
place in trust account ofAA
Attorneys.
6.5 In Ben Mcdonald
Inc and Another vs Rudolph and Another 1987 4
SA. it was heid that
*costs incurred with the express or impiied approval of the client
are presumed to have been reasonably incurred
and where the amount
has been agreed upon it is presumed reasonable.
6.6 Taking into
consideration that interim account were given to the client, before
debating the trust deposit the Taxing Master
ruled that there was an
implied approval \ agreement between the attorney and his clients
regarding the hourly tariff mentioned
in paragraph 4.3 above. ”
[7] Having made the
finding aforesaid, the Taxing Master then proceeded to determine the
reasonableness of the hourly fee as purportedly
agreed and came to
the conclusion that the hourly rate has to be reduced because the fee
agreed upon exceeded more than 150% of
the normal regulated fee.
[8] I have
difficulties with this finding in particular that there was an
agreement of hourly fee charge. Such an agreement without
more, could
not have been implied or inferred from the fact that 'accounts were
already issued to the clients i.e. the first and
second defendants on
hourly fee mentioned ... before any monies were ever deducted from
the first and second defendants deposit
place in trust account of AA
Attorneys. ”
[9] Reliance on the
case of Ben Macdonald Inc and Another v Rudolpf and Another that
‘'costs incurred with the express or
implied approval of the
client are presumed to have been reasonably incurred and where the
amount has been agreed upon , it is
presumed reasonable\ in my view,
was not justified.
[10] Firstly, the
Taxing Master found that the hourly rate of R2 200.00 ought to be
reduced as it exceeded more than 150% of the
normal regulated tariff,
thus, suggesting that the alleged agreed hourly fee was not
reasonable. That being so, an agreement could
not have been concluded
by express or implied approval of the defendants. Secondly, in the
absence of more information, it cannot
be assumed or implied that
‘there was an agreement based on the fact that the interim
accounts were given to client before
debiting the trust deposit.’
[11] Very often, you
find unsophisticated clients who would not have known that they could
challenge an attorney’s fee charge.
When an objection was not
raised at an earlier stage, and it is only raised during taxation, it
would not be reasonable to consider
the objection on the basis that
there is implied agreement. A prudent attorney, to avoid unnecessary
dispute, would mention a fee
amount upfront to client before a
deposit is made either as a fixed amount or as an hourly rate and
have it reduced into writing
especially the hourly rate.
[12] I say so,
because if there is a dispute, without evidence, it would be
difficult for the Taxing Master to determine where the
truth lies. In
the instant case, I am not satisfied that there were sufficient
factors placed before the Taxing Master, to make
a finding as she
did. The result of all this is that she should have determined the
items based on the normal regulated tariff.
[13] There was
another item that was objected to. This was item 42 (b) stated in the
bill of costs as follows:
“42. 31.10.12
Attending on receipt of counsel’s brief perusing account
drawing cheque and attending to pay advocate
MM Segai.
a. ...
b. Drafting
affidavit resisting summary judgment 15000.00?
[14] In paragraph
7.4 and 7.5 of her report, the Taxing Master found:
“7.4 Taking
into consideration the decision of Du Piessis J the above review, it
is clear that that the taxing master will
be committing an error in
principle if she interferes in the account of the counsel under these
circumstances -i.e an attorney
own client bill payable by the
attorneys own client.
7.5 The advocates
account was an actual disbursement incurred by the attorney on his
client’s behalf and if the client wish
to object to the
counsel’s account, that account needs to be referred to the
relevant authorities i.e the Bar Council to
have same assessed. The
abjection to the interference of the taxing master in reducing the
counsel’s account in the case
of Juice Boys (Pty) Ltd above was
upheld and on that basis, the Taxing Master in casu did not interfere
and\or drastically reduce
counsels account but referred same to the
Advocates Bar Council.”
[15] I am unable to
fault the Taxing Master in this regard and the objection in my view,
was correctly referred to the Bar Council
as stated by the Taxing
Master.
[16] Consequently an
order is hereby made as follows:
[16.1] The decision
of the Taxing Master dismissing the defendants’ objections to
items 1,8,27 and 60 is hereby set aside
and substituted as follows:
“The
objections to items 1,8,27 and 60 are hereby upheld.”
[16.1.1] The Taxing
Master is hereby directed to determine the bill on the aforesaid
items in accordance with the normal regulated
tariff.
[16.1.2] The Taxing
Master referral of item 42(b), of the bill of costs to the Advocates
Bar Council is hereby confirmed.
M F LEGODI
JUDGE OF THE HIGH
COURT