Luscombe v Australasian Solicitors Pty Ltd trading as HHG Legal Group

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   LUSCOMBE -v- AUSTRALASIAN SOLICITORS PTY LTD trading as HHG LEGAL GROUP [2022] WASC 335
CORAM:   CURTHOYS J
HEARD:   13 MAY 2022
DELIVERED          :   6 OCTOBER 2022
FILE NO/S:   CIV 1502 of 2021
BETWEEN:   JILLIAN LUSCOMBE
Plaintiff
AND
AUSTRALASIAN SOLICITORS PTY LTD trading as HHG LEGAL GROUP
Defendant

Catchwords:

Costs - Solicitor's costs agreement - Application to set aside costs agreement - Whether costs agreement is not fair or not reasonable - Whether failure to make required disclosures - Failure to expressly refer to client's 'rights' - Circumstances and conduct of parties

Legislation:

Legal Profession Act 2008 (WA), s 260, s 267, s 288

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	R V Graham
Defendant	:	F A Robertson

Solicitors:

Plaintiff	:	Vogt Graham Lawyers
Defendant	:	HHG Legal Group

Cases referred to in decision:

Allison v Murfett Legal Pty Ltd [2021] WASC 359
BGM v Australasian Lawyers Group Pty Ltd (t/as Butlers Barristers & Solicitors) [2014] WASC 290
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Stevenson v Zafra [2021] WASCA 181

CURTHOYS J:

Introduction

The plaintiff, Jillian Luscombe, applies to set aside a costs agreement dated 31 May 2019 (Costs Agreement) between Ms Luscombe and the defendant, HHG Legal Group (HHG). Ms Luscombe engaged HHG to act for her in proceedings in the Family Court of Western Australia.
Pursuant to the Costs Agreement, HHG has issued eight invoices totalling $42,646.70. Those costs are presently the subject of assessment proceedings in this court.
On 8 June 2021, Ms Luscombe filed this application by summons to set aside the Costs Agreement pursuant to s 288(2) of the Legal Profession Act 2008 (WA) (repealed) (LP Act).

Evidence and background

The application was supported by an affidavit of Ms Luscombe sworn 18 August 2021.[1] The affidavit annexes the Costs Agreement.[2]
[1] Exhibit A.
[2] Exhibit A, annexure JL3, 16 - 33.
I struck out certain paragraphs of Ms Luscombe's affidavit as inadmissible.[3]
[3] ts 4 - 6 (13/5/2022).
HHG filed two affidavits in opposition to the application: an affidavit of Steven Barnett Cohen of HHG sworn 2 December 2021;[4] and an affidavit of Ben Majoe of HHG also sworn 2 December 2021.[5]
[4] Exhibit C.
[5] Exhibit D.
Mr Cohen was the solicitor who had the initial meeting with Ms Luscombe. His affidavit deposes to the circumstances of his involvement in Ms Luscombe's matter.
Mr Majoe was the solicitor who took over the conduct of Ms Luscombe's matter after her meeting with Mr Cohen. Mr Majoe's affidavit outlines the history of the Family Court proceedings and the circumstances of his involvement in Ms Luscombe's matter.
Ms Luscombe and Mr Majoe were cross-examined on their respective affidavits.
Ms Luscombe's affidavit deposes that her daughter was diagnosed with multiple myeloma in 2005 and died on 27 December 2018. Due to her daughter's work commitments and ultimately ill health, Ms Luscombe was the primary carer for her granddaughter.
At the time of her daughter's death, there were ongoing Family Court proceedings that had been commenced by Ms Luscombe's former son‑in‑law in July 2018 seeking parenting orders in respect of her granddaughter.
Ms Luscombe became an intervenor in the Family Court proceedings in March 2019 following the death of her daughter. She sought, inter alia, a parenting order for her granddaughter and an order that she be able to live in her daughter's house to help her granddaughter cope with her mother's death.
Mr Luscombe was initially represented by Ferrier, Athanasiou & Kakulas. She entered a costs agreement on 12 February 2019.[6]
[6] Exhibit B.
Ms Luscombe subsequently decided to change lawyers because of a personal referral. She engaged HHG in May 2019.
On 20 May 2019, Mr Cohen met Ms Luscombe, took initial instructions and provided preliminary advice. At that initial meeting, Mr Cohen explained to Ms Luscombe the standard terms of the Costs Agreement.
Ms Luscombe signed the Costs Agreement on 31 May 2019.[7]
[7] Exhibit A, annexure JL3, 16 - 33.
Ms Luscombe deposes that at that time she was in deep grief and caring for her granddaughter which is why she did not realise that she was not being provided with cost estimates.[8]
[8] Exhibit A [29] - [30].
She asserts that she did not realise that there would be any kind of trial or that there would be contentious hearings. She also believed that the fact that there would be an independent children's lawyer for her granddaughter would alleviate the need for her lawyers to be engaged in doing that much work.[9]
[9] Exhibit A [36] - [37].
Mr Majoe took over Ms Luscombe's matter in June 2019. He completed work on her matter from late June 2019 to September 2019.
It is evident from Mr Majoe's affidavit that a particular complexity arose in relation to a self-managed super fund (SMSF) of which Ms Luscombe, her daughter and her former son-in-law were members. Ms Luscombe's former son-in-law alleged that Ms Luscombe had withdrawn $1,000,000 from the SMSF to assist her daughter to defeat his claim. Further, the daughter's death benefit was paid into the SMSF which created a further dispute.
On 11 July 2019, Ms Luscombe wrote to Mr Majoe with an expanded scope of work. She also asked that HHG seek payment from her daughter's estate to cover her past costs.[10] Mr Majoe indicated that HHG would seek $50,000 for costs from the estate.[11] Ms Luscombe then queried whether the $50,000 included $10,000 to cover her past costs with HHG and Ferrier, Athanasiou & Kakulas.[12]
[10] Exhibit D, annexure BM-6, 37.
[11] Exhibit D, annexure BM-7, 38.
[12] Exhibit D, annexure BM-8, 39.
Mr Luscombe's son-in-law opposed the release of $50,000 for Ms Luscombe's fees until she completed a 'Form 13 - Financial Statement'. It is unclear from the evidence why Ms Luscombe refused to complete the Form 13. On her evidence she had very little income and assets.
HHG submitted that the difference between the costs under the applicable costs determination - the Legal Profession (Family Court of Western Australia) Determination 2018 (WA) - and under the Costs Agreement was less than $7,000. This claim was not supported by evidence. Equally, despite asserting that the costs would be greater under the Costs Agreement, Ms Luscombe has not led any evidence as to the extent to which costs would be greater under the Costs Agreement.

