Frigger v Murfett Legal Pty Ltd (No 2)

[2017] WADC 7

FRIGGER -v- MURFETT LEGAL PTY LTD [No 2] [2017] WADC 7

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WADC 7
Case No:	APP:4/2016	Heard:	7 DECEMBER 2016
Coram:	BOWDEN DCJ	Delivered:	24/01/17
Location:	PERTH
No of pages:	48	Judgment Part:	1 of 1
Result:	Appeal dismissed
PDF Version

Parties:	ANGELA FRIGGER HARTMUT FRIGGER MURFETT LEGAL PTY LTD
Catchwords:	Appeal Magistrates Court Re-amended appeal notice filed without leave Legal Profession Act 2008 s 260(1)(a), s 260(1)(c), s 260(1)(d), s 260(1)(f)(i) and s 260(1)(f)(ii), s 267 Costs disclosures Misleading and deceptive conduct Unconscionable conduct Interest
Legislation:	Banking Act 1959 (Cth) Legal Profession Act 2008 (WA) Magistrates Court (District Court Rules 2005 (WA) Trade Practices Act 1974 (Cth)
Case References:	Allesch v Maunz [2000] HCA 40 BGM v Australasian Lawyers Group Pty Ltd t/as Butlers Barristers & Solicitors [2014] WASC 290 Casey v Quabba (2005) QSC 356 CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Garbutt v Edwards (2006) 1 All ER 553 Hampton v BHP Billiton Minerals Pty Ltd [No 2] [2012] WASC 285 Lackovic v Insurance Commission (WA) (2006) 31 WAR 460 Leeder v The State of Western Australia [2008] WASCA 192 Mazoski v Rennick and Gaynor (Legal Practice) [2007] VCAT 212 McLennan v McCallum [2010] WASCA 45 Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 Naidoo v Naidoo [2005] WADC 41 Nicholl v Hunter (1994) 20 MVR 384 Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28 RCR Tomlinson Ltd v Russell [2015] WASCA 154 Russell Solicitors v McCardel [2014] VSC 287 Shenton v Touchstone Farms Pty Ltd [2015] WASCA 252 Shilkin v Taylor [2011] WASCA 255 The State of Western Australia v Rothmans of Pall Mall (Australia) Ltd [2001] WASCA 25 University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481 Wills v Whiteside; ex parte Wills [1987] 2 Qd R 284

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : FRIGGER -v- MURFETT LEGAL PTY LTD [No 2] [2017] WADC 7 CORAM : BOWDEN DCJ HEARD : 7 DECEMBER 2016 DELIVERED : 24 JANUARY 2017 FILE NO/S : APP 4 of 2016 BETWEEN : ANGELA FRIGGER

First-named Appellant

HARTMUT FRIGGER
Second-named Appellant

AND

MURFETT LEGAL PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE MIGNACCA-RANDAZZO

File No : PE GLCM 203 of 2013

Catchwords:

Appeal - Magistrates Court - Re-amended appeal notice filed without leave - Legal Profession Act 2008 s 260(1)(a), s 260(1)(c), s 260(1)(d), s 260(1)(f)(i) and s 260(1)(f)(ii), s 267 - Costs disclosures - Misleading and deceptive conduct - Unconscionable conduct - Interest

Legislation:

Banking Act 1959 (Cth)

Legal Profession Act 2008 (WA)
Magistrates Court (District Court Rules 2005 (WA)
Trade Practices Act 1974 (Cth)

Result:

Appeal dismissed

Representation:

Counsel:

First-named Appellant : In person
Second-named Appellant : In person
Respondent : Mr R J Lilley

Solicitors:

First-named Appellant : Not applicable
Second-named Appellant : Not applicable
Respondent : Douglas Cheverall Lawyers

Case(s) referred to in judgment(s):

Allesch v Maunz [2000] HCA 40
BGM v Australasian Lawyers Group Pty Ltd t/as Butlers Barristers & Solicitors [2014] WASC 290
Casey v Quabba (2005) QSC 356
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Garbutt v Edwards (2006) 1 All ER 553
Hampton v BHP Billiton Minerals Pty Ltd [No 2] [2012] WASC 285
Lackovic v Insurance Commission (WA) (2006) 31 WAR 460
Leeder v The State of Western Australia [2008] WASCA 192
Mazoski v Rennick and Gaynor (Legal Practice) [2007] VCAT 212
McLennan v McCallum [2010] WASCA 45
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Naidoo v Naidoo [2005] WADC 41
Nicholl v Hunter (1994) 20 MVR 384
Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28
RCR Tomlinson Ltd v Russell [2015] WASCA 154
Russell Solicitors v McCardel [2014] VSC 287
Shenton v Touchstone Farms Pty Ltd [2015] WASCA 252
Shilkin v Taylor [2011] WASCA 255
The State of Western Australia v Rothmans of Pall Mall (Australia) Ltd [2001] WASCA 25
University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481
Wills v Whiteside; ex parte Wills [1987] 2 Qd R 284

1 BOWDEN DCJ: The respondent is the former solicitor for the first and second appellants (hereafter referred to as the appellants).

2 The respondent commenced proceedings in the Magistrates Court on 15 January 2014 seeking unpaid legal fees in respect of an invoice issued to the appellants on 18 October 2010.

3 The appellants by their defence and counterclaim alleged that the respondent failed to give proper costs disclosure pursuant to the Legal Profession Act 2008 (WA) (LPA) and engaged in misleading or deceptive conduct and unconscionable conduct contrary to the then Trade Practices Act 1974 (Cth) (TPA).

4 Following a two day trial on 29 and 30 June 2015 and after receiving extensive closing submissions, his Honour Magistrate Mignacca-Randazzo gave comprehensive reasons for decision on 22 January 2016.

5 His Honour, insofar as is relevant to this appeal, ordered that there be judgment for the respondent in the sum of $12,772.96 plus interest at the rate of 6% per annum from 30 November 2010 until the date of judgment and dismissed the appellants' counterclaim.

6 The appellants appeal his Honour's decision by an appeal notice dated 1 February 2016. They were subsequently granted leave to amend the appeal notice and pursuant to that leave filed an amended appeal notice dated 12 April 2016 and stamped filed 15 April 2016. Subsequently, the appellants, without leave, filed a re-amended appeal notice dated 11 November 2016 which was faxed to the court on 13 November 2016 after the respondent's submissions in respect of the amended appeal notice were filed.

7 I grant leave to amend the amended appeal notice in terms of the re-amended appeal notice on the basis that it is in the interests of both parties that this matter not be further delayed.

The appeal grounds

8 The re-amended appeal notice provides the following grounds:

Ground One – failure to disclosure

1. The trial magistrate erred in mixed fact and law in finding the respondent is entitled to:


(a) payment of $12,772.96 plus statutory interest without assessment of its bill of costs dated 18 October 2010: @ [514]

(b) maintain the proceedings below contrary to Legal Profession Act 2008 s 268: @ [514]


section 260(1)(b)(iv):

The respondent's cost agreement clause 6.9 does not comply with section 260(1)(b)(iv): @ [439];

section 260(1)(f)(i)

(i) The respondent did not disclose to the appellants how much of the estimate given in the cost agreement dated 29 September 2010 of $5000 - $10,000 would be recoverable if successful on a party-party basis or an indemnity basis: @ [414];

(ii) The respondent did not disclose to the appellants how much of the estimate of $45,000 given on 6 October 2010 would be recoverable if successful on a party-party basis or an indemnity basis: @ [432];

section 260(1)(f)(ii)

(iii) The respondent did not disclose to the appellants how much would be payable, if unsuccessful in the arguments which comprised the work for which an estimate of $5000 - $10,000 was given in the cost agreement dated 29 September 2010: @ [414];

(iv) The respondent did not disclose to the appellants how much would be payable if unsuccessful in the arguments which comprised the work for which an estimate of $45,000 was given on 6 October 2010: [432];

section 266

(v) The disclosure given on 6 October 2010 was not in clear plain language: ex 18.

section 267

(i) The respondent did not disclose in its letter of 6 October 2010 that its estimate of $5,000 - $10,000 to take a statement of Angela Frigger, as disclosed in the cost agreement had in fact cost only $2,350 when it was completed on 30 September 2010: ex 18;

(ii) The respondent did not disclose to the appellants that it had already charged the appellants $15,000 up to 4 October 2010, which work was beyond the instructions of the cost agreement and contrary to De Silva's email dated 28 September 2010: @ [284], [286], [294];

(iii) The respondent did not disclose to the appellants until 6 October 2010, despite charging the appellants $20,000 until that date for work outside the instructions of the cost agreement, that it could not represent the appellants without an external barrister contrary to DeSilva email dated 28 September 2010: ex 17, 18;

Ground Two – Misleading representation

The trial magistrate erred in mixed fact and law in failing to find the respondent misrepresented to the defendants that the respondent was able to provide legal representation for the defendants in a cost argument in Supreme Court CIV2265/2006 on 13 and 14 October 2010 without briefing an external barrister contrary to s 52 Trade Practices Act 1974: @ [460], [462].

Ground three – Unconscionable conduct

The trial magistrate erred in mixed fact and law in failing to find the respondent engaged in unconscionable conduct contract [sic] to s 51AB(1) Trade Practices Act 1974:

3.1 Representing to the defendants it could do work that it could not: @ [460]–[462], ex 18;

3.2 failing to disclose to the appellants their costs exposure, and their full suite of rights, as required by the Legal Profession Act 2008: ground one hereof.

3.3 Relying on an incorrect affidavit when it was aware that the affidavit was incorrect: @ [478]

3.4 Insisting on a contractual right to lodge caveats over three properties, for a relatively small debt, when a caveat could have been taken out over one property to achieve the same purpose: @ [481] – [482];

3.5 Refusing to remove the caveats and applying to have them extended, which application was only successful over one property: @ [482]

Ground Four – Pre-judgment interest

4.1 The trial magistrate erred in law by awarding interest pursuant to the Legal Profession Regulations 2009 and cl 6.4 the cost agreement: @ [515]

4.2 The trial magistrate erred in law by awarding the respondent interest from 30 November 2010 until 13 January 2013 which period represents undue and unnecessary delay in commencement of proceedings resulting in excessive pre-judgment interest of $1670: @ [479].

4.3 The trial magistrate erred in law by awarding the respondent interest from 30 November 2010 until January 2013 contrary to s 273(4) Legal Profession Act 2008 in circumstances where the respondent's bill of costs dated 18 October 2010 did not contain a statement of the rate of interest that was payable on the alleged outstanding amount.

The law relating to appeals from the Magistrates Court

9 This appeal is by way of a 'reconsideration of the evidence' before the Magistrates Court(District Court Rules 2005 (WA) (DCR) r 50(1), Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA)) and is therefore an appeal in the nature of a re-hearing.

