Soo v Fisher Cartwright Berriman [2011] NSWCA 33 (3 March 2011)

Last Updated: 25 May 2011

Court of Appeal New South Wales

Case Title:	Soo v Fisher Cartwright Berriman
Medium Neutral Citation:	[2011] NSWCA 33
Hearing Date(s):	17 November 2010
Decision Date:	03 March 2011
Jurisdiction:
Before:	Hodgson JA, Young JA, Handley AJA
Decision:	(1) Cross appeal allowed. (2) Appeal dismissed. (3) Judgment for the plaintiff for $65,184.00 set aside, and in lieu thereof enter judgment for the defendants in the action with costs. (4) The appellant is to pay the respondents' and cross-appellants' costs of the appeal and cross appeal. (5) The appellant is to have a certificate under the Suitors Fund Act in respect of the costs of the cross-appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROFESSIONAL NEGLIGENCE - solicitor - finding that solicitor failed to pass on counter-offer - challenge to fact finding - no question of principle.
Legislation Cited:	Legal Profession Act 1987
Cases Cited:	Fox v Percy [2003] HCA 22, 214 CLR 118
Texts Cited:
Category:	Principal judgment
Parties:	Brendon Robert Soo - Appellant/Cross Respondent William K Fisher, Berriman Consulting Pty Ltd and Greyridge Holdings Pty Ltd - Respondents/Cross Appellants
Representation
- Counsel:	Counsel: D Higgs SC and B Shields - Appellant G Curtin SC - Respondents
- Solicitors:	Solicitors: Barwick Legal - Appellant Middletons Lawyers - Respondents
File number(s):	CA 2009/40401
Decision Under Appeal
- Court / Tribunal:	Supreme Court
- Before:	Smart AJ
- Date of Decision:	29 July 2009
- Citation:	[2009] NSWSC 665
- Court File Number(s)	SC 20058/06
Publication Restriction:

HEADNOTE
The Court reversed the trial Judge's finding of professional negligence based on the solicitor's failure to inform the plaintiff of a counter offer of settlement because it was inconsistent with "contemporary materials objectively established facts, and the apparent logic of events ": Fox v Percy [2003] HCA 22, 214 CLR at [31].

ORDERS
(1) Cross appeal allowed.
(2) Appeal dismissed.
(3) Judgment for the plaintiff for $65,184.00 set aside, and in lieu thereof enter judgment for the defendants in the action with costs.
(4) The appellant is to pay the respondents' and cross-appellants' costs of the appeal and cross appeal.
(5) The appellant is to have a certificate under the Suitors Fund Act in respect of the costs of the cross-appeal.

Judgment

1. HODGSON JA : I agree with Handley AJA.
   
2. YOUNG JA : I agree with Handley AJA.
   
3. HANDLEY AJA :
   

General

This is an appeal from the judgment of Smart AJ in favour of the plaintiff in a professional negligence case against a multi-disciplinary partnership (the Firm) permitted by s 48G of the Legal Profession Act 1987.

4. The second amended statement of claim pleaded, in various alternatives, what was in substance a single breach of duty, the failure by Ms Cleary, a senior associate in the Firm (the solicitor), to tell the plaintiff about a counter offer by the solicitors for his former employer, Integration Management Pty Limited, (the employer).
   
5. As the Judge said [2] the case turned on events between 10.00 and 15.30 on 24 September 2004. At 10.49, the solicitor telephoned the solicitor for the employer at Corrs Chambers Westgarth (Corrs) and made an offer of settlement. She confirmed this in a fax sent at 11.51. At 12.06 Corrs faxed a counter offer requiring acceptance by 16.00.
   
6. The Judge found that the solicitor did not tell the plaintiff about the counter offer. He found, understandably, that this was a breach of professional duty, and awarded the plaintiff $65,184 including pre-judgment interest. The plaintiff appealed seeking a substantially higher award and the Firm cross-appealed challenging the finding that the solicitor had not told the plaintiff about the counter offer. The cross-appeal will be considered first.
   

Background

7. On 15 January 2004 the plaintiff accepted employment with the employer as a sales representative selling software and support services to the telecommunications industry. His letter of engagement attached a confidentiality agreement, conditions of employment, and commission plan. There was no post-termination restraint on his employment by a competitor.
   
