Baker Johnson v Jorgensen

[2002] QDC 205

DISTRICT COURT OF QUEENSLAND

CITATION:

Baker Johnson v Jorgensen [2002] QDC 205

PARTIES:

BAKER JOHNSON LAWYERS
  Appellant/Plaintiff

V

NARELLE KAREN JORGENSEN
  Respondent/Defendant

FILE NO/S:

Appeal No D1000/02
M17128/00

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court Brisbane

DELIVERED ON:

26 July 2002

DELIVERED AT:

Brisbane

HEARING DATE:

27 June 2002

JUDGE:

McGill DCJ

ORDER:

Appeal dismissed with costs

CATCHWORDS:

LEGAL PRACTITIONERS – Solicitor and Client Costs – retainer on “no win no fee” basis – what constitutes “win” – solicitor not entitled to recover excess of costs over amount paid on settlement

WORDS AND PHRASES – “No win no fee” – solicitor retained – settlement “all up” for less than account – whether balance recoverable

COUNSEL:

P W Hackett for the appellant

SOLICITORS:

Baker Johnson for the appellant
Murphy Schmidt for the respondent

1. This is an appeal from a decision of a magistrate who on 13 February 2002 dismissed the appellant’s claim against the respondent.  The appellant is a firm of solicitors, and the respondent had retained the appellant to act in connection with a claim for damages in the District Court at Brisbane for personal injuries suffered in the course of her employment.  That claim was ultimately settled on terms that the respondent would be paid $10,000 inclusive of costs but after deducting the amount refundable in respect of workers compensation: Ex 2.  The $10,000 was paid to the appellant’s trust account; of that sum $334.40 was refunded to the Health Insurance Commission on behalf of the respondent, and the balance was applied by the appellant towards the payment of the amount payable to it by the respondent for professional costs and outlays.  The total amount claimed by the appellant for costs and outlays was $18,616.65: Ex 1.[1]  Accordingly the appellant sued the respondent for the balance, $8,951.05.

   [1]The quantum of the appellant’s account was not in issue.

1. The magistrate found that the retainer of the appellant was on a “no win, no fee” basis, and rejected the respondent’s evidence that that was qualified by the further expression “no cost to me”.  The appellant had argued before the magistrate that, because the respondent’s claim had been settled for a payment of $10,000, this meant that she had won and was therefore required to pay the normal professional costs as outlined in the itemised account  Ex 1.  That argument was rejected by the magistrate, who described it as “misleading and inequitable and bordering on unconscionable”.  The magistrate regarded it as ludicrous to suggest that the retainer entitled the solicitors to the full costs if, for example, the client recovered a nominal amount only, and found that that was not the intention of the parties to the agreement.  The appellant’s claim was therefore dismissed; although the magistrate did not say so expressly, this must have been on the basis that, on the true instruction of the retainer, the appellant was not entitled to recover from the respondent more than the respondent in fact recovered by the settlement.

1. The appellant’s argument before me…