10 The court has the discretion to grant leave to admit additional evidence: MCCPA s 40(4), s 40(5); DCR r 50(2), r 50(3), however leave may only be given in 'exceptional circumstances': Shenton v Touchstone Farms Pty Ltd [2015] WASCA 252.

11 To succeed on appeal the appellants' must demonstrate a legal, factual or discretionary error by the magistrate: Allesch v Maunz[2000] HCA 40 [23], 14.

12 If such an error has been made, the appellate court may substitute its decision for that of the magistrate. If no error is shown, the Appeal Court cannot intervene.

13 When an appellant appeals against findings of fact, they must do more than merely show that an alternative finding was available on the facts and must show that a factual error was made by the primary judge: Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, 369; Leeder v The State of Western Australia [2008] WASCA 192 [84].

14 A finding of fact by a magistrate, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the magistrate's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the magistrate 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' or 'contrary to compelling inferences': Devries v Australian National Railways Commission (1993) 177 CLR 472, 479; CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1 [21].

15 Whilst it has been said that in appeals against findings based on an evaluation of the credibility of witnesses, an appellant faces a high hurdle RCR Tomlinson Ltd v Russell [2015] WASCA 154 [55] even in cases of express credibility findings, the primary trier of facts decision can be reversed if after making proper allowance for the advantages of the trial judge, an appellate court concludes that error has been shown, Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125 - 126, Gleeson CJ, Gummow and Kirby JJ, Della Maddalena.

The application to adduce additional evidence

16 The appellants' seek to introduce additional evidence by way of four emails.

17 A heavy onus lies on a party who seeks to introduce additional evidence. It is not helpful to attempt to describe what constitutes 'exceptional circumstances'. The variety of circumstances that might arise is inexhaustible and restating the statutory test in different words would serve no useful purpose: Shilkin v Taylor [2011] WASCA 255.

18 There is no invariable rule concerning the admission of additional evidence, however the discretion to admit further evidence is to ensure the overall interests of justice. If the needs of justice in the particular case require the reception of additional evidence, then it should be admitted: Lackovic v Insurance Commission (WA) (2006) 31 WAR 460 [19].

19 Ordinarily the court will refuse to admit additional evidence unless satisfied that the evidence would have led to a different outcome if it had been led in the court below. That is, because unless that condition is satisfied, it will seldom, if ever, be in the interests of justice to deprive the respondent of the orders made in the court below: Shilkin v Taylor [66] - [70].

20 Leave to admit additional evidence should not be used to rectify perceived weaknesses in a case already presented: Naidoo v Naidoo [2005] WADC 41 [9] (Eaton DCJ).

21 The appellants say the additional evidence was listed in the list of documents that they intended to rely on at trial and Mrs Frigger thought that by putting them on the list they became exhibits.

22 The respondent opposes the introduction of the additional evidence . I consider it is in the interests of justice to receive the additional evidence. The additional evidence is marked exhibit 'AE1' – 'AE4'.

Issues raised for the first time on appeal

23 In the re-amended notice of appeal, written submissions on appeal, oral submission at the appeal and submissions in reply, a number of matters were raised which were not raised at the trial.

24 The appropriate authorities in respect to issues raised for the first time on appeal were recently examined in: Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28 [81] – [93].

25 In particular, the court referred to University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principles to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had the opportunity to do so (483).

26 In McLennan v McCallum [2010] WASCA 45 [80] – [88] Buss JA stated that the basis for the rule against raising a new argument on appeal without exceptional circumstances was based in public policy considerations directed to ensuring finality in litigation and, in part, from the doctrine of estoppel by election in the conduct of litigation.

27 In dealing with the latter, his Honour stated:

… To the extent that some aspects have their origin in estoppel by election, the relevant consideration is not that the party is put in a worse position, but that he or she may have been put in a worse position (citation omitted).

28 In Primewest [85] Martin CJ stated:

In relation to the prejudice that the party may suffer as a result of the other party being able to raise a new argument on appeal, there is ample authority to suggest that an argument can't be raised on appeal if it can't be resolved fairly without the parties having to adduce evidence or where the facts are not admitted or beyond controversy. (citations omitted)

29 Some of the matters raised for the first time on appeal can be dealt with without the respondent suffering prejudice because they had the opportunity of providing submissions in relation to those matters or the issues raised relate to interpretation of statutory provisions.

30 There are however some matters that are raised for the first time which should not now, in accordance with the above authorities, be entertained or resolved by the court because the respondent's witnesses were not given the opportunity at the trial to refute the suggestions now being put by the appellants.

Applicable legislation

Legal Profession Act 2008 (WA)

260. Disclosure of costs to clients

(1) A law practice must disclose to a client in accordance with this Division —

(a) the basis on which legal costs will be calculated, including whether a costs determination applies to any of the legal costs; and

(b) the client's right to —


(i) negotiate a costs agreement with the law practice; and

(ii) receive a bill from the law practice; and

(iii) request an itemised bill after receipt of a lump sum bill; and

(iv) be notified under section 267 of any substantial change to the matters disclosed under this section;


and

(c) an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable —

(i) a range of estimates of the total legal costs; and
(ii) an explanation of the major variables that will affect the calculation of those costs;

and

(d) details of the intervals (if any) at which the client will be billed; and

(e) the rate of interest (if any) that the law practice charges on overdue legal costs, whether that rate is a specific rate of interest or is a benchmark rate of interest (as referred to in subsection (2)); and





(f) if the matter is a litigious matter, an estimate of —
(i) the range of costs that may be recovered if the client is successful in the litigation; and

(ii) the range of costs the client may be ordered to pay if the client is unsuccessful;
and
(g) the client's right to progress reports in accordance with section 269; and
(h) details of the person whom the client may contact to dis cuss the legal costs; and

(i) the following avenues that are open to the client in the event of a dispute in relation to legal costs —

(i) costs assessment under Division 8;
(ii) the setting aside of a costs agreement under section 288;

(iii) making a complaint under Part 13;

and

(j) any time limits that apply to the taking of any action referred to in paragraph (i); and

(k) that the law of this jurisdiction applies to legal costs in relation to the matter; and

(l) information about the client's right —

(i) to accept under a corresponding law a written offer to enter into an agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter; and

(ii) to notify under a corresponding law (and within the time allowed by the corresponding law) the law practice in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter.

(2) For the purposes of subsection (1)(e), a benchmark rate of interestis a rate of interest for the time being equal to or calculated by reference to a rate of interest that is specified or determined from time to time by an ADI or another body or organisation, or by or under other legislation, and that is publicly available.

(3) The regulations may make provision for or with respect to the use of benchmark rates of interest, and in particular for or with respect to permitting, regulating or preventing the use of particular benchmark rates or particular kinds of benchmark rates.

(4) For the purposes of subsection (1)(f), the disclosure must include —


(a) a statement that an order by a court for the payment of costs in favour of the client will not necessarily cover the whole of the client's legal costs; and
(b) if applicable, a statement that disbursements may be payable by the client even if the client enters into a conditional costs agreement.

(5) A law practice is taken to have complied with the requirement to disclose the details referred to in subsection (1)(b)(i), (ii) and (iii), (g), (i), (j) and (l) if it provides a written statement in or to the effect of a form prescribed by the regulations for the purposes of this subsection at the same time as the other details are disclosed as required by this section.

(6) A form prescribed for the purposes of subsection (5) may, instead of itself containing details of the kind referred to in that subsection, refer to publicly accessible sources of information (such as an internet website) from which those details can be obtained.

(7) The regulations may require the Board to develop a statement of the relevant details and to revise it as necessary to keep it up to date.

262. How and when disclosure must be made

(1) Disclosure under section 260 must be made in writing before, or as soon as practicable after, the law practice is retained in the matter.

…

266. Form of disclosure

(1) Written disclosure to a client under this Division —


(a) must be expressed in clear plain language; and

…


267. Ongoing obligation to disclose

A law practice must, in writing, disclose to a client any substantial change to anything included in a disclosure already made under this Division as soon as is reasonably practicable after the law practice becomes aware of that change.

268. Effect of failure to disclose

(1) If a law practice does not disclose to a client or an associated third party payer anything required by this Division to be disclosed, the client or associated third party payer (as the case may be) need not pay the legal costs unless they have been assessed under Division 8.

(2) A law practice that does not disclose to a client or an associated third party payer anything required by this Division to be disclosed may not maintain proceedings against the client or associated third party payer (as the case may be) for the recovery of legal costs unless the costs have been assessed under Division 8.

273. Interest on unpaid legal costs

(1) A law practice may charge interest on unpaid legal costs if the costs are unpaid 30 days or more after the practice has given a bill for the costs in accordance with Division 7.

(2) A law practice may also charge interest on unpaid legal costs in accordance with a costs agreement.

(3) A law practice must not charge interest under subsection (1) or (2) on unpaid legal costs unless the bill for those costs contains a statement that interest is payable and of the rate of interest.

(4) A law practice may not charge interest under this section or under a costs agreement at a rate that exceeds the rate prescribed by the regulations.

…

289. Legal costs cannot be recovered unless bill has been given

(1) A law practice must not commence legal proceedings to recover legal costs from a person until at least 30 days after the law practice has given a bill to the person in accordance with sections 290 and 291.

…

Legal Profession Regulations 2009 (WA)

79. Maximum interest rate prescribed (Act s. 273(4))

(1) This regulation is made for the purposes of section 273(4) of the Act and prescribes the rate of interest in excess of which a law practice may not charge interest under section 273 of the Act or under a costs agreement.

(2) The rate is the rate that is equal to the Cash Rate Target as at the relevant date, increased by 2 percentage points.

(3) In subregulation (2) —


Cash Rate Target means the percentage (or maximum percentage) specified by the Reserve Bank of Australia as the Cash Rate Target;

relevant date means the date the bill was issued by the law practice concerned.


(4) This regulation does not apply to a period occurring before the commencement of this regulation.

Consideration of the grounds of appeal

1. The trial magistrate erred in mixed fact and law in finding the respondent is entitled to:

(a) payment of $12,772.96 plus statutory interest without assessment of its bill of costs dated 18 October 2010: @ [514]

(b) maintain the proceedings below contrary to Legal Profession Act 2008 s 268: @ [514]

31 As to 1(a) for reasons explained when examining the individual grounds of appeal, his Honour did not err in fact or law in his judgment.

32 As to 1(b) it is accepted by all parties that if the costs disclosure does not comply with s 260 LPA then pursuant to s 268 LPA the applicants need not pay the legal costs and the respondent is unable to maintain these proceedings until the costs claimed have been assessed (taxed) and the appellants' would be entitled to be successful in the appeal.