The Costs Agreement

The Costs Agreement was 17 pages long, inclusive of schedules.
The Costs Agreement is referred to by its terms as 'the Family Law Agreement'.
It comprised the substantive agreement followed by three schedules and an authority to transfer trust funds. I will attempt to set out the most relevant parts of the Costs Agreement.
Clause 2 is headed 'Professional Costs and Disbursements'. It provides:
The Client agrees that the Law Practice has explained to the Client:
2.1The costs that the Client is to pay the Law Practice for work undertaken in relation to the Subject Matter will be billed at the rates outlined in Schedule 1 to the Family Law Agreement (Schedule 1).
2.2The Law Practice may charge for reasonable time spent by practitioners conferring in relation to your matter. Conferral time is important to ensure that you benefit from the resources, skills and experience available in a firm of this size and capability, and that progress is well managed.
2.3The rates in Schedule 1 will be calculated in units where each unit equals six minutes. If the time spent is less than six minutes the Client will be charged for the full six minutes. If more than six minutes is spent, the calculation is made on the next highest level. For example, if eight minutes is spent on a discrete task, the charges are calculated as for 12 minutes.
2.4From time to time, legal costs determinations are made regulating the costs that may be charged by law practices. A legal costs determination is applicable to the Subject Matter (the Costs Scale). The rates in Schedule 1 are up to 40% above the rates provided in the Costs Scale.
2.5A copy of the applicable Costs Scale can be provided on request. Alternatively, the costs scales are available for download from family/index. html and the Law Practice will charge for out of pocket expenses incurred on the Client's behalf. For example, common disbursements may include third party photocopying, courier fees, lodgement fees, searches, taxi fares, and counsel fees (if instructed). Some of these are listed in Schedule 1. The Law Practice is authorised by the Client to incur such out of pocket expenses as are reasonably required to complete the Subject Matter.
Clause 3 provides that the rates and charges set out in Schedule 1 may be reviewed subject to written notice being provided to the client in advance.
Clauses 4 - 7 concern specific costs relating to travel, the briefing of counsel, instructing and engaging experts and witnesses and instructing another law practice.
Clause 8 provides for the charging of the Goods and Services Tax where applicable.
Clause 9 relates to the rendering of accounts. It provides:
9.1The Client has a right to receive an account from the Law Practice.
9.2The Law Practice will usually render accounts at least fortnightly. Where there are no Client funds in the Law Practice's trust account (Trust Monies) for the Law Practice to transfer to pay part or all of an account, the Client agrees to pay such accounts within 7 days of the date of the account, subject to the Client's right to dispute costs as outlined below. Where the Law Practice holds Trust Monies (see clause 11) the account is due and payable on the date of receipt of the account.
9.3An account may be rendered in a lump sum form or in an itemised form.
9.4Each account rendered is a final account for the services referred to in that account. Each account rendered is not an interim account within the meaning of section 293 of the Legal Profession Act 2008 (WA). Any application to a taxing officer of the Supreme Court of Western Australia for an assessment of the whole or any part of the costs charged in an account (as outlined at clause 15.3 below), is therefore to be made within 12 months after being given the account in question.
Clauses 10 - 11 relate to the charging of interest and monies to be held on trust.
Clause 12 relates to the estimate of legal costs and other matters. It provides:
The Client agrees that the Law Practice has explained to the client that:
12.1On the information currently available to the Law Practice, the Law Practice has outlined a reasonable indication of the amount of legal costs, which the Client may incur. These estimates are outline in Schedule 2 to the Family Law Agreement (Schedule 2).
12.2The Client acknowledges that these estimates are not quotations, and further that it is difficult to give an estimate of how much a particular matter will cost unless the exact scope of the work to be undertaken can be determined in advance. However, the course of litigation is unpredictable.
12.3Schedule 2 also outlines other matters applicable to the Family Law Agreement. That is the name of the lawyer responsible, the provision of further estimates prior to settlement and additional costs disclosure obligations.
Clause 13 relates to party-party costs. It relevantly provides:
13.3If the Client obtains a costs order against another party, the Law Practice estimates that approximately 35% to 60% of the Client's costs may be recovered from that other party.
13.4Any payment by that other party may not be enough to meet all the costs that the Client has paid or owes to the Law Practice.
13.5The Client agrees that the Law Practice may receive the Party and Party Costs awarded to the Client and deduct the Party and Party Costs from any amount that the Client owes to the Law Practice.
13.6If that other party obtains a costs order against the Client, the Client may be required to make a payment towards the costs incurred by that other party. The Law Practice estimates that approximately 35% to 75% of the other party's costs (depending on the rates charged by the other party's solicitors) may be recovered from the Client.
Clauses 15 relates to the querying of legal costs. Clause 15.1 states that '[t]he Client should not hesitate to contact the Law Practice and/or the Lawyer Responsible (as named in Schedule 2), at any time, if the Client has any query in relation to the Family Law Agreement and/or the Client's legal costs'.
Clause 19 further provides:
The Client acknowledges that the Law Practice informed the Client that the Client may:
19.1Negotiate the terms of the Family Law Agreement with the Law Practice.
19.2Seek independent legal advice in relation to the meaning and effect of the Family Law Agreement and that it is in the Client's interests to do so.
Clause 20 relates to variation of the Costs Agreement. Clause 20.1 provides that '[t]he Law Practice will inform the Client in writing of any substantial change to anything included in the Family Law Agreement, as soon as reasonably practicable after the Law Practice becomes aware of that substantial change'.
Schedule 1 sets out the professional costs and disbursements. Part A is headed 'Professional Costs' and provides:
The Client agrees to pay the following rates for legal professional services and all incidental services (including non-legal services, waiting in court, conferral between professional staff, travelling and so forth), which have been, and are to be, supplied regarding the Subject Matter:

Maximum hourly rate excluding GST

Director/Associate Director/Special Counsel/Counsel/Senior Associate
$450 - $600

Senior Lawyer and/or Associate (being five years or more in practice)

$380 - $550

Lawyer (being less than five years in practice)
$295 - $450

Senior law clerk (5+ years experience)
$300- $350

Articled clerk, law graduate or law clerk
$195 - $330

Legal Assistants/Paralegals

$100 - $200

As outlined above, the rates do not include GST.
The actual rate charged will vary depending upon the person undertaking the work, the person's level of experience and the legal and factual complexities involved in the Subject Matter. The Law Practice may in its absolute discretion charge rates lower than those listed, without in any way affecting its right to charge and the Client's obligation to pay the rates listed above.
Where the overarching objective is the efficient and strategic management of the work, or where complex issues (eg issues of law, strategy and tactics) the Client agrees:
a) that the Law Practice may charge for a number of professionals' time working on the Subject Matter including at the same time with or without external counsel;
b) to pay for time reasonably spent in conferral between the Law Practice's professionals, including conferral with counsel, and including in respect of a senior lawyer's supervision, management and delegation to, and assessment of the work of, more junior professionals.

