MG & WJG

[2005] FamCA 1381

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT MELBOURNE

No DGF 1140 of 2002

IN THE MATTER OF:

Applicant

and

WJG

Respondent

REASONS FOR JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE BENJAMIN

Dates of Hearing: 10, 11, 12, 13, and 14 October 2005

Date of Judgment: 18 November 2005

Appearances: The applicant appeared on her own behalf
Mr Hann of counsel appeared for the respondent

INTRODUCTION

This case concerns MG (“the wife”) who had instructed WJG (“the legal practitioner”) of a legal firm (“the legal firm”) in respect of property proceedings in the Family Court. The dispute arises out of the costs and disbursements claimed by the legal practitioner during and following those property proceedings.
The wife seeks an order that the cost agreement between herself and the legal practitioner dated 10 June 2003 (“first costs agreement”)[1] be set aside.
[1] Exhibit WJG 2 Affidavit of the legal practitioner sworn 18 March 2005
She seeks an order that an agreement between herself and the legal practitioner dated 10 March 2004[2] (“the second agreement”) be set aside.
[2] Exhibit WJG 12 The affidavit of the legal practitioner sworn 18 March 2005
The wife seeks an order that the total legal costs and disbursements to which the wife be liable to the legal practitioner under the first cost agreement and the second agreement be limited to $100,000 pursuant to an oral agreement alleged to have been entered into on or about 2 September 2004 between the parties (“the third agreement”).
If the first costs agreement is set aside, then the wife seeks orders that the legal practitioners prepare and serve on her a Bill of Costs and further that such Bill of Costs be taxed by a Registrar of this court in accordance with the Scale of Costs under the Rules.
In any such taxation of costs the wife seeks an order that all of the costs and disbursements in relation to the work done (including counsel’s fees) be taxed and that the total amount of such costs and disbursements be limited to the sum of $100,000 by virtue of the third agreement.
The matter was first listed before me for mention on 6 October 2005 when I endeavoured to have the parties define the issues and ascertain what facts were in dispute and what facts were not in dispute. I asked for a document to be prepared to that end. A document was prepared but it was not of great assistance in trying to determine the extent of the issues and facts in dispute.
When the hearing commenced on 10 October 2005 a number of issues requiring determination were narrowed.
In her application the wife sought an order that the legal practitioner pay her costs of these proceedings. She withdrew that part of her application as she acknowledged that as she was representing herself she would not be entitled to an order for legal costs against the legal practitioner.
I made consent orders in this regard during the hearing. This did not preclude the wife from seeking contribution by way of a costs order from the legal practitioner for all or part of the costs of the transcript of the judicial settlement conference held on 2 September 2005. However, unless there are other factors to be considered, my findings and determinations contained in these reasons are such as would make such an application seem otiose.
Part of the wife’s amended application[3] was that
“[The legal firm] pay costs for the pain and suffering caused to my children…and that [the legal firm] pay the costs of pain and suffering caused to me.”
[3] DGF 1140/2002 Form A 2004
I sought from the applicant a definition of the nature of these claims. This was needed to enable a determination as to whether the claims were causes of action where the court had jurisdiction, and if it did have jurisdiction, whether the court ought to exercise such jurisdiction.
During the course of hearing on 11 October 2005 the wife withdrew her application for these orders for “costs for pain and suffering caused to her and her children”. Counsel for the legal practitioner sought to have that part of the wife’s application dismissed.
I gave leave for the wife to withdraw those particular claims and I further noted that those claims, in respect of the costs for pain and suffering, had not been determined on their merits. Orders in this regard were also made during the hearing.
The wife also sought an order that I request that a copy of the transcript of the judicial settlement conference be made available. I was informed by the wife that she was told that a copy of the transcript would not be provided to her without direction from a judge. NG[4] (“the husband”) was available at court at that time and after he had sought legal advice and consulted with his family, who were also parties to the primary family law proceedings, the husband consented to the transcript being made available to the wife to be used as evidence in these proceedings.
[4] The husband of the wife and one of the parties to the property proceedings the subject of the said judicial settlement conference.
Counsel for the Legal Practitioner was supportive of the wife’s request for the transcript. As such I made a request that the transcript be made available to the wife at her expense. I directed that she make a copy available to her former husband.
As to the remaining substantive issues the wife submitted that they fell into three areas:
(1)Whether the first costs agreement entered into on 6 June 2003 between the wife and the legal practitioner ought to be set aside.
(a)    It was conceded by the wife that the first costs agreement was in writing, signed by all parties and that the wife had received a pamphlet prepared by the Principal Registrar of the Family Court of Australia in accordance with the rules and that the wife had been advised of the availability of independent legal advice as to the terms, nature and effect of the agreement had been given to her (in fact this was contained within the agreement).
(b) In terms of the Family Law Rules 1984 there was no issue that the first costs agreement as an agreement to which Order 38 Rule 26 applied. In regard to that first agreement it was in writing and signed by both the lawyer and the client.
(c)   In addition there was no issue that at the time of entering into the agreement the legal practitioner provided the wife with a copy of the pamphlet, prepared by the Principal Registrar that summarises the main effects of the order and advised the wife of the availability of independent legal advice concerning the costs agreement.
(d)   Therefore, in terms of Order 38 Rule 26, the primary issue to be determined by me was whether the first costs agreement was “fair and reasonable”.
(e)    In respect of the first costs agreement the wife also asserted that she was subject to undue influence and misrepresentation and was fraudulently induced to enter into that agreement.
(f)    In addition the wife asserted that the cost estimate contained in the first costs agreement [5] bound the legal practitioner to costs within that initial estimate.
[5] The estimate in the first agreement was between $5,000.00 and $50,000.00
(g)   The wife also asserted that subsequent to the costs agreement there was excessive over-servicing pursuant to same and that excessive over-servicing had the effect of avoiding the terms of the agreement.
(h)   The wife asserted that the behaviour of the legal practitioner was unconscionable in terms of this agreement.
(2)Whether the second agreement entered into on 10 March 2004 should be set aside.
(a)    This was an agreement that the wife asserted was caught by the provisions of Order 38 Rule 26.
(b)   The wife conceded that the agreement was in writing, signed by both the lawyer and the client. There was no issue that the wife had been provided with a pamphlet, prepared by the Principal Registrar, which summarised the main effects of the Order.
(c)   The wife conceded that she had been advised of the availability of independent legal advice concerning the second agreement.
(d)   The wife, in respect of this agreement, asserted that it was not fair and reasonable and that she was subject to undue influence, misrepresentation and/or fraud.
(e)    The wife asserted that the behaviour of the legal practitioner was unconscionable in terms of this agreement.
(f)    As to the second agreement, it is common ground that it was in writing and that it was signed by both parties.   The issues are:
·Is it a costs agreement to which the rules apply?
·If so, did it comply with the technical aspects required for compliance under the rules and was it fair and reasonable?
·If it was not a costs agreement under the rules, is it an agreement which this court can deal with under the accrued jurisdiction of the court, including whether the court should exercise jurisdiction?
·If it is an agreement which is subject to the court’s jurisdiction, was there undue influence and/or unconscionable conduct on the part of the legal practitioner.
(3)The nature of the third agreement is in issue. Is it an agreement which limits legal costs and disbursements to which the legal practitioner in entitled or is there is an estoppel which would limit the scope of the legal practitioners costs and disbursements under either or both the first costs agreement or the second agreement.
(a)    It is alleged by the wife that at a Judicial Settlement Conference conducted on or about 2 September 2005 an agreement was entered into whereby the legal practitioner agreed to accept $100,000 in total for costs and disbursements including counsel’s fees of $94,710.
(b)   This was in circumstances where the wife’s then counsel subsequently reduced his fees from $94,710 to $70,000 at the request of the wife[6].
(c)   The wife had agreed that the work done by counsel was appropriate and that she had agreed that his fees were fair and reasonable.
(d)   The legal practitioner denied that “any such agreement” was entered into.
(e)    During the hearing I raised the issue as to whether there was some form of estoppel and I invited the parties to make submissions in that regard.
[6] Affidavit of Counsel for the wife sworn 21 June 2005, annexure “GPLT1”.

