Clientcare Solicitors v. Eyears - [2008] QSC 355

[2008] QSC 355

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

WILSON J

No 6006 of 2007

TRUSTEE FOR PETER AND TANYA ZUFIC FAMILY TRUST TRADING AS

CLIENTCARE SOLICITORS

and

MARINA EYEARS

Plaintiff

Defendant

BRISBANE

..DATE 17/12/2008

ORDER

HER HONOUR: The plaintiff acted as solicitor for the defendant in family law matters between March 2005 and early February 2007. He seeks to recover costs of acting for the defendant in those proceedings.

On 13 July 2008, a claim and statement of claim were filed. The amount claimed was in excess of $235,000 plus interest.

On 30 October 2008, the plaintiff obtained a freezing order against the defendant. That order was to have effect until 4 p.m. on Wednesday 5 November 2008.

It was subsequently extended until further order. However, after that extension had been granted, on 4 December 2008, Justice Applegarth amended the order to provide that it should have effect only until 4 p.m. on 18 December 2008: that is tomorrow.

There are two applications before me:

an application by the plaintiff filed on 9 December 2008, for a continuation of the freezing order, and
an application by the defendant also filed on 9 December 2008, seeking relevantly a stay of the principal proceeding as well as discharge of the freezing order.

In order to obtain a freezing order, an applicant must

establish a prima facie cause of action and that there is a danger that assets will be removed or disposed of if the order is not granted.
Is there a prima facie cause of action? Under the Family Law Rules 2004, Schedule 6 Costs - Rules before 1 July 2008, there are prescribed steps which must be taken before a lawyer may start or continue a case to recover costs from a client. See rule 6.14 which provides that a lawyer may do so only if he or she has served on the client an account and a costs notice, and no request for an itemised costs account has been made, or
an itemised costs account has been served on the client and there has not been a notice disputing the itemised costs account.

A "Costs Notice", is defined as being a brochure approved by the Principal Registrar of the Family Court. The approved brochure includes Schedule 3, an itemised scale of costs. That schedule sets out with some particularity, item numbers, a description of the matter for which a charge may be made, and the allowable charge.

In the present case, the defendant client executed a Costs Agreement. At the time, she was not given a Costs Notice in the form approved by the Registrar of the Family Court. She was given certain information which the plaintiff has submitted was adequate to meet the requirements for a Costs Notice. It seems to me that prima facie it was inadequate. One startling example is the absence of a schedule in terms of schedule 3.

The plaintiff then drew my attention to rule 1.12 of the Family Law Rules by…

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: [2008] QSC 355
Decision Date: 17 December 2008

CaseChat Overview and Summary

In the case of Clientcare Solicitors v. Eyears, the plaintiff, a law firm, sought to recover costs from the defendant, who was their former client in family law matters. The plaintiff had acted as the solicitor for the defendant from March 2005 until early February 2007 and claimed over $235,000 plus interest. The plaintiff obtained a freezing order against the defendant on 30 October 2008, which was later extended but ultimately amended to expire on 18 December 2008. The plaintiff then applied for a continuation of the freezing order, while the defendant sought a stay of the principal proceeding and discharge of the freezing order. The court had to determine if there was a prima facie cause of action and whether the freezing order should be continued.

The court examined the requirements for a freezing order, including the necessity of a prima facie cause of action and the risk of asset removal or disposal. Under the Family Law Rules 2004, a lawyer can only recover costs from a client if they have served an account and a costs notice, or an itemised costs account has been served and not disputed. The defendant had signed a Costs Agreement but was not given an approved Costs Notice, and the account provided did not meet the criteria set out in the Family Law Rules. The court concluded that prima facie, the plaintiff could not start or continue the action for the recovery of costs, and therefore, the freezing order should be discharged, and the principal proceeding should be stayed.

The court discharged the order of 5 November 2008, as amended on 4 December 2008, and stayed the proceeding (S6006 of 2007) until further order, giving both parties liberty to apply to lift the stay. The court dismissed the plaintiff's application filed on 9 December 2008. The defendant sought costs of and incidental to the applications on the indemnity basis, arguing that the plaintiff's application should never have been brought. The court concluded that the costs should be on the standard basis and ordered that the plaintiff pay the defendant's costs of and incidental to both applications on the standard basis, with the quantum to be agreed or assessed if not agreed.

Orders