Boar v Ken
JUDGMENT OF THE COURT
Introduction
1. This appeal relates to claimed legal fees. The Appellant and Claimant, George Boar, was a registered legal practitioner until November 2019. He did a certain amount of legal work for the Respondent, Don Ken. His claim was based on an alleged “Cost Agreement” dated 17 February 2020 signed by Mr. Boar and Mr. Ken recording that Mr Ken would pay Mr. Boar VT$2,605,833.00 for professional services.
2. The Supreme Court decision appealed dismissed Mr. Boar’s claim and awarded costs of VT$300,000.00 to Mr. Ken.
Background
3. The Appellant, George Boar, was a was a registered legal practitioner until November 2019. The Respondent, Don Ken, a former member of parliament, retained Mr Boar as his lawyers in several court proceedings. Mr. Boar is seeking payment of the balance of his legal fees said to be owing in respect of those court proceedings. He does so relying on a written agreement with Mr Ken.
4. Between 2016 and 2018 Mr Boar acted for Mr Ken in three sets of proceedings. These proceedings had concluded by 2019. It was Mr Boar’s case set out in his sworn statements that he had submitted 6 invoices for work done for Mr. Ken totalling VT$3,165,833.00. Although he had earlier denied this, he confirmed that Mr Ken has so far paid VT$560,000 towards these invoices, leaving a balance of VT$2,605,833.00 still to pay. Mr Boar stated that his office always provided receipts when invoices were paid. He exhibited a judgment of the Supreme Court where he had acted for Mr. Ken and achieved a successful result.
5. Mr and Mrs Ken in their sworn statements in the trial said that they paid Mr Boar in full for his services. In February 2020 a final payment of VT$1,000,000.000 was paid to the Claimant. No receipt was issued.
6. The agreement that is the basis for the claim was signed on 17 February 2020, and is discussed later in this decision. Prior to the agreement on 25 November 2019 Mr Boar had been struck off from the Register of Legal Practitioners.
7. Mr Ken refused to pay. Both Mr Ken and his wife did not give evidence of because of ill health. No point appears to be taken in this hearing about them not giving evidence or being available for cross-examination, which was an issue in an earlier hearing of this claim which went to the Court of Appeal and is reported as Ken v Boar [1].
8. That decision arose from an appeal of an earlier Supreme Court judgement dated 17 July 2023 which was made in favour of the Mr. Boar for the amount of VT$2,605,833.00. The appeal was allowed and a rehearing ordered which led to the present decision under appeal. [2] In its 2023 decision the Court of Appeal had noted the anomalous words in the agreement. On the one hand it could have been a claim for amounts invoiced and not paid, on the other hand it could have been a contract claim based on the costs agreement, but if the latter, it was unclear what was agreed in the contract. [3]
9. The Court also noted that Mr. Ken had not been cross-examined and that Mr Boar had not given any notice of a wish to cross-examine under 11.6 subrule (3). The judgment in the Supreme Court had been based on the fact that Mr Ken’s evidence had not been tested by cross-examination and was therefore not accepted. This was found by the Court of Appeal in 2023 be an error and it was directed that there should be a rehearing. It was stated within the appeal judgement that a number of issues needed to be attended to, so the judge conducting the hearing would not be left in the difficult position of that of the primary Judge. It was stated that at the rehearing;
a) The [Appellant] should replead his claim, clarifying whether it is a contract claim based on the costs agreement or a debt claim based on the invoices;
b) The [Appellant] should provide details of the invoices for other matters on which he says he acted for the Appellant and to which he says the Appellant’s payments related;
c) If their evidence is to be challenged, the [Respondent] and his wife should be cross-examined.
10. As best as we can understand none of these matters has been attended to by Mr Boar. Although he did file an amended statement of claim on the 11 January 2024, that repleading does not clarify whether the claim was based on a contract based on the alleged costs agreement, or a debt claim based on the invoices. On the face of it, it remains a claim based on the costs agreement and is not a claim for work carried out and not paid for. Further, Mr Boar has not provided details of his invoices or other matters on which he acted for Mr. Ken, under which he says Mr Ken’s payments are related. Finally, he does not appear to have given notice that Mr Ken and his wife should be cross-examined.
11. The failure to carry out these express directions of the Court of Appeal is extraordinary. Mr Boar has had a second chance. The fact that he has not taken that second chance perhaps signifies the weakness of his basic claim which we explain below.
12. In their evidence Mr and Mrs Ken both confirmed that Mr Boar did act for them between 2015 and 2019. They said that Mr Ken made a total of 10 payments for professional services rendered to Mr Boar totalling the abovementioned VT$2,810,000. They recorded that there were no receipts issued for this amount of money. They said that the only outstanding debt owed to Mr Boar was an amount of VT$355,833.00. Mr Ken does not deny that he signed the agreement but says that he has paid Mr Boar in full for his services.
13. Both Mr. and Mrs. Ken make the point that at the time they signed the agreement and made the payment of VT$1,000,000.00 Mr. Boar did not mention that he had been struck off from the roll of practicing lawyers in 2019. They believed that the Claimant was still practicing at that time.