33 Insofar as Ms Frigger seemed to be submitting that even if s 260 had been complied with, the respondent could not maintain proceedings to recover their costs until those costs have been assessed (taxed) that submission is untenable, without merit and contradicted by s 289.

34 If disclosure complying with s 260 has been made, s 289 permits a law practice to commence proceedings to recover legal costs 31 days after the bill has been given to the client in accordance with s 290 and s 291.

Appeal grounds relating to 'disclosure'

'Section 260(1)(b)(iv): The respondent's cost agreement clause 6.9 does not comply with section 260(1)(b)(iv): @ [439]:'

35 The effect of s 260(1)(b)(iv) and s 267 is that the respondent was required to disclose to the appellants the appellants' right be notified of any substantial changes to the matters disclosed under s 260 as soon as reasonably practicable after the respondent became aware of those changes.

36 His Honour found [439] that the respondent had discharged its obligations pursuant to s 260(1)(b)(iv) and that the right was notified in cl 6.9 of the draft costs agreement and signed costs agreement (exhibit 3 and 4).

37 The appellants' contend , firstly ,that his Honour erred because the notification of the right to be notified of changes to the costs disclosure already given should have appeared in sch 1 form 2 of the Legal Profession Regulations2009.

38 Secondly, that as cl 6.9 of the costs agreement appears under the sections headed 'Accounts' rather than in a section headed 'statutory disclosure' it was not a disclosure that complied with the LPA.

39 Thirdly, cl 6.9 of the costs agreement does not comply with s 260(1)(b)(v). The appellants argue that cl 6.9 requires notification of changes to previous disclosure only if the legal services relating to those previous disclosures has changed. If the legal services have not changed but the previous disclosure has increased (or decreased) then the appellants argue that cl 6.9 means the change does not have to be notified and therefore cl 6.9 does not satisfy s 260(1)(b)(iv).

40 Clause 6.9 of the costs agreement provides (exhibit 4):

We must provide you with details of changed circumstance affecting the extent and nature of the legal services to be provided under this agreement and the effect of these changes on the estimate of costs provided to you.

41 As to the first point, his Honour found at [439] that the right was notified in cl 6.9 of exhibit 4. The LPA requires disclosure of the right, that disclosure is not required to appear in sch 1 form 2 Legal Profession Regulations 2009. No error in law or fact has been demonstrated.

42 As to the second point, the LPA requires disclosure. It does not require the disclosure to be headed 'Statutory Disclosure'. Nothing turns on the disclosure appearing in the section headed 'Accounts'. It does not appear that this point was raised before the magistrate. In any event, it has no merit. No error in law or fact has been demonstrated.

43 As to the third point, the requirement specified by the LPA is for a notification of 'any substantial change'. Clause 6.9 obliges the respondent to notify the appellants of any changed circumstances affecting the extent and nature of the legal services and the effect of those changes on the estimate of costs, irrespective of whether that change is substantial or not. If anything, the costs agreement has imposed a greater burden on the respondent than the legislation required. There was no argument at the trial of what was meant by the word 'substantial'.

44 In BGM v Australasian Lawyers Group Pty Ltd t/as Butlers Barristers & Solicitors [2014] WASC 290 Master Sanderson dealt with a costs agreement which contained a clause (cl 9.1(d)) obliging the solicitors to notify their client 'of any substantial change to the costs incurred' and 'the manner in which the costs are calculated'. Whilst noting that the obligation in s 260(1)(b)(iv) appeared to be slightly wider than cl 9.1(d) of the costs agreement in that case, the master held [82] that the defendant had complied with s 260(1)(b). In this case the reverse applies, cl 6.9 is wider and imposes a greater obligation on the respondent than the disclosure required under s 260. It complies with s 260(1)(b)(iv). No error in his Honour's conclusion with respect to s 260(1)(b)(iv) has been demonstrated.

45 The appellants' submissions in reply and their reference to a Law Society costs template, which was not evidence at the trial or appeal, does not assist them. Clause 6.9 complies with s 260(1)(b)(iv).

46 This ground must be dismissed.

'Section 260(1)(f)(i)

(i) The respondent did not disclose to the appellants how much of the estimate given in the cost agreement dated 29 September 2010 of $5,000 -$10,000 would be recoverable if successful on a party/party basis or an indemnity basis: @ [414];

(ii) The respondent did not disclose to the appellants how much of the estimate of $45,000 given on 6 October 2010 would be recoverable if successful on a party/party basis or an indemnity basis: @ [432]

Section 260(1)(f)(ii)

(iii) The respondent did not disclose to the appellants how much would be payable, if unsuccessful in the arguments which comprised the work for which an estimate of $5000 -$10,000 was given in the cost agreement dated 29 September 2010: @ [414];

(iv) The respondent did not disclose to the appellants how much would be payable if unsuccessful in the arguments which comprised the work for which an estimate of $45,000 was given on 6 October 2010: [432];'

47 Section 260(1)(f)(i) and s 260(1)(f)(ii) apply to litigious matters and require the respondent to provide an estimate of the range of costs that would be recoverable if the appellant had been successful in the litigation (s 260(1)(f)(i)) or may be ordered to pay if not successful (s 260(1)(f)(ii)) (hereinafter referred to collectively as the recoverable costs).

48 The respondent does not dispute the work they performed was work in a litigious matter.

49 The written costs disclosure were contained in two documents being the costs agreement of 29 September 2010 (exhibit 4) and a letter of 6 October 2010 (exhibit 18).

50 In this regard the costs agreement of 29 September 2010 (exhibit 4) had 'N/A' completed in the section relating to recoverable costs.

51 His Honour's conclusion in respect of exhibit 4 was that the respondent's initial engagement was to take Mrs Frigger's statement and give some legal advice based on that statement and they had not contractually committed to represent the appellants at the hearing. His Honour said that in regard to those legal services it was not 'relevant or meaningful' to contend that there was an obligation to disclose and estimate recoverable costs (although his Honour seemed only to address costs payable if unsuccessful and not costs recoverable if successful) and found that it was understandable, reasonable and legally proper for the respondent to advise the appellants in writing 'N/A' with respect to the recoverable costs [414].

52 His Honour accepted that it would have been preferable if 'Nil' had been written in the appropriate space and said that N/A could only be sensibly interpreted as meaning no such costs were payable because N/A was commonly understood to mean not applicable.

53 In respect to exhibit 4 the appellants contend that as the preparation of the statement was a litigious matter a range of recoverable costs were required to be disclosed pursuant to s 260(1)(f) and that required a numerical amount to be specified. The appellants also argue that 'N/A' could mean not applicable or not available.

54 The respondent says that 'N/A' means not applicable. Further, they argue that recovery of costs for a proof of evidence is not typically allowed as an individual item in circumstances where there has been a change of solicitors.

55 They say the Act required disclosure of the amount for recoverable costs if the client is successful or unsuccessful 'in the 'litigation' and this relates to all of the costs payable in the matter in its entirety and that Mrs Frigger's submission is effectively asking for disclosure on a small part of the proceedings.

56 Whether appropriate disclose has been made must be considered in light of all the applicable circumstances, including the terms of the engagement and the information possessed by the legal practice at the time of disclosure. The costs disclosure in exhibit 4 was made in circumstances where the appellants had contacted the respondent only weeks before and the hearing was listed to commence on 13 October 2010.

57 His Honour held that a law practice's disclosure obligations must be considered in light of the requirement that disclosure be complied with 'as soon as practicable' (s 262) and that necessarily involves considerations of what is 'reasonable and appropriate'.

58 His Honour found consistently throughout his reasons that at that time (and subsequently) the respondent did not have sufficient information to be able to estimate the range of recoverable costs. There has been no error demonstrated in his Honour's reasoning.

59 Exhibit 18, the letter of 6 October 2010 from Mr Morgan to the appellants which contained further costs disclosures did not contain any references to recoverable costs.

60 In this regard his Honour took into account that proceedings were already on foot before the respondent became involved and that the respondent had limited access to documents, were picking up the case from other solicitors, were initially unaware of the full background of the case including the cost orders that had been made to date, had no access to the former solicitors' file and no information as to what work those solicitors had done and were not in possession of a full transcript of the original proceedings nor the subsequent costs hearings.

61 His Honour found that Mrs Frigger had restricted or prevented the respondent access to documentation. His Honour found that the costs hearing was a complex and unusual hearing which was interwoven with the original proceedings including the significant question of whether cross-examination on the evidence given by Mrs Frigger at the original proceedings would be permitted in light of the dangers that such cross-examination may establish inconsistencies with a subsequent affidavit filed by her.

62 His Honour noted that Mr Dillon (counsel who had appeared for Mrs Frigger on previous occasions) described the costs hearing as being extraordinarily complex.

63 His Honour noted that the respondent had received the chronology from Mrs Frigger as well as the statement prepared pursuant to the original costs agreement and concluded that there was insufficient material or information for the respondent to be able to specify in writing any range of recoverable costs and to do so would be nothing more than guess work in light of the gaps then in their knowledge and information and the time constraints.

64 His Honour found that the reality of the situation was that the respondent could not reasonably and appropriately estimate the range of recoverable costs and therefore there had been no breach of their obligation under s 260(f)(i) and 260(f)(ii) [419] – [436].

65 In relation to exhibit 18, the appellants say that his Honour's findings that the respondent had insufficient material or information to disclose recoverable costs was based on 10 separate findings of fact each of which was in error. The 10 findings of fact challenged were his Honour's findings that:

1. The limited availability of documentary materials in proceedings of this litigious nature made preparation, giving of legal advice and making estimates of the total legal costs payable or recoverable impractical and bordering on guess work [419].

2. The claimant was initially unaware of the full background details [420].

3. The claimant did not have access to the former solicitors' file on the proceedings [421].

4. The claimant did not actually receive instructions or information as to the nature or the amount of the costs of the legal work undertaken by former solicitors [421].

5. The claimant did not have the full transcript of the original proceedings and the hearings to date concerning the costs applications [422].

6. Mrs Frigger restricted and in some respects refused access to documentations which the claimant, and in particular Mr Morgan, had requested [423].

7. The appellants' submissions that the nature of the costs hearing was anything other than complex should be rejected [424].

8. The appellants' submissions that the costs hearing was discrete and separate from the original proceedings should be rejected [424].

9. That because there was an application to cross-examine Mrs Frigger (on the evidence she gave at the original proceedings) that exonerated the respondent from making cost disclosure [425].

10. That the chronology and statements and all other documents that were provided without the transcript in judgement were insufficient to make reliable estimates of the range of costs payable and recoverable [428].

