Jezer Constructions Group Pty Ltd & Ors v. Conomos - [2004] QSC 440

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

QSC [2004] 440

FRYBERG J

No BS9148 of 2004

JEZER CONSTRUCTION GROUP PTY LTD
(ACN 054 548 319)

and

NOBEL CONSTRUCTION PTY LTD
(ACN 094 329 745)

and

PAN PACIFIC FOODS (AUSTRALIA) PTY LTD
(ACN 067 185 362)

and

PAN PACIFIC HOLDINGS (AUSTRALIA) PTY LTD
(ACN 067 220 393)

and

MICHAEL CHOI and DORIS CHOI and
PETER SCHMITH

Applicants

and
GEORGE CONOMOS	Respondent

BRISBANE

..DATE 07/12/2004

JUDGMENT

HIS HONOUR: There is before the Court an application for a declaration in relation to certain matters arising under the Queensland Law Society Act 1952 in relation to a Bill of Costs.

The applicants were the clients of the respondent solicitor. By an application filed on the 20th of October they sought a declaration that the agreements referred to in an affidavit filed with the application were void and a further order that the respondent deliver bills of costs calculated in accordance with Section 48(I)(1)(b) or (c) of the Act.

The application got off to a bad start. It turned out after the application was served that there was no dispute between the parties in relation to any of the agreements referred to in the application. The solicitor did not claim that any of them was valid under the Act. Instead he relied on another agreement signed by some of the applicants at a later time. That meant that a number of the applicants were unnecessary parties and that there was no utility in relation to a declaration in relation to the agreements referred to in the application.

To overcome the latter problem the applicants sought and were granted leave to amend the application so that it referred to the later agreement. However that was not the end of the difficulties because the applicant Schmith, in his affidavit in support of the application, swore that the later agreement had been delivered by the respondent to the applicant Jezer Construction Group Proprietary Limited on or about 21st of January 2003 but that that agreement was not agreed upon nor signed by the applicants or any of them.

When it transpired that this was not true and that it had been signed by the applicants Jezer Construction Group Proprietary Limited, Nobel Construction Proprietary Limited and Schmith himself on the 30th of January 2003, Mr Schmith was obliged to make a further affidavit in which he swore that his earlier affidavit had been based upon his memory and the documents and correspondence under his control and that:

"Although I do not recall signing the document I agree that it appears that the client agreement referred to in paragraph 18 of my affidavit sworn 6 October 2004 was signed on or about 30 January 2004."

Whether that is a reference to 30 January 2004 or a misprint for 30 January 2003 is not apparent, but I suspect that it is a misprint.

Matters were further complicated when it emerged that, having seen the argument of the respondent in its outline, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] QSC 440
Decision Date: 07/12/2004

CaseChat Overview and Summary

Jezer Constructions Group Pty Ltd & Ors v. Conomos involved an application for a declaration concerning the validity of certain agreements under the Queensland Law Society Act 1952, specifically relating to a bill of costs. The applicants, a group of companies and individuals associated with the building industry, sought a declaration that certain agreements were void and an order for the respondent, a solicitor, to deliver bills of costs calculated according to the Act. The application faced several complications, including the revelation that some applicants were unnecessary parties and that there was no dispute over the validity of the agreements. The applicants attempted to amend their application, but the court found that the amended application still lacked merit.

The legal issues before the court involved whether the agreements were void due to non-compliance with section 48 of the Act, specifically whether they were made within a reasonable time after the commencement of work and whether they were consistent with the Act's requirements. The applicants argued that the agreements were not made within a reasonable time and were inconsistent with the Act, particularly in the estimation of costs if the applicants were unsuccessful in litigation. The court considered these arguments and found that even if the agreements were not made within a reasonable time, this did not render the agreements non-compliant with section 48. The court also found that the estimate provided in the agreements, though potentially inaccurate, was still an estimate and therefore compliant with the Act.

The court concluded that the application should be dismissed as it lacked merit. The applicants' arguments concerning the timing of the agreements and the accuracy of the cost estimates were both rejected. The court also noted that there was no power to make the declaration sought by the applicants and that any costs assessment could be made under the procedures outlined in the Act without court intervention. The application was dismissed with costs to be assessed.

The final orders of the court were that the application was dismissed and that costs of the application were to be assessed. The dismissal of the application indicated that the agreements in question were valid and that the court found no grounds for the declaration sought by the applicants.

Orders