Case: Camila Pty Ltd v Actus Australia Pty Ltd (1994) 16 ATPR 41-367 
Outcome: referred to
Fifth, the alleged term is uncertain and almost certainly unenforceable. Liability had already been established in favour of the appellant and the other litigants by a judgment of the Supreme Court and only an assessment of damages remained: Camila Pty Ltd v Actus Australia Pty Ltd (1994) 16 ATPR 41-367. What did "success" mean in those circumstances? If such a term had been agreed I would have expected that the parties would have spelt out what was the minimum amount of damages such as to constitute a "success". Mr Kurland does not depose to having discussed or agreed what circumstances would constitute "success" in the context of the litigation. This is to be contrasted with his own success fee agreement to which I have referred. There Mr Kurland was to receive $50,000 plus 20% of all gross amounts (after first deducting the $50,000) paid by the respondent to the appellant and the other litigants as a result of the Supreme Court action. 41 Sixth, Mr Kurland has a history of demonstrated dishonesty. Some six years before the events in question here, on 30 October 1989, acting pursuant to the Legal Practitioner Act 1898 (NSW), the Solicitors' Statutory Committee made an order that no solicitor should, in connection with his practice as a solicitor, take into or retain in his employment or remunerate Mr Kurland except in accordance with permission in writing granted by the Law Society of New South Wales for such a period and subject to such conditions as the Law Society might think fit to specify in the permission. The Committee had considered serious allegations made against Mr Kurland concerning his employment as a Clerk in the employment of two separate firms of solicitors. The allegations concerned Mr Kurland holding himself out as being a legally qualified practising solicitor when he was not, as well as misappropriating cheques, misappropriating trust funds and failing to account for deposit monies under a contract. The Committee found that the allegations had been established. The dishonesty variously described involved significant sums of money. In addition the Committee took into account the fact that Mr Kurland had been convicted at Hornsby Local Court in February 1987 with a criminal offence of obtaining financial advantage by deception. There is no corroboration of Mr Kurland's evidence as to the success fee. Indeed, Mr Kurland's evidence as to the $50,000 success fee allegedly made a few weeks after the 21 September 1995 meeting is contradicted by the fact that no amendment was made to the Retainer Agreement to include this term. 42 Seventh, the defence filed by the appellant and Mr Paligorov in the District Court action denied that the respondent had been engaged to act for the appellant and the other litigants in the Supreme Court proceedings in writing and in particular denied that the respondent had been instructed pursuant to a Law Society costs agreement relating to hourly charges. This denial was contrary to the true position as the appellant must be taken to have known. Before the primary court, for the first time, the appellant said that the costs agreement was partly written and partly oral. It was admitted by the appellant that a Law Society of Western Australia's written Retainer Agreement was entered into on or about 1 October 1995 between himself and the other litigants, as clients, and the respondent as solicitors. The agreement provides for payment based on an hourly rate fee. It does not contain a "no win no fee" term or any term for a success fee of $50,000 or otherwise.