66 The appellants' submission in reply argues that there was no genuine attempt to estimate recoverable costs in the costs disclosure of 29 September 2010 and 6 October 2010, even as a percentage of clients' costs and they were never informed of any potential liability to pay costs. I observe that the suggestion that there is no evidence that the appellants actively withheld any information or documents is contrary to Mrs Frigger's admission at the appeal that she deliberately withheld 5,000 pages of transcript and 13 volumes of exhibits.

67 In respect of each of these 10 points, the respondent says that they were raised without notice for the first time at the appeal and they were not referred to in the appeal grounds or written submissions. There is merit in that submission, however I shall deal with each point.

68 Insofar as point 1 is concerned, a brief summary of the appellants' submission is as follows:

(a) An examination the respondent's invoice (exhibit 25), particularly for 28/9, 29/9, 1/10, 2/10 and 3/10 shows the appellants were charged many hours for documents being pursued, considered or examined therefore that is evidence that the respondents had sufficient documents to calculate recoverable costs.

(b) In appeal exhibits 1 - 4 the respondents refers to 'please provide all documents to me urgently' (AE1), 'You seem to have taken the transcripts and submissions by Mendelow, they are the two main documents I need to consider … Can you please return them immediately' (AE2), 'Please make sure you bring with you any relevant written correspondence you have' (AE3), 'Please deliver the documents to my reception tomorrow morning' (AE4) and in exhibit 1 JKD5 reference is made 'to an awful lot of material filed just in relation to costs' therefore it can be inferred that all documents requested by the respondents were delivered to them.

(c) Mr De Silva evidence at ts 78 and ts 101 that the documents he wanted to see were documents relevant to the cross-examination that Mrs Frigger was being threatened with and Mr Morgan's evidence at ts 111 that he had a brief look or quick scan of the material provided establishes that the respondents had sufficient documents to calculate recoverable costs.

(d) Mr Morgan’s note in exhibit 1 JKD7 that he is to give Mrs Frigger a list of 'docs' taken with the fact that the respondents invoice contains no itemization for such a list leads to the inference that the list of documents was not prepared because Mr Morgan had all the documents he needed.

69 The fallacy in the appellants' reasoning is readily apparent. Mrs Frigger's submission that because the respondent's invoice (exhibit 25) shows that the respondent was provided with some documentation means that all documentation requested was provided is nonsensical. The fact that documents were requested by the respondent (AE1 - AE4) does not prove that the documents were provided. Mr Morgan was not cross-examined as to whether he did or did not prepare the list referred to in exhibit 1 JKD7 or whether he gave the list to Mrs Frigger. The point was not taken at the trial, Mr Morgan was not cross-examined on it and it does not prove the point that Mrs Frigger seeks to make. A court ruling that Mrs Frigger could not be cross-examined in the costs hearing on the evidence she gave at the original hearing does not invalidate a conclusion that the limited availability of materials made estimating the total legal costs payable or recoverable impractical and bordering on guess work.

70 Mrs Frigger accepts that she withheld 5,000 pages of transcript and 13 volumes of exhibits (appeal transcript, 28).

71 There was ample evidence upon which his Honour could form the conclusion he reached including but not limited to Mr Morgan and Mr De Silva's evidence and exhibit 18, par 2.

72 I accept that Mrs Frigger's evidence is diametrically opposed to the respondent's evidence, but it was for his Honour to determine questions of credibility and whose evidence he accepted and there was ample evidence upon which he could reach the conclusion now being objected to.

73 In respect of point 2, the appellants rely on Mr De Silva's statement in exhibit 3 that the chronology provided had given a 'good background and directed my mind towards the issues', the invoice (exhibit 25), from the respondent to the appellants, and in particular the entries of 28 and 29 September 2010, 1, 2, 3 and 6 October 2010 as showing that the respondent was fully aware of the full background details of the costs submissions.

74 I simply repeat the findings I have made in respect of point 1, that is, that there was ample evidence for his Honour to reach the conclusion that the respondent was not aware of the full background details sufficiently to enable an estimate of the recoverable costs. That evidence includes the evidence of Mr De Silva and Mr Morgan and it was for his Honour to determine whether he accepted that evidence, which he clearly did. No error has been established.

75 As to point 3, the appellants' submission that there was no evidence that any request was made by the respondent to their former solicitors for the file, fails to recognise what his Honour in fact said. At [421] his Honour stated that the claimant did not have access to the former solicitors' file on the proceedings, the claimant did not actually receive instructions or information as to the nature or amount of or costs of the legal work undertaken by those former solicitors and the claimant at best had a very generalised understanding of the nature and amount of legal work undertaken by the former solicitors and solicitors for the opposing party.

76 His Honour's findings were based on the evidence of Mr Morgan and Mr De Silva. That finding was open to his Honour.

77 As to point 4, it overlaps to some extent with point 3. The appellants refer to exhibit 1, JKD5 and the note appearing therein 'Dillon 37,000 2 appearances'. Mr Morgan and Mr De Silva were not cross-examined as to exactly what that entry related to. The entry does not establish directly or by inference that the total legal costs of the former solicitors were $37,000 nor does it say anything about the nature of the work undertaken by the former solicitors.

78 As to point 5, Mrs Frigger said on the appeal that she took the transcripts of the original hearing away from the respondent after two days. On her admissions the transcript was 5,000 pages in length. His Honour's finding is not disputed. The respondent did not have the full transcript from the original proceedings because, on Mrs Frigger's own admission, she took them away.

79 As to point 6, it is just an extension of point 5. Mrs Frigger accepts that she took the transcript away as part of a tactical decision by her not to let her new solicitors examine the transcript of the original proceedings. It was her right to do so, but she cannot now say that she did not restrict their access to it.

80 As to point 7, Mrs Frigger's submission in this regard was that there was no excuse for the failure to make a costs disclosure even if the costs hearing was complex, which she disputed. It is not in dispute that whether the costs hearing was complex or not, the provisions of the act were required to be complied with. In [424] his Honour made a finding of fact that the costs hearing was a complex hearing. Considering the nature of the parties involved and the nature of the issues to be determined, that finding was clearly open to his Honour based on the evidence of Mr De Silva and Mr Morgan and also correspondence from Mr Dillon (exhibit 6, email 5 October 2010 at 10:13 am).

81 As to point 8, Mrs Frigger's submissions (appeal transcript, 51) were that:

Initially there may have been some relation but eventually there was no relation because the cross-examination (on her evidence at the original proceedings) was not allowed.

82 Clearly his Honour was correct in fact and law in concluding that the costs hearing was related to the original proceedings as evidenced by the efforts made at the costs hearing to cross-examine Mrs Frigger on the evidence she gave at the original proceedings. The fact that that cross-examination was not allowed does not establish that the costs hearing was discrete and separate from the original proceedings. The respondent needed to oppose the application to cross-examine Mrs Frigger. How they could possibly have opposed cross-examination without being aware of the original proceedings and the nature and extent of them is not clear to me. As his Honour found there is a clear connection between the costs hearing, the application to cross-examine Mrs Frigger on her evidence at the original proceedings and the original proceedings. No error of fact, law or discretion has been established.

83 As to point 9, Mrs Frigger submits that:

The magistrate concluded that because there was an application to cross-examination that the respondent was exonerated from making a costs disclosure' (AT 51).

84 That completely misrepresents what his Honour found [425].

85 His Honour found that the costs applications were unusual and there was an indication that there was an intention to seek leave to cross-examine Mrs Frigger on the costs application. That application required careful detailed review and preparation as Mrs Frigger wished to oppose it. His Honour found that if the respondent had the material on which it was proposed to cross-examine Mrs Frigger, it would have given them significant meaningful information to enable relevant or reliable estimates of the range of costs payable and recoverable. What Mrs Frigger says his Honour said [425] and what he said are completely different. No error has been established.

86 As to point 10, Mrs Frigger says that the judgments were publicly available on the websites and exhibit 25 ( particularly the entry for the 09/29/10) shows that Mr De Silva considered the reasons for decision of the interim freezing order and those reasons gave a full background of the original judgment.

87 His Honour accepted that the chronology and statement given by Mrs Frigger directed Mr De Silva's mind to the issues and found that absent documents like the transcripts, the respondent did not have sufficient information to enable relevant or reliable estimates of the range of costs payable and recoverable [428]. That finding of fact ,which rejects the suggestion that the chronology and the statement gave the full background details, is clearly a finding supported by the evidence as irrespective of whether his Honour's remarks are directed to exhibit 4 (29 September) or exhibit 18 (8 October) the transcript was not in the possession of the respondent. There was ample evidence to justify his Honour's finding that the chronology and statement alone did not provide the full background details required to make the estimates.

88 The appellants relied on Mazoski v Rennick and Gaynor (Legal Practice) [2007] VCAT 212 where the law firm was found to have failed to meet the disclosure obligations because the court found that having conferred with the client and having received documents, an estimate of possible costs and the basis of those costs could have been given in relation to the provision of the preliminary opinion. In that case it was not in dispute that the law firm had the documents, therefore it is not surprising that an estimate of costs could and should have been given.

89 No error has been established with his Honour's reasoning. The findings of fact were open, if he accepted, as he did, the evidence of Mr De Silva and Mr Morgan. On appeal this court should not interfere with his Honour's findings of fact unless they are demonstrated to be wrong by incontrovertible facts or uncontested testimony, or they are glaringly improbable or contrary to compelling inferences:Robinson Helicopter Co Inc v McDermott. The appellants have failed to establish any one of those basis.

90 The disclosure obligation in respect to recoverable costs requires a genuine estimate such as to inform the client of their potential liability. This obligation is not fulfilled by offering a broad range, which is so lacking in its base and its explanation, as to provide no worthwhile information: Casey v Quabba (2005) QSC 356 [40]. The estimate must be adequate or proper: Garbutt v Edwards (2006) 1 All ER 553, 568. An estimate requires due and detailed consideration: Halsbury's Laws of Australia 250-4010. The estimate must be a realistic and reasonable estimate: The Law of Costs, 2^nd ed, Dal Pont [2.26], [2.29].

91 In this regard his Honour properly took into account that the first costs disclosure (exhibit 4) was made at a time (29 September 2010) when the instructions were limited to preparing a statement and some advice in relation to that statement and the second costs disclosure (exhibit 18, 6 October 2010) was also made in circumstances where a meaningful, adequate, realistic or reasonable estimate of costs could not be given.

92 His Honour set out the factual basis which led to his conclusions. Those findings included findings that the costs hearing was complex and interwoven with the original proceedings, and that the respondent had taken over the file from another solicitor, had limited availability of documents, were not initially aware of the full background, did not have access to the former solicitors' file, were not fully apprised of the nature and amount of the costs of legal work already performed by former solicitors, and significantly, did not have the full transcripts of the original proceedings [419] – [428]. The factual basis was amply supported by the evidence of Mr De Silva and Mr Morgan and as previously indicated, no error has been shown in the factual basis of his Honour's conclusion.