The Evidence.

18. A significant amount of evidence was filed by both parties, much of which did not relate to issues to be determined. Some evidence seemed to relate to the quality and nature of the work done. It was not my role to be a taxing officer and such issues should be dealt with by a Registrar when the taxation of all or part of the bill of costs is undertaken.

19. If the second agreement is set aside then the costs claimed in respect of the work done from May 2003 to the date of the second agreement will need to be taxed and the work done from March 2004 is already the subject of a request for taxation. The determination of these proceedings will enable that taxation to progress.

20. The wife was endeavouring to have put into evidence large quantities of the documentation in respect of the proceedings between herself and her former husband. Much of this material was irrelevant to the issues to be determined in these proceedings and as such the irrelevant material was excluded.

21. Neither party complied with the rules regarding notice of objections to evidence and as a consequence, the first two-and-a-half days of the hearing were dealt with narrowing the issues and determining which evidence was to be admitted and which evidence was not to be admitted.

22. During the course of that process the wife sought an adjournment of the proceedings. Short ex tempore reasons were given in that regard and that adjournment application was refused.

23. In regard to the first costs agreement and the question of what is fair and reasonable, the significant parts of the wife’s evidence included that contained at paragraphs 32, 33, 34, 35 and 36 of her first affidavit[7].

[7] Affidavit of the wife filed 18 February 2005

24. In these paragraphs the wife deposes:

“32.That the scale of charges in the Costs Agreement dated 10 June 2003 are excessive, unfair and unjust. That I have been charged at the rate of $3.00 per facsimile transmission, and the Family Law Scale is 20 cents. That I have been charged $5.42 per minute to speak with my acting solicitor’s personal assistant who is not a qualified legal practitioner. This rate is excessive and calculates to $350 per hour, the same rate charged by my acting solicitor. The rate is higher than the rate charged by some legal practitioners specialising in family law. That my acting solicitor has charged his fees at family law specialist rates for work undertaken, and this rate is unfair and unjust given that I prepared the majority of the documentation. That there are many inconsistencies and errors in the taxable Bill of Costs. That I have been charged at the rate of $20 per page for perusing documents and the Family Law Scale of $6.60 per 100 words. That I have been charged $10 per page for scanning of documents and the Family Law Scale is $2.65 per 100 words. My acting solicitor has charged his time at the rate of $325 per hour, the Family Law Scale is $165 per hour. That this rate is not reasonable under the circumstances, given my contributions in all aspects of my family law proceedings. Now produced and shown to me and Marked ‘MG17’ is a true copy of the costs agreement dated 10 June 2003.
33.That [my Counsel] was dealing directly with me and he prepared documents that are usually the responsibility of the acting solicitor, and that I have been charged for these documents at $385 per hour or $3,300 per day. At his request, I provided [my Counsel] with the relevant information in relation to these documents. It is unfair and unjust that I have been charged an excessive rate by my acting solicitors. [My Counsel] sent me an e-mail on 24 November 2003 praising my efforts in the preparation of Specific Questions to the party. Now produced and shown to me and Marked ‘MG18’ is a true copy of this e-mail transmission.
34.That the costs agreement dated 10 June 2003 was sent to me in the mail and my acting solicitor did not explain the costs to me in person. I was required to sign the agreement in the presence of my acting solicitor’s personal assistant, not my acting solicitor. On page 5 of the agreement the cost estimate range is $5,000 to $50,000. The final cost far exceeds the original representation of costs.
35.At the time of signing the agreement I was emotionally distraught and desperate to find legal representation. [The legal firm] assured me that the matter could be resolved quickly, given that [Mr P] of counsel and I had already prepared the most difficult affidavit, the joinder application and affidavit in support. I was emotionally distraught at the time of signing the agreement as I was unrepresented, the husband was well represented, I was receiving correspondence from [a firm of solicitors] and had recently borrowed money for the purchase of motor vehicle transport to my children. I was involved in a car accident and the husband had failed to insure the vehicle.
36.That the agreement is unfair and unjust and is disproportionate to the settlement proceeds. … the original cost estimate was a maximum of $50,000 and has reached $280,000. I was not given any further cost estimates from [the legal firm]. My acting solicitor has stated in his letter dated 9 December 2004 that ‘The obligation of this office to inform you regarding costs has been discharged pursuant to Rule 19.03’ now produced and shown to me and Marked ‘MG19’ is a true copy of this letter. I wrote a letter in response to my acting solicitor dated 14 December, advising him that this clause in this agreement was deleted in relation to interest and interim accounts being paid on a monthly basis, thirty-day accounts. They were crossed out for the reason that [the legal firm] accepted in my case and agreed to be paid at the completion of settlement. It is unfair and unjust that my acting solicitor has used his expertise in this are of Contract Law to the detriment of his client. Now produced and shown to me and Marked ‘MG20’ is a true copy of this letter.”