Part B is headed 'Disbursements' and provides:
The Client agrees to pay the following charges, which have been, and are to be, supplied regarding the Subject Matter:

File Opening Fee $85.00

Fax - Local (outgoing) $0.50 per page

Fax - National (outgoing) $0.90 per page

Fax - International (outgoing) $2.00 per page

Printing/Photocopying/Scanning

External at cost

Black & white $0.40c per page

Colour $0.90c per page

Delivery of Documents (local)*
* does not include process serving of documents $30.00 per delivery

Courier Fees at cost

Bank Charges including credit card merchant fee at cost

Fees of Court/Tribunal at cost

Counsel or Consultant's Fees at cost

Dictation Word Processing (Outsourced) At cost, but currently charged to us on the basis of $6.00 per minute of audio transcription

Property searches, ASIC searches, PPSR search and any other out of pocket expense incurred by the Law Practice at cost

Schedule 2 is two and a half pages long. It deals with costs estimates and other matters. Clauses 1 - 8 relate to estimates. The clauses provide:
1.The Client acknowledges that estimates are NOT quotations, and that it is difficult to give an accurate estimate of how much a particular matter will cost unless the exact scope of the work to be undertaken can be determined in advance. However, the course of litigation is unpredictable.
2.The major variables that may affect only estimates include (but are not limited to), the following: the number and type of issues that arise during the course of the litigation regarding the Subject Matter, the conduct of other relevant parties and their representatives, any interim application made, your changes in instructions, the ease or difficulty in taking instructions, additional information that arises after the giving of the estimates, changes to the law or regulations relevant to the Subject Matter.
3.It is likely that as the Subject Matter progresses it will be necessary to revise the estimates. The estimates are based on the Subject Matter proceeding through to trial and do not include:
a)any interim applications that may arise;
b)matters in Courts other than the Family Court of Western Australia;
c)taking of judgment where decision is delayed after trial;
d)assessment of costs;
e)implementation or enforcement of Court orders or judgment at trial.
4.As at the conclusion of the first meeting, we estimate that you will need to spend at least $_____________________________ ( ) on initial advice and preliminary steps.
5.If your matter is simple and settles quickly, you may spend as little as $3,000 to $9,000 in total. On the other hand, if your matter involves litigation over an extended period of time (which is statistically very unlikely), you may spend $35,000 - $95,000 or more.
6.In rare financial issues cases involving large amounts of assets, high levels of complexity and/or extreme levels of emotion, fees can run into the hundreds of thousands of dollars. Again, we will only let this happen if you approve it, and if the amount being spent is proportionate to the size of the asset pool. These cases are extremely rare and we will immediately inform you if you fall into this category.
7.In any event, more specific cost estimates on your case will be provided within a short time of your first meeting, then updated fortnightly as required.
8.Situations can and do arise in the course of litigation that are likely to result in estimates needing to be revised. Although the Law Practice will inform the Client in writing of any substantial changes to estimates, as soon as reasonably practicable after the Law Practice becomes aware of any substantial changes, it is advisable to request updated estimates as the Subject Matter proceeds.
HHG did not complete the estimate of costs for the initial advice and preliminary steps in cl 4.
Clauses 9 - 12 relate to the lawyer responsible for primary conduct of the matter.
Clauses 13 - 14 relate to progress reports. They provide:
13.The Law Practice will provide the Client, on reasonable request, with a written report of the progress of the Subject Matter, and a written report of the legal costs incurred by the Client to date, or since the last account (if any), regarding the Subject Matter.
14.The Law Practice may charge the Client for a report in relation to the progress of the Subject Matter. However, the Law Practice will not charge the Client for a report in relation to legal costs.

Clause 15 relates to further estimates in the event of settlement.
Clauses 16 - 17 provide for additional cost disclosure obligations which have no bearing on this matter.

The LP Act

Part 10 of the LP Act deals with costs disclosure and assessment. The aim of pt 10 is to ensure disclosures are made by practitioners to clients and to regulate costs agreements.[13]
[13] BGM v Australasian Lawyers Group Pty Ltd t/as Butlers Barristers & Solicitor [2014] WASC 290 [93].
Division 3 deals with costs disclosures. Section 260 of the LP Act relevantly provides:
260. Disclosure of costs to clients
(1)A law practice must disclose to a client in accordance with this Division -
(a)the basis on which legal costs will be calculated, including whether a costs determination applies to any of the legal costs; and
(b)the client's right to -
(i)negotiate a costs agreement with the law practice; and
(ii)receive a bill from the law practice; and
(iii)request an itemised bill after receipt of a lump sum bill; and
(iv)be notified under section 267 of any substantial change to the matters disclosed under this section;
and
(c)an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable -
(i)a range of estimates of the total legal costs; and
(ii)an explanation of the major variables that will affect the calculation of those costs;
and
(d)details of the intervals (if any) at which the client will be billed; and
(e)the rate of interest (if any) that the law practice charges on overdue legal costs, whether that rate is a specific rate of interest or is a benchmark rate of interest (as referred to in subsection (2)); and
(f)if the matter is a litigious matter, an estimate of -
(i)the range of costs that may be recovered if the client is successful in the litigation; and
(ii)the range of costs the client may be ordered to pay if the client is unsuccessful;
and
(g)the client's right to progress reports in accordance with section 269; and
(h)details of the person whom the client may contact to discuss the legal costs; and
(i)the following avenues that are open to the client in the event of a dispute in relation to legal costs -
(i)costs assessment under Division 8;
(ii)the setting aside of a costs agreement under section 288;
(iii)making a complaint under Part 13;
and
(j)any time limits that apply to the taking of any action referred to in paragraph (i); and
(k)that the law of this jurisdiction applies to legal costs in relation to the matter; and
(l)information about the client's right -
(i)to accept under a corresponding law a written offer to enter into an agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter; and
(ii)to notify under a corresponding law (and within the time allowed by the corresponding law) the law practice in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter.
(2)For the purposes of subsection (1)(e), a benchmark rate of interest is a rate of interest for the time being equal to or calculated by reference to a rate of interest that is specified or determined from time to time by an ADI or another body or organisation, or by or under other legislation, and that is publicly available.
(3)The regulations may make provision for or with respect to the use of benchmark rates of interest, and in particular for or with respect to permitting, regulating or preventing the use of particular benchmark rates or particular kinds of benchmark rates.
(4)For the purposes of subsection (1)(f), the disclosure must include -
(a)a statement that an order by a court for the payment of costs in favour of the client will not necessarily cover the whole of the client's legal costs; and
(b)if applicable, a statement that disbursements may be payable by the client even if the client enters into a conditional costs agreement.
(5)A law practice is taken to have complied with the requirement to disclose the details referred to in subsection (1)(b)(i), (ii) and (iii), (g), (i), (j) and (l) if it provides a written statement in or to the effect of a form prescribed by the regulations for the purposes of this subsection at the same time as the other details are disclosed as required by this section.
(6)A form prescribed for the purposes of subsection (5) may, instead of itself containing details of the kind referred to in that subsection, refer to publicly accessible sources of information (such as an internet website) from which those details can be obtained.
(7)The regulations may require the Board to develop a statement of the relevant details and to revise it as necessary to keep it up to date.
Section 260(1) contains 12 subsections each of which must be complied with.[14]
[14] BGM v Australasian Lawyers Group Pty Ltd t/as Butlers Barristers & Solicitors [66].
Section 262(1) of the LP Act provides that disclosure under s 260 must be made in writing before, or as soon as practicable after, the law practice is retained in the matter.
The phrase 'as soon as practicable' imports requirements of what is 'reasonable and appropriate' in the circumstances of the particular matter. An estimate requires due and detailed consideration and must be realistic and reasonable. This requires consideration of all the circumstances.[15]
[15] Allison v Murfett Legal Pty Ltd [2021] WASC 359 [25].
Section 267 of the LP Act provides:
267.Ongoing obligation to disclose
A law practice must, in writing, disclose to a client any substantial change to anything included in a disclosure already made under this Division as soon as is reasonably practicable after the law practice becomes aware of that change.
Section 268 of the LP Act relevantly provides:
268.Effect of failure to disclose
(1)If a law practice does not disclose to a client … anything required by this Division to be disclosed, the client … need not pay the legal costs unless they have been assessed under Division 8.
(2)A law practice that does not disclose to a client … anything required by this Division to be disclosed may not maintain proceedings against the client … for the recovery of legal costs unless the costs have been assessed under Division 8.
(3)If a law practice does not disclose to a client … anything required by this Division to be disclosed and the client … has entered a costs agreement with the law practice, the client … may also apply under section 288 for the costs agreement to be set aside.
(4)If a law practice does not disclose to a client … anything required by this Division to be disclosed then, on an assessment of the relevant legal costs, the amount of the costs may be reduced by an amount considered by the taxing officer to be proportionate to the seriousness of the failure to disclose.
…
(7)Failure by a law practice to comply with this Division is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any Australian legal practitioner or Australian-registered foreign lawyer involved in the failure.
Division 6 of pt 10 of the LP Act specifically deals with costs agreements. Section 282 of the LP Act provides:
282. Making costs agreements
(1)A costs agreement may be made -
(a)between a client and a law practice retained by the client; or
(2)A costs agreement must be written or evidenced in writing.
(3)A costs agreement may consist of a written offer in accordance with subsection (4) that is accepted in writing or by other conduct.
(4)The offer must clearly state -
(a)that it is an offer to enter into a costs agreement; and
(b)that the offer can be accepted in writing or by other conduct; and
(c)the type of conduct that will constitute acceptance.
Section 288 of the LP Act deals with setting aside costs agreements. That section relevantly provides:
288. Setting aside costs agreements
(1)In this section -
client means a person to whom or for whom legal services are or have been provided.
(2)On application by a client, the Supreme Court may order that a costs agreement be set aside if satisfied that the agreement is not fair or reasonable.
(3)In determining whether or not a costs agreement is fair or reasonable, and without limiting the matters to which the Supreme Court can have regard, the Supreme Court may have regard to any or all of the following matters -
(a)whether the client was induced to enter into the agreement by the fraud or misrepresentation of the law practice or of any representative of the law practice;
(b)whether any Australian legal practitioner or Australian‑registered foreign lawyer acting on behalf of the law practice has been found guilty of unsatisfactory professional conduct or professional misconduct in relation to the provision of legal services to which the agreement relates;
(c)whether the law practice has failed to make any of the disclosures required under Division 3;
(d)the circumstances and the conduct of the parties before and when the agreement was made;
(e)the circumstances and the conduct of the parties in the matters after the agreement was made;
(f)whether and how the agreement addresses the effect on costs of matters and changed circumstances that might foreseeably arise and affect the extent and nature of legal services provided under the agreement;
(g)whether and how billing under the agreement addresses changed circumstances affecting the extent and nature of legal services provided under the agreement.

