Bundesen & Associates Solicitors v Camcrest Pty Ltd
[1998] QSC 10
•6 February 1998
IN THE SUPREME COURT
OF QUEENSLAND
OS No.11152 of 1997
Brisbane
Before the Hon. Mr Justice Shepherdson
[Bundesen & Associates Solicitors v Camcrest Pty Ltd]
IN THE MATTER OF
The Legal Practitioners Act 1995and
The Queensland Law Society Act 1952
and
A Bill of Costs delivered by BUNDESEN & ASSOCIATES SOLICITORS
against
CAMCREST PTY LTD
CATCHWORDS: SOLICITORS COSTS - Application for order that solicitors prepare bills of cost - “Bills” said to have been delivered but not bill of costs in accordance with the Act - some bills said to have been paid in full - s.16. Legal Practitioners Act 1995 (Qld) - time doesn’t run against applicant - bills of cost ordered to be prepared and delivered - Walsh Halligan Douglas’ Bill of Costs (1990) 1 Qd R 288 followed; In re Wilson & Hemming [1913] St.R.Qld 34, applied.
Counsel: Mr Robinson for the applicant.
Mr Moore for the respondent.
Solicitors: Messrs Hill and Taylor Solicitors for the applicant.
Messrs Bundesen & Associates Solicitors for the respondent.
Hearing date: 20 January 1998
JUDGMENT - SHEPHERDSON J.
Judgment delivered 6 February 1998
The applicant Camcrest Pty Ltd has applied on originating summons for the following orders:-
That the respondent Bundesen & Associates deliver to the applicant such of the applicant’s papers, documents and files as are presently in the custody or power of the respondent.
That Bundesen & Associates prepare bills of cost in taxable form in respect of the following retainers:
(i) Camcrest Pty Ltd v. Tallon (High Court);
(ii) Camcrest Pty Ltd v. Tallon (Supreme Court);
(iii) Camcrest Pty Ltd v. Finemore Walters & Story; and
(iv) Camcrest Pty Ltd v. Albert David.
That such bills of costs be referred to the Taxing Officer of this Court for taxation.
The argument before me centred on the second of the above two orders and I propose to deal first with this aspect of the summons.
Affidavit material has been filed by the applicant and by the respondents who are solicitors practising in Brisbane.
The respondent’s material does not set out the relevant matters as clearly as one would have liked but one matter is clear and that is that the respondent has not prepared any bill of costs in taxable form in respect of any of the four above matters.
In making that statement I rely on the fact that none of the documents which are called bills contains “such details as will enable the client to make up his mind on the subject of taxation and will enable those advising him to advise him effectively as to whether taxation is desirable or not” (per Mann J in Malleson Stewart Stawell and Nankivell v. Williams (1930) VLR 410.
The first matter to be determined is whether the applicant had retained the respondent in respect of any and if so how many of the above four matters.
Mr Moore of counsel who appeared for the respondent has stated in his written submissions that in respect to the following matters the respondent rendered bills to the applicant and has been paid in full:-
(i)Camcrest Pty Ltd v. Tallon (High Court);
(ii) Camcrest Pty Ltd v. Finemore Walters & Story; and
(iii) Camcrest Pty Ltd v. David.
On the basis of that submission alone I am prepared to infer and find that in each of those matters the applicant retained the respondent.
This leaves the matter of Camcrest Pty Ltd v. Tallon (Supreme Court). Although in his affidavit sworn on 19 January 1998 the respondent Bundesen appears to be saying that the applicant was not his client but rather that the body corporate known as the Proprietors Metropolitan Towers Building Unit Plan no. 5157 was his client, I have no doubt that in this action he acted for the applicant who was a proprietor of 2 of the units in Metropolitan Towers as well as for the body corporate and other proprietors.
An affidavit of Ennio Dalesio a director of the applicant has exhibited to it (exhibit 1) a photocopy of an index of the record of proceedings when an action by Stuart Dudley Tallon was before the Court of Appeal of the Supreme Court of Queensland (Appeal no. 166 of 1995). As appears from that index there were five respondents, the first being the Proprietors Metropolitan Towers Building Unit Plan no. 5157 and the fourth being the applicant Camcrest Pty Ltd. The evidence before me shows that Camcrest was the proprietor of units 2 and 3 in Metropolitan Towers. The evidence also shows that at least three of the other respondents were also proprietors of units in Metropolitan Towers.
Furthermore, exhibit 1 shows Bundesen & Associates to be solicitors for the respondent. Tallon was the appellant. Although the word “respondent” is used in the singular the material before me shows that Bundesen & Associates acted for the respondents in that action.
The evidence before me also shows (exhibit G to the affidavit of Bundesen sworn on 30 December 1997) that on 10 October 1995 at a general meeting of the Unit Holders of Metropolitan Towers held at the Metropolitan Hotel the unit holders including Camcrest agreed that “Don Bundesen’s account dated the 8th August be accepted in its present form” and “each party to pay pro rata in accordance with its holding in the body corporate”. I find that the applicant did retain Bundesen & Associates in the matter Camcrest Pty Ltd v. Tallon (Supreme Court).
I add that, apart from Mr Moore’s statement in his written submissions, there is clear evidence that Camcrest Pty Ltd retained the respondents in the following matters:-
(i) Camcrest Pty Ltd v. Tallon (High Court);
(ii) Camcrest Pty Ltd v. David;
(iii) Camcrest Pty Ltd v. Finemore Walters & Story.
A letter dated 29 August 1995 written by Bundesen & Associates to Mr & Mrs Dalesio (exhibit WAH1 to the affidavit of William Andrew Hickey) shows these retainers.
The evidence before me also shows:-
(a)that the applicant has paid the respondent solicitors various sums of money on account of costs and outlays.
