Legal Services Commissioner v Wright

Case [2010] QCA 321


SUPREME COURT OF QUEENSLAND

CITATION:

Legal Services Commissioner v Wright [2010] QCA 321

PARTIES:

LEGAL SERVICES COMMISSIONER
(applicant/appellant)
v
DIANE MARIE WRIGHT
(respondent/respondent)

FILE NOS:

Appeal No 6248 of 2010
SC No 6224 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2010

JUDGE:

Holmes and White JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Allow the appeal and declare that upon the proper construction of Part 3.4 of the Legal Profession Act 1.     (Qld), the applicant in District Court proceedings number 1207 of 2008 is and was at all material times a “third party payer” who was entitled as such to apply for an assessment of the legal costs charged and drawn by the respondent from the proceeds of the sale of the real property identified in the order made on 12 August 2008 in those proceedings.2007

The order for costs made by the primary judge be set aside.2.    

There be no order as to the costs below or on appeal.3.    

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – TAXATION AND ASSESSMENT OF COSTS – APPLICATIONS AND REFERENCES – where the respondent performed the conveyancing work upon the sale of a house which was the subject of proceedings in the District Court between a former de facto couple, one of whom was the respondent’s client – where the Court ordered that the proceeds of sale were to be applied firstly to pay “all costs, commissions and expenses of the sale”, secondly to discharge the mortgage over the property and thirdly to pay outstanding rates, with the balance to be divided 75% to the applicant in those proceedings and 25% to the respondent’s client – where the respondent charged for the conveyancing work – where the appellant, in response to a complaint, asked the respondent for an itemised account which the respondent refused to give – where the primary judge held that the applicant in the District Court proceedings was under a legal obligation to pay all or part of the conveyancing costs but was not a “third party payer” under Part 3.4 of the Legal Profession Act 2007 (Qld) and so was not entitled to apply for an assessment of those costs – whether the primary judge erred in finding that the applicant in the District Court proceedings was not a “third party payer”

Legal Profession Act 2007 (Qld), s 301, s 335

Amos v Ian K Fry & Company [2010] QCA 131, considered
Andrew Koh Nominees Pty Ltd v Receiver & Manager of the Balneum Joint Venture (2007) 33 WAR 561; [2007] WASCA 152, considered
Debney v Semerdziev [1982] 2 NSWLR 391, distinguished
Deputy Commissioner for Taxation v Moore Bank Pty Ltd [1987] 1 Qd R 414, cited
Equuscorp P/L v Short Punch & Greatorix & Ors

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AGLC
Legal Services Commissioner v Wright [2010] QCA 321
Case
[2010] QCA 321
Decision Date

CaseChat Overview and Summary

In the matter of Legal Services Commissioner v Wright, the primary judge's decision regarding the applicability of the term "third party payer" under Part 3.4 of the Legal Profession Act 2007 (Qld) was challenged on appeal. The respondent, who performed conveyancing services during the sale of a property that was subject to proceedings in the District Court between a former de facto couple, charged for these services. The appellant, the Legal Services Commissioner, had requested an itemised account from the respondent, which was refused. The Commissioner argued that the applicant in the District Court proceedings was a "third party payer" and should have been entitled to apply for an assessment of the costs charged. The primary judge, however, ruled against this contention, finding that the applicant was under a legal obligation to pay the costs but was not a "third party payer" as defined in the Act.

The central legal issue before the court was whether the primary judge correctly interpreted the term "third party payer" under Part 3.4 of the Legal Profession Act 2007 (Qld). The court had to determine if the applicant in the District Court proceedings was indeed a "third party payer" and thus entitled to seek an assessment of the costs charged by the respondent. This involved an analysis of the statutory language and the context in which it was applied, considering the relationship between the parties and the nature of the legal proceedings.

In resolving the matter, the court found that the primary judge's interpretation of the term "third party payer" was erroneous. The court clarified that the applicant in the District Court proceedings fulfilled the criteria of a "third party payer" as they were not directly involved in the legal services provided by the respondent but were nonetheless obligated to pay the costs associated with those services. Consequently, the court allowed the appeal and set aside the primary judge's order, declaring that the applicant was indeed a "third party payer" and entitled to apply for an assessment of the costs charged by the respondent. The court also directed that there be no order as to the costs of the appeal.

Orders

Orders of the court

1. Allow the appeal and declare that upon the proper construction of Part 3.4 of the Legal Profession Act 2007 (Qld), the applicant in District Court proceedings number 1207 of 2008 is and was at all material times a “third party payer” who was entitled as such to apply for an assessment of the legal costs charged and drawn by the respondent from the proceeds of the sale of the real property identified in the order made on 12 August 2008 in those proceedings.

2. The order for costs made by the primary judge be set aside.

3. There be no order as to the costs below or on appeal.

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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