Legal principles

Whether a costs agreement is set aside pursuant to s 288(2) of the LP Act is a matter of discretion. The onus is on the plaintiff to establish that the costs agreement is not fair or not reasonable and that the discretion should be exercised in her favour.[16]
[16] Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [30]; Allison v Murfett Legal Pty Ltd [11].
The word 'fair' is directed to a consideration of the circumstances relating to the formation of the costs agreement in the context of the solicitor's position as a fiduciary and officer of the court.[17] It is necessary for the court to undertake an assessment of a plaintiff's knowledge, experience and sophistication in dealing with a costs agreement and the terms of the proposed costs agreement itself.[18]
[17] Stevenson v Zafra [2021] WASCA 181 [245].
[18] Allison v Murfett Legal Pty Ltd [12].
In determining whether the costs agreement is not 'reasonable', regard should be had to its terms and whether the effect of the agreement on the client is unreasonable.[19] An aspect of the potential unreasonableness in relation to s 288(2) is the duty of the solicitor to make full and frank disclosure. What that duty involves in a particular case depends on the circumstances including the nature of the case and the sophistication of the client.[20]
[19] Stevenson v Zafra [245].
[20] BGM v Australasian Lawyers Group Pty Ltd t/as Butlers Barristers & Solicitors [88].
A costs agreement can be cancelled if it is not fair but is reasonable, or if it is reasonable but is not fair. Section 288(3) sets out the matters to which the court 'can' and 'may' have regard. These matters go to whether or not the costs agreement is fair or reasonable. The court, at least as a starting point, would ordinarily have regard to these factors. However, the subsection is not mandatory. The court need not have regard to all these factors and is not prevented from considering other matters which might be relevant to the exercise of the discretion.[21]
[21] Allison v Murfett Legal Pty Ltd [11]; BGM v Australasian Lawyers Group Pty Ltd t/as Butlers Barristers & Solicitors [54].
Ultimately, the assessment of whether a costs agreement is not fair or not reasonable is not limited by closed categories. The circumstances must be considered as a whole, including the circumstances and conduct of the parties before, when and after the agreement is made.[22]
[22] Stevenson v Zafra [245].

Grounds of the application

Ms Luscombe submitted that the Costs Agreement was not fair or reasonable having regard to:
(1)the failure by HHG to make the costs disclosures required under div 3 pt 10 of the LP Act (s 288(3)(c) of the LP Act);
(2)the circumstances and the conduct of the parties before and when the agreement was made (s 288(3)(d) of the LP Act);
(3)the circumstances and conduct of the parties in the matters after the agreement was made (s 288(3)(e) of the LP Act); and
(4)other matters relating to the fairness of the Costs Agreement.

Whether HHG made the costs disclosures required - s 288(3)(c)

Ms Luscombe contends that HHG failed to provide adequate costs disclosure as required under div 3 pt 10 of the LP Act in the following respects:
(a) the failure to disclose the applicable costs determination;
(b)the failure to disclose the client's right to be notified of any substantial change to the matters disclosed;
(c)the failure to disclose an estimate of the total legal costs;
(d)the failure to disclose a range of costs that may be recovered if the client is successful or payable if successful;
(e)the failure to disclose the entitlement to a right to progress reports;
(f)the failure to disclose time limits applicable to the making of a complaint under pt 13 of the LP Act; and
(g)the failure to provide ongoing disclosure.
I will deal with each of these contentions in turn.

