Clift v Carter Capner Law - [2019] QSC 78

SUPREME COURT OF QUEENSLAND

CITATION:

Clift & Ors v Carter Capner Law [2019] QSC 78

PARTIES:

SEAN CLIFT

(first applicant)

AND

GARY ERWIN

(second applicant)

AND

STEVEN PATTEN

(third applicant)

AND

SUZANNE RUSSELL

(fourth applicant)

AND

LANA SCHEUBER

(fifth applicant)

v

CARTER CAPNER LAW ABN 65 600 423 881

(respondent)

FILE NO/S:

SC No 8446 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

29 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2018

JUDGE:

Bond J

ORDER:

The orders of the Court are:

1. The respondent must provide to each applicant an itemized bill identifying the legal costs which it claims should be paid to it in the event of a successful outcome of the applicant’s personal injuries claim, that itemized bill to be made up in a way that would allow the legal costs to be assessed under Part 3.4, Division 7 of the Legal Profession Act 2007 (Qld), if occasion for performing such an assessment should ever arise.

2. It is declared that the costs agreement between each applicant and the respondent is void pursuant to s 327 of the Legal Profession Act 2007 (Qld).

3. I will hear the parties on costs.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – OTHER MATTERS – where the applicants are former clients of the respondents – where the applicants sought a written report of legal costs incurred pursuant to s 317 of the Legal Profession Act 2007 (Qld) – where it was contended that the obligation to provide a written report under s 317 did not extend to former clients – where the order could be made under the inherent jurisdiction of the Court – whether an order to provide a written report of legal costs should be made

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – OTHER MATTERS – where the applicants are former clients of the respondents – where the applicants sought a declaration that the costs agreement was void – where it was contended that the conditional costs agreement contained an uplift fee – where the contingent costs agreement did provide for an additional fee to be paid on a successful outcome – where the statutory requirements in relation to uplift fees had not been complied with – whether the costs agreement was void due to contravention of the Legal Profession Act 2007 (Qld)

Legal Profession Act 2007 (Qld), s 13, s 317, s 324, s 327, s 347

Nominal Defendant v Duntroon Holdings Pty Ltd [2008] 2 Qd R 46, cited

Re Morris Fletcher & Cross’ Bills of Costs [1997] 2 Qd R 228, considered

Townsville Trade Waste Pty Ltd v Commercial Union Assurance Co of Australia Ltd [2000] 2 Qd R 682, cited

COUNSEL:

N Ferrett for the applicants

K Wilson QC, with G Robinson, for the respondent

SOLICITORS:

Compensation Partners Lawyers for the applicants

Carter Capner Law for the respondent

Introduction

The respondent (CCL) is an incorporated law practice under the Legal Profession…

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.

Continue reading Clift v Carter Capner Law

Details

AGLC: Clift v Carter Capner Law [2019] QSC 78
Case: [2019] QSC 78
Decision Date: 29 March 2019

CaseChat Overview and Summary

The applicants in Clift v Carter Capner Law sought a written report of their legal costs and a declaration that their costs agreements were void. The former clients of the respondent law firm contended that they were entitled to a written report of the legal costs incurred, as required by s 317 of the Legal Profession Act 2007 (Qld), and that the costs agreements were void because they contained an uplift fee, which contravened the statutory requirements. The respondent argued that the obligation to provide a written report did not extend to former clients, and that the costs agreements were not void despite the inclusion of an uplift fee. The court was required to determine whether the applicants were entitled to the written report and whether the costs agreements were void.

The court considered whether the obligation to provide a written report under s 317 extended to former clients and whether the costs agreements were void due to the inclusion of an uplift fee. The court noted that the statutory requirement to provide a written report applied to all clients, including former clients, and that the failure to provide such a report could result in the costs agreement being void. The court also found that the costs agreements were void because they contained an uplift fee that did not comply with the statutory requirements. The court held that the applicants were entitled to a written report of their legal costs and that the costs agreements were void.

The court ordered that the respondent must provide the applicants with an itemized bill of the legal costs that it claims should be paid in the event of a successful outcome of the applicants’ personal injuries claim. The court also declared that the costs agreements between the applicants and the respondent were void pursuant to s 327 of the Legal Profession Act 2007 (Qld). The court further ordered that it would hear the parties on costs. This decision highlights the importance of complying with statutory requirements in relation to legal costs agreements and the obligation to provide a written report of legal costs to all clients, including former clients.

Orders

Orders of the court

The orders of the Court are:

1. The respondent must provide to each applicant an itemized bill identifying the legal costs which it claims should be paid to it in the event of a successful outcome of the applicant’s personal injuries claim, that itemized bill to be made up in a way that would allow the legal costs to be assessed under Part 3.4, Division 7 of the Legal Profession Act 2007 (Qld), if occasion for performing such an assessment should ever arise.

2. It is declared that the costs agreement between each applicant and the respondent is void pursuant to s 327 of the Legal Profession Act 2007 (Qld).

3. I will hear the parties on costs.

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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CITATION:	Clift & Ors v Carter Capner Law [2019] QSC 78
PARTIES:	SEAN CLIFT (first applicant) AND GARY ERWIN (second applicant) AND STEVEN PATTEN (third applicant) AND SUZANNE RUSSELL (fourth applicant) AND LANA SCHEUBER (fifth applicant) v CARTER CAPNER LAW ABN 65 600 423 881 (respondent)
FILE NO/S:	SC No 8446 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	29 March 2019
DELIVERED AT:	Brisbane
HEARING DATE:	10 October 2018
JUDGE:	Bond J
ORDER:	The orders of the Court are: 1. The respondent must provide to each applicant an itemized bill identifying the legal costs which it claims should be paid to it in the event of a successful outcome of the applicant’s personal injuries claim, that itemized bill to be made up in a way that would allow the legal costs to be assessed under Part 3.4, Division 7 of the Legal Profession Act 2007 (Qld), if occasion for performing such an assessment should ever arise. *2. It is declared that the costs agreement between each applicant and the respondent is void pursuant to s 327 of the Legal Profession Act 2007* (Qld). 3. I will hear the parties on costs.**
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – OTHER MATTERS – where the applicants are former clients of the respondents – where the applicants sought a written report of legal costs incurred pursuant to s 317 of the Legal Profession Act 2007 (Qld) – where it was contended that the obligation to provide a written report under s 317 did not extend to former clients – where the order could be made under the inherent jurisdiction of the Court – whether an order to provide a written report of legal costs should be made PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – OTHER MATTERS – where the applicants are former clients of the respondents – where the applicants sought a declaration that the costs agreement was void – where it was contended that the conditional costs agreement contained an uplift fee – where the contingent costs agreement did provide for an additional fee to be paid on a successful outcome – where the statutory requirements in relation to uplift fees had not been complied with – whether the costs agreement was void due to contravention of the Legal Profession Act 2007 (Qld) Legal Profession Act 2007 (Qld), s 13, s 317, s 324, s 327, s 347 Nominal Defendant v Duntroon Holdings Pty Ltd [2008] 2 Qd R 46, cited Re Morris Fletcher & Cross’ Bills of Costs [1997] 2 Qd R 228, considered Townsville Trade Waste Pty Ltd v Commercial Union Assurance Co of Australia Ltd [2000] 2 Qd R 682, cited
COUNSEL:	N Ferrett for the applicants K Wilson QC, with G Robinson, for the respondent
SOLICITORS:	Compensation Partners Lawyers for the applicants Carter Capner Law for the respondent