Bickford t/a Bickfords Solicitors v Briley - [2006] QDC 187

[2006] QDC 187

DISTRICT COURT
CIVIL JURISDICTION
JUDGE McGILL SC
Appeal No 4316 of 2005
JOHN LINDSAY BICKFORD
(trading under the firm name
or style of Bickfords Solicitors

and Bickfords Lawyers) Applicant/Appellant
and
SANDRA ANN BRILEY Respondent
BRISBANE
..DATE 01/03/2006
ORDER

01032006 T21/IRK36 M/T 3/2006 (McGill DCJ)

HIS HONOUR: This is an application to extend time within 1

which to appeal from a judgment given in the Magistrate's judgment for the defendant in an action by a solicitor to recover what was said to be unpaid fees.

That action had been commenced in the Magistrate's Court in has now managed to accumulate a burden of legal costs which
March 2002 and claimed an amount of a little over $16,000.

would, I think, substantially dwarf the amount of that claim,
and the appellant, in effect, seeks the opportunity to add
further to those legal costs.
I should say something about the basis of the claim. The

plaintiff, who is the appellant before me, had pleaded that
the defendant retained the plaintiff to act in the provision
of legal services and advice pursuant to a cost agreement
entered into between them. It was alleged that at the request
of the defendant the plaintiff provided legal services and

advice to the defendant's satisfaction, and that it was a term
of the cost agreement that the defendant would pay all
reasonable professional costs and outlays expended during the
course of the retainer.

It was alleged that bills were sent and that these had not been paid and that "Pursuant to the agreement the plaintiff claims a total daily rate of accommodation charge and interest 01032006 T21/IRK36 M/T 3/2006 (McGill DCJ)

2

ORDER

60

charge" in a particular amount in addition to the amount 1
claimed in the bill.

On the face of it, it is an action to enforce the cost agreement. There was a cost agreement but it was one which

the Magistrate found was void under section 48F of the agreement did not comply with section 48 of the Act. Relevantly, the agreement did not contain an estimate of the total fees and costs likely to be payable for the work or a

range of estimates likely to be payable and an explanation of
the significant variables that would affect the calculation of
the amount.
Clause 11 of the form of notice in the schedule to the Act

states that the client agreement must state this and it
follows that if the client agreement does not do so there has
been a failure to comply with section 48(5) of the Act which
provides that the client agreement must not be inconsistent
with the notice in the schedule. On the face of it,

therefore, the Magistrate found correctly that the client
agreement did not comply with section 48, and it was therefore
void under section 48F.
I think it necessarily follows that it was not open to the

appellant to sue in the…

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.

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Details

Case: [2006] QDC 187
Decision Date: 1/03/2006

CaseChat Overview and Summary

The case of Bickford t/a Bickfords Solicitors v Briley [2006] QDC 187 involved an application to extend time for the appellant, a solicitor trading as Bickfords Solicitors, to appeal against a judgment given in the Magistrates Court. The appellant sought to recover unpaid legal fees from the respondent, Sandra Ann Briley, after the Magistrate found that the cost agreement was void and granted summary judgment in favour of the respondent. The appeal was filed almost a year after the original judgment, leading to the primary legal issues of whether the appellant had reasonable prospects of success on the merits of the appeal and whether the delay in filing the appeal was justifiable.

The District Court considered the appellant's grounds for appeal, including the argument that the Magistrate erred in declaring the cost agreement void and in awarding indemnity costs. The Court noted that while the appellant had reasonably good prospects on the merits, the significant delay in filing the appeal was not adequately explained. The appellant had initially decided not to appeal based on advice from counsel but changed his mind after a subsequent costs order was made. The Court held that the appellant was not entitled to extend the time for appeal as it amounted to a change of mind, particularly in light of the appellant's status as a practising solicitor. The Court also noted the potential for prejudice to the respondent due to the delay, as well as the importance of finality in legal proceedings.

The Court dismissed the application for an extension of time to appeal, finding that the appellant had not provided a satisfactory explanation for the delay and that the public interest did not favour extending the time limit. The appeal was therefore dismissed with costs, which would be assessed on the standard basis.

Orders