Casey v Quabba

[2005] QSC 356

SUPREME COURT OF QUEENSLAND

CITATION:

Casey v Quabba & Anor [2005] QSC 356

PARTIES:

DANIEL CHARLES CASEY
(plaintiff)
v
ARLINE RHONDA QUABBA
(first defendant)
ALLIANZ AUSTRALIA INSURANCE LIMITED
(ACN 000 122 850)
(second defendant)

FILE NO/S:

36 of 2002

DIVISION:

Trial

PROCEEDING:

Reference by a Registrar – civil

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

1 December 2005

DELIVERED AT:

Cairns

HEARING DATE:

11 August 2005

JUDGE:

Jones J

ORDER:

1. I declare that the second defendant does not have standing to challenge the validity of the agreement made between the plaintiff and his solicitors pursuant to s 48 of the Queensland Law Society Act 1952.

2. I declare that the Registrar is entitled to have regard to the agreement in accordance with r 704(3) of the Uniform Civil Procedure Rules.

3. I direct that in assessing the fees of counsel that –
                  a.) An uplift in fees on the basis of the claim
  being speculative is appropriate until the
  filing of the defence but not thereafter;
                    b.) An uplift in fees on the basis of delay in  
  their payment is appropriate for the
  period that the fees remained unpaid.

4. Unless parties within 14 days make submissions in writing seeking a different order, I order that the costs of and incidental to this referral by the Registrar be assessed on the standard basis and be dealt with as part of the costs of taxation.

CATCHWORDS:

PROCEDURE – COSTS – plaintiff succeeded in claim for negligence against defendant – plaintiff was awarded costs on indemnity basis – plaintiff filed a costs statement seeking Registrar’s assessment of indemnity costs – defendant objected to costs statement – Registrar referred question of law for determination pursuant to s 706(3) Uniform Civil Procedure Rules – defendant challenged validity of client agreement plaintiff and solicitors – defendant does not have standing to challenge validity of client agreement between plaintiff and solicitors

STATUTES – INTERPRETATION – where s 48F Queensland Law Society Act 1952 states client agreements that do not comply with s 48 are void – meaning of “void” – purpose of the Act – purpose of the Act is protection of client when retaining solicitor – “void” in s 48F should be interpreted as “voidable at election of client”

COUNSEL:

Mr J Griffin SC with Mr A Philp SC for the plaintiff
Mr S Couper SC with Mr G Robinson and Mr D Schneidewin for the second defendant

SOLICITORS:

Roati & Firth Lawyers for the plaintiff
McInnes Wilson for the second defendant

1. On 7 March 2005 the plaintiff’s solicitors filed a cost statement seeking the Registrar’s assessment of the plaintiff’s costs on an indemnity basis pursuant to an order of this court made on 11 November 2004.  On 26 April 2005 the second defendant (hereinafter “the defendant”) filed objections to the cost statement identifying disputes as to a number of the charges.  The Registrar, pursuant to r 706(3) of the Uniform Civil Procedure Rules (UCPR), referred for the court’s consideration three issues…