93 No error of law has been demonstrated in his Honour's conclusion that the legislative requirement for disclosure to be made 'as soon as practicable' (s 262) necessarily involves considerations of what is 'reasonable and appropriate' in the circumstances of the case.

94 No error of fact, discretion or law has been demonstrated in his Honour's reasoning that as a matter of fact that the respondent could not reasonably and appropriately estimate the range of recoverable costs in exhibit 4 and exhibit 18.

Section 262

95 In the appellants' submissions in reply it is stated that the only relevant circumstance to consider in determining whether the giving of a further costs disclosure was reasonably practicable was the respondent's own belief that the timeframe was reasonably practicable: (par 4(c) appellants' submissions in reply). I reject this submission.

96 Section 262(1) provides that 'disclosure under s 260 must be made in writing before, or as soon as practicable after ,the law practice is retained in the matter'. His Honour [354] determined that as soon as practicable imported the requirements of what was 'reasonable and appropriate'. In this regard his Honour was perfectly correct in law. The State of Western Australia v Rothmans of Pall Mall (Australia) Ltd [2001] WASCA 25 [24] held that as soon as practicable should be read as soon as reasonably practicable. A similar conclusion was reached in Wills v Whiteside; ex parte Wills [1987] 2 Qd R 284, 288. In Nicholl v Hunter (1994) 20 MVR 384 it was held that the words practicable do not impose a standard of perfection buy require practicalities to be consider and require a reasonable approach to be taken in assessing any given case (389).

97 The notion that the only matter to take into account was the respondent's subjective belief as to whether it was practical is not in accordance with law and is rejected. What is reasonably practicable requires a consideration of all the circumstances and that is precisely what his Honour did.

98 The appellants' submissions that his Honour did not find any oral disclosures were given is contrary to his Honour's findings [312], [322], [332(b)] which were based on the evidence of Mr De Silva (exhibit 2, ts 153 - 155) and Mr Morgan (exhibit 16, ts 158 - 163) and exhibit 1. His Honour found that the oral disclosure took place as sworn to by Mr Morgan and Mr De Silva and they were was subsequently confirmed in writing (exhibit 4 and 18) and the confirmation in writing constituted the written costs disclosure required by the LPA. It was open to his Honour to make those findings. No error has been demonstrated.

'Section 266: (v) The disclosure given on 6 October 2010 was not in clear plain language: ex 18'

99 The appellants submitted that:

1. The disclosure of 6 October 2010 (exhibit 18, par 3) was not in the same format as the disclosure of 29 September 2010 in that it was not headed 'disclosure' nor was it in the same table format.

2. The disclosure was not in clear plain language because it:


(a) Was difficult to ascertain exactly what was going to be charged and

(b) What work was to be performed

(c) Purports to confirm oral disclosure conversations which did not occur. In this regard the appellants say the absence of written confirmation of these conversations in either the notes of the discussions and meetings which took place between 28 September 2010 and 6 October (exhibit 1) or the invoice (exhibit 25) confirms that that no such oral conversations took place and therefore the disclosure is not in clear plain language as it refers to oral conversations which did not take place.

(d) The language used was not free from ambiguity and did not convey it was a costs disclosure.


3. The disclosure did not comply with Mr De Silva email, exhibit 3 of 28 September 2010, to the effect that once the statement had been taken the respondents could determine how much further work needed to be done and would estimate their further costs of that work.

4. The disclosure was made after the work had been done.

100 The respondent says that at the hearing the argument that the costs disclosure was not in clear plain language was confined to the costs disclosure of 29 September 2010 (exhibit 4) and in particular the use of the notation 'N/A' and his Honour found [414] that there was no evidence that the respondent did not understand what 'N/A' meant. They say that on appeal the argument that the costs disclosure of 6 October 2010 was not in clear plain language cannot be maintained.

101 In any event, the respondent says as to point 1 and 2 that the costs disclosure was in clear plain language.

102 As to point 3, the respondent says what seems to be raised was that the work done between 28 September 2010 to 6 October 2010 was beyond the scope of the retainer and that was contrary to the facts as found by his Honour. His Honour found that exhibit 1 and Mr De Silva and Mr Morgan's evidence established that the appellants were aware of the amount of work that was being done by the respondent. They say this finding was open on the evidence and no error has been demonstrated.

103 As to point 4, the respondent says a large amount of work was being done in a short period of time with many meetings and they gave ongoing oral disclosure as this matter progressed which disclosures were reduced to writing as soon as reasonably practicable being 6 October 2010.

104 As to point 1, the disclosure was not required to be headed 'disclosure' or made in any particular format, the Act requires disclosure, the fact that the costs disclosure of 28 September 2010 was made in one format and the costs disclosure of 6 October 2010 in another, does not establish that a costs disclosure was not made. His Honour found that both disclosures complied with the LPA. There has been no error demonstrated in his Honour's conclusion.

105 As to point 2(a) and (b), Russell Solicitors v McCardel [2014] VSC 287 established that the phrase clear plain language encapsulates a requirement that the language used is clear and plain in the sense that it can easily be understood by the ordinary reader after applying reasonable effort [77]. The costs payable and the work to be performed are readily ascertainable from reading exhibit 18 after applying reasonable effort. It is nonsense for the appellants to say that they did not know what work is being done. There is no merit in this ground.

106 As to point 2(c), the submission that exhibit 18 refers to oral discussions (disclosures about fees) which never occurred was exactly the argument Mrs Frigger ran at the trial. The evidence of Mr Morgan at exhibit 16, par 18 and his oral evidence and Mr De Silva's oral evidence and exhibit 2, pars 7, 9, 11, 12 and exhibit 1 and indeed the confirmation contained within exhibit 18 is all evidence capable of confirming that the oral discussions took place. It was for his Honour to determine whether he accepted that evidence. His Honour did accept that evidence, and accordingly no error has been demonstrated. The appellants' suggestion that there is an absence of written conformation in the notes or in the invoice is disingenuous. The written confirmation of the oral discussions is provided in exhibit 18.

107 As to point 3 and 4, his Honour found based on Mr De Silva and Mr Morgan's evidence that the respondent performed additional work after the statement was taken at the appellants' request. That finding was open on the evidence. His Honour [386] was correct to conclude that exhibit 4, the costs agreement, referred not only to the taking of a statement from Ms Frigger, but also acting on the appellants' behalf in respect of all matters on which instructions were given (Part C of exhibit 4, Part B of exhibit 4) and that oral disclosure was made on an ongoing basis as that work progressed and confirmed in writing in exhibit 18 as soon as reasonably practicable.

108 The first contact between the appellants and respondent was the telephone conversation involving Mr De Silva on 24 September 2010, the first meeting occurred on 28 September 2010 and the costs hearing was on 13 and 14 October 2010.

109 In those circumstances it can hardly be said that costs were not disclosed until after the work was completed. The costs for the statement were disclosed orally on 24 September 2010 and in writing in the costs agreement of 28 and 29 September 2010 (exhibits 3 and 4). The costs of 'all matters on which instructions were given' were disclosed in writing on 28 and 29 September 2010 (exhibits 3 and 4). The costs for considering the material the appellants had provided and developing a preliminary strategy were orally disclosed on 1 October 2010 (Mr De Silva exhibit 2, par 11, Mr Morgan exhibit 16, par 2).The costs for further work from 4 October 2010 were disclosed orally on or about 4 and 5 October 2016 (Mr De Silva exhibit 2, par 12, Mr Morgan exhibit 16 pars 2, 3, 6) and then confirmed in writing on 6 October 2010 (exhibit 18). The findings made by his Honour were open on the evidence of Mr Morgan and Mr De Silva.

110 His Honour found that the appellants expanded their initial instruction from essentially being instructions to prepare a statement (28 September 2010) to instructing Mr Morgan to be prepared to conduct the costs hearing (up to 7 October 2010). His Honour's finding was essentially that oral costs disclosure occurred contemporaneously with the expanding instruction and that the oral disclosures were then confirmed in writing on 6 October 2010 (exhibit 18).

111 No error had been demonstrated.

'Section 267

(i) The respondent did not disclose in its letter of 6 October 2010 that its estimate of $5,000 -$10,000 to take a statement of Angela Frigger, as disclosed in the cost agreement had in fact cost only $2,350 when it was completed on 30 September 2010: ex 18;

(ii) The respondent did not disclose to the appellants that it had already charged the appellants $15,000 up to 4 October 2010, which work was beyond the instructions of the cost agreement and contrary to De Silva's email dated 28 September 2010: @ [284], [286], [294];

(iii) The respondent did not disclose to the appellants until 6 October 2010, despite charging the appellants $20,000 until that date of work outside the instructions of the cost agreement, that it could not represent the appellants without an external barrister contrary to DeSilva email dated 28 September 2010: ex 17, 18.'

112 At the appeal, point (iii) was expanded somewhat to encompass a new point (iv) that the appellants were not given disclosure that the respondent had not agreed to represent them until the email of 6 October 2010.113 In addition to points raised in the notice of appeal and oral submissions at the appeal, the appellants by their written submissions raised further points being as follows:

(v) the respondent did not disclose to the appellants what it promised to disclose … Mr De Silva's email dated 28 September 2010.

(vi) the respondent did not disclose to the appellants that it intended to charge them $17,350 to assess whether it could represent them

(vii) the respondents did not disclose to the appellants that it could not represent them without the assistance of an external barrister until it had already charged them, $19,483.

(viii) the condition imposed on the legal services to be provided in exhibit 22 by Mr Morgan was an effective variation of the costs agreement which was not disclosed to the appellants prior to the charging them almost $20,000.

114 Mrs Frigger commenced her argument by repeating that cl 6.9 of exhibit 4 does not comply with the statutory obligations in s 260(1)(b)(v) to advice of the right to notification of changes. I have already found that cl 6.9 is wider than required by the statute and in fact imposes a greater obligation on the respondent than the disclosure requirements under s 260(1)(b)(iv). There is no merit in this ground.

115 As to point (i) the appellants then say there was a failure to comply with the obligation under s 267 because in the first cost disclosure the respondent estimated the cost of taking the statement of between $5,000 - $10,000. The appellants argue that the actual cost of the statement was $2,133 (par 33 appellants' submissions on appeal) and say they should have been advised that was the cost of the statement and that they still had the balance of the monies that was paid pursuant to the first cost disclosure in trust.

