PLEASE APPLY SECTIONS AND CASE LAW

Question 1 (40 marks) Ross has commenced proceedings in the District Court of NSW against James in relation to accounting services that Ross allegedly provided to James to assist him in dealing with the Australian Taxation Office. Ross has pleaded in his statement of claim that on 20 June 2019. he and James entered into a contract for Ross to provide Jam es with accounting services and advice. He has pleaded that the contract was partly oral. partly written and partly inferred from the conduct of the parties. James does not admit that a contract exists but both parties agree that Ross has provided some services. Ross claims that he is owed $120 000 for work performed. James denies that he owes this amount. James's defence says that if there is an agreement (which he does not admit), then it is a term of that agreement that the services would not cost more than $20,000 based on a representation to that effect made by Ross to James's solicitor. Peter. on about 19 June zote. Alternatively. he argues that Ross is estopped from charging more than $20,000. based on the same representation. At the hearing in the District Court on 8 June 2022: (a) Ross gives evidence-in-chief that he sent James an email which included the terms of the agreement. During this examination-in-chief he is shown a printout of an email from him to James which in the headline is dated 20 June 20i9. However. the footer has a different d l5 May 2022. Ross's counsel says that the footer date is the date that it was printed. The email says: "I propose to carry out the work as you instruct and will charge as needed. The rates that We have previously used apply. " Over obiection. Ross's counsel tenders the email. (b) Ross calls Sarah who has worked forthree years at a costs assessment firm. Five months ago she was promoted from assistant to assessor. In evidence- in-chief Sarah adopts her written report which says that. having reviewed the work conducted by Ross and the material in James's file. she is ofthe view that $120 000 is a reasonable amount to charge for this amount of work. She also says that in the case of some of the less clear items listed in Ross's bill the nature of the work done was explained to her by Ross's staff. In cross-examination she admits that in preparing her report. she utilised a calculation method which is not widely accepted by costs assessors in Australia. and which regularly derives a higher dollar figure that the calculation method normally used but she finds this method to be more accurate. She also admits that she had not seen Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW). prior to the morning of giving evidence. Over objection. Ross's counsel tenders Sarah's report. (c) Ross also seeks to tender: (i) An invoice addressed to James. setting out time spent on various tasks and amounts incurred. The amount of the invoice is $i20,000. 1|Page ilitli'lZClzi (ll) What appears to be a draft statement of James. in which he says that prior to engaging Ross he had an expectation that the work would easily exceed $20,000. This statement has a waterm ark which says "D RAFT / CONFIDENTIAL" and the document was found by Ross's friend David. who, in an attempt to help Ross. went to the offices of James's solicitors and looked through their recycling bins which were located outside the building. He found the draft statement in one of the bins. (d) James calls Oscar, who is ajunior solicitor. working for Peter. Oscar gives evidence that he had a conversation with Peter on 23 June 2019, during which Peter said "Ross told me to tell James that he Won't charge him more than 320.000. 1 think that Is a good deal. Tell James and get instructlons.\" Oscar then said that he relayed this information to James on the same day. In cross-examination. it is put to Oscar that Peter is hard of hearing. James's counsel objects. but the judge allows the question. Oscar answers. 'Yes, a little." (e) At the end of the Plaintiffs case counsel for Ross submits to the judge. that all that Ross (as the plaintiff) is required to do in a case like this. is to provide some acceptable evidence that establishes each ofthe elements of contract and that the basis on which the Court must decide the case is simply whether it is more likely than not that the contract existed. The iudge accepts this submission. Peter is unwell and does not give evidence. Neither does James. Ross is not cross-examined. Discuss the evidentiary issues that arise out ofthe above