An affidavit by the wife’s former husband was read. This was filed on behalf of the wife. Much of that affidavit was struck out as not in admissible form but I gave leave for the wife to adduce oral evidence from her former husband as to what he heard said by the legal practitioner or the wife’s counsel in relation to legal fees on or about 2 September 2004.
The wife gave evidence on 12 and 13 October 2005. Her evidence was unsatisfactory. She often responded to questions with questions and often responded with long speeches that were not responsive to the question asked. She was, from time to time, evasive. I directed her to be responsive and explained the process of cross-examination and re-examination.
In evidence in chief, the wife said that during the settlement conference before Justice Guest on 2 September 2004 she had a conversation with the legal practitioner. She said in that conversation she was discussing the offers with the legal practitioner, where he said,
“We will look after you, we will not burn you or your sister”.
The wife’s evidence was that she took this as meaning that there was created an agreement that the legal practitioner would accept $100,000 in total for all of the costs and disbursements, including counsel’s fees.
There was significant cross-examination in this area and at no time was any evidence provided of an agreement between the wife and the legal practitioner limiting the costs and disbursements.
In terms of her evidence the wife initially said that a settlement of the property proceedings in the sum of $180,000 occurred on 2 September 2004, being the day of the settlement conference. She then said that the property settlement did not occur until the following day. She later gave evidence that property issues were informally settled on 2 September 2004 but it was documented the following day. The wife said that in respect of the events on 2 and 3 September 2004 there was no discussion about what the legal practitioner and her Counsel would be paid. She later contradicted this evidence this by saying how that sum would be divided. Her submissions seemed to be that in her mind the sum of $100,000 would have been a reasonable amount for costs.
The wife conceded that she received correspondence between 2 September 2004 and the commencement of these proceedings. During that time she did not write to the solicitors complaining about the breach of the alleged agreement of 2 September 2005.
In relation to the reduction in Counsel for the wife’s fees, the wife gave evidence that she gave no instructions in respect of the reduction. She said the legal practitioner did it on his own account and that she did not complain. I do not accept her evidence in that regard. I prefer the evidence of the legal practitioner, Ms J and Counsel for the wife.
The wife conceded that at the time she married the husband he was a bankrupt and there were no assets in his name, they were in the name of his family or his alter ego. She had been to a number of solicitors before retaining the legal practitioner.
The wife was asked if she had any concerns about the solicitor’s fees with respect to the hourly rate of $350. She gave evidence that she was satisfied with that hourly rate but was concerned about the totality of the bill, in that the legal practitioner had given an initial estimate of somewhere between $5,000 and $50,000. Her evidence seemed to be that once an estimate had been given it could not be altered.
Evidence was given by both the legal practitioner and Ms J that the wife was sent regular advices as to costs, copies of these letters[8] were shown to the wife and she denied having received any of them. The legal practitioner and Ms J identified the copy documents and deposed that those notices had been sent. I prefer their evidence to that of the wife and I am satisfied that the notices were sent and I infer that the wife received them.
[8] Exhibit 4.

