McDonald Brown (a firm) v Earthscape Constructions Pty Lts
[2000] QDC 192
•23/06/2000
DISTRICT COURT OF QUEENSLAND
CITATION: [McDONALD BROWN v EARTHSCAPE CONSTRUCTIONS
PTY LTD and ANOR] [2000] QDC 192
PARTIES: McDONALD BROWN (a Firm)
Applicant
AND
EARTHSCAPE CONSTRUCTIONS PTY LTD
ACN 069 806 251
First Respondent
AND
KIM GILBERT MYERS and KERRI JUNE MYERS
Second Respondents
FILE NO/S: Application No 326 of 2000.
PROCEEDING: Claim for professional fees and outlays.
COURT: District Court at Southport.
DELIVERD ON: 23 June 2000.
HEARING DATES: 26 May 2000.
JUDGE: Newton D.C.J.
CATCHWORDS: Costs – agreement in writing – must be signed by client –
reasonableness of costs – whether may be assessed on District Court Scale.
.
COUNSEL: Mr GD O’Sullivan for the applicant.
Mr GJ Robinson for the first and second respondents.
SOLICITORS: McDonald Brown for the applicant.
Mortimer & Associates for the first and second respondents.
IN THE DISTRICT COURT
HELD AT SOUTHPORT
QUEENSLAND APPLICATION NO. 326/2000
BETWEEN McDONALD BROWN (A Firm)
Applicant
AND EARTHSCAPE CONSTRUCTIONS PTY LTD
First Respondent
AND KIM GILBERT MYERS and KERRI JUNE MYERS
Second Respondents
REASONS FOR JUDGMENT – NEWTON D.C.J.
Judgment delivered Twenty-third day of June 2000
[1.} This is an application pursuant to Section 6ZF(1) of the Queensland Law Society Act 1952 (“the Act”) for the court to consider the reasonableness of the applicant’s fees and costs.
A.The application seeks the following orders:-
1. The first respondent and second respondents pay:
(a)to the applicant the sum of $7,842.35 in respect of legal
professional fees and outlays payable to the applicant (“the
applicant’s account”) for works undertaken by the
applicant for the first respondent and second
respondents in respect of a claim against the proprietors,
Body Corporate for Robina Lakes Resort Community Titles Scheme 20606 and others;
(b)alternatively, to the applicant such sum assessed on the District Court Scale as the court determines for the applicant’s account;
(c)the costs of the assessment dated 27 March, 2000 of the applicant’s account (“the assessment”) to the costs assessor one Joy Stevens.
2.. A declaration that the assessment is unreasonable.
3. Such alternative, ancillary, interim further or other order as the
court deems appropriate including orders with respect to;
(a)appointment pursuant to Section 6ZF(4) of the Act of a person, other than Joy Stevens, to assess the applicant’s account with directions that such account be assessed on the District Court Scale and with such other directions as the court considers appropriate;
(b)payment of such person’s fees.
4.Such consequential, further or other orders as the court considers appropriate in relation to the costs of the assessment.
5.The respondents’ pay the applicant’s costs of the application.
Section 6ZF(1) provides that:
“Within 30 days after a costs assessment by an assessor appointed by the clerk of the Tribunal, the client or the practitioner or firm may apply to a court having jurisdiction for the amount in the account for the court to decide the reasonableness of the fees and costs charged in the account.”
It will be noted that the section provides for the application to be made to a court
“having jurisdiction for the amount in the account.” The amount in question is
$7,842.35. That sum is clearly within the jurisdiction of the Magistrates Court.
The applicant, furthermore, has instituted proceedings in the Magistrates Court for
recovery of its fees and costs from the respondents (see Plaint No. 993078 of
1999). In those circumstances this application should have been brought in the Magistrates Court.
Notwithstanding this erroneous choice of jurisdiction, I propose to dispose of the application as the matter involves a relatively short point.
The applicant relies on a letter in the form of a retainer agreement dated 29 September, 1997. This is confirmed by Mr Brown, a solicitor and partner in the applicant firm, in paragraph 3 of his affidavit sworn on 28 April, 2000. As relevant, the letter of 29 September, 1997 provides that:
“6. We enclose herewith our memorandum of costs for your kind attention.
7. In relation to your legal costs we advise that we intend to charge you in
accordance with the scale provided under the District Court Rules with the
qualification that for those items of work for which a solicitor is entitled to
charge an hourly rate the applicable hourly rate is the sum of $180.00 per
hour. We enclose herewith, for your records, a copy of the District Court
Scale.”
That agreement was never signed by any of the respondents.
The relevant legislation in September, 1997 was Section 23 of the Legal Practitioners Act 1995 (formerly Section 3 of the Solicitors Act 1891). The section is contained within Division 3 of the Legal Practitioners Act which relates to agreements between solicitors and their clients. The section establishes that the remuneration of solicitors may be fixed by agreement.
It provides:
“23. A solicitor may make an agreement in writing with his or her client respecting the amount and manner of payment for the whole or any part of any past or future services, fees, charges, or disbursements in respect of business done or to be done by such solicitor in any capacity, either by a gross sum or by commission or percentage or by salary or otherwise, and either at the same or at a greater or at a less rate as or than the rate at which the solicitor would otherwise be entitled to be remunerated subject to the provisions and conditions in this division.”
Although, as the letter of 29 September, 1997 makes clear, the terms of the proposal are clearly spelled out in writing, there is no document evidencing the acceptance of such terms. Therefore, the applicant is not entitled to the benefit of such an agreement (see Re Walsh Halligan Douglas’ Bill of Costs [1990] 1 Od. R. 288 at 292 per Dowsett J).
An “agreement in writing” for present purposes must be an agreement by both solicitor and client, and both must sign their names upon the agreement (Re Lewis, ex parte Munro (1876) 1 QBD 724 at 726-7, per Lord Coleridge, C.J.).
Because no written agreement had been signed by the respondents, the applicant
may not recover more than the scale in the relevant court.
The costs assessor found that the proceedings should have been brought in the
Magistrates Court. In reaching that view the assessor had regard, as she was
entitled, to counsel’s written advice that the quantum of the client’s claim was less
than $20,000.00. In the circumstances I cannot conclude that it was not
reasonably open to the costs assessor to find as she did.
I should add that even if I were to accept the proposition that the applicant was
entitled to bring this matter in the District Court, and to recover fees from its
client accordingly, it could not have recovered more than $1,005.00 under item 24
of the District Court Scale as the matter was not proceeded with.
In the event, I am not persuaded that it is appropriate to order that the applicant’s costs be assessed on the District Court Scale. I am not prepared to overturn the conclusion of the assessor that more than reasonable costs would have been obtainable using the Magistrates Court Scale, had unnecessary costs not been incurred at the desire of the applicant. I am unable to accept that the assessment necessarily has been shown to have been unreasonable. However, I am not in a position to assess the complexity of the matter. Counsel for the respondents, Mr Robinson, was unable to address this issue in his submissions. In these circumstances, it is appropriate to order that the Registrar of the District Court at Southport be appointed to assess the applicant’s account, and further that the assessment of the initial costs assessor, Joy Stevens, be set aside. I so order. In all other respects the application is dismissed.
I will hear submissions in due course with respect to costs relating to this application.
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