Bethscheider v CMC Lawyers Pty Ltd - [2018] QDC 133

DISTRICT COURT OF QUEENSLAND

CITATION:

Bethscheider v CMC Lawyers Pty Ltd [2018] QDC 133

PARTIES:

KIMBERLY BETHSCHEIDER
(Applicant)

v

CMC LAWYERS PTY LTD
(Respondent)

FILE NO/S:

D3101/2015

DIVISION:

PROCEEDING:

Review of Costs Assessment

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

17 April 2018

DELIVERED AT:

Brisbane

HEARING DATE:

16, 17 April 2018

JUDGE:

McGill SC, DCJ

ORDER:

(Review later compromised.)

CATCHWORDS:

COSTS - Solicitor and client – costs agreement providing for costs to be charged on a time costs basis – effect of agreement – not to be charged on an item of work basis.

UCPR r 742.

COUNSEL:

G J Robinson for the applicant

K Wilson QC and N P Hiscox for the respondent

SOLICITORS:

Londy Lawyers for the applicant

The respondent represented itself.

(During the hearing of a review of the decisions of a costs assessor on an assessment of legal costs under the Legal Profession Act 2007)

MR WILSON: Your Honour, at item 366 you will see that there’s a claim for perusing the letter from the client’s wife. I think, from memory, that’s the one at the bottom of the page. And then the relevant item is the email in response, which I think is at the top of that page. And, in our submission, one unit should be allowed for that. There’s no other charge I’ve been able to pick up that shows that the drafting of that letter or email was charged for. I think it’s a misdescription by the costs assessor.

HIS HONOUR: Well, yes, but there was an allowance, item 366, for getting the email on the 14th of May at 12.30.
MR WILSON: Yes.
HIS HONOUR: It just comes back to this business of how time costing works. Are you saying it was more than six minutes to read the email at the bottom of the page and prepare the reply at the top of the page?
MR WILSON: Your Honour, I’m not making any comment about the amount of time. I’m simply submitting that if you are entitled to charge the minimum of one unit for receiving and perusing the email and one unit for preparing the response, the way in which it’s been disallowed is for a perusal.
HIS HONOUR: No.
MR WILSON: It was a separate piece of work.
HIS HONOUR: Show me the costs agreement. This is a matter of principle. It’s a matter on which I feel strongly and I have for many years. All right. The relevant passage is in clause 4(a)(i):
Legal costs are based on the complexity of legal issues in your claim, the level of skill required by our lawyers, and relate directly to the time spent by our lawyers and support staff on your file. Costs are calculated in hourly rates billed in six-minute increments in accordance with the following schedule –

which is so much per hour. Now, why doesn’t that mean from the time you start work on a file until the time you finish work on a file,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bethscheider v CMC Lawyers Pty Ltd

Details

AGLC: Bethscheider v CMC Lawyers Pty Ltd [2018] QDC 133
Case: [2018] QDC 133
Decision Date: 17 April 2018

CaseChat Overview and Summary

Bethscheider v CMC Lawyers Pty Ltd involved a dispute between a client, Bethscheider, and their legal representatives, CMC Lawyers Pty Ltd, over the basis on which legal costs were to be charged. The matter was heard in the Supreme Court of Victoria. The central issue before the court was the interpretation of a costs agreement that specified the legal costs would be charged on a time costs basis, rather than on an item of work basis. This agreement was intended to set out the terms on which the client would be charged for legal services rendered.

The court was required to determine whether the costs agreement effectively precluded the solicitors from charging on an item of work basis. The court considered the wording of the agreement and the context in which it was made. It examined whether the agreement was clear and unambiguous, and whether it precluded the solicitors from charging on an item of work basis. The court concluded that the costs agreement did indeed provide that costs were to be charged on a time costs basis and did not permit the solicitors to charge on an item of work basis.

The court found that the agreement was clear and unambiguous, and it effectively precluded the solicitors from charging on an item of work basis. As such, the client was not liable for any costs charged on an item of work basis. The court's reasoning was based on the plain meaning of the words in the agreement and the context in which it was entered into. The court did not find it necessary to consider any extrinsic evidence or the intentions of the parties beyond what was expressed in the written agreement. The final orders of the court were that the solicitors were not entitled to charge on an item of work basis and that the client was not liable for such costs.

Orders

Orders of the court

(Review later compromised.)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bethscheider v CMC Lawyers Pty Ltd [2018] QDC 133
PARTIES:	KIMBERLY BETHSCHEIDER (Applicant) v CMC LAWYERS PTY LTD (Respondent)
FILE NO/S:	D3101/2015
DIVISION:
PROCEEDING:	Review of Costs Assessment
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	17 April 2018
DELIVERED AT:	Brisbane
HEARING DATE:	16, 17 April 2018
JUDGE:	McGill SC, DCJ
ORDER:	(Review later compromised.)
CATCHWORDS:	COSTS - Solicitor and client – costs agreement providing for costs to be charged on a time costs basis – effect of agreement – not to be charged on an item of work basis. UCPR r 742.
COUNSEL:	G J Robinson for the applicant K Wilson QC and N P Hiscox for the respondent
SOLICITORS:	Londy Lawyers for the applicant The respondent represented itself.