During further cross-examination of the wife, she gave evidence that the proceedings settled on 2 September 2005, although it was not formally documented until the following day. It was put to her that it was not, in fact, settled until the following day. She said her recollection was correct and the recollections of the legal practitioner and Counsel for the wife were not correct.
The wife’s affidavit filed in the substantive sittings on 5 August 2004[9] was tendered as evidence and in it she agreed that she quoted costs in that affidavit of about $150,000 and that her former husband was not compliant and was uncooperative[10].
[9] Exhibit “R-1”
[10] Paragraph 30 of the said Affidavit.
The wife denied that she was happy with the settlement. She denied that she had been told by the legal practitioner that the amount she needed to settle to cover costs was $225,000.
When asked about giving a bottle of Scotch to the legal practitioner, the wife said it was not a gift to him but it was a gift to the firm.
The wife said in evidence she had not previously dealt with the legal practitioner’s firm. She said that she had seen two other solicitors, one on the day that she saw the legal practitioner[11] and another some weeks before.
[11] 22 May 2003.
In re-examination the wife said that she wanted to refer to a letter from the legal practitioner to Mrs. B. That letter was tendered in evidence[12].
[12] Exhibit “R-3”
Tendered as evidence by the wife was the following:
·A copy request for a bank cheque for $5,500.00 in favour of Ms P of Counsel, dated 14 May 2003[13].
·A letter from Ms B’s firm dated 8 April 2003 with a Notice of Ceasing to Act[14]. This being evidence that the relationship between the wife and Ms B had ceased prior to her retaining the legal practitioner.
·A Case Outline prepared by Counsel for the wife and dated in about June 2004.[15]
·Memorandum of Advice from Counsel for the wife dated 6 November 2003.[16]
[13] Exhibit “A-1”
[14] Exhibit “A-2”
[15] Exhibit “A-3”
[16] Exhibit “A-4”
The wife submitted that the advice was one which provided a considered view as to the likely outcome of the property litigation. On the face of it the advice simply provided a staring point for negotiations.
The wife was cross-examined on a number of letters that were sent to her giving costs estimates as the litigation developed. The wife denied receiving these estimates, which were in written form. Those documents were marked for identification and later shown to the legal practitioner.
At the conclusion of her evidence, the wife said that her brother was not able to give evidence. This was notwithstanding that I had indicated that he should be available to give evidence in her case and that I would favourably consider an application for him to give oral evidence and that he could be interposed later in the week. Her brother was not called to give evidence.
The wife’s former husband, NG, gave evidence for the material in his affidavit. I have given leave for the wife to call oral evidence in respect of material that had been struck out of that affidavit as to form. The wife’s former husband said that he had never offered to provide the home next door to his parents’ property as a home to his wife. In cross-examination he said that agreement was reached on property matters on 2 September 2004 and that the only matter outstanding was that in relation to contact with the children
The legal practitioner gave evidence concerning the matters set out in his affidavit. He deposed that the costs estimates shown to the wife[17] during her cross-examination were documents that were sent from his office setting out the change of estimates as to fees. The 13 documents were tendered as evidence[18]. The legal practitioner gave evidence that he estimated costs at the time he took instructions but that in accordance with the agreement and the wife’s understanding it was not possible to give a precise estimate. He added that as the litigation changed and developed these estimates would likewise change and that he informed the wife of those changes when further estimates were provided to her. I prefer his evidence to that of the wife in this regard.
[17] “MFI-1”
[18] Exhibit “R-4”
The legal practitioner said he made no representations about the probable outcome of the litigation. He said that no agreement had been entered into where he would limit his fees and he gave evidence that there was no agreement that the wife would receive $70,000 to $80,000 from the settlement she negotiated on or about 2 September 2004.
The legal practitioner’s unambiguous evidence was that no agreement was reached on 2 September 2004 and that it was only reached the following day. In terms of the emotional state of the wife, he said that she was a bubbly person who displayed to him no signs of anxiety. She was enthusiastic and involved in her proceedings. He spoke of her in very positive terms.
The legal practitioner gave evidence as to his expertise as a legal practitioner over 31 years. He said his present work was one hundred percent in the family law area.
I accept his evidence that he is an experienced and highly skilled family lawyer.
He gave evidence in cross-examination that he had conducted in excess of 20,000 matters over the years of his practice and that he has a current file load of about 500 matters.
In relation to the rates that he charged as is set out in the first costs agreement, the legal practitioner said that he had made enquiries of other family law practitioners and that his charges were at the lower end of the range of fees charged by family lawyers practicing as solicitors in the Melbourne area. That evidence was not seriously challenged in cross-examination.
The legal practitioner was cross-examined and I formed the view that he was a credible witness. I accept his evidence in preference to that of the wife where they are in dispute.
The wife tendered in evidence the transcript of the judicial settlement conference before Justice Guest on 2 September 2004[19]. This was admitted to evidence by consent. The wife insisted that I read this transcript; she made this request on a number of occasions. I read the transcript and with the consent of the legal practitioner’s counsel. The wife sent me a copy of the transcript with the parts highlighted that were of particular concern to the wife.
[19] Exhibit “A6”
Ms J gave evidence on behalf of the legal practitioner. She had been admitted as a solicitor within the last two years or so but had been a cost consultant for about five years.
Ms J was shown the cost disclosures alleged to be provided by the legal practitioner to the wife[20]. Ms J gave evidence that the legal practitioner dictated those documents, she checked the documents and that she sent them all out. She gave evidence that with regard to counsel fees that they are placed in the solicitor’s practice LOCUS system and a copy of the fee note was sent to the client.
[20] Exhibit “R4”.
In terms of her experience as a cost consultant she said that she was well aware of the “market” in respect of family law practitioners’ fees. Her evidence was that for legal practitioners with expertise in family law the hourly rates can go up to amounts in excess of $450.00 per hour. Her evidence was that The legal practitioner charged $350.00 per hour and that was his standard fee and that such amount was reasonable in terms of the legal market in the Melbourne area. She said that these fees were exclusive of GST.
Ms J was cross-examined in relation to telephone calls in December 2003. She said she had a number of telephone conversations with the wife including one where the wife had said that she had received the cost estimate and was upset about it. Ms J told the wife that she would prepare a lump sum bill to let her know precisely what her fees were to date and this would happen early in the New Year.
She subsequently prepared the lump sum account which was posted to the wife in January 2004. She conceded that it would be difficult for a client to determine the work done by a practice without some sort of itemisation. She said that to prepare the lump sum bill she had done a schedule but that document was not perfected, the system has since been perfected. Her evidence was in essence that the lump sum account was prepared at the request of the wife.
Ms J was subsequently cross-examined about the agreement of 10 March 2004. It was put to her that the agreement was not signed in the office. Ms J said she organised the file and saw the wife come in and have a lengthy meeting with the legal practitioner. She said that she witnessed the legal practitioner’s signature and the legal practitioner witnessed the wife’s signature. In later evidence the wife asserted she did not attend at the office. There was an issue as to why the meeting was not on the subsequent itemised account. Ms J gave evidence, and I accept that evidence, that because it was a matter arising out of costs it was not a legitimate charge and would not have been put on the bill.
As to the costs agreement of May 2003 Ms J gave evidence that charges for photocopying ranged between $1.70 to $5.00 a page. She agreed that she had heard of copies being 0.40c per page but had not recently seen one.
Ms J was a credible witness, gave her evidence in an open way and I prefer her evidence to that of the evidence of the wife.
Counsel for the wife, a barrister, gave evidence and confirmed the matters set out in his affidavit. He was shown the Memorandum of Advice dated 6 November 2003[21]. He said the last page of that advice was not an assessment of the work of the case but a figure which was to be put on a tactical basis on the instructions of the wife. He gave evidence stating the property proceedings were not settled on 2 September 2004.
[21] Exhibit “A4”.
He said he had known the legal practitioner since the early 1980’s and had been briefed by him and had had matters against him. He said he was a competent legal practitioner.
Counsel for the wife’s evidence was that on or before 2 September 2004 no promises were made by him or by others in the presence of him that the wife would receive $80,000.00 out of any settlement. He said this was not discussed in his presence.
In cross-examination Counsel for the wife confirmed he had sent a letter to the wife[22]. He confirmed that at the judicial settlement conference he acted on the instructions of the wife, those instructions given in conference directly and/or through the legal practitioner. Counsel for the wife said that he had no particular recollection of the wife’s liabilities, although he said she had filed a financial statement.
[22] Wife’s affidavit sworn 17 February 2005, exhibit “MG 28”
The evidence of Counsel for the wife was clear and was not in disturbed in cross-examination. I accept that he is a witness of credit, and that where his evidence conflicts with that of the wife, I prefer the evidence of Counsel for the wife.
The wife gave evidence in reply that she signed the second agreement, dated 10 March 2004, but she did not do that at the legal practitioner’s office. She said that it was sent to her by post and that she returned the document to the legal practitioner through the post. The letter forwarding the amended agreement to her was tendered in evidence[23]. Her evidence was that she signed the agreement and did not execute it at the legal practitioners office as alleged. I prefer the evidence of the legal practitioner and Ms J in this respect.
[23] Exhibit “A7”.
In respect of the second agreement, I note the history asserted by the legal practitioner in paragraphs 34, 35, 36, 37, 38 and 39 of his said affidavit filed 6 April 2005. At that time the legal practitioner had submitted a lump-sum account for $59,469.69.[24] Accordingly she formally requested an itemised bill. That itemised bill was not provided to her. The second agreement provided for a reduction in the bill by $10,000 to $49,469.69. The wife sent a letter[25] to the solicitor in relation to a meeting with him, which letter was dated 3 February 2004 but the wife conceded in cross-examination that the true date was probably March 2004 as it referred to a letter sent to her in March 2004. What that letter shows is that the wife expressed that
“I asked for an item 56 Bill of Costs specifically in relation to my account to date from [the legal firm], not Counsel’s fees. I was a little overwhelmed by receiving an account that simply stated “152.78 hours at the rate of $350.00 per hour” which totalled $59,469.69 inclusive of GST. I am sure any client in a similar position would request an itemised account with specific information”.
[24] Annexure WJG6 to the affidavit of the legal practitioner filed 6 April 2005
[25] Affidavit of the legal practitioner sworn 18 March 2005, annexure “WJG8”.