Failure to disclose applicable costs determination

Section 260(1)(a) of the LP Act requires a law practice to disclose whether a costs determination applies to any of the legal costs. Ms Luscombe submitted that the Costs Agreement fell short of this requirement. While she conceded that the Costs Agreement stated that a cost determination is applicable to the subject matter of the Costs Agreement, it did not identify the applicable costs determination.[23]
[23] Plaintiff's outline of submissions filed 21 March 2022 [4] (Plaintiff's Submissions).
The Costs Agreement relevantly provided:
2.4 From time to time, legal costs determinations are made regulating the costs that may be charged by law practices. A legal costs determination is applicable to the Subject Matter (the Costs Scale). The rates in Schedule 1 are up to 40% above the rates provided in the Costs Scale.
2.5A copy of the applicable Costs Scale can be provided on request. Alternatively, the costs scales are available for download from family/index. html and >
Ms Luscombe submitted that while cl 2.5 provided a hyperlink to access the applicable costs determination, it would be difficult to expect her or someone in her position with no experience in litigation or the provisions of the LP Act to be able to identify the applicable legal cost determination.[24]
[24] Plaintiff's responsive submissions filed 11 May 2022 [5] (Plaintiff's Responsive Submissions).
Ms Luscombe submitted that without having read the applicable legal costs determination, she would not know by how much HHG's hourly rates exceeded the costs scale.[25]
[25] Plaintiff's Responsive Submissions [6].
She further submitted that the Costs Agreement did not disclose that in the absence of a costs agreement, the law practice could only charge in accordance with the legal costs determination.[26]
[26] Plaintiff's Responsive Submissions [7].
HHG submitted that the Costs Agreement adequately disclosed the applicable costs determination given it provided that:
(a)a 'legal costs determination is applicable' and that a copy 'can be provided on request': cl 2.4 and cl 2.5;
(b)costs determinations are available for download via the hyperlinks provided: cl 2.5;
(c)the rates contained in sch 1 of the Costs Agreement 'are up to 40% above the rates provided in the [applicable costs determination]' (cl 2.4) which implies that the fees provided by the determinations are in general lower than the fees based on the hourly rates set out in the Costs Agreement;
(d)the client had a right to negotiate a costs agreement: cl 19.1; and
(e)the client could seek independent legal advice in relation to the meaning and effect of the Costs Agreement and 'that it is in the Client's interests to do so': cl 19.2.[27]
[27] Defendant's outline of submissions filed 29 March 2022 [16] (Defendant's Submissions).
I do not accept the submission that the applicable costs determination could only be obtained by someone familiar with litigation or the provisions of the LP Act. Ms Luscombe could have understood the relevant costs determination.
It is obvious from cl 2.4 of the Costs Agreement that HHG was not applying a costs determination and that they were charging significantly more than the costs determination, specifically, up to 40% above the rates provided in the costs determination.
In any event, had Ms Luscombe sought a copy of the applicable costs determination a copy was available from HHG or could be accessed online. It does not appear that she sought to obtain a copy of the costs determination by request or by conducting an internet search using the hyperlinks provided.

Failure to disclose client's right to be notified of any substantial change to the matters disclosed

Section 260(1)(b)(iv) of the LP Act requires that a law practice disclose the client's right to be notified under s 267 of any substantial change to the matters disclosed under s 260. Section 267 provides that a law practice must, in writing, disclose to a client any substantial change to anything included in a disclosure already made under div 3 as soon as is reasonably practicable after the law practice becomes aware of that change.
Ms Luscombe submitted that the Costs Agreement does not state that the client has a right to be notified under s 267 of the LP Act but simply provides that the law practice will inform the client of any substantial change.[28]
[28] Plaintiff's Submissions [5]; Plaintiff's Responsive Submissions [13].
HHG submitted that this contention is simply wrong given the Costs Agreement disclosed that:
(a)HHG will inform the client in writing of any substantial change to anything included in the Costs Agreement as soon as reasonably practicable after HHG becomes aware of that substantial change: cl 20.1;
(b)litigation is unpredictable which can result in estimates needing to be revised: sch 2 cl 8; and
(c)HHG will inform the client of any substantial changes to the estimates as soon as is reasonably practicable: sch 2 cl 8.[29]
[29] Defendant's Submissions [19].
HHG submitted that the only matters that might reasonably have changed would be the estimates to be provided pursuant to s 260(1)(c).[30]
[30] Defendant's Submissions [20].
HHG further submitted that Ms Luscombe's contention is nothing more than 'linguistic pedantry' because, although not expressly referred to in the Costs Agreement, the effect of s 267 of the LP Act is clearly disclosed on the face of the Costs Agreement.[31]
[31] Defendant's Submissions [21].
The Costs Agreement should have expressly stated that Ms Luscombe had a 'right' to be notified under s 267 of the LP Act. The failure to state that she had such a right was a failure to comply with s 260(1)(b)(iv) of the LP Act. Other than failing to specifically refer to a 'right', s 260 was substantially complied with.

Failure to disclose an estimate of the total legal costs

Ms Luscombe contends that HHG failed to adequately disclose an estimate of total legal costs pursuant to s 260(1)(c) of the LP Act.
Section 260(1)(c) of the LP Act requires a law practice to disclose an estimate of total legal costs if reasonably practicable. If that disclosure is not reasonably practicable, the law practice must disclose:
(i)a range of estimates of the total legal costs; and
(ii)an explanation of the major variables that will affect the calculation of those costs.
Schedule cl 4 of Costs Agreement is blank in relation to the estimate of costs for initial advice and preliminary steps.
Clause 5 of sch 2 of the Costs Agreement provides two ranges of estimates: '$3,000 to $9,000 in total' if the matter is simple and settles quickly; and '$35,000 - $95,000 or more' if the matter involves litigation over an extended period of time (which is said to be 'statistically very unlikely').
Ms Luscombe submitted that disclosure of the total costs estimate was inadequate given the Costs Agreement:
(a)failed to specify an estimate in relation to the costs for initial advice and preliminary steps; and
(b)provided 'very broad' estimates of total costs which fail to indicate whether they relate to property issues, child issues or both property and child issues, thereby rendering the estimates meaningless.[32]
[32] Plaintiff's Submissions [6]; Plaintiff's Responsive Submissions [9] - [10].
Ms Luscombe appears to concede that it was not reasonably practicable to give an estimate of the total legal costs pursuant to s 260(1)(c) of the LP Act.[33] As such, HHG was entitled - as it did - to give a range of estimates of the total legal costs as allowed for in s 260(1)(c)(i) of the LP Act, provided of course there was an explanation of the major variables that will affect the calculation of those costs.[34]
[33] Plaintiff’s Submissions [6(b)].
[34] LP Act s 260(1)(c)(ii).
HHG submitted that it was entitled to give the ranges of estimates provided in the Costs Agreement because the LP Act clearly anticipates the provision of such a range of estimates and an explanation of the major variables.[35] HHG further submitted that there is no obligation to 'breakdown' the range of costs over particular stages and that to impose such an obligation would involve a gloss on statutory disclosure obligations not supported by the text and context of the LP Act.[36]
[35] Defendant's Submissions [23].
[36] Defendant's Submissions [24].

As already indicated, HHG did not complete the estimate of costs in relation to the costs for initial advice and preliminary steps in cl 4 of sch 2 of the Costs Agreement. However, it is apparent from Mr Cohen's affidavit that other than a fixed consultation fee of $440 Mr Cohen did not charge Ms Luscombe for bringing himself 'up to speed' on the matter and that he orally advised her that she would incur approximately $2,500 to $5,000 to prepare a response to the child‑related application.[37] That estimate is broadly consistent with the estimate of $3,000 to $9,000 if the matter is simple and settles quickly.
[37] Exhibit C [5](h) - (i).
The estimates of costs given in the Costs Agreement were broad but estimates of costs are difficult to give with precision. To impose an obligation to break down areas of costs to particular items is to go beyond the disclosure obligations arising from the text and context of the LP Act. Indeed, adopting such an approach may be more calculated to mislead than to be accurate. It is sufficient for a law practice to discharge its disclosure obligations by explaining the major variables. Typically, legal costs accelerate the longer the litigation lasts as the issues become more complex. The estimates reflect that fact.

