Lehns Solicitors v Williamson
[2006] QDC 182
•23 June 2006
DISTRICT COURT OF QUEENSLAND
CITATION:
Lehns Solicitors v Williamson [2006] QDC 182
PARTIES:
LEHNS SOLICITORS (A FIRM)
Applicant
v
JUDITH WILLIAMSON
Respondent
FILE NO/S:
343/05
DIVISION:
Civil
PROCEEDING:
Originating application
ORIGINATING COURT:
Southport
DELIVERED ON:
23 June 2006
DELIVERED AT:
Brisbane
HEARING DATE:
5 September 2005, 21 April 2006, 22 May and 30 May 2006
JUDGE:
Rackemann DCJ
ORDER:
CATCHWORDS:
COUNSEL:
Mr G Robinson, of counsel, for the applicant
Mr English for the respondent
SOLICITORS:
Lehns Solicitors for the applicant
The applicant seeks a determination of the reasonableness of its fees and costs, charged to the respondent, in relation to a matter which involved litigation in the Supreme Court.
The applicant delivered an account, prepared by an independent cost consultant, Allan Adrian of Queensland Independent Costing Services. That account detailed the items of work done for the client and the amount charged for each item. There were over 900 separate items in the account. The total amount claimed in the account was $53,773.13. That included two items for care and consideration.
The respondent did not accept that account and applied to the tribunal for the appointment of a costs assessor. Mr Boniface was appointed and assessed the fees and costs at $40,829.91. In arriving at that assessment, he reduced or disallowed a number of items. The items for care and consideration were substantially reduced. Mr Boniface’s reasons for that appear in his letter dated 30 May 2005 which states:
“The firm claimed a total of $8,850 for care and conduct, being item 261 for $2,500 plus GST thereon of $250 plus item 918 for $6,100. Item 261 represented 35.6 per cent of fee items between items 1 to 260 and item 918 represented 35.1 per cent of the fee items between items 262 and 917. In my view, these amounts are excessive. There was extensive use of counsel, including numerous telephone calls. Counsel was used to prepare or settle correspondence, which, while being important, was also quite standard. While the client might consider that I have been generous in my approach to the firm’s communications with counsel between items 1 and 261, I have taken that approach into account when fixing care and conduct at about 17 per cent for those items. I was more rigorous in relation to communications with counsel between items 262 to 918 and, accordingly, made a higher allowance of about 20 per cent for care and conduct for those items.”
The applicant objects to that assessment and applies to the court, pursuant to s 6ZF of the Queensland Law Society Act 1952, for the court to decide the reasonableness of the fees and costs charged. Such proceedings must be brought within 30 days after a costs assessment. The assessment, in this case, was dated 30 May 2005, but delivered to the parties on 1 June 2005. It was not contended that these proceedings, which were commenced by an originating application filed on 1 July 2005, were out of time.[1]
[1] I note the Court has power to extend time pursuant to ss 6ZF(2)
The court’s task, pursuant to ss 6ZF(3), is to decide the reasonableness of the fees and costs charged in the assessed account. In deciding that matter, the court may, pursuant to sub section (4), appoint another person to assess the account. Pursuant to an order made on 5 September 2005, Mr Bruce McLeod carried out a further assessment. He assessed reasonable fees and costs at $48,533.63 as follows:
Total of bill as presented $53.773.13 Less reductions as assessed $3,102.00 Less reduction in care and consideration $2,137.50 Total reductions $5,239.50 Total $48,533.63
The respondent does not accept that assessment insofar as the allowance for care and consideration. Mr McLeod’s assessment is not otherwise challenged and I accept it.