The wife had asked for an account, she received the account dated 22 January 2004[26]. This account provided no information upon which the wife could reasonably discern how the 152.78 hours was made up. As she was entitled to do so the wife sought an itemised bill. This request by the wife was made promptly. An itemised bill has never been provided to the wife and to this day she is unable to determine how these hours were made up. The legal practitioner said that the wife had the opportunity to inspect his files on 10 March 2004.
[26] Affidavit of the legal practitioner sworn 18 March 2005, annexure “WJG6”.
Ms J was asked how she had calculated the 152.78 hours. She said that she needed to do a schedule, she had one but it was not perfected. Her evidence was that to determine the hours it would be necessary to look at each item on the file and that it would be hard for a lay person to do this.
The wife was involved in serious and costly litigation in circumstances where the legal practitioner was not her first advisor and where she was dependant upon him to fund the litigation and to provide the legal services. She was not in an equal bargaining position and was in a fiduciary relationship with the legal practitioner.
Whilst I accept the evidence of the legal practitioner in preference to that of the wife, it must be recognised that the legal practitioner was in a fiduciary relationship with the wife. The rhetorical question can be asked as to how the wife could determine what was fair and reasonable for legal costs in the absence of an itemised bill. Clearly she could not and the agreement was entered into in circumstances where she was still relying upon the solicitor to provide her with on-going legal services in complex family law proceedings.
As to the third agreement the wife, at paragraph 13 of her affidavit[27], gives evidence that:
“13. That before his Honour Justice Guest on 2 September 2004 my legal representative informed his Honour Justice Guest that my legal fees were $170,000 in total.”
[27] The wife’s affidavit filed 18 February 2005
“15. That despite the fact that my legal representatives were instructed to discount their fees to ensure my children and I were provided with a fair amount to enable us to re-establish ourselves, the total in all fees incurred in the proceedings was $280,000, a figure much higher than provided to his Honour Justice Guest on 2 September 2004. I do not know why my legal representative advised his Honour Justice Guest on 2 September 2004 of a contradictory figure which was in fact much lower.”

The wife also said at paragraph 7 of her affidavit:
“7. That on 2 September before his Honour Justice Guest a judicial mediation was held. On that day I was given two choices. First choice was to reside and have unconditional use of the home for my children and I. Counsel and my acting solicitor advised me that the husband would maintain total control of my life under this situation and the home would never be mine. The second alternative was to receive a financial settlement that was originally $150,000 which was increased to $180,000. The matter was not settled that day.”

At paragraph 9 the wife asserts:
“9. The following morning on 3 September 2004 at approximately 10.00am I received a telephone call from [the legal practitioner], my then acting solicitor. This call is documented on [the legal firm’s] taxable Bill of Costs. Now produced and shown to me and Marked ‘MG5’ is a true copy of this Bill. During this call my then acting solicitor informed that he had spoken with … the acting solicitor for the husband. He proceeded to inform me that the husband was ‘going to go bankrupt’ and that ‘we will get nothing if we don’t accept this offer’.
10. Under that advisement from my practitioners I accepted $180,000.”
There is a factual dispute as to whether the solicitor advised the wife to accept $180,000 or not. In the end it does not need to be determined. What is relevant is whether the legal practitioner had asserted that the costs were $175,000 or $195,000. It is that assertion that must be the relevant determination.
The legal practitioner denies that any undertakings were given on behalf of those representing the wife that they would discount their fees. In fact it is “asserted on the contrary his Honour indicated that the wife's representative had worked long and hard to get the case to where it was and that they were entitled to be properly paid for legal costs incurred”[28].
[28] Paragraph 69 of the affidavit of the legal practitioner filed 6 April 2005
During the course of the trial I asked the counsel for the legal practitioner and the wife to address me in relation to how I should treat the estimate of fees of $195,000 made 26 August 2004[29] and the exchange between Guest J and Counsel for the wife at the judicial settlement conference on 2 September when Counsel informed the court that the wife’s costs to date were $175,000[30].
[29] Exhibit “R4”.
[30] Transcript exhibit “A6” page 11, para 5.
This sum was put as the costs to date and the wife was entitled to rely upon that assertion. I specifically raised the question as to whether that may be an estoppel. On the evidence, I am able to infer that the wife relied upon those statements made by or on behalf of the legal practitioner. From the transcript and the evidence before me I am able to infer that the wife settled the property proceedings on the basis that she would receive some money and that the legal practitioner would be paid some money.
The first agreement complied with the form of validity and was fair and reasonable. He went through each of the parts of it and I am satisfied on the evidence that it is a fair and reasonable agreement and it satisfies all of the formal requirements at that time.

Discussion and conclusions.

The first costs agreement

I reject the submission by the wife that the alleged failure of the legal practitioner to comply with the Rules relating to costs estimates, subsequent to the entering into the first agreement, has the capacity to void that costs agreement. Such a failure may impact upon the costs that are allowed in taxation. Further and in any event, I find that the legal practitioner gave cost estimates in accordance with the rules.
There is no evidence of undue influence in respect of the first costs agreement. The wife had preciously employed legal practitioners, she had made enquiries of two other practitioners at about the time she retained the legal practitioner. The wife was advised of her entitlement to obtain independent legal advice at that time and chose not to do so. I reject her submission with regard to undue influence.
As to the wife’s submission that there was misrepresentation, the evidence she relied upon was the initial estimate. From the evidence I infer that the wife was aware that the cost estimate was just that, an estimate and I am satisfied that the wife received updated estimates during the course of the retainer. I find that there was no misrepresentation.

The onus of proof with regard to the allegation of fraud in terms of the first costs agreement rests with the wife. There was no evidence adduced by her in respect of this claim. As such the allegation is rejected.
As I have said earlier in these reasons there is no issue as to formal validity of the first costs agreement, the issue is whether its terms are fair and reasonable.
The particular issues with regard to “fair and reasonable” raised by the wife in relation to the first costs agreement are:
(1)Whether the scale of $320 per hour for the legal practitioner is unfair and/or unreasonable;
(2)Whether $3.00 per page per facsimile is unfair and unreasonable and if so whether it would entitle the whole agreement to be set aside;
(3)Whether the non-legal charges of $5.42 per minute is an accurate representation of the agreement and if so, whether that is unfair and unreasonable;
(4)Whether $20 per page for perusing documents is unfair and/or unreasonable;
(5)Whether $10 per page for scanning documents is unfair and/or unreasonable;
(6)Whether $385 per hour for Counsel for the wife fair and reasonable
The test I should apply to determine if the first costs agreement is fair and reasonable is an objective test. In McInnes v Twigg (1993) FLC 92-345 there was an issue as to whether a Family Law costs agreement was fair and reasonable and Moss J said at page 79,663;
“Is the costs Agreement Fair and Reasonable?
The answer to this question will obviously turn, in each case, on such matters as form the amount of the particular agreement, the amounts or rates of charges, and the circumstances surrounding the entering into of the particular agreement.
… The essential question being to determine the reasonableness of the relevant legal costs (Fleming (supra) at p.123.
In Weiss v Barker Gosling (1993) FLC ¶92-399, Fogarty J said at page 80,087
“ As discussed in more detail later, there is, in my view, a requirement at common law that a costs agreement between a solicitor and client be fair and reasonable. Although that expression may be a composite one, it appears generally to have been approached in the cases on the basis that ``fairness'' relates to the point of entry into the agreement whilst ``reasonableness’’ relates to the terms of the agreement itself.”

