Casey v Quabba

[2006] QCA 187

SUPREME COURT OF QUEENSLAND

CITATION:

Casey v Quabba & Anor [2006] QCA 187

PARTIES:

DANIEL CHARLES CASEY
(plaintiff/respondent)
v
ALLIANZ AUSTRALIA INSURANCE LIMITED
(ACN 000122 850)
(defendant/appellant)

FILE NO/S:

Appeal No 10881 of 2005
SC No 36 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

2 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2006

JUDGES:

Williams and Jerrard JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal allowed1.   

Declare that the costs agreement between Daniel Charles Casey and Roarti & Firth Lawyers of 10 July 2000 is void by operation of s 48F(1) of the Queensland Law Society Act 1952 (Qld)2.   

Order that the respondent pay the appellant’s costs of the proceedings at first instance and of this appeal to be assessed on a standard basis3.   

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – ILLEGAL AND VOID CONTRACTS – EFFECT OF ILLEGALITY OR INVALIDITY – IN GENERAL – where the respondent (plaintiff) recovered damages for personal injuries against the appellant (defendant), with costs to be assessed on an indemnity basis – where the assessment came before the Registrar of the Supreme Court at Cairns – where the respondent submitted that the Registrar should have regard to a “costs agreement” between the respondent and his solicitors, when assessing the quantum of costs – where the appellant contended that the “costs agreement” was void pursuant to s 48F(1) Queensland Law Society Act 1952 (Qld) – whether the “costs agreement” is a valid agreement

Queensland Law Society Act 1952 (Qld), s 48(2), s 48(5), s 48A, s 48C, s 48F(1), s 48F(2)
Uniform Civil Procedure Rules 1999 (Qld), r 704(3)(b),
r 706(3), r 717(2)(c), r 742

National Acceptance Corporation Pty Ltd v Benson & Ors (1988) 12 NSWLR 213, applied
Parker v Borg [2002] QSC 215 (unreported, 12 July 2002, Rockhampton S22/01), considered
Re Rosemac Pty Ltd’s Caveat [1994] 1 Qd R 137, applied

COUNSEL:

S W Couper QC, with G V Robinson, for the appellant
J A Griffin QC, with A R Philp SC, for the respondent

SOLICITORS:

McInnes Wilson for the appellant
Roati & Firth for the respondent

1. WILLIAMS JA: After a trial the present respondent, the plaintiff in the original proceeding, recovered damages for personal injuries against the first and second defendant. After hearing further submissions the trial judge ordered that the second defendant, the present appellant, pay (with a minor exception) costs to be assessed on an indemnity basis. When the assessment came before the Registrar of the Supreme Court at Cairns the respondent submitted, referring to Rule 704(3)(b) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), that the Registrar should have regard in assessing the costs to a "costs agreement" between the respondent and his solicitors, Roati & Firth Lawyers, dated 10 July 2000 relating to the subject litigation. The appellant objected to the Registrar…