SUPREME COURT OF QUEENSLAND
CITATION:
Frost v Miller [2015] QSC 206
PARTIES:
CHRISTINA SOPHIA FROST
(applicant)
v
ROSALINE MILLER
(respondent)FILE NO/S:
SC No 46 of 2014
DIVISION:
Trial Division
PROCEEDING:
Originating Application
ORIGINATING COURT:
Supreme Court at Mackay
DELIVERED ON:
9 June 2015
DELIVERED AT:
Brisbane
HEARING DATE:
13 January 2015
JUDGES:
Chief Justice
ORDERS:
The order of the Court is that the conditional costs agreement executed by the applicant and respondent is declared void under section 327(1) of the Legal Profession Act 2007 (Qld) for contravening sections 323(3)(d)-(e) of that Act.
CATCHWORDS:
CIVIL LAW – LEGAL PROFESSION – CONDITIONAL COSTS AGREEMENTS – FORMALITIES – RIGHT TO OBTAIN INDEPENDENT LEGAL ADVICE – where the applicant and respondent entered into an agreement for the delivery of legal services from the respondent to the applicant – where the applicant and respondent executed a conditional costs agreement – where section 323(3)(d) of the Legal Profession Act 2007 (Qld) required the conditional costs agreement to contain a statement that the client had been informed of their right to seek independent legal advice before entering the agreement – where the contract contained a statement notifying the client of their right to obtain independent legal advice – where the contract did not contain a statement that the client had been informed of their right to seek independent legal advice – whether the contract conformed to the formal requirements under the Legal Profession Act 2007 (Qld) – whether the formal requirements are mandatory – whether breach of the formal requirements renders the contract void or voidable.
CIVIL LAW – LEGAL PROFESSION – CONDITIONAL COSTS AGREEMENTS – FORMALITIES – COOLING-OFF PERIODS – where the applicant and respondent entered into an agreement for the delivery of legal services from the respondent to the applicant – where the applicant and respondent executed a conditional costs agreement – where section 323(3)(e) of the Legal Profession Act 2007 (Qld) required the conditional costs agreement to contain a five clear business day cooling-off period – where the contract did not expressly contain a cooling-off period – where the respondent argued that section 323(3)(e) of the Legal Profession Act 2007 (Qld) should be interpreted as a deeming provision – whether the contract conformed to the formal requirements under the Legal Profession Act 2007 (Qld) – whether the formal requirements are mandatory – whether breach of the formal requirements renders the contract void or voidable.
Acts Interpretation Act 1954 (Qld), s 14A
Legal Profession Act 2007 (Qld), ss 323, 327
Alexander Forbes Trustees Services Limited v John Doe & Anor [2011] EWHC 3930 (Ch)
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129
Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463
Casey v Quabba & Anor [2007] 1 Qd R 297; [2006] QCA 187
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
National Acceptance Corporation Pty Ltd v Benson & Ors (1988) 12 NSWLR 213
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- AGLC
- Frost v Miller [2015] QSC 206
- Case
- [2015] QSC 206
- Decision Date
CaseChat Overview and Summary
The court examined section 323(3)(d) of the Legal Profession Act 2007 (Qld), which mandates that a conditional costs agreement must include a statement that the client has been informed of their right to seek independent legal advice. Although the contract contained a statement notifying the client of this right, it did not explicitly state that the client had been informed of it, thereby failing to meet the statutory requirement. Additionally, the court considered section 323(3)(e) of the Act, which requires a five clear business day cooling-off period in the agreement. The absence of such a period in the executed contract was another point of contention. The respondent argued that the provision should be interpreted as a deeming provision rather than a mandatory requirement. However, the court found that the lack of a cooling-off period constituted a breach of the statutory formal requirements.
In its decision, the court found that the formal requirements outlined in sections 323(3)(d)-(e) of the Legal Profession Act 2007 (Qld) are mandatory. The failure to include the required statement regarding the client's right to seek independent legal advice and the absence of a five clear business day cooling-off period resulted in the contract not conforming to the statutory formalities. Consequently, the court declared the conditional costs agreement void under section 327(1) of the Act. The court held that the formal requirements are indeed mandatory, and any breach of these requirements renders the agreement void.
Orders
Orders of the court
The order of the Court is that the conditional costs agreement executed by the applicant and respondent is declared void under section 327(1) of the Legal Profession Act 2007 (Qld) for contravening sections 323(3)(d)-(e) of that Act.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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