8. The plaintiff was constructively dismissed on 17 September 2004. On 20 September one of the employer's competitors, Intec Telecom Systems (Australia) Pty Limited (Intec), approached the plaintiff. It offered him a three months consultancy with the intention of subsequently offering him full time employment. On 21 September the plaintiff retained the Firm to advise him about his rights against the employer. He had a conference that day with Mr Berriman, a non-legal partner, practising as an industrial consultant, and the solicitor.
   
9. On 22 September the solicitor sent a without prejudice letter of demand to the employer (3/846) threatening proceedings and offering to settle the plaintiff's claims for $59,200 for salary in lieu of notice, $13,625.20 for out of pocket work expenses, and $100,000 for loss of future income, humiliation and distress. A response was required by 12.00 on Friday 24 September.
   
10. On 23 September the solicitor received a call from a solicitor at Corrs, acting for the employer, who said she was seeking instructions (1/224(27)). When this was reported to the plaintiff he told the solicitor he was not prepared to negotiate (1/224(28)). Later that day she received a letter from Corrs (3/854) which sought an extension of the offer to 1 October.
    
11. The solicitor discussed this request with the plaintiff (1/225-6). The solicitor at Corrs then telephoned the solicitor and told her that in principle the employer would like to settle the matter but only with an undertaking by the plaintiff not to accept employment in the industry for 3 months (1/228(32)). The solicitor reported this to the plaintiff who told her that he was not prepared to negotiate because he wanted to work for Intec who would not want him in 3 months time (1/229(34)).
    
12. The plaintiff arranged to meet Mr Godwin, the managing director of the employer, in an attempt to reach a settlement. They met at the plaintiff's home at 18.00. The plaintiff offered to settle his claims for four months' salary in lieu of notice, $100,000 commission on a pending deal, and reimbursement of his work expenses. Although Mr Godwin could not recall this (black 238) the Judge found that the plaintiff said he would agree not to work for Intec for two months [18].
    
13. Mr Godwin said this was a fair offer but he would need to obtain the approval of his board and his solicitors would be in touch with the Firm in the morning [19].
    
14. At 20.14 that evening the plaintiff sent the following email to the solicitor [21]:
    

"[Godwin] sighted my [Intec] engagement contract this evening at 6.00 pm and was satisfied of their authenticity.

He stated that he was going to convene a board meeting tomorrow to have the funds approved and will then advise his lawyer to correspond with you.

I will not concede or negotiate on our requested settlement.

I would like the funds to be placed in escrow with you.

A deed of release preventing me from working for a named competitor for 2 months will be acceptable (beyond 2 months for my industry could it make it difficult for me to re-enter).

Let's see how much we can achieve tomorrow."

Events on 24 September

15. At 10.00 the next day (1/28) the plaintiff received this text message from Mr Godwin [33]:
    

"I have agreed letter and deed with lawyers after visit to you. Was finalised this morning and was being sent to your lawyers this morning about 9.40."

16. The plaintiff had a 13.30 minute telephone conversation with the solicitor at 10.34, as shown in Telstra's records ([65], 3/1213). He told her about his meeting with Mr Godwin but did not mention his willingness to accept a two months' restraint. He did not tell her about the text message from Mr Godwin (1/28(36), black 44P), and it was not suggested to the solicitor in cross-examination that he did. If the plaintiff was still prepared to settle his claims on the basis summarised in his email one would have expected him to tell the solicitor about Godwin's text message.
    
17. At 10.49 (3/1210), the solicitor telephoned the solicitor at Corrs and told her that the plaintiff was not prepared to negotiate further, and as there was no restraint of trade clause he was not prepared to sign an undertaking [30]. She confirmed this in a faxed letter sent at 11.51. The time of 11.20 recorded on the fax was incorrect as the clock on the Firm's fax machine was 30 minutes slow [67]. The correct times of the faxes sent by the Firm are shown in the records from Telstra (3/1257). The letter (3/858) said that the plaintiff "is not prepared to negotiate further" and "is not prepared to sign any undertaking".
    
18. In the meantime at 11.21 the solicitor had an 8.15 minute conversation with the plaintiff. The evidence does not disclose its content.
    
19. The next event of significance is the counter offer from Corrs received by the Firm at 12.06 (not 11.36 as recorded by its fax machine).
    