91.Fogarty J concluded that there is a common law requirement that costs agreement are fair and reasonable and that the onus of proof is on the solicitor to show this.
92.His Honour considered that there was insufficient evidence on the question of reasonableness of the agreement and, in particular, regarding comparable charge-out rates of other solicitors.
93.In considering what constituted a ‘reasonableness’, his Honour compiled the following list of relevant factors, many of which were outlined by Moss J in McInnes v Twigg (above):
§Terms and effect of the agreement;
§Common law and/or statute or rules permitting costs agreements to be entered into between solicitor and client on agreed terms above the relevant scale;
§The seniority and expertise of the practicing solicitors;
§Nature of the work involved, including difficulty or complexity;
§Right of a client, acting freely, to select their own practitioner (client may choose to be ‘foolishly extravagant’ – Rogers CJ in Singleton’s Case);
§Market for legal services at the time;
§Whether basis of charging is appropriate for work done;
§Charging rates regarding travelling and waiting times;
§Subjectivity of hourly charging and difficulty for the client in objectively checking or calculating their appropriateness;
§The need for the agreement to be sufficiently specific, so that the client can form an expectation of their liability;
§Failure of the solicitor to explain to the client the difference between the agreement and scale and the difference between what is owed and what may be recovered from the other party under a costs order;
§Whether charge-out rate relates to work of requiring professional care or skill, as opposed to routine admin work;
§Whether the hourly rate includes overhead costs plus a margin for profit, whether the overheads are excessive and the nature of the profit margin;
§The relevance of the scale as a ‘benchmark’ against which charges can be measured;
§Whether the agreement gives the solicitors an open-ended power to engage counsel, and reasonableness of briefing counsel for various appearances;
§Where a daily rate is specified, the number of hours constituting a day and
§Issues of public policy in the provision of legal services to the community.

I have already determined that the alleged behaviour subsequent to the entering into the first costs agreement should have little impact, except that if there is a fixed costs agreement[31] in an agreement or at the time of the agreement which changed and nothing was done to dispel that view.
[31] I have determined that the estimate was just that, an estimate, and not a fixed costs quotation.
On the facts I find that the rates of charges as set out in the terms of the first costs agreement are reasonable. In coming to that determination I have taken into account all relevant evidence including the following:
(a)The terms and effect of the agreement in question. I am satisfied that the terms and effect of the first costs agreement are fair and reasonable. The wife negotiated the terms and obtained variation from the form of agreement initially provided by the legal practitioner. The wife made no submissions as to the terms of the first costs agreement, except as to the rates (as set out in these reasons).
(b)The legal practitioner is a very experienced lawyer. His evidence, and that of Counsel for the wife, was that the legal practitioner practiced exclusively in this area of law and that he had undertaken thousands of cases. The evidence is that he is an expert in family law.
(c)
The work involved in this particular case was one of significant complexity. I accept the evidence of the legal practitioner and

Counsel for the wife in this regard. The wife said that the proceedings were complex in her affidavit filed 5 August 2004[32].
[32] Exhibit “R1”
(d)The wife had tested the market for legal services. She had previously retained a solicitor in the proceedings against her former husband and had made enquiries of a number of solicitors at the time she retained the legal practitioner.
(e)There is evidence that before retaining counsel the wife was provided with his costs disclosure and entered into an agreement with the knowledge of the processes regarding costs and the various rates. The wife sought out experts in the field of family law and agreed to pay the rates sought by such experts after she had made independent enquiries as to the rates of fees charged. I accept the evidence of the legal practitioner that the wife was provided with estimates of fees throughout the course of the proceedings[33].
[33] Exhibit “R4”.
(f)The onus with regard to proving that the agreement was reasonable rests with the legal practitioner. I am satisfied that the legal practitioner has discharged that onus.
(g)The wife submits that at the time of signing the costs agreement she was emotionally distraught and desperate to find legal representation. That is not supported by the evidence. I find that the wife carefully and cautiously examined the market to find legal representatives that suited her particular need and her particular circumstances.
(h)The wife submitted that the legal representative had made representation the matter would be resolved quickly. The legal practitioner said that no such representation had been made to the wife. I accept that no such representation was made.
(i)The wife asserted, at the time of entering into the first costs agreement, the legal practitioner put his interests ahead of those of the wife. That submission is not reflected in the evidence. The legal practitioner took on a matter where the client came from other solicitors and where there was real doubt as to whether there would be a pool of funds at the end of the proceedings to enable the legal practitioner to be paid. This, in the circumstances, where other legal practitioners had demanded retainers of up to $20,000.00 to take instructions from the wife. I accept the evidence of the legal practitioner and Ms J that they were anxious to be of assistance to the wife. I note that no special levy or charge was made with regard to the rates and charges beyond that which the legal practitioner would normally charge. The wife sought variation to the terms of the first costs agreement and the legal practitioner agreed to change those terms.
In relation to the first agreement I find that, in the particular circumstances of this case, the hourly rate of $350.00 for the legal practitioner is fair and reasonable. I also find that the rates for perusing and scanning pages and the clerks hourly rates are fair and reasonable. With regard to the hourly rate for a clerk it was put to me by the wife that the hourly rate for clerks was something like $350 per hour. The first costs agreement showed the hourly rate was $150 per hour.
The only evidence before me as to the rates came from the legal practitioner and Ms J. On their evidence the rates are reasonable. No expert evidence was called by the wife in regard to this aspect of the issues. The rates contained in a costs agreement should be looked at as a whole rather than analyse each particular part. A legal practitioner is entitled to structure fees as meet his or her commercial needs and if, after considering the particular rates as a whole, a court is satisfied that the rates are fair and reasonable it is not appropriate, in my view, to then inspect each particular item on the same basis. The rates are a jigsaw which must be treated as a whole. To do otherwise would be unjust insofar as a practitioner is concerned.
When an itemised costs account has been prepared, it will be taxed by a Registrar who will determine the amounts claimed in accordance with the Rules and deal with questions of improper, unnecessary or unreasonable conduct by either party and whether the work was reasonably done. That task is not a matter for me.
I find that the costs agreement of 10 June 2003 is fair and reasonable. It otherwise complies with all of the formal requirements under the Rules at the time it was entered into.
I find that on 11 August 2003, during the course of the retainer between the wife and the legal practitioner, the wife entered into an agreement with her Counsel to engage him as counsel. A copy of that agreement is annexed to the affidavit of the legal practitioner [34]. The agreement between Counsel for the wife and the wife is one to which the rules apply and I find that it is in writing, signed by all parties and is fair and reasonable in its terms. Counsels fees should be taxed in accordance with that agreement, subject to the estoppel referred to in these reasons.
[34] Affidavit of the legal practitioner sworn 18 March 2005 filed 6 April 2005 Annexure “WJG5’
For these reasons I decline the wife’s submission that I set aside both the first costs agreement and the agreement with her Counsel. Any taxation of costs in respect of the work done pursuant to those agreements should be based upon the terms of those agreements.