Failure to disclose a range of costs that may be recovered if the client is successful or payable if unsuccessful

Where a matter is a litigious matter, s 260(1)(f) of the LP Act requires a legal practice to provide an estimate of:
(i)the range of costs that may be recovered if the client is successful in the litigation; and
(ii)the range of costs the client may be ordered to pay if the client is unsuccessful.
Clause 13.1 of the Costs Agreement states that the general rule in relation to family law matters in Western Australia is that each party to the proceedings is to bear their own costs.
By cl 13.3 of the Costs Agreement, HHG estimates that 'approximately 35% to 60%' of the client's costs may be recovered from the other party if a costs order is made against the other party.
By cl 13.6 of the Costs Agreement, HHG estimates that '35% to 75% of the other party's costs (depending on the rates charged by the other party's solicitors) may be recovered' from the client if a costs order is made against the client.
Ms Luscombe submitted that HHG fell short of the obligation to disclose a range of costs that may be recovered if the client is successful or payable if unsuccessful, given the Costs Agreement fails to clearly state:
(a)the range of costs recoverable in that it is calculated by reference to a percentage (35% to 60%) of a cost estimate which is meaningless; and
(b)the range of costs payable in that it is calculated by reference to a percentage (35% to 75%) of the costs incurred by the opposing party where no estimate of those costs is given and is therefore meaningless. Nor is it clear whether the range concerned the costs incurred in relation to property issues, child issues or both property and child issues.[38]
[38] Plaintiff's Submissions [7].
HHG submitted that it was entirely reasonable for the estimates to be provided on a percentage basis in circumstances where:
(a)the position in respect of costs in the Family Court is that unless there is a qualifying factor, each party is to bear their own costs;[39]
(b)that general position was disclosed to Ms Luscombe in cl 13 of the Costs Agreement;
(c)unlike the Legal Profession (Supreme and District Courts) Contentious Business) Determination 2020 (WA), there is no costs determination which sets upper limits on what can be recovered on a party-party basis in proceedings in the Family Court of WA. Rather, the relevant scale for party-party costs is dealt with on a different basis entirely, namely sch 3 of the Family Law Rules 2004 (Cth); and
(d)HHG did not know:
(i)what had been charged to the other party to the litigation by his solicitors; and
(ii)what hourly rates those solicitors charged out at.[40]
[39] See Family Law Act 1975 (Cth) s 117; Family Court Act 1997 (WA) s 237.
[40] Defendant's Submissions [26].
HHG contended that to provide the client an estimate based on the items set out in sch 3 of the Family Law Rules would have been confusing and would have been more in the nature of speculation rather than an estimate in the true sense.[41]
[41] Defendant's Submissions [26].
It is difficult to see how a party's right to recover costs from the other party could been expressed other than by a percentage estimate. The estimates were not meaningless as Ms Luscombe alleges.

Failure to disclose the entitlement to a right to progress reports

Section 260(1)(g) of the LP Act requires a law practice to disclose the client's right to progress reports in accordance with s 269 of the LP Act.
Section 269(1) of the LP Act provides that a law practice must, on reasonable request of the client, give the client a written report on the progress of the matter and a written report of legal costs incurred by the client to date or since the last bill.
Ms Luscombe submitted that HHG did not comply with the requirement to disclose the right to progress reports in accordance with s 269 of the LP Act.[42]
[42] Plaintiff's Submissions [8]; Plaintiff's Responsive Submissions [14].
Clause 13 of sch 2 of the Costs Agreement states that 'the Law Practice will provide the Client, on reasonable request, with a written report of the progress of the [matter], and a written report of the legal costs incurred by the Client to date, or since the last account (if any)'.
HHG submitted that cl 13 of sch 2 adequately addressed the disclosure requirement under s 260(1)(g) in respect of both the right to progress reports and the right to legal costs reports.[43] In any event, it submitted that there was no material adverse effect to Ms Luscombe in the practical operation of the relevant terms of the Costs Agreement.[44]
[43] Defendant's Submissions [29] - [30].
[44] Defendant's Submissions [31].
A costs agreement must disclose the existence of a 'right' to progress reports. An agreement should expressly refer to that 'right' as required by s 260 of the LP Act.
The Costs Agreement should have stated that Ms Luscombe had a 'right' to progress reports. That omission was a failure to comply with s 260(1)(g) of the LP Act.
Other than failing to expressly refer to a 'right', s 260 of the LP Act was substantially complied with.

Failure to disclose time limits applicable to the making of a complaint under pt 13 of the LP Act

Section 260(1)(j) of the LP Act requires a law practice to disclose any time limits that apply to the taking of any action referred to in s 260(1)(i) in the event of a dispute in relation to legal costs. One such action is making a complaint under pt 13 of the LP Act.[45]
[45] Legal Profession Act 2008 (WA) s 260(1)(i)(iii) (LP Act).
Ms Luscombe submitted that HHG did not disclose the time limits applicable to making a complaint under pt 13.
Part 13 of the LP Act deals with complaints and discipline of the legal profession. Division 4 deals with complaints. Section 410 of the LP Act allows a client to make a complaint to the Legal Profession Complaints Committee (LPCC) or through the Law Complaints Officer. Section 411 of the LP Act relates to the time limit to make a complaint. It provides:
411. Time of complaint
(1) A complaint may be made about conduct of an Australian legal practitioner irrespective of when the conduct is alleged to have occurred.
(2) However, a complaint cannot be dealt with (otherwise than to dismiss it or refer it to mediation) if the complaint is made more than 6 years after the conduct is alleged to have occurred unless the Complaints Committee determines that -
(a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; or
(b) the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint.
(3) A determination under subsection (2) is final and cannot be challenged in any proceedings by the complainant or the Australian legal practitioner concerned.
Ms Luscombe submitted that the practical effect of s 411 of the LP Act is that there is a 6‑year time limit to make a complaint.[46] That interpretation is based on the terms of s 411(2) which are to the effect that where a complaint is made more than 6 years after the conduct is alleged to have occurred, it cannot be dealt with unless the LPCC is satisfied of one of the factors in the provision.
[46] Plaintiff's Responsive Submissions [15] - [17].
Ms Luscombe further relied on a statement on the Legal Practice Board of Western Australia website that a complaint must be made within 6 years and that it is only in rare circumstances that it will consider complaints made outside this period.[47]
[47] Plaintiff's Responsive Submissions [18].
HHG submitted that the correct construction of s 411 is that there is no time limit for making a complaint under pt 13. It relied in particular on the terms of s 411(1) that '[a] complaint may be made about conduct of an Australian legal practitioner irrespective of when the conduct is alleged to have occurred'.[48]
[48] Defendant's Submissions [34].
There is no time limit for making a complaint in s 411 of the LP Act.
Ms Luscombe's submissions rely on the 'practical effect' of s 411. The relevant question is not the practical effect of the provision but whether the LP Act was complied with. I am satisfied that it was.