20. The fax (3/865), after the usual puffery, offered payment either of commission on the pending deal subject to the customer completing the contract, or $100,000 whichever was the greater, $13,625.20 as reimbursement for his work expenses, and $59,000, subject to tax, in lieu of 4 months' notice. The counter offer was conditional on the parties signing the deed of release sent with the fax. This would have bound the plaintiff to a three months post-employment restraint. The letter and draft deed comprised approximately nine pages of A4.
    
21. The solicitor said [37] - [38] that she discussed the counter offer with Mr Berriman. He confirmed this and said that he told her to tell the plaintiff. Before telephoning the plaintiff the solicitor made the following note (3/879):
    

"(1) take offer

Deed - 3 mnth restraint

named competitors

- won't work for comp or

(2) work for In - take deals

- commence proceedings"

22. According to Telstra's records (3/1211) the solicitor telephoned the plaintiff at 12.35 and they had a 4.05 minute conversation.
    
23. The solicitor then added to her note:
    

"Reject - can't wait 3 mnths."

24. Mr Berriman said that the solicitor told him [46] that she had rung the plaintiff who would not agree to payment of the $100,000 being conditional on the employer securing the deal, or to a 3 months' restraint. The Judge appears to have accepted Mr Berriman's evidence.
    
25. The solicitor said she then rang Corrs (1/237(51)) and told her opposite number that the plaintiff rejected the employer's offer. She made a file note (3/912) in these terms, so far as relevant:
    

"T/a Meg Wood 24/9

client not prepared to accept offer of settlement - wont negotiate further ..."

This call cannot be found in Telstra's records of outward calls by the Firm (3/1210 - 1212, 1256 - 7), it is not included in the file notes at Corrs (2/393 - 432), and is not identified in the solicitor's time cost records (red 70). However, Mr Godwin said (1/301(13)) that the solicitor at Corrs told him that the plaintiff had rejected the employer's offer. It seems (black 19-20) that there was no objection to this evidence. The solicitor at Corrs may have followed up her counter offer by telephoning the solicitor.

26. The plaintiff said that he was not told about the counter offer on the 24 th [58] and first learned about it on 24 June 2005 during a conference with Mr Dawson of counsel in relation to proceedings in the Industrial Relations Commission. Mr Dawson said that the plaintiff appeared surprised when told about the counter offer. He was not required for cross-examination.
    
27. The stark issue therefore is whether or not the solicitor told the plaintiff about the counter offer at 12.35.
    
28. The plaintiff's attitude to a settlement with the employer which involved a period out of the industry fluctuated during 23 and 24 September. The solicitor questioned the plaintiff about a change in his attitude on the afternoon of 23 September as the Judge recorded [7] - [10]. The plaintiff responded by saying he was under a lot of stress and pressure "and ... he did not really know what he was doing because things were not particularly good at home."
    
29. The Judge found [11] that the plaintiff was then in a very stressed state, that he was in turmoil, and was expressing conflicting views about any settlement with the employer that would keep him out of the industry.
    
30. He had told Mr Godwin on the evening of 23 September that he was prepared to stay out of the industry for two months.
    
31. The solicitor said that on the morning of 24 September she attempted to clarify her instructions about negotiations with the employer and the plaintiff's willingness to accept a post-termination restraint. There was no note of the conversation when she did this other than the note [20] above.
    
32. One of the difficulties noted by the Judge was that the solicitor did not make her time cost entries on 23 and 24 September in chronological order.
    
33. However the fact is that the solicitor's conversation with Corrs at 10.49 and her confirmatory fax at 11.51 sought a settlement on the plaintiff's terms without negotiation and without any employment restraint.
    
34. The conversation with the plaintiff at 10.34 preceded the conversation with Corrs at 10.49 and the further conversation with the plaintiff at 11.21 preceded the confirmatory fax at 11.51.
    
35. The Judge did not accept the solicitor's evidence about her instructions during the morning of 24 September [32].
    
36. The solicitor's evidence about her conversation with the plaintiff at 12.35 goes well beyond her brief file note in [24] above, but she confirmed the statement in her note that the plaintiff instructed her to reject the employer's offer.
    
37. The solicitor agreed that she should have faxed copies of the offer and draft deed to the plaintiff. Moreover, she did not record the time spent in reading the offer and the draft deed [45].
    
38. At 13.37, as recorded by their fax machine, Corrs faxed to the solicitor a letter of demand and a draft undertaking which the employer required the plaintiff to sign (1/327 - 340). The letter threatened injunction proceedings unless the plaintiff undertook to comply with his obligations under his contract of employment including his obligation not to disclose or use any of the employer's confidential information and not to entice or attempt to entice away any of its existing customers or potential ones negotiating with it.
    