116 I reject this argument. The whole basis of the appellants' calculation that the costs charged for the first statement was $2,133 is not supported by any evidence at all. The appellants have arbitrarily calculated from the various invoice (exhibit 25) entries the amount they say is attributable to the taking of the statement. For example, the entry of 29 September 2010, exhibit 25 reads:

Attendance formulate strategy, consider reasons for decision of interim freezing order, amend statement to include further events, email to client, speak with client, record observations and argument and outline of events (similar to a brief) 60 units $2,280.

117 On appeal Ms Frigger says from the bar table that an amount of $380 relates to 'amend the statement to include further events, email to client' and applying similar logic and arbitrary calculations, Mrs Frigger then goes through other entries and arrives at the figure of $2,133. There is no factual or evidentiary basis for that conclusion that the actual cost of the statement was $2,133. There is no merit in this ground whatsoever.

118 Point (ii) and (v) are essentially a rehash of the argument the work performed was beyond the scope of the original retainer. It is an argument that was rejected by his Honour. Exhibit 1 JKD5 and JKD6 and Mr De Silva's statement ( exhibit 2 pars 11 , 12 and 13) and Mr Morgan's statements (exhibit 16, pars 2, 3 and 6) confirm that ongoing disclosures were made and permitted the finding by his Honour that the appellants had given instructions for further work to be performed. There is no merit in this ground.

119 As to points (iii), (vi) and (vii) the appellants say that they were not told that the respondent could not do the work without an external barrister until 6 October 2010. They say they should have been told this when the statement was completed on 29 September 2010 and they were not told that a barrister was required until they had been charged $19,483. Further, they say they were in effect charged $17,350 for the respondent to assess whether they could represent them.

120 The appellant's arguments are fundamentally misconceived.

121 At no stage did the respondent charge $17,350 to assess whether they could represent the appellants. His Honour found, based on the evidence of Mr De Silva and Mr Morgan and the contemporaneous notes (exhibit 1) that Mrs Frigger contacted the respondent by telephone on 24 September 2010. In that conversation Mr De Silva, either in a generalised way or implicitly, represented that the respondent had the capacity to provide legal advice and representation and that Mr Morgan had the relevant knowledge and experience to conduct that costs hearing. Further, his Honour found that whether the respondent acted after giving initial advice depended on whether the appellants accepted the claimant's costs estimate and advice and as at 24 September 2010, the respondent had made no commitment that they would represent the appellant at the costs hearing. The only commitment was that the respondent would be initially engaged and instructed to provide services involving the taking of the statement and giving some legal advice based on that statement [261] - [286].

122 His Honour found that at a meeting on 28 September 2010 between Mrs Frigger and Mr De Silva and, for part of the meeting, Mr Morgan, the respondent recommended that Mrs Frigger consider sticking with her previous counsel and that Mr De Silva gave an estimate of between $5,000 - $10,000 for preparing Mrs Frigger's statement and advised that a strategy could be determined and said that further work could be identified and a further estimate of costs would be given to Ms Frigger [288] – [294].

123 His Honour found a further meeting took place on 29 September 2010 between Mrs Frigger and Mr De Silva [307] and the respondent was instructed to provide further legal advice and plan a strategy for the costs hearing.

124 His Honour found a further meeting took place on 1 October 2010 attended by Mrs Frigger, Mr De Silva and Mr Morgan where Ms Frigger was advised that there may be a risk of perjury allegations being made against her and a possible prosecution and that she may be cross-examined in relation to affidavits which might be suggested to be inconsistent with each other. Further, his Honour found that Mr Morgan advised that the best chance of avoiding adverse costs orders was to instruct the respondent to instruct and engage Mr Dillon as counsel at the costs hearing and that it was better not to 'swap horses'. His Honour specifically rejected Mrs Frigger's evidence that on 1 October 2010 Mr Morgan said that he 'couldn't run the matter and that Mr Dillon had to do it' [311].

125 His Honour found that it was at that meeting that Mrs Frigger agreed to pay a further $5,000 to cover further work that Mr Morgan would need to do with a view to developing a strategy for the costs hearing including issues relating to the cross-examination of Mrs Frigger [312].

126 His Honour found that on 4 October 2010 Mr Morgan conducted a telephone discussion with Mrs Frigger and advised her on the consequences that might follow if she withdrew her affidavits, and further, discussed the possibility of perjury charges and jail time given that the opposing parties were seeking to cross-examine her in relation to the affidavits she had filed. His Honour found that Mr Morgan advised Mrs Frigger that he could not properly represent her without Mr Dillon's input because of the limited documents that she had given access to and without Mr Dillon's background knowledge, Mr Morgan could not advise or it would be difficult to advise on the quantum of costs wasted if she decided to withdraw her filed affidavit of 22 June 2010 [315].

127 His Honour found that Mr Morgan was aware that Mrs Frigger wanted a legal firm to run the matter without external counsel to keep the costs down but found that Mr Morgan advised that whilst he could assist Mrs Frigger and run the matter without a barrister, as he did not have 'a handle on the matter' and there was only a select group of documents available to him and a 'cluster of issues' and a mountain of work to get on top of the issues, his recommendation was that it was better to have Mr Dillon. His Honour found that Mrs Frigger accepted this advice [317] - [318].

128 His Honour also found that Mrs Frigger authorised the respondent to ascertain if Mr Dillon was available to act as counsel and that at that stage the respondent through Mr Morgan was still instructed to represent the appellants at the costs hearing [321]. Mrs Frigger's own evidence, albeit in a different context, was that when advised by Mr Morgan if she minded him approaching Mr Dillon to see if he would come back on board she replied 'Go ahead' (ts 213).

129 His Honour also found that Mr Morgan advised Mrs Frigger of his estimate as to the costs of representing the appellants at the costs hearing would be further fees of about $30,000 plus GST with Mr Dillon as counsel engaged or about $40,000 plus GST without Mr Dillon engaged.

130 His Honour accepted Mr Morgan's evidence that on 4 October 2010 he advised Mrs Frigger that Mr Dillon was available, however there was an issue as Mrs Frigger had not paid Mr Dillon's earlier fees and that had to be sorted out. Exhibit 17, an email from Mr Dillon, supported this finding. His Honour found that as at 4 October 2010 there was no certainty that Mr Dillon was going to act as counsel because of the issue of unpaid past fees [329].

131 His Honour found that the respondents, through Mr Morgan, had instructions and were going to represent the appellants at the costs hearing if Mr Dillon did not [329] even though Mr Morgan believed he could not properly represent the appellants in the sense that he would not have been as effective because he did not have the background knowledge possessed by Mr Dillon.

132 His Honour also found that on 5 October 2010 Mr De Silva and Mr Morgan met with Mrs Frigger. By that date Mr Dillon had agreed to cap his fees for the costs hearing at $15,000 based on the past unpaid fees being paid and notwithstanding Mr Morgan asking at that meeting for other court documents, Mrs Frigger was not prepared to provide them because she did not think it was necessary and was trying to save fees and did not believe she would be cross-examined at the costs hearing. His honour found that Mrs Frigger was happy for the respondent to prepare the case without receiving all the documents that they had requested [332].

133 His Honour found that it was understood by all parties by 5 October 2010 that once Mr Dillon's past unpaid fees were paid, Mr Dillon would be appearing as counsel for the fixed fee of $15,000 and that the claimant was to continue as solicitors instructing Mr Dillon. His Honour found that Mrs Frigger knew that Mr Dillon would not deal with her directly and insisted on having instructing solicitors [334].

134 His Honour also found that on or about 7 October 2010 [336] it was first ascertained that Mr Dillon would appear as counsel, and up until that date Mr Morgan had to be prepared for the costs hearing as if he was counsel.

135 His Honour also found as fact that as at 6 October 2010 it was understandable and reasonable that Mr Morgan had advised that without Mr Dillon's assistance with 7 days to go before the start of the costs hearing, he would not be in a position to properly represent the appellants, in effect finding that Mr Morgan was not advising that he would not represent the appellants, but rather there be limitations on his capacity to effectively do so.

136 All of these findings were based on his Honour's acceptance of the evidence of Mr De Silva and Mr Morgan. Their evidence was supported by contemporary documents (exhibits 1, 3, 4 and 18). At various times Mrs Frigger's evidence was described as 'highly unreliable and untrustworthy' [281], and her memory 'unreliable' [290] and her evidence 'not credible or reliable' [322].

137 Mrs Frigger's allegation that she was advised that the respondent could or would not represent her without an external barrister is contrary to his Honour's findings. There is no merit in that ground.

138 The respondent did not charge $17,350 to assess whether it could represent them. There is no merit in that ground.

139 No error of fact, law or discretion has been demonstrated. Mrs Frigger is simply trying to re-litigate all the issues raised at the trial.

140 As to point (viii) the appellants allege that the conditions (referred to, in the submissions in reply, as a new condition that they had to agree to Mr Dillon acting) imposed on the legal services provided in exhibit 22 by Mr Morgan was in effect a variation of the costs agreement which was not disclosed prior to the respondent charging them $20,000.

141 Exhibit 22 is not a variation of the costs agreement. It is simply a recital by Mr Morgan of the limits and restrictions that he considered were placed on the respondent and the difficulties that created. It is wrong to say that it imposes any conditions. There is no merit in this ground.

142 The whole tenor of his Honour's findings is that Mr Morgan considered it to be in the appellants' best interest that Mr Dillon be retained because of his background knowledge and the fact that the appellants had not provided all of the material (5,000 pages of transcript and 13 files of exhibits) to the respondent. Mr Dillon was reluctant to act because there was a dispute between him and Mrs Frigger over fees that was not resolved until approximately 7 October 2010. Until then Mr Morgan was required to be prepared for the costs hearing as if he was going to be counsel and what Mr Morgan was doing in exhibit 18 was saying that he could not properly represent the appellants because he could not be as effective as Mr Dillon and his Honour found that Mr Morgan was not saying that he would not represent the appellants [311] - [337].

143 The appellants' submission in reply (par 12) relating to s 267 seem to raise issues that substantial changes were made to the costs disclose in that the respondent, as I understand the submission, had not notified them that the time spent on and amount actually charged for work then performed by the respondent was in reality less than the invoiced amount. To support this contention the appellants went through the invoice (exhibit 25) line by line and, without any evidence to support their assertions, asserts how much time was spent on each item. The appellants did not cross-examine Mr Morgan or Mr De Silva over these matters at the trial and cannot now raise those matters. The submissions in this regard are without merit.

144 The appellants' assertions that all of the 'extra' work had nothing to do with the statement and that there is no evidence of instructions for additional work is completely contrary to the findings of his Honour based on the evidence of Mr De Silva and Mr Morgan. His Honour devoted many pages of his judgment to detailing the extra work that the respondent performed on instructions from Mrs Frigger (see for example [339] - [344]). The submissions in this regard are without merit.

