Astills Lawyers v Young

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Astills Lawyers v Young [2009] QMC 8

PARTIES:

ASTILLS LAWYERS

(plaintiff)

v

PETER RICHIE YOUNG

(defendant)

FILE NO/S:

M13716/08

DIVISION:

Magistrates Courts

PROCEEDING:

Application for summary judgement

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

10 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2009, 24 July 2009

MAGISTRATE:

Springer BL

ORDER:

Judgment is awarded in favour of the plaintiff against the defendant in the sum of $26201.84 plus the costs as agreed between the parties, being the costs of and incidental to the proceeding on the standard basis, other than for the last appearance, which is on an indemnity basis.  Failing agreement, the costs will be fixed by the magistrate pursuant to UCPR 683(2), on the filing by the plaintiff of a list of items claimed.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – FEES – claim for unpaid fees

Legal Profession Act 2007, s 319, s 734, s 735

Uniform Civil Procedure Rules 1999, r 292, r 683(2), r 710, r 738, r 742, r 743A, r 743B, r 743F, r 743G, r 743H, r 743I

COUNSEL:

Cooper (sol) for defendant

SOLICITORS:

Barry and Nilsson Solicitors for defendant

Background

1. The plaintiff in this matter seeks summary judgement against the defendant.  The nature of the claim involves unpaid solicitors’ fees for work apparently done in connection with a matrimonial dispute between the defendant and his spouse.  The amount claimed is $22,468.65 plus interest of $116.14 (said to be claimable pursuant to the Legal Profession Act 2007) and costs.

1. The matter came on before me on 8 May 2009.  On that date, the defendant appeared without a lawyer.  He was at the time represented by Barry & Nilsson.   I ruled that despite his application for an adjournment, given the period of notice about the application, and the large number of lawyers at Barry & Nilsson (as could be discerned from their website) that the application was to proceed on that date.

1. The application as it stood before on 8 May 2009 was for summary judgment or in the alternative an order to have the costs assessed. 

1. I took the view that a costs assessment should be ordered and I did so. I proceeded under Rule 743F of the Uniform Civil Procedure Rules (UCPR) and pending the assessment, I ordered that the application for summary judgment be adjourned to a date to be fixed and to be brought on before me on not less than 7 business days notice.

1. The matter came back before me on Friday, 24 July 2009.  On that day, the defendant was represented by Mr Cooper of Barry & Nilsson.  By that time, the costs had been assessed and a ‘Costs Assessor’s Certificate’ dated 3 June 2009 had been filed.  I shall return to the effect of that.  The total amount of the assessor’s certificate was $32,556.65.

1. The plaintiff’s counsel sought an order for summary judgment for the amount of the assessment less $5516.00 – it being common ground that that sum…