39. At 13.55 the solicitor phoned the plaintiff about this letter and the undertaking, and had a 5.44 minute conversation with him. At 14.10 (corrected time) she faxed the documents to the plaintiff (3/895, [71(b)]).
    
40. The plaintiff rang the solicitor at 14.21 for a 36 second conversation and again at 15.35 for a 9.43 minute conversation.
    
41. The solicitor then spoke to Corrs [63] and at 16.18 (corrected time) (3/920) she sent a fax to Corrs (3/918) stating that the plaintiff would not sign the undertaking and that he had not breached and did not intend to breach his obligations under the contract of employment.
    
42. At 16.51 Corrs informed the solicitor by fax (3/924) that injunction proceedings had been commenced and they were approaching the Duty Registrar for an order for short service of a summons for Monday 27 September.
    

The Judge's findings

43. The Judge gave extended reasons [69] - [87] for finding that the solicitor did not tell the plaintiff about the employer's counter offer.
    
44. He held [69] that the 4.05 minute telephone call to the plaintiff at 12.35 would not have allowed the solicitor to deal adequately with the counter offer. He noted that the Firm's time and cost records contained [83] this entry:
    

"24/9/2004 Telephone attendance on client regarding offer of settlement 0:30".

45. At [71] he referred to a typed file note of the solicitor's conversation with the plaintiff at 12.35 which she prepared at Mr Berriman's request after the plaintiff commenced these proceedings. The Judge held [72] - [73] that it was not reliable and that was correct.
    
46. He referred at [74] to the Firm's response on 16 November 2005 to the letter of demand from the plaintiff's new solicitors. The Firm relied on the timing of fax messages now known to be 30 minutes out: [16] above. They also relied on the solicitor's costs records, and said she had a 30 minute conversation with the plaintiff about the counter offer.
    
47. The Telstra records establish that there was no such call that day, and the Judge found that the time cost records were not accurate [75]. He was correct.
    
48. The Judge considered [76] - [79] other matters raised in the Firm's response to the letter of demand. I agree, for the reasons he gave, that these matters do not support the solicitor's claim that she told the plaintiff about the counter offer.
    
49. At [80] the Judge noted the Firm's submission that the solicitor told the plaintiff about the offer during her telephone call at 12.35 and after further consideration of the time cost records he held [86] that she did not tell the plaintiff about the employer's counter offer. He said:
    

"I think [the solicitor] intended to both telephone [the plaintiff] about the offer of settlement in Corrs' first letter and send a copy of that letter to him by fax and did neither. She later convinced herself that she had spoken to him. She could not believe that she had failed to do so. She believed that she knew what his reaction would be and this was fixed in her mind. She has substituted her expectation for reality. That was the impression she left with me."

50. The Judge added [92]:
    

"[The solicitor] has convinced herself that she spoke to [the plaintiff] about that letter. She intended to do so. She told [Mr Berriman] that she had done so. She thought she knew what [the plaintiff] wanted. She anticipated his response which she believed she knew. She had not appreciated that his instructions had modified and his pressing need for money. From what he had told her she should have appreciated these matters. I think that the matter got away from her. ... By 6.00 pm on 23 September ... [the plaintiff] had realised that if there was going to be a settlement he had to give some ground. By that stage he wanted and needed a substantial sum of money fairly quickly and was prepared to agree to a limited restraint for two months. [The solicitor] retained very fixed views as to what the plaintiff wanted even after she spoke to him on the morning of 24 September ... she was unable to explain why there was no file note of her earlier conversation with [the plaintiff]. In my opinion she misunderstood the position of [the plaintiff]."

51. In [94] the Judge reviewed and rejected a number of factual submissions made on behalf of the Firm. His Honour was correct, and the submissions were not maintained in this Court.
    
52. In [97] the Judge made findings about the plaintiff's credit and the reliability of the solicitor's evidence:
    

"I have not overlooked that [the plaintiff's] credit was poor and that he had engaged in much dishonourable conduct, including telling lies and blackmail. I have approached his evidence with much caution. I thought that [the solicitor] became confused on 24 September ... and that she did not truly know what she had done and not done ... . She treated what should have been done as done. I do not regard her recollection as accurate. She had a fixed view of her instructions and [the plaintiff's] wishes. She left me with the impression that she was unable to adjust to the changing wishes and instructions of [the plaintiff] and his need for money and the factors which drove that need."