Failure to provide ongoing disclosure

As already disclosed, s 267 of the LP Act imposes an obligation to provide ongoing disclosure of 'any substantial change' to anything included in a disclosure made under div 3 as soon as is reasonably practicable after the law practice becomes aware of that change.
Ms Luscombe submitted that HHG did not comply with the obligation of ongoing disclosure in relation to what she said were 'substantial changes'. She submitted that no revised costs estimates were provided as new issues emerged including in July 2019 when a request to Ms Luscombe's daughter's estate was made for $5,000 and then $50,000 to meet Ms Luscombe's ongoing legal costs and when HHG anticipated that it may be required to prepare for and attend a financial mediation and brief counsel.[49]
[49] Plaintiff's Submissions [10]; Plaintiff's Responsive Submissions [19] - [22].
HHG submitted that in circumstances where a range of estimates of $35,000 to $95,000 was provided, no attempt was made to articulate what the 'substantial change' to the previous disclosure was.[50]
[50] Defendant's Submissions [37].
In effect, HHG did provide a revised estimate. When the issue of Ms Luscombe's involvement in the SMSF arose, HHG advised her that they would be seeking $50,000 towards costs. Plainly, that $50,000 was requested from the estate to deal with the allegation of improper conduct by Ms Luscombe in relation to the withdrawal from the SMSF and the payment of the death benefit. Although the request for $50,000 was not specifically identified as an estimate, it is difficult to see it as anything else. In any event, the $50,000 fell within the $35,000 to $95,000 range stated in cl 5 of sch 2 in the Costs Agreement.

The circumstances and the conduct of the parties before and when the agreement was made - s 288(3)(d)

The second ground upon which Ms Luscombe argues that the Costs Agreement was not fair or reasonable is the circumstances and the conduct of the parties before and when the Costs Agreement was made.
In support of this ground, Ms Luscombe submitted that the court should have regard to the fact that:
(a) she did not have a profession;
(b)she did not have experience dealing with lawyers or litigation and was not familiar with the provisions of the LP Act, cost agreements and costs scales;
(c)when the Costs Agreement was made, she was grieving the loss of her daughter while acting as the primary carer for her 5‑year‑old granddaughter (including by managing her granddaughter's grief);
(d)her daughter had died five months before she retained HHG;
(e)she was worried and anxious about the Family Court proceedings which she did not believe she could manage without the assistance of a lawyer;
(f)about three months before the Costs Agreement was made (in March 2019), she had become an intervenor in the Family Court proceedings to seek interim orders about the care arrangements for her granddaughter; and
(g)she had limited financial resources to meet her legal fees, was living off her modest savings and was receiving no child support income.[51]
[51] Plaintiff's Submissions [11] - [17].
HHG submitted that there is nothing unusual in Ms Luscombe being a person without a profession, lacking experience dealing with lawyers and their regulatory regime or experiencing grief or personal pressures when engaging solicitors.[52]
[52] Defendant's Submissions [38].
In respect of Ms Luscombe's financial circumstances, HHG submitted that a solicitor has no positive duty to a craft a costs agreement in a particular way to take account of a client's financial circumstances. It was ultimately for HHG to choose the terms and conditions upon which it was prepared to act for Ms Luscombe.[53]
[53] Defendant's Submissions [41].
HHG further submitted that no act or omission on its part caused Ms Luscombe to be in the position she was when she engaged HHG.[54] There was similarly no suggestion that the solicitors unconscientiously took advantage of the pressure Ms Luscombe was under.[55]
[54] Defendant's Submissions [39].
[55] Defendant's Submissions [40].
HHG also contended that Ms Luscombe had the support of her son and daughter-in-law and that her daughter-in-law dealt with HHG on Ms Luscombe's behalf.[56]
[56] Defendant's Submissions [43].
One can readily accept that Ms Luscombe was under great stress grieving the death of her daughter and taking care of her granddaughter. However, there is no suggestion that HHG in any way took advantage of Ms Luscombe's position.
Litigation inevitably involves stress. Few litigants would appreciate that stress until they are involved in contested litigation.
There is no positive obligation on a law practice to inquire as to a client's financial position before entering into a costs agreement. Provided disclosure has been made it is for the client to assess their ability to meet the costs.
Ms Luscombe could have terminated her instructions to HHG. She chose not to. There is not a separate rule for inexperienced and experienced litigants.

The circumstances and the conduct of the parties in the matters after the agreement was made - s 288(3)(e)

Ms Luscombe also submitted that the Costs Agreement was not fair or reasonable having regard to the circumstances and the conduct of the parties after she entered the Costs Agreement. To that end, Ms Luscombe said the court should have regard to the following factors:
(a)HHG did not provide further estimates despite cl 7 of sch 2 of the Costs Agreement which provides that 'more specific cost estimates on your case will be provided within a short time of your first meeting, then updated fortnightly as required';
(b)Ms Luscombe did not ever have a meaningful and accurate estimate of the legal costs she may incur;
(c)when Ms Luscombe raised concerns with HHG in September 2021 about the level of costs incurred, the general cost estimate of $3,000 to $9,000 for simple matters had been exceeded and she had already incurred fees of around $39,000 (which was within the $35,000 to $95,000 estimate given if the matter involved litigation) despite the matter not yet having been the subject of any contested hearing;
(d)Ms Luscombe continued to inform HHG that she did not have the financial resources to meet its fees and was concerned about the level of costs incurred;
(e)Ms Luscombe also continued to grieve for her daughter, care for her granddaughter and deal with issues associated with the Family Court proceedings;
(f)HHG's obligation to provide, and the effect of not providing, clear revised specific cost estimates assumed greater significance given the focus of Ms Luscombe's instruction to HHG to obtain funds from her daughter's estate to meet her legal fees and that much of the work undertaken by HHG related to obtaining such funds;
(g)there was ample opportunity for HHG to provide more specific estimates as the matter progressed, particularly in July 2019 when HHG wrote to the executor of Ms Luscombe's daughter's estate to request funds for Ms Luscombe's ongoing legal costs and when further legal issues emerged such as the possibility of having to prepare for and attend financial mediation;
(h)the solicitor with primary conduct of Ms Luscombe's file was an experienced family law practitioner and therefore had the skills required to provide meaningful cost disclosure; and
(i)the majority of work undertaken pursuant to the Costs Agreement was undertaken by a senior lawyer, being a lawyer with more than 5 years' experience, for which HHG charged Ms Luscombe an hourly rate of $605 (GST inclusive) which was well above the applicable costs determination.[57]
[57] Plaintiff's Submissions [19] - [27].
HHG submitted:
(a)in light of the range of estimates given, there was no obligation to provide a further estimate shortly after the first meeting or to provide fortnightly updates to the estimate. Clause 7 of sch 2 provided that further estimates were to be provided 'as required';
(b)there was no lack of meaning or accuracy in the estimate;
(c)the instruction to obtain funds from the estate of Ms Luscombe's daughter does not place any greater emphasis on the 'need to provide' revised cost estimates. HHG was not acting, and never agreed to act, on the basis that Ms Luscombe would not be liable for their costs or that her liability would be limited to the extent to which funds could be obtained from the estate;
(d)in light of Ms Luscombe's financial circumstances, the request for $50,000 for litigation funding from the estate demonstrated that the anticipated costs were in and about the estimate that had been given;
(e) a revised estimate was only required once there had been a substantial change to the original range of estimates given. That had not occurred;
(f)the rate provided in the applicable costs determination was an hourly rate of $495 inclusive of GST. The difference in the hourly rates was $110. Mr Majoe's hourly rate under the Costs Agreement was approximately 22.2% higher than the maximum hourly rate under the costs determination. In any event, that was well under the '40% above' disclosure in cl 2.4 of the Costs Agreement.[58]
[58] Defendant's Submissions [44] - [49].