14. Mr. Ken has accepted that he owes the sum of VT$355,833 to Mr. Boar for legal services. We have considered whether it would be appropriate to order that this sum be paid. We have decided that we will not make this order given that the statement of claim does not mention this sum and we are not clear about the exact circumstances that have led to the making of this concession by Mr. Ken. Mr Boar did not raise that sum in his submissions in the appeal.
The alleged agreement
15. The agreement that was signed is written in the future tense and on its face it purports to be a retainer by Mr Ken of Mr Boar as his legal practitioner in relation to three pieces of litigation. It is written in the future tense and relates to payments in the future for services to be rendered in the future. It reads as follows:
TO: DON KEN of Port Vila…
FROM: GEORGE BOAR, Barristers, Solicitors and Notary Public trading as BOARLAW,
Barristers, Solicitors ...
SUBJECT:DON KEN V REPUBLIC; SUPREME COURT CIVIL CASE NO. 1227 OF 2016
DON KEN V EMILE LAPENMAL & ORS; MAGISTRATE COURT CIVIL CASE NO. 1875 OF 2018
DON KEN V REPUBLIC; CIVIL APPEAL CASE NO. 3176 OF 2018
Thank you for your instructions to act for you in these matters. We set out here below the terms and conditions of our engagement.
CHARGES AND EXPENSES (COSTS)
3. a. We will be charging you VT20,000 per hour for your Supreme Court Civil Case No. 1227
of 2016.
b. We will be charging you VT15,000 per hour for your Magistrate Court Civil Case No.
1875 of 2018.
c. We will be charging you VT20,000 per hour for your Court of Appeal Case No. 3176 of
2018.
TOTAL COSTS AND EXPENSES
4. Our total costs and expenses are per our invoices No. 4/18, No. 13/18, 40/18, 13/19, 81/19 and 011/20 amount to VT2,605,833.
…
ACCEPTANCE OF THIS OFFER
7. We will begin work, promptly when you notify your acceptance of this offer which you may do orally, or in writing, or by signing and delivering to us the attached duplicate.
The Supreme Court decision
16. The primary Judge referred to the previous case, Ken v Boar [4] and stated:
However, as the Court of Appeal pointed out in Ken v Boar at [5], the total of these six invoices was not VT2,605,833 but actually VT3,165,833 (the difference having been paid as a down payment):
The respondent had already issued to the appellant a total of six invoices totalling the amount of VT3,165,833 for payment but the agreement recorded that VT2,605,833 was the total amount charged for the three specified cases. The difference between these two sums was VT560,000 which the parties agree had been paid by the appellant as a down payment.
17. She went on to note that there was no mention in the amended claim that a VT$560,000.00 down payment had been made. This payment of VT$560,000.00 reduced the clam of VT$3,165,833.00 to VT$2,005,833.00.
18. At [32] the primary Judge noted that there was no term in the costs agreement stating that Mr. Ken agreed to pay Mr Boar VT$2,605,833.00. The Judge noted that Mr. Boar appeared to be resiling from his concession in the early Court of Appeal decision that he had received a VT$560,000.00 downpayment.
19. However, there was evidence before the primary Judge that Mr Boar accepted that this VT$560,000.00 had been paid. The Judge said at [40]:
20. In all three of his sworn statements, Mr Boar deposed that costs (I assume he means ‘fees’) payments are made to his office and his secretary issued receipts [Exhibits C1-C3]. But he has not adduced a single receipt into evidence. Accordingly, I prefer Mr Ken’s evidence that he made payments to Mr Boar but was never issued receipts.
21. The primary Judge went on to say at [43]:
“Mr Boar's sworn statement in reply to Exhibit D1 contains a general denial only. He does not address directly the allegations that he did not tell Mr Ken that he had been struck off or that he led Mr Ken to believe that he was still practising. As Mr Ken's evidence is in essence uncontested, I accept Mr Ken's evidence. I therefore find that Mr Boar did not tell Mr Ken that he had been struck off as a legal practitioner hence the Costs Agreement between them was entered into by fraud. This vitiates the Costs Agreement hence I declare it void ab initio and unenforceable.”
Discussion
No promise to pay the amount claimed.
22. The first obvious observation to make about this claim is that the contract that Mr Boar relies on is not, as the Supreme Court Judge observed, a contract for the payment of a sum of money. It is worded as a contract for future services for which a sum of money will be paid for that future work which is to be done. There is common ground that there was no further work done by Mr Boar for Mr Ken after the agreement was signed. Therefore, under the words of the agreement there is no contractual obligation to pay any sums of money by Mr Ken to Mr Boar that arises.
23. Mr Boar undoubtedly did do some work for Mr Ken. The agreement does record earlier invoices that had been rendered. However the alleged agreement says that “We will begin work, promptly when you notify your acceptance of this offer which you may do orally, or in writing, or by signing and delivering to us the attached duplicate”. There is no evidence that acceptance of the offer was ever notified. So on its face it is a contract for future services which was never accepted.