The second agreement

The second agreement does not deal with costs and disbursements to be charged into the future. It is an agreement between the legal practitioner and the wife compromising a claim for costs under the first costs agreement.
Counsel for the legal practitioners submitted that I was bound by the Full Court decision in Aarons & Knowles (1995) FLC 92-627 where an agreement was made between solicitors and clients and the full court said[35];
[35] Page 82,299.
“That agreement was not an “agreement as to costs” within Order 38 r8A so that no question of compliance with the requirement of those provisions arises. The agreement was a compromise between the solicitors and the client in relation to the dispute about past costs”.
The facts in Aarons were that the client in Aarons case terminated the retainer and changed solicitors. The former solicitor, Aarons, sent the client a lump sum bill. Aarons and the wife’s new solicitor agreed that an assessor with costing agency would assess Aaron’s costs and disbursements and that the client would pay the sum so assessed. The assessment was made but the client did not pay. In that case, the Full Court held that the agreement was not an agreement as to costs, it was a compromise between the solicitors and the client in relation to a dispute about the costs. The proper procedure was to sue on the agreement in the appropriate State Court (re: P’s Bill of Costs 1982 FLC 91-255).
It was argued that the same principle applied to the second agreement. In particular I was referred to page 8, 299 where the Full Court said:
“Consequently, the proper procedure therefore is to sue on the agreement in the appropriate State Court. This is made clear in P’s Bill of Costs (1982) FLC91-255 at 77,418 as explained in Weiss –v- Barker Gosling (1993) FLC93-399 at 80,082. As is pointed out in the later case:-
“As indicated in the above passage from P’s Bill of Costs, where there is a dispute about a Bill of Costs, whether under the scale or under an agreement, that dispute is to be determined within Order 38. Where there is no dispute or where the dispute has been resolved the (solicitor) or (client) is free to bring proceedings for recovery of the debt in a Court of competent jurisdiction”
Where a solicitor and client reach an agreement as to the amount of costs due or as to the method by which that may be ascertained, the issue thereafter is determined in accordance with that compromise and is to be litigated in the appropriate State Court and not in the Family Court.
Here there is no dispute that the solicitor and the client reached the agreement referred to above. In this case, the client did so through her current solicitors. Where the agreement is alleged to have been made between the solicitor and the client acting personally, issues such as undue influence or other Amadio type issues (The Commercial Bank of Australia Ltd –v- Amadio and Anor (1982-1983) 151CLR 557) may arise as may in any contract. There is no reason to doubt the appropriateness of these issues being determined by the relevant State Court in the ordinary way”
I accept this submission and I determine that the second agreement is not one to which Order 38 of the former Family Law Rules apply.
During submissions I raised with counsel for the legal practitioner whether I could or should deal with this agreement under the accrued jurisdiction of the court. This in the context of the whole of the costs argument having been determined before me over a period of five days.
The litigation between the wife and the legal practitioner has been conducted as a whole with regard to the three agreements set out above. I determine I have jurisdiction to deal with the issue of the second agreement pursuant to the accrued jurisdiction which exists in this court.[36] I regard the proceedings by the wife and her submissions as inviting this court to exercise such accrued jurisdiction.
[36] See Warby –v- Warby (2002) FLC93-091 and Re-Wakin; ex-parte McNally (1999) 198CLR511
It is said there are six factors relevant to whether the Family Court will exercise accrue jurisdiction and they are set out in the Judgment or Warby and they are:
(i)What the parties have done;
(ii)The relationship between or among them;
(iii)The laws which attach rights or liabilities to their conduct and relationship;
(iv)Whether the claims are part of a single justiciable controversy and in determining that question whether the claims are “attached” or not “severable” or “disparate”;
(v)Whether the claims are non-severable from the matrimonial cause and arise out of a common sub-stratum of facts;
(vi)Whether the Court has power to grant appropriate remedies in respect of “attached” claims.
In these proceedings there are significant issues relating to costs and the nature of the cost relationship between the wife and the legal practitioner.
The determination of the second agreement forms part of the common sub-stratum of facts. The parties have entered into at least one agreement with regard to costs and there are arguments in relation to the application of that agreement and there will be a necessity for taxation of costs pursuant to the Rules for at least part of the costs to be determined under that agreement.
The application to set aside the second agreement is part of the whole costs dispute that exists between these parties. The parties are identical in respect of the three primary issues and there is a common thread in respect of the facts. This bearing in mind that if the second agreement was set aside by a State Court it would still be necessary to come back to this court to tax such costs
I determine that there is an accrued jurisdiction to adjudicate on the second agreement. That question having been determined I believe that I am then obliged to accept the jurisdiction.
Is this second agreement able to be set aside? It is created between a legal practitioner and an unrepresented client. The wife sought from the legal representative an itemised bill of costs, to which she was entitled under both the agreement and under the rules of this court. She did not have the skills nor was she given a reasonable opportunity to make an independent assessment of the account presented to her. She could not have any understanding of what amount was fair and reasonable. The solicitor ought to have provided the wife with an itemised bill so that she could have made her determination in the light of the knowledge of the work for which the amount was claimed.
The wife was provided with a single line setting out the numbers of hours in a bill and there is no effective way that she could make any objective assessment as to the value of the work claimed by the legal practitioner.
The wife was, at that time, significantly involved in litigation with her former husband and in circumstances where she was then dependent upon the legal practitioner for the continuation of the proceedings.
That the legal practitioner was the dominant party at that time and that the wife was the weaker party. The wife was in a fiduciary relationship with the legal practitioner.
In fairness, I do not suggest that the legal practitioner had been guilty of any dishonesty or moral obliquity in dealing with the wife, however in the words of Deane J in [Commercial Bank of Australia Ltd –v- Amardio (1982-1983) 151 CLR] at page 48
“Relief against unconscionable dealing is a purely equitable remedy. The concept underlining the jurisdiction to grant the relief is that equity intervenes to prevent the stronger party to an unconscionable dealing acting against equity and good conscious by intending to enforce, or retain the benefit of that dealing. Equity will not, however, “restrain a defendant from asserting a claim saved to the extent that it would be unconscionable for him to do so. If this limitation on the power of equity results in giving to a plaintiff less than what on some general idea of fairness he may be considered entitled to, that cannot be helped” (Lord Greene M.R., Rottersly and Evershed L.JJ., in Diplock (63)). Where appropriate, an order will be made which only partly nullifies a transaction liable to be set aside in equity pursuant to the principals of unconscionable dealing …..”
As a consequence of these findings I set aside the second agreement dated 10 March 2004.

In the circumstances that no itemised bill in respect of that work has been provided I grant any necessary extension of time to enable an itemised bill to be produced and provided to the wife in accordance with the Family Law Rules and to enable the wife to seek taxation of those costs in accordance with the Rules.