145 I have not overlooked the respondent's submission that in the Magistrates Court issues relating to s 267 was limited to complaints that s 260(1)(b) had not been complied with in that there was no disclosure of the clients' right to be notified under s 267 rather than a complaint that they were not notified of 'substantial changes' and accordingly these matters cannot now be raised on appeal.

146 The respondent says that if these matters were raised in the court below they could have made specific submissions relating, for example, to the meaning of the words 'substantial changes'. I accept that submission however I have in any event dealt with the matters raised by the appellants.

'Ground Two – Misleading representation

The trial magistrate erred in mixed fact and law in failing to find the respondent misrepresented to the defendants that the respondent was able to provide legal representation for the defendants in a cost argument in Supreme Court CIV2265/2006 on 13 and 14 October 2010 without briefing an external barrister contrary to s 52 Trade Practices Act 1974: @ [460], [462].'

147 The appellants' case on appeal in respect to these grounds is exactly the same as it was at the hearing.

148 The appellants say they were misled into entering into the contract for legal services because the respondent told them that they could provide legal representation for the costs argument without briefing an external barrister.

149 They rely on exhibit 1 JKD1, a note of Mr De Silva, Mr De Silva's witness statement (exhibit 2, par 4) where he says 'I did not at any stage say that we would not need to engage outside counsel' and Mr Morgan's witness statement (exhibit 16, par 2) where he says the respondent was retained to formulate a preliminary strategy and his evidence (ts 156) 'I was expecting that I would be able to essentially be briefed to appear at the costs hearing.'

150 Mrs Frigger says that the misrepresentation appears in exhibit 18, par 4 where Mr Morgan says 'Without Mr Dillon's assistance we will not in the short time available, even if we were able to brief alternate counsel, be able to represent you at the forthcoming costs hearing'.

151 The appellants rely on Mrs Frigger's evidence including exhibit 30, pars 5 and 6 that she had previously handed the file to other solicitors who took the file away for a brief period of time and shortly thereafter returned it saying they could not do the work, one of the solicitors charging $200 for that advice, the other not rendering any charge. They say that if other solicitors could work out within a couple of days that they cannot represent them so should have the respondent.

152 These were the arguments run by Mrs Frigger at the hearing.

153 His Honour was aware of the conflict of the evidence between the respondent and Mrs Frigger and stated [273]:

The significant conflict between the evidence given by Mrs Frigger and Mr De Silva was whether or not … [he] specifically representing [sic] to her and assuring her that that [sic] it would not be necessary to instruct a barrister (or counsel) employed externally of the complainant to represent them at the costs hearing.

154 In summary his Honour found that Mr De Silva told the appellants that the respondent could represent them at the costs hearing and implicitly represented that the respondent generally and Mr Morgan specifically had the knowledge and skill to represent them [283].

155 His Honour found that on 24 September 2010 there was no commitment by the respondent to represent the appellants at the costs hearing, their only contractual commitment being to take Mrs Frigger's statement and give some legal advice based on such statement. Mr De Silva's evidence was accepted in this regard [286]. His Honour found Mr Morgan was aware that the appellants wanted to conduct the costs hearing without an external barrister to minimize costs and advised Mrs Frigger that he could do the hearing without a barrister, but recommended that it was better to have Mr Dillon [288], [309] - [311], [315], [317]. His Honour found that Mrs Frigger was convinced by Mr Morgan to engage Mr Dillon [318] and that she authorised Mr Morgan to ascertain Mr Dillon availability to act as counsel and subsequently engage him [319]. This finding was based on his Honour's acceptance of Mr Morgan's and Mr De Silva's evidence in preference to Mrs Frigger's evidence. The findings were open to his Honour. There has been no demonstrated error of fact, law or discretion. A desire by the appellants to re-litigate the matter does not establish an error of the type alleged.

156 In their submissions in reply in par 13 relating to misleading and deceptive conduct the appellants state 'the desired result was for a costs order in the appellants' favour that was not achieved'. This appears to be a new particular raised for the first time in the reply submissions and on that basis alone the particular should be dismissed. In any event, the mere fact that the alleged desired result was not achieved does not constitute misleading and deceptive conduct. This is no merit in this particular.

157 The falsity of the appellants' submissions is further established by the appellants' claim that in April 2015 they obtained evidence proving the freezing orders were obtained illegally and they commenced a claim in the Federal Court WAD 607/2015 in relation to, inter alia, the costs of the freezing orders. This submission has not previously been put and on that basis alone the ground raised should be dismissed. In addition there is no evidence at all, on appeal or at the trial ,that the freezing orders were illegally obtained. The fact that the appellants have commenced a claim does not establish the validity of that claim. The submission in this regard is just nonsense.

158 There is no merit in this ground of appeal .His Honour found that there was no misrepresentation and that finding was open to him on the evidence and the law.

'Ground three – Unconscionable conduct

The trial magistrate erred in mixed fact and law in failing to find the respondent engaged in unconscionable conduct contract [sic] to s 51AB(1) Trade Practices Act 1974:

3.1 Representing to the defendants it could do work that it could not: [460]–[462], ex 18;

3.2 failing to disclose to the appellants their costs exposure, and their full suite of rights, as required by the Legal Profession Act 2008: ground one hereof.

3.3 Relying on an incorrect affidavit when it was aware that the affidavit was incorrect: @ [478]

3.4 Insisting on a contractual right to lodge caveats over three properties, for a relatively small debt, when a caveat could have been taken out over one property to achieve the same purpose: @ [481] – [482];

3.5 Refusing to remove the caveats and applying to have them extended, which application was only successful over one property: @ [482]'

159 In addition to these grounds, the appellants written submission refer to further grounds, which I shall deal with:

3.6 charging the appellants $19,483 before informing the appellants he could not represent them

3.7 imposing a condition on the provision of legal services (the respondent would not represent the appellants unless Mr Dillon appeared) which condition was not imposed at the time of entering the costs agreement.

160 As to point 3.1 the appellants rely on the misleading representations they say were made. For reasons expressed in the previous paragraphs, the appellants have not shown any error in fact, law or discretion in his Honour's finding that no misleading representation was made.

161 Insofar as 3.2 is concerned, the appellants rely on the failure to make the appropriate costs disclosures. As indicated in earlier parts of this judgment the appellants have not demonstrated that his Honour erred in fact, law or discretion in his Honour's conclusion that there had not been a failure to make proper costs disclosure.

162 As to 3.3 Mrs Frigger abandoned point 3.3 at the appeal (ts 90).

163 As to 3.4 and 3.5 his Honour found that the respondent had lodged the caveats over the appellants' three properties and not removed them when requested and in subsequent proceedings to extend the caveats before Le Miere J were only successful in having the caveat over one property extended. His Honour found the respondent was simply relying on their contractual rights to lodge a caveat. His Honour also referred to it being understandable that the respondent maintained the caveat because there had not been payment of its fees.

164 His Honour accepted Mr De Silva's evidence that he had no knowledge of the equity on the three properties over which the caveats were lodged.

165 His Honour has correctly summarised the law [471] – [474] and in particular that unconscionable conduct involves some moral obloquy or conduct which offends against the basic notions of good conscience and fair play, and must be something more than just being unreasonable, unfair and referred to authority for the proposition that it has been said that it will never be the case that a party would breach statutory proscriptions against unconscionable conduct merely by relying on their contractual rights [474]: Hampton v BHP Billiton Minerals Pty Ltd[No 2] [2012] WASC 285 [194] (Edelman J).

166 Having found as a fact that the respondent was not aware of the equity in the properties over which the caveats were placed, having found that the debt remained unpaid and the respondent was contractually entitled to do what they did, his Honour's conclusion that the respondent's conduct considering the individual acts separately or collectively did not constitute unconscionable conduct is not in my view an error of law.

167 As to point 3.6 I have previously referred to the portions of his Honour's judgment where his Honour found that the work that was performed by the respondent was performed at the request of the appellants and that the appellants was kept advised as work progressed of the costs of each stage.

168 As to 3.7 his Honour found that whilst Mr Morgan encouraged the appellants to engage Mr Dillon, he did not as at 4 October 2010 say that he would not represent them but did advise that he could not properly represent them. His Honour found that as matters evolved the appellants agreed to Mr Dillon's re-engagement and paid the outstanding fees owed to him before he was re-engaged. His Honour found that these were conscious decisions made by the appellants to have Mr Dillon represent them at the costs hearing rather than Mr Morgan.

169 The manner in which the appellants' frame their submissions relating to the imposition of the alleged condition implies that they had not previously agreed to Mr Dillon being appointed counsel and that they had no say in Mr Dillon's appointment. That is contrary to the evidence of Mr Morgan and Mr De Silva and his Honour's findings based on that evidence.

170 His Honour rejected the appellants' claim that the respondent was content to delay matters so as to accrue interest at a rate higher than the prevailing bank interest and noted that this was never put to Mr De Silva in cross-examination.

171 His Honour noted that there were some delay in commencing various actions which was not desirable and might be said to be unreasonable in all of the circumstances, but it does not involve a 'moral obloquy to support or prove an allegation of unconscionable conduct'.

172 His Honour concluded that considering all of the circumstances individually and as a whole, there was no departure from the norm of conscientious behaviour by the respondent or any conduct by the respondent which would offend good conscientious, fair play or moral obloquy. That conclusion was available to his Honour based on the evidence of Mr Morgan and Mr De Silva and the correct application of the law. No error of fact or law has been demonstrated.

173 In their reply submissions dated 9 September 2016 the appellants raise, under the unconscionable conduct ground, that the respondent 'could not do the work because they did not have the legal knowledge and experience to do it'. Leaving aside the fact that this was not specifically referred to as a ground of appeal or specifically argued at the trial, his Honour found [429] that Mr Morgan was an experienced, competent legal practitioner and his experience and competence would have enabled him on behalf of the respondent to represent the appellants, although the effectiveness of that representation would turn on the extent of the instructions, time for preparation, actual preparation undertaken, factual and legal complexity of the matter and access to or the availability of relevant information or documents [429], [430]. That finding was based on Mr Morgan's evidence and open to his Honour (ts 156 - 160). No error is demonstrated.

174 His Honour specifically dealt [299] – [344] with Mrs Frigger's 'mistaken opinion' that the claimants did not do any or only did minimal work for the costs hearing [344] and referred to it being 'plain that work was done by Mr Morgan on behalf of the appellants.' That finding was based on Mr Morgan's evidence and open to his Honour. No error is demonstrated.

175 The appellants' reliance on the number or length of documents filed as showing that little time was spent on the matter was misconceived. It often takes longer to prepare a shorter high quality document.

