Global Future Solutions Pty Ltd v Matthew Sulman & Associates
[2012] QCAT 670
| CITATION: | Global Future Solutions Pty Ltd v Matthew Sulman & Associates [2012] QCAT 670 |
| PARTIES: | Global Future Solutions Pty Ltd (Applicant) |
| v | |
| Matthew Sulman & Associates (Respondent) |
| APPLICATION NUMBER: | OCL143-11 |
| MATTER TYPE: | Other civil disputes matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 14 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The order of 23 March 2012 that the matter will be heard and determined on the papers is revoked. 2. The matter is listed for hearing for two (2) days at a time and date to be advised by the Tribunal. |
| CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – GENERALLY – where Respondent claimed fees from Applicant – where Respondent alleged existence of costs agreement – where Applicant applied for declaration or order that there is no valid costs agreement or order setting any costs agreement aside – where Tribunal directed that matter would be determined on the papers – where the full extent of the dispute between the parties on issues of fact and credit was not apparent – whether the matter can and should be determined on the papers Legal Profession Act 2007, ss 319, 328 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
Chapter 3 Part 3.4 of the Legal Profession Act 2007 (‘LPA’) sets out a system by which lawyers are to provide information to clients regarding legal costs; regulate the making of costs agreements between law practices and clients about the provision of legal services; and, regulate billing.
Legal costs are only recoverable by a practitioner under a costs agreement. In the absence of an agreement of that kind between the law practice and the client, the practice is limited to recovering costs under the applicable scales of costs, or fair and reasonable value for the legal services provided.[1]
[1] See Legal Profession Act 2007, s 319.
Under s 328 of the LPA a client can apply to this Tribunal for an order that a costs agreement be set aside, and the Tribunal may do so if it is satisfied that the agreement is not fair or reasonable.
In this matter a law practice, the respondent Matthew Sulman & Associates, claimed fees from the applicant Global Future Solutions Pty Ltd (‘Global’), purportedly under a costs agreement. Global has applied for a declaration or order that there is not, in fact, a valid costs agreement between it and the law practice[2] or, in the alternative, for an order setting any costs agreement aside.
[2] See Legal Profession Act 2007, s 328(8).
QCAT directed that the parties exchange written submissions and then listed the matter for a directions hearing on 23 March 2012.
At that hearing it was directed that the parties would have the opportunity to file and exchange any further submissions but that, thereafter, Global’s application would be determined on the papers – ie, on the basis of the written submissions, and without an oral hearing or the receipt of evidence.
The parties have filed lengthy statements, and further submissions. Each alleges that statements of interested persons filed by the other contain untruths. The allegations of untruthfulness go to several matters, specifically mentioned in s 328 of the LPA. They include the circumstances and conduct of the parties before and when the agreement was made[3]; whether Global was induced to enter to the agreement by any fraud or misrepresentation on the part of the law practice or its representative[4]; and, whether any Australian legal practitioner acting on behalf of the law practice has been guilty of any unsatisfactory professional conduct or professional misconducts[5]; and, whether the law practice failed to make certain disclosures required under the Act[6].
[3] See Legal Profession Act 2007, s 328(2)(d).
[4] See Legal Profession Act 2007, s 328(2)(a).
[5] See Legal Profession Act 2007, s 328(2)(b).
[6] See Legal Profession Act 2007, s 328(2)(c).
In particular, the submissions for the law practice allege that statements by a witness for Global are contradictory, unsupported by evidence, and contain fabrications. The statements of the witness for Global specifically deny that the legal practitioner was informed that all of his fees for any work conducted on behalf of other companies associated with Global would be paid by it. There are disputes, indeed, about a number of aspects of the events surrounding the agreement upon which the law practice relies; for example, it alleges that it obtained the work as part of a tender process but that is denied by Global.
Both parties’ submissions express regret that a determination on the papers will not allow their disputed allegations to be tested by cross-examination.
The apparent conflicts about material matters, and these submissions from the parties, mean it is necessary and appropriate to revisit the question of whether the matter can and should be determined on the papers.
I am persuaded that they should have the opportunity to test the credit of their opponent’s witnesses if they wish to do so. Under s 62 of the QCAT Act the Tribunal may give whatever directions it considers necessary for the speedy and fair conduct of a proceeding and may do so upon its own initiative.
It is now apparent that, at the time the order was made for determination on the papers, the full extent of the dispute between the parties on issues of fact and credit was not apparent. Now that those issues have been brought to the attention of the Tribunal, it is also compelling that a fair hearing requires that the parties have the opportunity to test these matters, eg by cross-examination.
In those circumstances it is appropriate to revoke the earlier order and list the matter for a hearing which, having regard to the issues, ought not to take more than two days.
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