Carter Capner Law v Clift

Case [2020] QCA 125

SUPREME COURT OF QUEENSLAND

CITATION:

Carter Capner Law v Clift & Ors [2020] QCA 125

PARTIES:

CARTER CAPNER LAW
ABN 65 600 423 881
(appellant)
v
SEAN CLIFT
(first respondent)
GARY ERWIN
(second respondent)
STEVEN PATTEN
(third respondent)
SUZANNE RUSSELL
(fourth respondent)
LANA SCHEUBER
(fifth respondent)

FILE NO/S:

Appeal No 4446 of 2019
SC No 8446 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2019] QSC 78 (Bond J)

DELIVERED ON:

9 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

16 September 2019

JUDGES:

Fraser and Philippides JJA and Crow J

ORDERS:

1.   Allow the appellant’s application for leave to adduce new evidence in the appeal.

2.   Allow the appeal against order 1 in the orders made by Bond J on 29 March 2019.

3.   Dismiss the appeal against order 2 in those orders.

4.   The parties have leave to make submissions in writing about costs in accordance with Practice Direction 3 of 2013.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – OTHER MATTERS – where the appellant entered a costs agreement with each respondent in relation to a personal injuries claim – where the costs agreements were described as “no-win no-fee” – where the scale of costs under the agreements contained an item for general care and conduct – where the agreement contained a proviso that where a no-win no-fee arrangement applied, the allowance for general care and conduct must not be less than 15 per cent of the aggregate of all time-based items performed by the appellant – whether this proviso was an “uplift fee” under s 300 of the Legal Profession Act 2007 (Qld) – whether the costs agreements were therefore invalid because they did not comply with the requirements in s 324 of the Legal Profession Act relating to disclosure of uplift fees

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – BILLS OF COSTS – POWER TO ORDER DELIVERY – where the respondents’ files were transferred to another law practice – where the respondents applied for an order that the appellant provide each of them with a written report of legal costs incurred by the appellant to date pursuant to s 317(1) of the Legal Profession Act – where the primary judge ordered the appellant to provide itemised bills of its costs to each respondent pursuant to the inherent jurisdiction of the Supreme Court – whether the appellant should be permitted to adduce evidence that the respondents did not request an itemised bill of costs – whether the respondents needed an itemised bill of costs – whether it was appropriate to exercise the discretionary power in the inherent jurisdiction to order the appellant to deliver itemised bills of costs to the respondents

Legal Profession Act 2007 (Qld), s 3, s 13, s 216, s 299, s 300, s 308, s 311, s 313, s 317, s 319, s 324, s 327, s 328, s 347
Uniform Civil Procedure Rules 1999 (Qld), r 26(5), r…

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Carter Capner Law v Clift [2020] QCA 125
Case
[2020] QCA 125
Decision Date

CaseChat Overview and Summary

The case of Carter Capner Law v Clift involved the appellant, a law firm, and the respondents, individuals who had entered into a costs agreement with the law firm for the conduct of a personal injuries claim. The agreement was described as a "no-win no-fee" arrangement, which included a scale of costs that contained an item for general care and conduct. The agreement also stipulated that in the event of a no-win no-fee arrangement, the allowance for general care and conduct could not be less than 15 per cent of the total time-based items performed by the law firm. The respondents argued that this proviso constituted an "uplift fee" under section 300 of the Legal Profession Act 2007 (Qld), and that the costs agreements were therefore invalid as they did not comply with the disclosure requirements in section 324 of the same Act. The case was brought before the court, which had to determine the validity of the proviso and whether it constituted an uplift fee. Additionally, the respondents applied for an order that the law firm provide them with a written report of legal costs incurred to date, pursuant to section 317(1) of the Legal Profession Act. The primary judge ordered the law firm to provide itemised bills of its costs to the respondents using the inherent jurisdiction of the Supreme Court. The law firm appealed against the order, arguing that it should not be required to provide itemised bills of costs, and that the respondents did not need such a report. The court had to decide whether it was appropriate to exercise the discretionary power to order the delivery of itemised bills of costs.

The court found that the proviso in the costs agreements did not constitute an uplift fee, and that the agreements were therefore valid. The proviso was simply a contractual term that set a minimum percentage for general care and conduct, and did not have the effect of increasing the costs for the respondents. The court also found that it was appropriate to exercise the discretionary power to order the law firm to provide itemised bills of costs to the respondents, as the respondents had a right to know the costs incurred in their case. However, the court allowed the law firm to adduce new evidence that the respondents did not request an itemised bill of costs, as this was a relevant factor in deciding whether the order should be made. The appeal against the order for the delivery of itemised bills of costs was dismissed, but the appeal against the order allowing the adduction of new evidence was allowed. The parties were granted leave to make written submissions about costs in accordance with Practice Direction 3 of 2013.

Orders

Orders of the court

1. Allow the appellant’s application for leave to adduce new evidence in the appeal.

2. Allow the appeal against order 1 in the orders made by Bond J on 29 March 2019.

3. Dismiss the appeal against order 2 in those orders.

4. The parties have leave to make submissions in writing about costs in accordance with Practice Direction 3 of 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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