Lupker v Shine Lawyers Pty Ltd - [2015] QSC 278

SUPREME COURT OF QUEENSLAND

CITATION:

Lupker v Shine Lawyers Pty Ltd [2015] QSC 278

PARTIES:

WERNER LUPKER

(applicant)

v

SHINE LAWYERS PTY LTD

(respondent)

FILE NO/S:

BS 8806 of 2015

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

1 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

9 September – 10 September 2015 and further written submissions 16 September 2015

JUDGE:

Bond J

ORDER:

The order of the court is that:

1.   It is declared that the respondent is not entitled to retain those documents as contained in the applicant’s file and particularised in Order 2 hereof which were produced by or on behalf of the applicant or predominantly for the purposes of the applicant in respect of the applicant’s potential claim for damages pursuant to the retainer.

2.   The respondent must deliver up to the applicant all files, documents, correspondence or other material prepared by or on behalf of the applicant or predominantly for the purposes of the applicant, or for the purpose of the applicant’s matter including copies of all correspondence including that of 19 January 2015 and 29 January 2015 from the respondent to a Ms Collignon, or other material which records the economic circumstances and earning capacity of the applicant and his deceased spouse for the purposes of assessing the potential quantum of his dependency claim, in the possession or control of the respondent.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – SOLICITOR AND CLIENT – RETAINER – DURATION, TERMINATION AND CHANGE OF ATTORNEY – where client entered into a contingency costs agreement (“no win no fee” agreement) with law firm – where client terminated the agreement – where the agreement was void – where law firm retained documents on the client’s file – operation of the Legal Profession Act 2007 (Qld) – whether law firm had an existing entitlement to be paid according to a fair and reasonable value of the legal services provided – whether any right of recovery in existence if agreement was not void

PROFESSIONS AND TRADES – LAWYERS – RETAINER – CONSTRUCTION OF RETAINER – IMPLIED TERM – where law firm conceded the existence of an implied term that the client could withdraw from the retainer at any time without giving reasons – where law firm argued that it was entitled to payment if the client terminated the agreement in this manner – whether such a term satisfies the conditions for the implication of a contractual term

PROFESSIONS AND TRADES – LAWYERS – RETAINER – PRINCIPLES OF CONSTRUCTION – entire contract – where law firm argued that the agreement should be construed as providing for payment on completion of the retainer – where after termination retainer no longer source of legal rights – where no right to payment has accrued before termination – whether a contractual right to payment can exist in such circumstances

RESTITUTION – UNJUST ENRICHMENT – where “no win no fee” agreement had been terminated by client for extraneous reason – where law firm claimed an entitlement to recovery as on a

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] QSC 278
Decision Date: 1 October 2015

CaseChat Overview and Summary

In Lupker v Shine Lawyers Pty Ltd, the applicant, Lupker, sought the return of his file and related documents from Shine Lawyers, who had terminated their retainer with him. The dispute centred on whether Shine Lawyers were entitled to retain Lupker’s documents after the termination of their contingency costs agreement, given the agreement was void and no payment was due. The court was tasked with determining whether Shine Lawyers had an existing entitlement to be paid for the legal services provided under a fair and reasonable value, whether any right of recovery existed if the agreement was not void, and whether the firm had a lien over Lupker's documents.

The court examined whether an implied term allowed Lupker to terminate the retainer at any time without giving reasons, which Shine Lawyers conceded. It also considered whether such a term satisfied the conditions for the implication of a contractual term. The court found that the retainer agreement was an entire contract and that no right to payment accrued before termination. Thus, a contractual right to payment could not exist in these circumstances. Additionally, the court evaluated whether Shine Lawyers could recover on a quantum meruit for work done and services rendered, but concluded that Lupker, as a reasonable person, should not have expected immediate payment in these circumstances. Furthermore, the court held that a lien cannot exist where there is only a contingent right to payment, and that a lien is lost if monies are claimed where no monies are presently owed.

The court ruled that Shine Lawyers were not entitled to retain Lupker’s documents and ordered them to deliver all files, documents, and correspondence related to Lupker’s potential claim to him. The court declared that Shine Lawyers had no present entitlement to recover monies and lacked the inherent jurisdiction to set aside a solicitor’s lien where a contingent statutory right to payment existed, and where Lupker offered undertakings to secure that right.

Orders

Orders of the court

The order of the court is that:

1. It is declared that the respondent is not entitled to retain those documents as contained in the applicant’s file and particularised in Order 2 hereof which were produced by or on behalf of the applicant or predominantly for the purposes of the applicant in respect of the applicant’s potential claim for damages pursuant to the retainer.

2. The respondent must deliver up to the applicant all files, documents, correspondence or other material prepared by or on behalf of the applicant or predominantly for the purposes of the applicant, or for the purpose of the applicant’s matter including copies of all correspondence including that of 19 January 2015 and 29 January 2015 from the respondent to a Ms Collignon, or other material which records the economic circumstances and earning capacity of the applicant and his deceased spouse for the purposes of assessing the potential quantum of his dependency claim, in the possession or control of the respondent.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lupker v Shine Lawyers Pty Ltd [2015] QSC 278
PARTIES:	WERNER LUPKER (applicant) v SHINE LAWYERS PTY LTD (respondent)
FILE NO/S:	BS 8806 of 2015
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	1 October 2015
DELIVERED AT:	Brisbane
HEARING DATE:	9 September – 10 September 2015 and further written submissions 16 September 2015
JUDGE:	Bond J
ORDER:	The order of the court is that: 1. It is declared that the respondent is not entitled to retain those documents as contained in the applicant’s file and particularised in Order 2 hereof which were produced by or on behalf of the applicant or predominantly for the purposes of the applicant in respect of the applicant’s potential claim for damages pursuant to the retainer. 2. The respondent must deliver up to the applicant all files, documents, correspondence or other material prepared by or on behalf of the applicant or predominantly for the purposes of the applicant, or for the purpose of the applicant’s matter including copies of all correspondence including that of 19 January 2015 and 29 January 2015 from the respondent to a Ms Collignon, or other material which records the economic circumstances and earning capacity of the applicant and his deceased spouse for the purposes of assessing the potential quantum of his dependency claim, in the possession or control of the respondent.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – SOLICITOR AND CLIENT – RETAINER – DURATION, TERMINATION AND CHANGE OF ATTORNEY – where client entered into a contingency costs agreement (“no win no fee” agreement) with law firm – where client terminated the agreement – where the agreement was void – where law firm retained documents on the client’s file – operation of the Legal Profession Act 2007 (Qld) – whether law firm had an existing entitlement to be paid according to a fair and reasonable value of the legal services provided – whether any right of recovery in existence if agreement was not void PROFESSIONS AND TRADES – LAWYERS – RETAINER – CONSTRUCTION OF RETAINER – IMPLIED TERM – where law firm conceded the existence of an implied term that the client could withdraw from the retainer at any time without giving reasons – where law firm argued that it was entitled to payment if the client terminated the agreement in this manner – whether such a term satisfies the conditions for the implication of a contractual term PROFESSIONS AND TRADES – LAWYERS – RETAINER – PRINCIPLES OF CONSTRUCTION – entire contract – where law firm argued that the agreement should be construed as providing for payment on completion of the retainer – where after termination retainer no longer source of legal rights – where no right to payment has accrued before termination – whether a contractual right to payment can exist in such circumstances RESTITUTION – UNJUST ENRICHMENT – where “no win no fee” agreement had been terminated by client for extraneous reason – where law firm claimed an entitlement to recovery as on a