Kolev as Administrator of the Estate of Markoff deceased v Taylor

[2012] QCATA 255

CITATION: Kolev as Administrator of the Estate of Markoff deceased v Taylor [2012] QCATA 255

PARTIES:	Kaloyan Getov Kolev as Administrator of the Estate of Tzoko Hristoff Markoff deceased (Applicant/Appellant)
v
Kerrie Ann Taylor (Respondent)

APPLICATION NUMBER: APL326-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 3 December 2012

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal is refused.

CATCHWORDS:

Legal Profession – recovery of legal fees – where applicant sought to have the matter determined summarily – where decision made that the application should go to a hearing – whether discretion miscarried

Queensland Civil and Administrative Tribunal Act2009

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. On 21 June 2012 Ms Taylor commenced a proceeding in the minor civil disputes jurisdiction to recover legal fees from the respondent.  A response was filed raising generally, non compliance with the Legal Profession Act 2007 the effect to which was to prevent recovery.

1. In an attempt to deal with the application in a summary way, the respondent filed an application for miscellaneous matter on 16 July 2012 effectively asking the Tribunal to declare that the costs agreement entered into was invalid and alternatively, if it was a valid costs agreement, then a decision that she had not complied with Part 3.4 of Chapter 3 of the Legal Profession Act 2007.  The Tribunal dismissed the application and listed it for hearing. 

1. The learned Adjudicator has provided written reasons for his decision.  In it sets out the position of Ms Taylor who says that she had complied with all the requirements of the Legal Profession Act 2007, produced documents to demonstrate that fact and further that the costs were in accordance with a costs agreement and were reasonable. 

1. A contrary argument was raised by Mr Kolev consistent with that raised in the response that there was non compliance with the Legal Profession Act 2007 and therefore she could not recover her costs.

1. The learned Adjudicator, in the exercise of discretion decided that the best and most efficient way to deal with the competing positions of both parties would be to conduct an oral hearing and make a fully informed decision. 

1. From that decision, Mr Kolev has filed an application for leave to appeal or appeal.  As this is an appeal from a minor civil dispute decision, leave to appeal is necessary.  Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. Mr Kolev’s solicitors have filed further submissions in support of the appeal.  The effect of those submissions go to the substance of the response filed in the minor civil dispute matter and the matters put to the learned Adjudicator at first instance.  They do not address or identify any error on the part of the learned Adjudicator other than implicitly saying, as was submitted on the application for a miscellaneous matter that Ms Taylor has no legal basis to bring the claim.  The matters raised in the appeal are an attempt to re-agitate, in a summary way, those issues that the learned Adjudicator considered in the application and decided would be best dealt with by way of an oral hearing.  This is not a rehearing.

1. It is not demonstrated in the appeal how the learned Adjudicator’s discretion has miscarried in making the decision that he did.  It is not for the Appeal Tribunal to substitute its own view on the material unless there has been error and as no error has been identified in the exercise of the discretion leave to appeal should be refused.