The Third Agreement.

In relation to the so called “third agreement”, that is the wife’s submission that there is an agreement preventing or limiting the legal practitioner from claiming costs in excess of $100,000.00, I note the submissions made to me by the wife at the conclusion of the hearing and those outlined in her case summary at the commencement of the proceedings. I expressed my concern during the course of submissions that I needed evidence upon which to base the wife’s claim in this regard.
There is no evidence of such an agreement from the transcript of the judicial settlement conference, and to that end I have read the entire transcript. The only evidence appears to be a statement made by the wife and referred to in these reasons. That statement fall short of being evidence of an agreement.
There is no evidence of an agreement between the wife and legal practitioner to limit fees to $100,000.
I raised the question of estoppel during the course of this hearing as I was concerned by the circumstances in which the settlement between the wife and the former husband occurred. I have outlined those circumstances above and that is that the wife on either 2 September 2004 or 3 September 2004 agreed to settle her proceedings on the basis of an assertion by the legal practitioner in the costs notice, referred to above, and by the assertion was made to Justice Guest at the judicial settlement conference that costs totalled $175,000.00. It was in those circumstances that the wife compromised her property claim. This is particularly compelling in terms of the statement made to the court by Counsel for the wife at the settlement conference.
Professor Parkinson in “The Principles of Equity said of estoppel[37]. “estoppel is a substantive principal of law which operates to preclude a party to legal proceedings from asserting against another party either facts, legal rights, or the absence of legal obligations, to the extent that it would be unconscionable to do so. The object of estoppel is to preclude the unconscientious departure by a party from an assumption for which he or she bears some responsibility, and which has been adopted by another party on the basis of a course of conduct, an act or omission which would operate to that parties’ detriment if the assumption were not adhered to.
[37] Parkinson, P, The Principals of Equity LBC Information Services 1996 at page 201
Generally, estoppel has a preclusionary operation. It precludes departure by the party to be estopped from the assumption adopted by the other. When it acts in this preclusionary way, the estoppel establishes the state of affairs by which the rights of the party are to be determined. In that capacity, it may provide a defence to a cause of action or it may defeat a defence to a cause of action.
I am satisfied on the facts that the legal practitioner asserted to the wife in a cost disclosure dated 26 August 2004[38] that costs to conference on 2 September 2004 were $195,000. Further, I find that Counsel for the wife asserted to Justice Guest at that judicial settlement conference on 2 September 2004 that the costs to that date were $175,000[39]. I infer that this submission was made on instructions.
[38] Exhibit “R 4”.
[39] Exhibit “A 6”, transcript page 11.
The question of the quantum of costs was very much a live issue at that conference and was the subject of numerous exchanges. The wife was entitled to rely upon that assertion as to the quantum of costs in determining whether she should compromise her proceedings or to continue with same. She was told on 2 September 2004 that her costs were $175,000 and I determine that the wife relied upon that assertion.
This must also be taken into context of Counsel for the wife’s fees at that time were $94,710. There was significant cross-examination in relation to the reduction of fees for Counsel for the wife and in relation to his agreement to do so. With regard to the agreement with her Counsel, the wife confirmed that she sent her Counsel a letter thanking him for taking the brief and expressing her satisfaction with his fees. That must also be read in conjunction with the reduction in fees offered by Counsel for the wife[40], he did not offer that reduction to enable the legal practitioner to recover a greater amount of costs, Counsel offered the reduction, vis. $24,970.00 to the wife, it was made to enable some of the settlement sum to be paid to her.
[40] Annexure “GPLT 1” to affidavit of Counsel for the wife sworn 21 June 2005.
The legal practitioner knew or ought to have known the total of costs and disbursements, including those of Counsel for the wife, at the judicial settlement conference. The wife relied upon those assertions of the total of costs and disbursement and as such the legal practitioner is estopped from claiming costs and disbursements (excluding Counsels fees) of more than $80,290[41] on taxation of costs. The legal practitioner is estopped from claiming Counsels fees in excess of $70,000 on taxation.
[41] Asserted costs and disbursements of $175,000 less counsels fees prior to reduction of $94,710 leaves a balance of $80,290.
Having made the above determinations and having reached the above conclusions, I make the following Orders

1.That the agreement entered into between [the wife] and [the legal practitioner] on 10 March 2004 be set aside.
2.That the legal practitioner
a. File and serve on the wife an itemised costs account in accordance with the Family Law Rules 2004, and
b.     ensure that such itemised costs account be in respect of the costs and disbursements for the whole of the period of the retainer between the wife and the legal practitioner, and
c.     that such itemised costs account shall be prepared in accordance with the costs agreements entered into between the wife and the legal practitioner dated 10 June 2003 and the costs agreement between the wife and [Counsel for the wife] dated 11 August 2003 (“the costs agreements”), subject to
d.     the fees claimed in respect of [Counsel for the wife] being limited to $70,000 including GST, and the balance of costs and disbursements being limited to $80,290.
3.That upon the filing of such itemised costs accounts the Court fixes a date before a Registrar for a settlement conference in accordance with Div 19.6.2 of the Family Law Rules 2004.
4.That a Registrar assess the itemised costs account in accordance with the rules and in accordance with the terms of the costs agreements subject to the total fees claimed in respect of [Counsel for the wife] being limited to $70,000 including GST, and the balance of costs and disbursements being claimed by the legal practitioner being limited to $80,290 including GST.
5.That, if after the costs have been assessed and a costs assessment order is made,
a.   there is money due to be paid to the legal practitioner by the wife pursuant to that costs assessment order, then interest shall accrue on that sum, in accordance with the Rules. Such interest to be calculated from the date of service of the itemised costs account in accordance with these Orders to the date of payment, or
b.     if there is money due to be repaid by the legal practitioner to the wife pursuant to that costs assessment order, then interest shall accrue on that sum, in accordance with the Rules. Such interest to be calculated from the date when the costs were paid by or on behalf of the wife to the legal practitioner or held by the legal practitioner in trust on behalf of the wife to the date of payment.
6.THAT all extant applications be otherwise dismissed and removed from the list of cases awaiting hearing, with the exception of the assessment process contemplated by these orders.

IT IS DIRECTED
7.THAT the subpoenaed and exhibited documents be returned on the usual basis.

IT IS CERTIFIED
8.THAT pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

I certify that the preceding     paragraphs
are a true copy of the Reasons for Judgment
herein of the Honourable Justice Benjamin.
………………………………….
Associate
Date:

[2005] FamCA 1381

18 November 2005

Key Legal Topics

Areas of Law

Contract Law

Equity & Trusts

Civil Procedure

Legal Concepts

Costs

Estoppel

Contract Formation

Remedies

Judicial Review