Submissions of cross-appellant and analysis

53. Mr Curtin SC for the cross-appellant did not challenge the Judge's findings about the credibility and reliability of the witnesses but submitted that the objective and undisputed facts established on the probabilities that the solicitor told the plaintiff about the counter offer during her 4.05 minute telephone conversation at 12.35.
    
54. The analysis which follows is based, to a substantial degree, but not completely, on Mr Curtin's submissions.
    
55. In view of the findings about the principal witnesses and the time cost records this Court, in accordance with Fox v Percy [2003] HCA 22, 214 CLR 118 [31], must "reason to ... conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events."
    
56. The chronology of the critical objective facts is as follows:
    

(1) At 20.14 on the 23 rd the plaintiff sent the solicitor an email recording his settlement discussions with Mr Godwin that evening and his willingness to accept two months' restraint.

(2) At 10.00 on the 24 th the plaintiff received a text message from Mr Godwin stating that the employer agreed to the settlement discussed the night before and that documents would be sent to his solicitor.

(3) "In the morning" (we do not know when) the plaintiff telephoned Mr Pollitt of Intec and told him that a settlement with the employer "might mean that I won't be able to work for you for two months." Mr Pollitt said "That's bad news. We wanted you to start as soon as possible." (1/28-9)

(4) At 10.34 the plaintiff had a 13.30 minute conversation with the solicitor without mentioning his willingness to accept a two months' restraint or the text message from Mr Godwin.

(5) At 10.49 the solicitor telephoned Corrs stating that the plaintiff was not prepared to negotiate, and would not accept any restraint.

(6) At 11.21 the solicitor had a further 8.15 minute conversation with the plaintiff of unknown content.

(7) At 11.51 the solicitor faxed a letter to Corrs confirming the plaintiff's attitude as stated in her telephone call at 10.49.

(8) At 12.06 the solicitor received the counter offer from Corrs.

(9) The solicitor spoke to Mr Berriman about the counter offer.

(10) The solicitor prepared a file note.

(11) At 12.35 the solicitor telephoned the plaintiff and they had a 4.05 minute conversation.

(12) The solicitor added to her file note.

(13) The solicitor spoke to Mr Berriman about her conversation with the plaintiff.

(14) The solicitor did not fax the counter offer to the plaintiff.

57. The solicitor was not cross-examined to suggest that her original file note set out at [22] above was a fabrication.
    
58. It was suggested to the solicitor that this file note dealt with her 5.44 minute conversation with the plaintiff at 13.55 but she did not accept this (black 179-186). The file note cannot apply to a conversation about a demand, not an offer, from the employer that the plaintiff sign an unlimited undertaking without compensation.
    
59. The Judge did not make a positive finding about the subject matter of the 4.05 minute telephone conversation but should have done so.
    
60. The plaintiff's offer had been communicated to Corrs orally at 10.49 and by fax by 11.51. There had to be some new reason for the solicitor to telephone the plaintiff at 12.35.
    
61. The plaintiff suggested in cross-examination (black 69-70, cf 203) that the call at 12.35 may have been about the letter the solicitor emailed to the Group Legal Adviser at Intec at 16.41 on 24 September (3/921-2), which she had sent the plaintiff in draft form at 14.57 (3/913). It appears that the plaintiff, in reliance on this draft, sent an email to Mr Pollitt at Intec's Sydney office at 15.414 (3/1111) saying "All systems are go". The solicitor's time cost records claimed 20 minutes for "drafting" her letter to Intec [83]. It cannot have taken any longer. There is no reason for thinking that she had any need to discuss this draft at 12.35 and did so. The Judge did not make that finding.
    
62. The most probable explanation is that the call at 12.35 was prompted by a recent event, and the only one disclosed by the evidence is the receipt of the counter offer at 12.06. The intervening time is accounted for by the need to read the offer and discuss it with Mr Berriman.
    
63. If the Judge had recognised that he had to make a finding about the subject matter of this conversation he may have been driven to the conclusion that it was the counter offer from Corrs, as the solicitor's contemporary file note would suggest.
    
64. It was common ground that the solicitor told the plaintiff at 13.55 about the second letter from Corrs demanding that he sign an undertaking: above [40]. The plaintiff reacted by sending a text message to Mr Godwin at 14.20 (1/94):
    

"Please care to forward all further communications to Fisher Cartwright Berriman Lawyers."