Insofar as care and consideration is concerned, Mr Mcleod’s reasons for adopting a more generous assessment than Mr Boniface were as follows:
“Attached to the affidavit of Mr Lehn is an exhibit marked “REJL2”, which is a “statement” by Mr Boniface in relation to this assessment. I have difficulty in following his reasoning in relation to the care and consideration component of this account. I noted that in his detailed assessment he did not make any notes against items 261 and 918. In his statement he considered that there was excessive use of Counsel. However I do not agree. This appears to be a complex matter which required the use of expert leadership. It progressed over 3 years or so and involved many hours of attendances, perusals and conferences etc.
I note that Mr Boniface in effect reduced Care and Consideration by some $6718.47. I cannot agree with this assessment.
On assessment, it is unusual to have the full amount of care and consideration allowed by an assessing registrar. It is true that Counsel was used what I would consider a “fair bit”, but not to excess. The matter was complex and I consider that in all the circumstances Care and Consideration should be allowed in the amount of $6412.50, which is reduced by 25 per cent ($2137.50).”
The quantification of the appropriate allowance for care and consideration is not a precise science. Ultimately it is a matter of judgment, having regard to the circumstances of the proceeding.
The account relates to litigation which was commenced against the respondent in the Supreme Court of Queensland. Unsurprisingly, each party engaged experienced counsel. The matter ultimately proceeded to trial, being heard over the course of four days, commencing on 19 November 2001. The learned trial Judge reserved his decision and published reasons later the following year.
While the Reasons for Judgment were commendably concise, the matter was not entirely straightforward either from a factual or legal perspective. The litigation arose in the context of the breakdown of a relationship between the respondent and the plaintiff. That breakdown spawned a series of disputes about a number of matters.
Part of the dispute related to a home purchased in the joint names of the parties. The plaintiff claimed a declaration that the respondent in these proceedings, held her interest in the house on trust in his favour and sought an order that she take all necessary steps to transfer the whole of her interest to the plaintiff.
The plaintiff also claimed an amount in excess of $150,000, being moneys due and owing pursuant to a loan agreement or an agreement to pay for work done. That amount was also sought on alternative bases including by a claim in restitution on account of unjust enrichment[2]. This part of the dispute related to the moneys paid by the plaintiff towards purchases for the benefit of the respondent’s business and for work undertaken in that business. It should be noted that the plaintiff also sought, further or alternatively, a declaration that the respondent held the profits from her business on trust for the plaintiff. This aspect of the claim involved a multiplicity of disputes which are referred to in the pleadings and the Reasons for Judgment.
[2] See the amended statement of claim
The plaintiff, also sought, further or alternatively, a declaration as to the respective interests of the parties, as a consequence of their contributions to the assets acquired during the course of their relationship.
There was also a dispute about whether an engagement ring should be returned.
As already noted, the matter was not without complication at a factual or legal level and the work undertaken by the solicitor for the respondent did not end on publication of the judgment, which was adverse to the respondent, who was disbelieved.
I have had the benefit of looking at the applicant’s files in relation to the litigation. Unsurprisingly, they are voluminous, being contained in three archive boxes.
Having reviewed the matter, I agree with Mr McLeod, that it involved some complexity. Whilst not entirely novel, it was attended with some degree of difficulty and called for leadership, including that of counsel. The litigation was of obvious importance to the respondent involving, as it did, both the house and her business affairs. The amount involved was substantial. The solicitor was obviously required to expend considerable time and effort on the matter, including taking instructions, marshalling the facts and documents, considering matters (including disclosure), conferring with counsel and the like.
Having considered the matter, I am satisfied, as was each of the assessors, that an allowance for care and consideration ought be made. I am further satisfied that the allowance made by Mr Boniface was, in the circumstances, inadequate. I note Mr McLeod’s comment that “it is unusual to have the full amount of care and consideration allowed by an assessing registrar”. It would not be right for an assessor to feel duty bound to reduce the amount claimed for care and consideration if it was otherwise reasonable, but Mr McLeod did not go so far as to say he felt so bound. I consider that the allowance made by Mr McLeod is reasonable.
I find that the reasonable fees and costs in this case are $48,533.63.
I will hear submissions as to the orders which ought be made.
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