Ms Luscombe submitted in reply that her instruction to obtain funds from her daughter's estate placed a greater emphasis on the requirement for revised cost estimates because she was more vulnerable given her financial position. She contended that HHG should have provided an accurate estimate of the legal costs she would likely incur, to enable her to determine whether it was financially viable for her to continue to instruct HHG.[59]
[59] Plaintiff's Reply Submissions [35] - [36].
The Costs Agreement was not complex. Ms Luscombe did not require previous experience with lawyers to understand it. Further, Ms Luscombe did have experience with a previous costs agreement, having entered an agreement with Ferrier, Athanasiou & Kakulas on 12 February 2019. She must have known that the fees charged by HHG were higher but she still chose to enter into the Costs Agreement.
Ms Luscombe was aware that a request for funds had been made on her behalf. It appears that the reason why the grant of funds was opposed by her former son-in-law was that Ms Luscombe refused to complete a Form 13 - Financial Statement. No explanation was offered as to why she did not complete the form.

Other matters

Ms Luscombe refers to various other matters in support of her contention that the Costs Agreement was not fair or not reasonable.
First, Ms Luscombe submitted that the hourly rates in sch 1 pt A of the Costs Agreement are stated in very broad ranges which are for the most part significantly above the hourly rates set out in the applicable determination.[60]
[60] Plaintiff's Submissions [28].
The hourly rates (GST exclusive) are set out in the Costs Agreement as follows:

Director/Associate Director/Special Counsel/Counsel/Senior Associate
$450 - $600

Senior Lawyer and/or Associate (being five years or more in practice)

$380 - $550

Lawyer (being less than five years in practice)
$295 - $450

Senior law clerk (5+ years experience)
$300- $350

Articled clerk, law graduate or law clerk
$195 - $330

Legal Assistants/Paralegals

$100 - $200

The applicable costs determination is the Legal Profession (Family Court of Western Australia) Determination. That costs determination provides that the maximum hourly rates (GST exclusive) for:
(i)a senior practitioner is $495;
(ii)a junior practitioner is $352;
(iii)a restricted practitioner is $297; and
(iv)a clerk/paralegal is $231.
HHG submitted that the fact that some hourly rates are above those provided in the costs determination is not sufficient in itself to lead to a conclusion that the Costs Agreement is not fair or not reasonable. It contended that a costs agreement entitles a law practice to charge costs other than in accordance with the costs determination.[61]
[61] Defendant's Submissions [51].
Second, Ms Luscombe submitted that sch 1 pt A of the Costs Agreement charges full professional rates for travelling where travelling does not involve the utilisation of professional skill and knowledge.[62] The implicit submission appears to be that this term is not fair or not reasonable. HHG said that there is no evidential basis for such a submission.[63]
[62] Plaintiff's Submissions [29].
[63] Defendant's Submissions [52].
Third, Ms Luscombe submitted that cl 9.4 of the Costs Agreement purports to deem each bill as a final bill and therefore restricts the time within which she may apply to have those bills assessed and is inconsistent with the case law regarding the meaning of interim and final bills.[64] HHG said that this complaint is immaterial because HHG has never sought to rely on the term. In any event, HHG submitted that the term could be severed from the Costs Agreement if it had any material application.[65]
[64] Plaintiff's Submissions [30].
[65] Defendant's Submissions [53].
Fourth, Ms Luscombe submitted that the 'disbursements' included in sch 1 pt B of the Costs Agreement were not in fact disbursements and are not fair or not reasonable because they give rise to 'unfair profit-making' by HHG in relation to 'rudimentary administrative tasks'. Ms Luscombe took particular issue with fees charged for audio transcription and internal printing, photocopying and scanning.[66] HHG contended that Ms Luscombe provided no evidence in support of this submission.[67]
[66] Plaintiff's Submissions [31].
[67] Defendant's Submissions [54].
Ms Luscombe further submitted that sch 1 pt B included other charges and disbursements which HHG would not have been able to charge if the applicable costs determination applied. These were said to include the file opening fee of $85, fees for scanning documents and printing fees.[68]
[68] Plaintiff's Submissions [32].
The complaints made by Ms Luscombe relate to the 'fairness' of the charges. There was clearly disclosure of the costs Ms Luscombe would be required to pay. Clause 2.4 of the Costs Agreement made it clear that the costs charged were up to 40% above the costs determination.
Some of the fees charged, for example, file opening, do seem excessive given the hourly rates, but Ms Luscombe cannot say that she was not given details of these fees.
Ms Luscombe could have declined to enter into the Costs Agreement and engaged other lawyers. She chose not to.

Conclusion

There is nothing in the Costs Agreement nor in the circumstances and conduct of the parties before, when or after making the Costs Agreement that could be said to be not fair or not reasonable.
Although there was a failure to comply with some of the requirements of s 260 of the LP Act, that failure was not substantial. Primarily the breach was a failure to expressly state Ms Luscombe's rights, specifically, the right to be notified of any substantial change and the right to progress reports. There is no suggestion in Ms Luscombe's affidavit or submissions that she would have acted differently if the word 'right' was used.
Ms Luscombe has not demonstrated any basis upon which the Costs Agreement was not fair or not reasonable.
Ms Luscombe's application is dismissed.
Costs should follow the event.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Associate to the Honourable Justice Curthoys
6 OCTOBER 2022

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Maximum hourly rate excluding GST
Director/Associate Director/Special Counsel/Counsel/Senior Associate	$450 - $600
Senior Lawyer and/or Associate (being five years or more in practice)	$380 - $550
Lawyer (being less than five years in practice)	$295 - $450
Senior law clerk (5+ years experience)	$300- $350
Articled clerk, law graduate or law clerk	$195 - $330
Legal Assistants/Paralegals	$100 - $200

File Opening Fee	$85.00
Fax - Local (outgoing)	$0.50 per page
Fax - National (outgoing)	$0.90 per page
Fax - International (outgoing)	$2.00 per page
Printing/Photocopying/Scanning
External	at cost
Black & white	$0.40c per page
Colour	$0.90c per page
Delivery of Documents (local)* * does not include process serving of documents	$30.00 per delivery
Courier Fees	at cost
Bank Charges including credit card merchant fee	at cost
Fees of Court/Tribunal	at cost
Counsel or Consultant's Fees	at cost
Dictation Word Processing (Outsourced)	At cost, but currently charged to us on the basis of $6.00 per minute of audio transcription
Property searches, ASIC searches, PPSR search and any other out of pocket expense incurred by the Law Practice	at cost