Connollys Lawyers Pty Ltd v Davis - [2013] QCA 231

SUPREME COURT OF QUEENSLAND

CITATION:

Connollys Lawyers Pty Ltd v Davis [2013] QCA 231

PARTIES:

CONNOLLYS LAWYERS PTY LTD
ACN 145 392 310
(applicant)
v
DAVID WILLIAM DAVIS
(respondent)

FILE NO/S:

Appeal No 9293 of 2012
DC No 45 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

23 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

17 April 2013

JUDGES:

Fraser and Gotterson JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused with costs.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – BILLS OF COSTS – ACTIONS TO RECOVER COSTS – OTHER MATTERS – where the respondent had retained the applicant to act as his solicitor in two separate proceedings – where the parties signed a written costs agreement for each proceeding – where the respondent had difficulty reading, but signed the agreements upon the insistence of the applicant – where, after the termination of the retainers, the costs in both proceedings had exceeded the original estimates – where the respondent alleged the applicant failed to meet its obligations under Part 3.4 of the Legal Profession Act 2007 (Qld) (‘the Act’), including by failing to make adequate disclosure – where the Magistrates Court granted summary judgment in favour of the applicant – where, on appeal, the respondent acknowledged that his pleading was defective but that the affidavit material disclosed a defence of breach of the costs agreement – where the District Court judge allowed the respondent’s appeal and allowed the respondent to file an amended defence and application to set aside the costs agreement under s 328 of the Act – whether the respondent’s evidence raised a real defence on the ground that the applicant did not comply with its disclosure obligations under ss 308(1)(c), 314 and 315 of the Act – whether the District Court judge erred in setting aside the summary judgment

Federal Court of Australia Act 1976 (Cth), s 31A
Legal Profession Act 2007 (Qld), s 3(a), s 299(a), s 308, s 310, s 314, s 315, s 316, s 326, s 328, s 335, s 337, s 340
Uniform Civil Procedure Rules 1999 (Qld), r 292, r 299

Amirbeaggi v Business in Focus (Australia) Pty Ltd [2008] NSWSC 421, cited
Bank of New Zealand v Spedley Securities Ltd (In Liq) (1992) 27 NSWLR 91, cited
Chew v The Queen (1992) 173 CLR 626; [1992] HCA 18, cited
Davis v Connollys Lawyers Pty Ltd, unreported, District Court of Queensland, Richards DCJ, DC No 45 of 2012, 10 September 2012, related
Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129; [1983] HCA 44, considered
Haller v Ayre [2005] 2 Qd R 410; [2005] QCA 224, cited
LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd[2011] QCA 105, cited
Spencer…

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: [2013] QCA 231
Decision Date: 23 August 2013

CaseChat Overview and Summary

In the case of Connollys Lawyers Pty Ltd v Davis, the applicant, a legal firm, sought to recover costs from the respondent, who had retained the firm to act as his solicitor in two separate proceedings. Both parties had signed written costs agreements for each proceeding. The respondent had difficulty reading but signed the agreements upon the insistence of the applicant. After the termination of the retainers, the costs in both proceedings exceeded the original estimates. The respondent alleged that the applicant failed to meet its obligations under Part 3.4 of the Legal Profession Act 2007 (Qld), including by failing to make adequate disclosure. The Magistrates Court granted summary judgment in favour of the applicant, but the respondent appealed to the District Court.

The legal issues before the court included whether the respondent's evidence raised a real defence on the ground that the applicant did not comply with its disclosure obligations under sections 308(1)(c), 314 and 315 of the Act, and whether the District Court judge erred in setting aside the summary judgment. The court found that the respondent's evidence raised a real defence as to the first proceeding but not the second. The court concluded that the District Court judge was correct to set aside the summary judgment and allow the respondent to file an amended defence and application to set aside the costs agreement. The court also held that the respondent's appeal was well-founded and allowed it.

The final orders of the court were that the application for leave to appeal was refused with costs. The costs were to be paid by the applicant to the respondent. The court also set aside the summary judgment and allowed the respondent to file an amended defence and application to set aside the costs agreement. The court held that the District Court judge was correct to allow the respondent's appeal.

Orders

Orders of the court

Application for leave to appeal refused with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Connollys Lawyers Pty Ltd v Davis [2013] QCA 231
PARTIES:	CONNOLLYS LAWYERS PTY LTD ACN 145 392 310 (applicant) v DAVID WILLIAM DAVIS (respondent)
FILE NO/S:	Appeal No 9293 of 2012 DC No 45 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	23 August 2013
DELIVERED AT:	Brisbane
HEARING DATE:	17 April 2013
JUDGES:	Fraser and Gotterson JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused with costs.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – BILLS OF COSTS – ACTIONS TO RECOVER COSTS – OTHER MATTERS – where the respondent had retained the applicant to act as his solicitor in two separate proceedings – where the parties signed a written costs agreement for each proceeding – where the respondent had difficulty reading, but signed the agreements upon the insistence of the applicant – where, after the termination of the retainers, the costs in both proceedings had exceeded the original estimates – where the respondent alleged the applicant failed to meet its obligations under Part 3.4 of the Legal Profession Act 2007 (Qld) (‘the Act’), including by failing to make adequate disclosure – where the Magistrates Court granted summary judgment in favour of the applicant – where, on appeal, the respondent acknowledged that his pleading was defective but that the affidavit material disclosed a defence of breach of the costs agreement – where the District Court judge allowed the respondent’s appeal and allowed the respondent to file an amended defence and application to set aside the costs agreement under s 328 of the Act – whether the respondent’s evidence raised a real defence on the ground that the applicant did not comply with its disclosure obligations under ss 308(1)(c), 314 and 315 of the Act – whether the District Court judge erred in setting aside the summary judgment Federal Court of Australia Act 1976 (Cth), s 31A Legal Profession Act 2007 (Qld), s 3(a), s 299(a), s 308, s 310, s 314, s 315, s 316, s 326, s 328, s 335, s 337, s 340 Uniform Civil Procedure Rules 1999 (Qld), r 292, r 299 Amirbeaggi v Business in Focus (Australia) Pty Ltd [2008] NSWSC 421, cited Bank of New Zealand v Spedley Securities Ltd (In Liq) (1992) 27 NSWLR 91, cited Chew v The Queen (1992) 173 CLR 626; [1992] HCA 18, cited Davis v Connollys Lawyers Pty Ltd, unreported, District Court of Queensland, Richards DCJ, DC No 45 of 2012, 10 September 2012, related Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129; [1983] HCA 44, considered Haller v Ayre [2005] 2 Qd R 410; [2005] QCA 224, cited LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd[2011] QCA 105, cited Spencer…