Lowy Pty v Crouch & Lyndon
[1995] QSC 263
•24 October 1995
IN THE SUPREME COURT
OF QUEENSLAND
O.S. No. 695 of 1995
Brisbane
Before Mr Justice Ambrose
[Lowy Pty v. Crouch & Lyndon]
IN THE MATTER of the Costs Act of 1867
- and -
IN THE MATTER of an application by LOWY PTY LTD (ACN 000 965 417) for a bill of costs in taxable form to be delivered by CROUCH & LYNDON
REASONS FOR JUDGMENT - AMBROSE J
Judgment delivered 24/10/1995
CATCHWORDS: LEGAL PRACTITIONERS - delivery of bill of costs - jurisdiction to order - whether payment of solicitors' accounts not in taxable form precludes application for delivery of bill of costs in the absence of proof of special circumstances Costs Act 1867; ss.22,25,33.
Counsel:Mr G J Robinson for the applicant
Mr Lyndon (solicitor) for the respondent
Solicitors:Cranston McEachern town agents for Clinton R Smith & Associates for the applicant
Crouch & Lyndon for the respondent
Hearing Date: 20 October 1995
IN THE SUPREME COURT
OF QUEENSLAND
O.S. No. 695 of 1995
Brisbane
Before Mr Justice Ambrose
[Lowy Pty v. Crouch & Lyndon]
IN THE MATTER of the Costs Act of 1867
- and -
IN THE MATTER of an application by LOWY PTY LTD (ACN 000 965 417) for a bill of costs in taxable form to be delivered by CROUCH & LYNDON
REASONS FOR JUDGMENT - AMBROSE J
Judgment delivered 24/10/1995
In this matter the applicant sought an order that the respondent firm of solicitors deliver a bill of costs in taxable form in respect of legal representation in the Planning & Environment Court held at Southport.
Towards the end of the retainer for that work the applicant seems to have become dissatisfied with its solicitors and paid up accounts rendered for work done to that time; new solicitors then took over the respondent's file relating to the applicant. It is fair to say that dissatisfaction was expressed on a number of occasions with the quantum of the respondent solicitors' charges.
A number of memoranda of fees were presented by the respondent and moneys were paid by the applicant to meet the fees claimed.
It is clear, having regard to the form of the memoranda of fees, that they could not be categorised as bills of costs in taxable form. They were not bills of costs within the contemplation of s.22 of the Costs Act 1967. In this respect I refer to Currie v. Robinson [1968] QWN 25 and Malleson Stewart Stawell & Nankivell v. Williams [1930] VLR 410.
It is clear from the material put before me that the respondent took the view that s.33(1) of the Costs Act 1867 relieved it of any obligation to provide a bill of costs in taxable form once the costs had been paid.
In my view this is incorrect. Section 33 of Costs Act deals not with the provision of a bill in taxable form, but deals only with the payment of a bill in taxable form as an event relevant to the reference of that bill for taxation.
Section 22 of the Costs Act requires a solicitor to deliver a bill of costs in taxable form before commencing proceedings against that client for recovery of fees etc. In my view, neither s.25(3) nor s.33(1) are relevant to the issue of delivery of a bill in taxable form in this case. Section 25 deals with taxation after delivery of a taxable bill and s.33 deals with taxation after payment of a taxable bill of costs.
It is clear in this case that the respondent did not ever deliver to the applicant a taxable bill of costs.
The consequences of non delivery are considered in Duffett v. McEvoy (1885) 10 A C 300 and particularly at pp. 301 and 303.
In Re Flower and Hart's Bill of Costs [1991] 2 Qd R 20 at p. 24, Ryan J applied Duffett v. McEvoy (supra) and held that this Court has power to order delivery of a bill of costs whether or not costs have been paid and whether or not when delivered the bill is one which will necessarily be referred to taxation.
In my view, the respondent in this case ought to have delivered a bill of costs in taxable form when requested to do so, even though the applicant had already paid all fees, to which the respondent claimed to be entitled, before it sent the applicant's papers to its new solicitor.
It is unnecessary to consider any question of "special circumstances" to which ss. 25 and 33 of the Costs Act 1867 refer.
To the extent that it would have been necessary for the applicant to persuade me to exercise my discretion and order delivery of a bill of costs in taxable form, the affidavit material which it filed demonstrates that arguably at least the fees charged and paid were in excess of what would be recoverable upon taxation.
This would not have been the occasion to give any consideration to items of the allegedly excessive fees. That would be a matter to be debated before a taxing officer should the delivered bill of costs be taxed.
It is not an inexpensive exercise, I am sure, for solicitors who have been paid their fees in full to then set about to prepare a bill of costs in taxable form at the request of their former client. When the respondent in this case delivers a bill of costs in taxable form, as it is has consented to do without my embarking upon a consideration of the material filed by both the applicant and the respondent, it will then be a matter for the applicant to determine whether to proceed to taxation.
With respect to the order for costs sought by the applicant upon this application, I have regard to the mistaken belief apparently entertained by the respondent that s.33 of the Costs Act was conclusive in determining whether this Court ought exercise its jurisdiction to order delivery of a bill of costs. On the other hand, at this stage it is not clear whether the expense, which I am sure must be incurred by the respondent in preparation of a bill of costs in taxable form, will in fact lead to it being taxed at all, or if it is taxed by the applicant, what the result will be.
In the circumstances I will reserve the question of costs until the last of the following events to occur has occurred:
The expiration of the time limited under the Costs Act for taxation of the bill of costs when delivered;
the determination by this Court of any application to refer the bill of costs for taxation; and
the taxation of the bill of costs.
Costs reserved.
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