24. In the first Court of Appeal decision the agreement was construed as an agreement to pay for past services, but the point of whether there was any binding contract to pay money was not raised, and the issue of what the contract said was not considered. It is raised squarely in this appeal by the trial judge, and we are of the view that she was right to do so. As she said, “There is no provision anywhere in the Costs Agreement that Mr Ken agreed to pay Mr Boar VT2,605,833”.
25. We agree with that observation. The agreement is confused in its wording and contains no unambiguous term requiring Mr Ken to pay and money to Mr Ken. For this reason only we would dismiss the appeal.
All moneys owed to Mr Boar were paid
26. Mr Ken undoubtedly paid large sums of money for that Mr Boar’s legal work, he says in total VT$3,165,833.00. As set out above the primary Judge observed that Mr Boar had deposed that that “cost” payments (presumably fees) were made to Mr Boar’s office and his secretary issued receipts. She rejected that evidence. Despite his insistence that his office provided receipts, and despite producing large amounts of documents, Mr Boar did not produce any office receipts. The Primary Judge preferred Mr. Ken’s evidence that he made payments but that Mr Boar never issued receipts.
27. Therefore Mr Boar has not been able to challenge Mr Ken’s claim that he had paid all of Mr Boar’s fees, including a payment of $1,000,000 after the alleged agreement was signed. On the accepted evidence before the Court there are no moneys owed to Mr Boar for fees.
28. For this reason also Mr Boar’s claim cannot succeed. Mr Ken’s evidence that he had paid the full amount owed to Mr Boar was accepted by the judge. It was a finding of fact and we see no reason to disagree with it.
29. Therefore Mr Boar has failed to provide satisfactory evidence that he was owed money for past services or owed money under the contract. His claim must fail for this second reason.
Misrepresentation
30. The primary Judge placed particular weight in dismissing the claim on the fact that Mr. Boar did not tell Mr Ken that he had been struck off as a legal practitioner. She took the view that the costs agreement between them was entered into by fraud. This vitiated the costs agreement which she declared void ab initio and unenforceable.
31. If the contract was, in fact, for future services, we would agree with this finding. Plainly it was impossible for Mr. Boar to provide the services of defending Mr Ken in future litigation because he was no longer a legal practitioner. That would not necessarily have been an answer if there was a valid claim proven for past services rendered when Mr Boar was a practicing lawyer which had not been paid for. However, the primary Judge’s explicit finding was that Mr. Ken had indeed paid for those services.
32. However we do not endorse this element of the Judge’s reasoning. It is not clear to us that the omission by Mr Boar to disclose that he was struck off amounted to a material misrepresentation, as it is not clear that Mr Ken was anticipating that future law services would be rendered by Mr Boar. Mr Boar had been admitted to practice law when he had done the earlier legal work for Mr Ken so any representation about his future ability to practice law was irrelevant.
Absence of consideration
33. There was a further basis for refusing Mr Boar’s claim, namely an absence of consideration for the contractual promise that Mr Boar relies on. If the contract did relate to past legal services as he submitted to us, the agreement was for payment of an antecedent debt. It has been held that “…the mere existence of an antecedent debt does not constitute ‘value’ for a transfer since it amounts only to past consideration”.
34. Plainly if the agreement Mr Boar relies on related to antecedent debts as Mr Boar claims, there was no consideration for any promise to pay that sum. It was already owed. [5]
35. However a lack of consideration was not pleaded or argued below, and we did not hear considered argument on the point. Therefore we do not decide the case on that basis.
Conclusion
36. There was no basis for Mr. Boar’s claim, which rested on an anomalous agreement which was expressed to be for future services which were never rendered. It was not accepted as required on its terms and contained no promise to pay a sum of money. It must fail on that ground alone. In any event the Primary Judge accepted Mr Ken’s evidence that he had paid of the debt in full.
37. There is therefore no evidence establishing on the balance of probabilities that Mr Ken owes money to Mr Boar for his past legal services.
Costs
38. The Primary judge ordered costs against Mr Boar of VT300,000. She gave no reason for ordering a payment of this high amount.
39. This is a very high award of costs for a one- day hearing. However there had been effectively multiple hearings including the first round in the Supreme Court and Court of Appeal where costs were ordered to lie where they fell. Mr Ken was represented in the earlier round of litigation, and we consider that in all the circumstances it has not been shown that the order was wrong. We also dismiss that aspect of the appeal.
Result
40. This appeal is dismissed.
41. The appeal against the Supreme Court costs order is also dismissed.
42. There is no order for costs in this Court as there was no appearance for the Respondent.
DATED at Port Vila this 15th May 2026
BY THE COURT
Hon. Chief Justice Vincent Lunabek
[1] Boar v Ken [2023] VUCA 49.
[2] Boar v Ken [2023] VUCA 49.
[3] Boar v Ken [2023] VUCA 49 at [29].
[4] Boar v Ken [2023] VUCA 49.
[5] HG Beal (ed)Chitty on Contracts Vol 1 36th edition at [6-035]
[2] Boar v Ken [2023] VUCA 49.
[3] Boar v Ken [2023] VUCA 49 at [29].
[4] Boar v Ken [2023] VUCA 49.
[5] HG Beal (ed)Chitty on Contracts Vol 1 36th edition at [6-035]