65. If the solicitor had misunderstood the plaintiff's instructions this was an opportunity to revive the negotiations of the night before.
    
66. The Judge found [69] that:
    

"... a telephone call of four minutes and five seconds would not have been sufficient time to deal with [the counter offer] given the people and issues involved. There were many issues to canvass and neither [the plaintiff] ... nor the solicitor would have dealt with it briefly from my observations of them. Some of the issues were contentious. The Deed of Release required careful explanation and [the plaintiff] would have insisted on this."

67. This is circular reasoning. If the plaintiff was prepared to entertain a 2 months' restraint he would have wanted explanation and advice of the kind described by the Judge. If he was not interested he needed no such explanation.
    
68. The objective and undisputed facts include the plaintiff's conversation with Pollitt that morning, his failure to tell the solicitor about Godwin's text message at 10.34, 11.21, and 12.35, and the solicitor's intimation to Corrs by telephone and fax, presumptively on instructions, that he was not prepared to negotiate.
    
69. The objective facts also include the plaintiff's failure to refer to his negotiations with Godwin in his conversations with the solicitor at 14.21 and 15.35 and in his text message to Godwin at 14.10.
    
70. These facts strongly suggest that the plaintiff changed his mind on 24 September, perhaps after his conversation with Mr Pollitt in the morning, and was no longer prepared to accept a 2 months' restraint.
    
71. The Judge's circular reasoning [69] cannot support his finding that the solicitor did not tell the plaintiff about the counter offer.
    
72. The solicitor should have told the plaintiff about the counter offer and had no reason for not doing so.
    
73. The evidence of Mr Berriman about these conversation was admitted on a limited basis, and not as evidence of the truth of what the solicitor said (black 21, T 75-6). However his instruction to the solicitor to tell the plaintiff was real evidence of a lawful command which the solicitor was bound to obey.
    
74. Her hearsay account of receiving the counter offer was part of the background but added nothing. Her hearsay account of her conversation with the plaintiff, admitted on a limited basis, could only be relevant as a prior consistent statement.
    
75. The Judge's finding, based on circular reasoning, that a 4.05 minute conversation was not long enough to deal properly with the counter offer was critical to his ultimate finding that it was not passed on. His failure to determine the subject matter of that conversation was also a significant error and these errors require this Court to intervene.
    
76. It is not necessary to order a new trial because the Judge's findings about the credit of the principal witnesses are not affected and this Court can decide the critical question, as the Judge attempted to, on the objective facts and the probabilities.
    
77. The probabilities support a finding that the plaintiff was told about the counter offer. The solicitor had a clear duty to pass it on reinforced by Mr Berriman's instruction.
    
78. The solicitor had ample opportunity to clarify her instructions during her two lengthy telephone conversations with the plaintiff at 10.34 and 11.21 before sending her fax to Corrs at 11.51.
    
79. If the plaintiff had been interested in the employer's offer, foreshadowed by Mr Godwin's text message, he would have told the solicitor to wait until she received that offer. The plaintiff did not allege that the offer sent to Corrs at 11.51 was sent contrary to his instructions.
    
80. The solicitor's understanding of her instructions is confirmed by the plaintiff's failure to tell her about the text message received from Mr Godwin, and by the fact that he made no attempt to revive his negotiations with Godwin either directly or through the solicitor.
    
81. The solicitor must have had some reason for her 4.05 conversation with the plaintiff at 12.35. The counter offer received 30 minutes earlier was the only new development and the intervening time was accounted for: above [63]. The evidence discloses no other plausible reason for this phone call.
    
82. In my judgment the objective and undisputed facts, the probabilities, and the apparent logic of events compel a finding by this Court that the plaintiff was told about the counter offer during the conversation at 12.35 and decided to reject it.
    
83. The appeal should therefore be dismissed and the cross-appeal allowed. The following orders should be made:
    

(1) Cross appeal allowed.

(2) Appeal dismissed.

(3) Judgment for the plaintiff for $65,184.00 set aside, and in lieu thereof enter judgment for the defendants in the action with costs.

(4) The appellant is to pay the respondents' and cross-appellants' costs of the appeal and cross appeal.

(5) The appellant is to have a certificate under the Suitors Fund Act in respect of the costs of the cross-appeal.

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