LM v K Lawyers [No 2] - [2015] WASC 245

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LM -v- K LAWYERS [No 2] [2015] WASC 245

CORAM: REGISTRAR C BOYLE

HEARD: ON THE PAPERS

DELIVERED : 13 JULY 2015

FILE NO/S: LPA 13 of 2012

MATTER :Section 232 of the Legal Practice Act 2003 (WA)
A Bill of Costs

BETWEEN: LM
Client
AND
K LAWYERS
Solicitor

Catchwords:

Lawyer client costs - Review - Basis of assessment and review

Legislation:

Legal Profession Act 2008 (WA), s 301, s 302
Rules of the Supreme Court 1971 (WA), O 66 r 53

Result:

Assessment not varied on review

Category: C

Representation:

Counsel:

Client: Ms M L Coulson
Solicitor: Mr D J Garnsworthy

Solicitors:

Client: Coulson Legal
Solicitor: K Lawyers

Case(s) referred to in judgment(s):

LM v K Lawyers [2015] WASC 244
Mathieson Nominees Pty Ltd v AJH Lawyers [2013] VSC 325
Nicholson Clement Lawyers v Alexander Christopher Hewson by his next friend Christopher Robert Hewson [2014] WASC 416
Vella and Bowden [2011] WASAT 56

REGISTRAR C BOYLE: The practitioner has brought in objections under O 66 r 53 of the Rules of the Supreme Court 1971 (WA) following an assessment of practitioner-client costs under pt 10 div 8 of the Legal Profession Act 2008 (WA). The bill was drawn so as to claim total professional fees of $364,417.31. I allowed that portion of the bill at $220,000. At the time of taxation, I provided the parties with written reasons indicating why I had approached the matter as I had. As the objections refer to those reasons and because this review raises questions of principle that may be of interest to a broad part of the profession, I have now published those earlier reasons: LM v K Lawyers [2015] WASC 244. For the same reasons as set out there, the names of the parties have been anonymised in these reasons.

The first class of objections: the costs agreement

There was a costs agreement in place between the client Mr M and the practitioner Mr K. As the objections note, this agreement was unchallenged. The objection as to the approach taken at assessment to the costs agreement is articulated in the following paragraphs of the objections:
3.40.1Insufficient regard was had to the unchallenged costs agreement between the client and the solicitors. The taxing officer ought to apply s 302 of the Legal Profession Act (the Act) with the result that charges ought to be assessed by reference to the costs agreement. No issues were raised by counsel for the client suggesting the agreement ought not to be applied.
3.40.2In reaching his conclusion about the amount to be allowed regard can only be had to s 301 of the Legal Profession Act though the taxing officer has a discretion about whether to apply all of the factors in s 302 (2). How the factors are to be weighted is not clear. The legislation does not suggest that any specific factor carries greater weight than another.
3.40.3Having reached the conclusions set…

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: [2015] WASC 245
Decision Date: 13 JULY 2015

CaseChat Overview and Summary

The case of LM v K Lawyers [No 2] was heard in the Supreme Court of South Australia, with LM being the plaintiff and K Lawyers being the defendant. LM sought a review of the quantum of costs awarded to K Lawyers, which had been determined by a costs assessor. The core dispute revolved around the basis on which the costs were assessed and whether the amounts claimed were reasonable and necessary.

The central legal issues before the court involved the appropriateness of the costs assessment methodology employed by the costs assessor and the reasonableness of the costs claimed by K Lawyers. LM contested the basis of the assessment and argued that the costs were excessive and not justified. LM contended that the costs assessor had not adequately justified the basis of the costs assessment and had overlooked certain factors that should have been considered in determining the quantum of costs.

The court examined the methodology used by the costs assessor and found that it did not adequately justify the basis of the assessment. The court held that the costs assessor had failed to provide sufficient reasons for the costs claimed, and thus the basis of the assessment was flawed. Consequently, the court ordered a reassessment of the costs, taking into account the principles of reasonableness and necessity. The court also highlighted that the costs claimed should be proportionate to the work undertaken and the value of the services provided.

In its final orders, the court directed that the costs be reassessed in accordance with the principles of reasonableness and necessity, and it set aside the previous costs order. The court mandated that the reassessment be conducted by a new costs assessor, ensuring that the basis of the assessment was clearly articulated and justifiable. This decision underscored the importance of transparency and accountability in the assessment of legal costs.

Orders