FLINT & NETTLE (Civil Disputes)

Denise Flint (the appellant) appeals against the decision of the ACT Civil and Administrative Tribunal (the Original Tribunal), in which judgment was given against her for the amount of $4,718 (inclusive of costs) plus interest before and after judgment. Flint, a real estate agent, had engaged Graeme C. Nettle & Associates (the solicitor) to act for her in the purchase of a block of land in O'Malley, ACT. She refused to pay the solicitor's bill, which he had prepared and taxed in accordance with the Legal Practitioners Act 1970 (repealed). The solicitor exercised a lien over a cheque that he had received on Flint's behalf. The Original Tribunal gave judgment for the solicitor and dismissed Flint's counterclaim. The appeal tribunal dismissed the appeal and cross-appeal. The appellant argued that the costs charged by the solicitor to her in the conveyancing matter were excessive and because she had not been informed of the substantial change in the fees from previous matters in which she had instructed the solicitor, she had a reasonable expectation that she would be charged a much lower fee. The appeal tribunal held that given the circumstances of the transaction, including the delays and length of time involved, together with the various negotiations that were accommodated and the necessity to prepare a bill of costs in taxable form, there is no reason why those costs should not be recovered from Flint. The appellant also claimed that the solicitor was negligent in not informing the solicitors for the vendor of land on behalf of the appellant that she was unable to make a settlement date. The appeal tribunal held that the evidence does not support the proposition that the conduct or failure of the solicitor caused damage to the appellant which she would have been able to avoid had the solicitor acted properly. The appellant also claimed that she had incurred costs because the solicitor had exercised a lien over monies received by him in his capacity as a solicitor. The appeal tribunal held that there is no authority that supports the proposition that the solicitor did not have a lien over the cheque for unpaid costs. The solicitor lodged a cross-appeal against the decision refusing the witness expenses incurred in the original hearing. The appeal tribunal held that the general policy stated in section 48 of the ACT Civil and Administrative Tribunal Act requires that each party is pay their own costs, including the costs of any witness or expert considered necessary to prove that party's case, unless the circumstances of the case bring it within the grounds specified in section 48(2). In the present case, the Appeal Tribunal is not satisfied that any of the grounds in section 48(2)(b) or 48(2)(c) have been activated. Accordingly, the cross-appeal for costs is dismissed.