(b)that the respondent does not have a retainer agreement with the applicant in respect of any of the above four matters.
(c)that by a letter dated 11 March 1995 (exhibit WAH5) Bundesen & Associates told the applicant’s solicitors Messrs Hill & Taylor that they intended to prepare a bill of costs as soon as possible and to take action to recover outstanding moneys.
The law is not in doubt.
In re Walsh Halligan Douglas’ Bills of Costs (1990) 1 Qd R 288 Dowsett J considered various matters which are relevant to my decision.
At pages 293-4 his Honour referred to earlier authorities including one of the Full Court of the Supreme Court of Queensland (In re Wilson & Hemming [1913] St. R Qld 34.)
I now quote from his Honour’s reasons at those pages:-
“It has long been established that payment of moneys to a solicitor in discharge of liability to pay for work done does not necessarily mean that the client cannot thereafter demand a bill. See In re Wilson & Hemming [1913] St R Qd 34 where a client had paid an estimated amount and subsequently requested a bill and when delivered, referred it for taxation. It was held that a judge had power to order taxation in such a case because there had not been any payment of a bill but simply a payment against liability, whatever it might be. The court endorsed the observations of the Privy Council in Duffett v. McEvoy (1885) 10 App Cas 300 at 302-303 as follows:
‘If there had never been a bill at all ... that is to say, nothing that would give any details or items or enable the party to judge of the goodness of the items, the bill may be ordered to be delivered, it not necessarily following that then it would be ordered to be taxed, the object of ordering the delivery of a bill being to see whether there are such special circumstances as would cause it to be taxed ...’
Thus if there has been no bill at all, then payment will not be a bar to an order for taxation, nor will the effluxion of time bar such an order. In this case, a series of bills has been delivered, and the question must be whether or not they are bills for the purposes of s.22 [of the Costs Act 1867]. This question was considered by Douglas J. In Currie v. Robinson [1968] QWN 25. In that case, his Honour found that:
‘The bill of costs was exhibited to the first defendant’s affidavit and consists of a statement of account which contains a claim for various lump sums in respect of individual matters dealt with by the plaintiffs on the defendants’ behalf. It also contains an itemized account of outlays and shows various payments made by the defendants from time to time. Lump sum amounts shown in the statement of account are further itemized in other sheets of the bill of costs, a sheet or sheets of the bill of costs being devoted to every such item. However, these sheets showed the various services performed by the plaintiffs for the defendants in an itemized manner factually but without any allocation of costs to any particular action taken by the plaintiffs. The lump sum shown in the first sheet of the statement of account in every case appears opposite the itemized list in the further sheets of the bill.’
His Honour then went on to observe that this was not a bill of costs as contemplated by s.22, approving observations made by Mann J in Malleson, Stewart, Stawell and Nankivell v. Williams [1930] VLR 410 where Mann J said:
‘These authorities show that the Courts have repeatedly held that a bill of costs must contain such details as will enable the client to make up his mind on the subject of taxation, and will enable those advising him to advise him effectively as to whether taxation is desirable or not.’
The bill must sufficiently particularise the charges to enable the client to take informed advice as to whether he should demand taxation. If the bill purportedly delivered pursuant to s.22 fills this description, then time will run against the client. If there is no bill within this description, then the client may at any time, and notwithstanding payment, insist upon delivery of a bill in taxable form.”
The documents which the respondent solicitors did send to the applicant and which are called bills of cost do not as I have already said sufficiently particularise the charges to enable the applicant to take informal advice as to whether it should demand taxation. They are not bills of cost.
I propose to follow the decision of In re Wilson & Hemming (supra) and especially the observations of the Privy Council in Duffett v. McEvoy earlier quoted. I find therefore that there has never been any bill of costs delivered to the applicant in respect of any of the relevant matters. Time as prescribed by s.16 of the Legal Practitioners Act 1995 [formerly s.33 Costs Act of 1867] does not run against the applicant. I consider In re Wilson & Hemming to be directly in point dealing as it did with s.33 of the Costs Act of 1867. I agree with the following statement by Dowsett J appearing in the above extract from his Honour’s reasons:-
“Thus if there has been no bill at all, then payment will not be a bar to an order for taxation, nor will the effluxion of time bar such an order.”
In respect of the orders sought in paragraph 2 of the originating summons I order that the respondent Bundesen & Associates do prepare and deliver to the applicant’s solicitors a bill of costs in taxable form in respect of each of the following matters:-
(i)Camcrest Pty Ltd v. Tallon (High Court);
(ii)Camcrest Pty Ltd v. Tallon (Supreme Court);
(iii)Camcrest Pty Ltd v. Finemore Walters & Story; and
(iv)Camcrest Pty Ltd v. Albert David.
I shall hear from counsel as to the time within which these bills are to be prepared and delivered to the applicant’s solicitors.
As to the third matter in the originating summons namely referral of the bills to the taxing officer for taxation, it is my view that such an order if made now is premature. Once the bills in taxable form are prepared and delivered I expect the applicant then to be in a position to take appropriate advice and decide whether or not taxation is required. Furthermore, I should expect that the respondent solicitors will indicate on each bill (where applicable) the particulars of the amount or amounts of money paid and the date or dates of payment on account of costs and outlays.
The remaining matter is the order sought in paragraph 1 of the originating summons. It appears that shortly before the hearing the respondents indicated they were prepared to make certain papers, documents and files available to the applicant’s solicitors. In addition, the respondent will need his papers, documents and files to prepare the bills of cost. I propose therefore to adjourn the applications in paragraph 1 and 3 of the originating summons to a date to be fixed to be brought on on at least 3 clear days written notice by either side to the other.
I shall hear from the parties on the matter of costs of the hearing before me on 20 January 1998.
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