176 The submission that the respondent's staff could not do the work because they did not have the legal knowledge and experience was rejected by his Honour and there is no error shown in fact or law or discretion.

177 Similarly, the statement by the appellants that the respondent's lawyers should have been able to do the work without external barristers is contrary to his Honour's finding that Mr Morgan had explained that he could not be as effective without Mr Dillon and was not telling Mrs Frigger that they were not going to represent them but rather there would be limitations on their capacity to effectively do so in light of the documents made available to them [337].

178 His Honour found that Mr Morgan had to prepare for the costs hearing as if he was going to be counsel up until 7 October when Mrs Frigger's arrangements with Mr Dillon were secured [336]. This finding was clearly open on Mr Morgan and Mr De Silva's evidence and supported by correspondence from Mr Dillon (exhibit 25).

179 The appellants seeking to re-argue matters put before his Honour in the court below without demonstrating any error of law, fact or discretion.

'Ground Four – Pre-judgment interest

4.1 The trial magistrate erred in law by awarding interest pursuant to the Legal Profession Regulations 2009 and cl 6.4 the cost agreement: @ [515]
4.2 The trial magistrate erred in law by awarding the respondent interest from 30 November 2010 until 13 January 2013 which period represents undue and unnecessary delay in commencement of proceedings resulting in excessive pre judgment interest of $1670: @ [479].
4.3 The trial magistrate erred in law by awarding the respondent interest from 30 November 2010 until January 2013 contrary to s 273(4) Legal Profession Act 2008 in circumstances where the respondent's bill of costs dated 18 October 2010 did not contain a statement of the rate of interest that was payable on the alleged outstanding amount.'

180 The appellants' submissions at the appeal effectively added the following ground which can be stated as follows

4.4 The magistrate had no general discretion to award interest [AT 97] because the Magistrates Court Act says that if there is a contractual right to interest then there is no general right under the Magistrates Court Act to award pre-judgment interest.

4.5Interest could not be awarded at the normal interest rate of 6% unless that rate appeared on the bill (AT 97)

181 These five grounds raise three issues. Firstly, and the appellant's primary submission, that the LPA prohibits a law practice charging interest unless the bill contains a statement that interest is payable and specifies the numerical rate of that interest.

182 The second issue is whether there is a general discretion to award interest under the MCCPA if there is a contractual right to award interest.

183 The third issue is whether the alleged undue and unnecessary delay in commencing proceedings means interest should not be awarded from 30 November 2010 until 13 January 2013.

184 His Honour awarded interest as a contractual right pursuant to the costs agreement (cl 6.4, exhibit 4) [515]. His Honour also, no doubt out of the thoroughness which characterised his reasoning, stated:

In any event there is not in my judgment any material circumstance that excites my discretion to refuse to make an order that Mrs Frigger and her husband pay the interest.

This is a reference to the general discretion within s 12 MCCPA to allow interest and a ruling that his Honour would in any event have allowed interest under that section. However, that was the alternate position, his Honour's reasons for awarding interest was the contractual right referred to in the costs agreement (cl 6.4, exhibit 4).

185 The respondent points out that pursuant to the contractual entitlement to interest the appropriate rate was 6.5%, however they only claimed and were awarded 6% and the error was in favour of the appellants.

186 The appellants primary submission is that interest should not have been awarded because the bill whilst containing a statement that interest is payable did not specify a numerical rate of that interest.

187 The respondent says that I should not consider this ground of appeal because it was not raised at the trial and was not raised until the re-amended appeal notice was filed without leave.

188 I reject this submission. Although the issue was not raised below, if the appellants' submissions are correct, his Honour would have erred in law if he awarded interest which is prohibited by the LPA and therefore this ground must be considered.

189 The respondent's bill (exhibit 25) was endorsed 'Interest is payable on any amounts outstanding for more than 30 days at the rate specified in the costs agreement'.

190 The costs agreement (exhibit 4, cl 6.4) states:

You agree to pay us interest on the amount of any bill which is unpaid for longer than 30 days at the maximum rate prescribed by the Legal Profession Act 2008 and Legal Profession Regulations 2009. This is a floating rate that varies from time to time in accordance with independent determinations.

191 The bill does not refer to a numerical rate of interest but refers to the costs agreement which in turn referred to the LPAand the Legal Profession Regulations 2009.

192 Regulation 69 of the Legal Profession Regulations 2009 prescribes the maximum interest rate under s 273(4) of the LPA as a rate that is equal to the cash rate target increased by 2 percentage points. Further, the regulation defines the cash rate target as a maximum percentage specified by the Reserve Bank of Australia as a cash rate target. The regulations also specify that the relevant date is the date the bill was issued by the law practice.

193 The respondent says that where the bill refers to interest being charged as per the costs agreement and the costs agreement refers to an interest rate that is calculated by reference to a rate specified by an ADI and that rate is publicly available, the legislation is complied with.

194 The respondent refers to two cases to support this proposition.

195 In Re Trade Practices Commission v Mobil Oil Australia Limited [1984] FCA 238 (Toohey J), a case dealing with resale price maintenance at [70] the court accepted the notation that a price 'may be specified by reference to some standard well known to the parties from which a price may be ascertained'.

196 In Spain v The Union Steamship Company of New Zealand Limited [1923] HCA 21; (1923) 32 CLR 138 the High Court dealt with the question of whether a process issued under the District Courts Act 1912 (NSW) regulating actions for debts and liquidated demands in money was inappropriate because what was sought to recover was 'reasonable expenses' and not a sum certain or any liquidated amount. It was held that 'whenever the amount to which the plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is … liquidated' (Knox CJ, Starke J, Higgins J).

197 Neither Mobil Oil Australia nor Union Steam Ship Company are on point, both deal with different legislation.

198 The LPA s 260(e) requires disclosure 'of the rate of interest that the law practice charges on overdue legal costs, whether the rate is a specific rate of interest or is a benchmark rate of interest (as referred to in subsection (2)).

199 Section 260(2) LPA provides the benchmark rate of interest is:

… a rate of interest for the time being equal to or calculated by a reference to a rate of interest that is specified or determined from time to time by an ADI or another body or organisation, or under other legislation and that is publicly available.

200 ADI is defined under the LPA (s 3) as an authorised deposit-taking institution as defined in the Banking Act 1959 (Cth).

201 Clearly the respondent is able to charge interest in accordance with its costs agreement (exhibit 4). The bill of costs (exhibit 25) contains a statement that interest is payable. The bill refers to the rate, that being the rate specified in the costs agreement, the costs agreement in turn specifies the maximum rate prescribed by the LPA and the Legal Profession Regulations 2009. Those regulations describe the interest rate as the cash rate target specified by the Reserve Bank of Australia increased by 2 percentage points.

202 The costs disclosure obligation under LPA s 260(e) is complied with because the law practice has disclosed the rate of interest as a benchmark rate of interest pursuant to s 260(2) LPA. Section 273(3) LPA is complied with as the bill contains a statement that interest is payable and the rate of interest is incorporated into that bill via the reference to the costs agreement and the costs agreement's reference to the Legal Profession Regulations 2009 which refer to a benchmark rate of interest that is publicly available.

203 This is a cumbersome way to ascertain the interest rate.

204 The aim of the LPA is to ensure that clients are advised of the fact that they can be charged interest and the rate of that interest. It would have been preferable and more appropriate to specify in the bill that interest is charged at the maximum percentage specified by the Reserve Bank of Australia as the cash rate target increased by 2 percentage points. Whilst that would be preferable, a bill for costs complies with LPA s 273(3) if it contains a statement that interest is payable at a rate referred to in the costs agreement, which costs agreement specifies that the interest rate is the maximum specified by the Legal Profession Regulations 2009 which regulations specify a benchmark rate.

205 The appellants' second and third issued do not need be considered. Whilst there is general discretion under the MCCPA s 12 to allow interest his Honour awarded interest on the contractual basis which is permissible under the same section. Provided 273(3) LPA is complied with, the law practice may charge interest on the unpaid account. If it is not complied with interest cannot be charged even pursuant to a contractual right. In this case I have found that exhibit 25 does comply with s 273(3) LPA. Whilst his Honour erred in allowing contractual interest at 6% rather than 6.5%, that error favours the appellants and I would not adjust his Honour's calculations.

206 Delay in commencing proceedings is ordinarily not a reason to refuse or reduce interest. This is because the appellants have had the use of the money and the respondent has been out of its use and should be compensated accordingly. The purpose of interest is to compensate the respondent from being kept out of its money not to punish it for delay: Kalls Enterprises Pty Ltd (in liquidation) v Baloglow (No 3) [2007] NSWCA 298 [10] (citations omitted).

207 In any event I do not consider that there were undue or unnecessary delays. In circumstances where the appellants had 12 months to have the bill assessed (October 2010 - October 2011) and had indicated that they intended to do so, it was not unreasonable for the respondent not to issue proceedings until the 12 month period had elapsed. Once the issues relating to the caveats arose (June 2012) and the appellants asked for an extension of time within which to have the bills assessed (June 2012) it would have been obvious to the respondent that the appellants were going to make that application and it was entirely reasonable to wait for the results of that application. That application was dismissed in November 2012 and these proceedings were commenced on 13 January 2013.

208 I dismiss the appellants grounds in relation to the interest awarded

General claims of over-charging

209 The appellants also seek to raise a general claim of over-charging.

210 In this regard the appellants claim the matter was raised at the original trial because of the form 38 filed whereby they stated that 'services provided were not in accordance with representations made by the claimant as to the nature and provisions of those services and subject to the defendant's claim and the majority of the services provided were unnecessary'. This in essence raises the allegation that the work that was performed was outside the scope of the retainer. That is the way the matter was fought at the Magistrates Court. His Honour found against the appellants in this regard in the paragraphs which I have referred to in this judgment. That finding was open to his Honour based on the evidence of Mr De Silva and Mr Morgan and accordingly, the appellants have not shown any error in fact, law or discretion and I dismiss that ground.

211 Similarly, the contention in the submission in reply that the appellants were unaware of unnecessary work being done are contrary to the his Honour's findings based on the evidence of Mr De Silva and Mr Morgan that the appellant authorised the work to be done. The submission that the respondent did no work that was of value to the appellants is without merit.

212 Insofar as the overcharging allegations are concerned those matters which were raised at the trial were dealt with by his Honour. His Honour preferred the evidence of Mr De Silva and Mr Morgan to the evidence of Mrs Frigger. It was open to his Honour to do so. No appealable error has been established.

213 I dismiss all the appellants' grounds of appeal.

214 The orders I make are as follows:

1. The appeal be dismissed.

2. The appellants pay the respondents costs of the appeal to be agreed or taxed.