Marminta Pty Ltd v Robert Harris Co - [2006] QSC 273

SUPREME COURT OF QUEENSLAND

[2006] QSC 273

CIVIL JURISDICTION

FRYBERG J

No 7559 of 2006

MARMINTA PTY LTD (ACN 060 701 626), QUEENSLAND PREMIER MINES PTY LTD (ACN 010 614 552) and CASELGO PTY LTD (ACN 010 885 613)	Applicants
and
ROBERT HARRIS CO (a firm)	Respondent

BRISBANE

..DATE 22/09/2006

ORDER

HIS HONOUR: This is an application by three clients being companies which are connected for a declaration that no client agreement within the meaning of the Queensland Law Society Act 1952 exists between the applicants and the respondent and for an order that the respondent deliver a costs statement for work carried out. The respondent accepts that it must deliver a costs statement and is willing to do so. The question is whether or not there is a client agreement sufficient to satisfy the requirements of Part 4A of the Act.

The solicitor seeks to find the client agreement in two letters. One is a letter dated 2 June 2003 from the solicitor to the client. The other is a response by the client to that letter. The former letter sets out a number of items of work done and to be done and in relation to some of them sets out lump sum charges and sometimes rates. It demands payment of the total of the amount set out by a date less than two months in the future and boldly - that is to say in bold type - asserts that under no circumstances could the deadline be extended.

The clients' response accepts that there had been an oral agreement for all work to be charged on the time basis at $250 per hour plus normal outgoings but disputes a number of the items in the solicitor's letter. On the other hand it also accepts some of the items. The applicants submit that the agreement, at least in some respects, does not comply with section 48 of the Act in that it does not specify a lump sum amount or the basis on which fees and costs will be calculated, at least in respect of some items, and further and alternatively that it is inconsistent with the notice in the schedule to the Act in a number of ways.

First, they submit that it is inconsistent by reason of the omission of 23 of the 29 items in the schedule; second, that there is an inconsistency in the demand between the demand for payment and the requirement in Item 3 that the notice specify a right to negotiate; third, that the specification in the solicitor's letter to the extent that it has been accepted by the clients or in the clients' letter to the extent that it has been accepted by conduct of the rates does not comply with item 11 in the schedule and, finally, that the reference to recoverable costs in the solicitor's letter does not comply with Item 18 in the schedule.

It seems to me that the three inconsistencies specifically identified by the applicants…

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: [2006] QSC 273
Decision Date: 22/09/2006

CaseChat Overview and Summary

This case concerns a dispute between three connected companies, Marminta Pty Ltd, Queensland Premier Mines Pty Ltd, and Caselgo Pty Ltd, collectively referred to as the applicants, and the law firm Robert Harris Co, the respondent. The applicants sought a declaration from the Supreme Court of Queensland that there was no client agreement between them and the respondent under the Queensland Law Society Act 1952. They also requested an order for the respondent to deliver a costs statement for the work performed. The respondent conceded that they must deliver a costs statement but contested the existence of a valid client agreement. The central legal issue was whether the communication between the parties, specifically two letters exchanged in 2003, constituted a compliant client agreement under section 48 of the Act.

The applicants argued that the agreement was deficient in several respects. They claimed that the agreement did not specify a lump sum amount or the basis for calculating fees and costs for some items. They also asserted that the agreement was inconsistent with the notice required under the schedule of the Act. They pointed out that the solicitor's letter omitted 23 of the 29 items listed in the schedule, and that there was a contradiction between the demand for payment and the notice's requirement to specify a right to negotiate. Furthermore, they argued that the reference to recoverable costs did not comply with the requirements of Item 18 in the schedule.

Justice Fry determined that the applicants' claims were valid. The court found that the three inconsistencies identified by the applicants were indeed present. The court also concluded that there was a non-compliance with section 48(3) in some respects, particularly regarding references in both letters to Item (a). The court found it unnecessary to decide whether the omission of 23 of the 29 items rendered the letters inconsistent with the notice in the schedule, as the identified inconsistencies were sufficient to determine the matter. The court emphasized the importance of solicitors adhering to the statutory requirements when drafting client agreements and expressed regret that specific attention was not paid to these requirements in this case.

The court rejected the applicants' argument regarding the failure to comply with the specifications of section 48 by not making the agreement within a reasonable time and not providing the notice required under subsection (4). The court relied on its previous decision in Jezer Construction Group Proprietary Limited and others v. Conomos, which held that while such failures may breach the requirements of section 48(2), they do not necessarily mean the client agreement does not comply with the section. The court ordered that the respondent must provide a costs statement by 13 December 2006 and awarded costs on an indemnity basis.

Orders