Graham v Bottoms and English ATF Greynell Unit Trust
[2012] QCAT 659
| CITATION: | Graham v Bottoms and English ATF Greynell Unit Trust [2012] QCAT 659 |
| PARTIES: | Lidia Graham (Applicant) |
| v | |
| John Bottoms and Anne English ATF Greynell Unit Trust t/as Bottoms English Lawyers (Respondents) |
| APPLICATION NUMBER: | MCDO2172-12 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | J Bertelsen, Adjudicator |
| DELIVERED ON: | 14 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed for lack of jurisdiction. |
| CATCHWORDS: | Client agreement – debt – breach of agreement – penalties for alleged breach – validity of penalties – charges not a debt |
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
Application
On 25 May 2012 the applicant filed an application for minor civil dispute – minor debt in the Tribunal’s Cairns Registry claiming a refund of monies $2,069.81 paid by her to the respondent John Raymond Reis Bottoms as well as penalties for breach of agreement $2,500.00 and administration fees and costs $1,340.70, total $5,910.51.
Background & evidence
The applicant engaged Mr Bottoms of Bottoms English Lawyers to perform legal services. Mr Bottoms of Bottoms English Lawyers accepted the engagement. The solicitor client relationship was evidenced by a client agreement which provided, inter alia,
“Pursuant to the information and instructions provided by you, we accept instructions from you to perform the following work on your behalf:
- Drafting and settling trust deed, precipe of trust deed, will and deed of assignment of copyright to trust; and
- To do all such things necessary and reasonable to achieve the above.
- These are your instructions as we understand them. You should contact us immediately if we have misunderstood your instructions, or if you wish to change your instructions.”
The applicant alleged the legal services were not performed in terms of the client agreement nor as she envisaged and demanded a refund of monies paid for those legal services. Additionally she claimed for penalties for breach of the client agreement and administration fees and costs incurred by her.
On 20 June 2012 the respondent filed its response which sought to have the application dismissed.
In his affidavit attached to the response Mr Bottoms submitted that the applicant had no jurisdiction to make the application there being no agreement between the respondent and applicant that the respondent pay the applicant for services rendered; that the only agreement between the parties was the client agreement; that services rendered were in accord with that agreement.
The response as filed nominated John Bottoms and Anne English ATF the Greynell Unit Trust as respondents.
On 17 July 2012 the Tribunal made orders (accompanied by reasons) directing the applicant to file and serve “a written submission” as to why application 2172/12 should not be dismissed on the basis that the applicant’s claim against the respondent is not a debt or a liquidated demand of money by 1 August 2012.
The respondent was ordered to file and serve any written submission in reply by 15 August 2012.
Finally the order stated that “this matter may be decided by the Tribunal on the basis of the documents filed by the parties, without an oral hearing, not before 16 August 2012.”
The applicant subsequently by letter of 20 July 2012 objected to what she considered to be the incorrect nomination of the respondent and the fact that she had not been served with the response. On 20 July 2012 the respondent filed an outline of submissions – dismissal of application.
Given the respondent’s objections the application was listed for a directions hearing on 14 September 2012 at which time clarification of nomination of respondent, service of response, previous directions (17 July 2012) and any other relevant issues could be dealt with. At the directions hearing the Tribunal made it clear the correct respondents pursuant to the client agreement ought to be John Bottoms and Anne English.
On 14 September 2012 the Tribunal made the following orders:
1.The Respondent shall serve on the Applicant its response filed in the Tribunal on 20 June 2012 and its submissions filed on 20 July 2012 by 21 September 2012.
2.The Tribunal’s orders of 17 July 2012 are amended to read as follows:
(1)The Applicant is directed to file in the registry at Brisbane by post and sent to the Respondent a written submission as to why Application 2172/12 should not be dismissed on the basis that the Applicant’s claim against the Respondent is not a debt or liquidated demand of money by 4pm on 5 October 2012.
(2)The Respondent is directed to file in the registry at Brisbane by post and send to the Applicant any written submission it wishes to make in reply to the Applicants submission by 4pm on 12 October 2012.
(3)This matter may be decided by the Tribunal on the basis of the documents filed by the parties, without an oral hearing, not before 15 October 2012.
Compliance with order 1
By letter to the Tribunal dated 14 September 2012 the respondents notified the Tribunal they had served the response filed 20 June 2012 the affidavit of John Bottoms and submissions filed 20 July 2012 by attending at the applicant’s home address and personally serving same. There is no material filed by the applicant to suggest that order 1 was not complied with.
Compliance with order 2
Order 2(1). No written submission has been received by the Tribunal from the applicant as to why her application should not be dismissed.
Order 2(2). No written submission in reply has been received by the Tribunal from the respondents, not surprisingly, because there was no written submission by the applicant to which to reply.
On 9 October 2012 the respondents filed and copied to the applicant an application to dismiss or strike out the initiating application. This latter application was in the circumstances premature. The issue of the dismissal of the initiating application was to be determined after 15 October 2012 according to the 14 September 2012 orders. This latter application appeared to rely on noncompliance with the Tribunal’s orders as the basis for dismissal. That does not necessarily follow.
Given that no written submissions had been received from the applicant and the premature nature of the strike out application the Tribunal directed by letters of 19 November 2012 that each of the parties be furnished with a copy of the strike out application and that each party lodge any written submissions by 26 November 2012 with a decision to be made on or after 28 November 2012.
No further written submissions on the issue of dismissal or striking out of the initiating application have been received.
In terms of the orders made 14 September 2012 and the further invitation of 19 November 2012 to make written submissions it is now for the Tribunal to determine the issue of jurisdiction.
The applicant’s claim for a refund of fees paid to the respondent based on an assertion that instructions have not been followed pursuant to a client agreement does not categorise the claim as a debt. Rather it may be a matter of complaint to the Legal Services Commission for lack of or poor professional conduct.
The client agreement sets out hourly professional fee rates chargeable. Properly calculated fees owing could well be characterised as a debt. Not so an allegation of breach of professional standards in performing legal services the subject of a client agreement. That is an action for breach of contract. The applicant is not a person to whom a debt is owed or money is payable in the context of the client agreement.
The applicant’s penalties claim is not sustainable. There is no evidence of any agreement between the parties whereby the respondent would be the subject of any such penalties. The penalties of $500.00 each can not be characterised as a debt. There is no formula, schedule or yardstick by which the sum alleged to be payable can be readily calculated. It is clear the applicant has attempted to impose these penalties unilaterally.
The same can be said of the administration fees and costs claimed. There is no evidence of any agreement and no evidence whereby the claim could be characterised as a debt.
This claim is not for a debt and there is no other category or heading under which it could be included pursuant to section 12 QCAT Act.
The application is dismissed for lack of jurisdiction.
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