Mishra v Bennett & Philp Pty Ltd

Case [2021] QSC 158


SUPREME COURT OF QUEENSLAND

CITATION:

Mishra & Anor v Bennett & Philp Pty Ltd [2021] QSC 158

PARTIES:

ANIL CHAND MISHRA
and
WISE INVESTMENTS PTY LTD
ACN 143 656 848

(applicants)

v
BENNETT & PHILP PTY LTD
ACN 132 284 372

(respondent)

FILE NO:

BS 11092 of 2020

DIVISION:

Trial Division

DELIVERED ON:

25 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 March 2021

JUDGE:

Holmes CJ

ORDERS:

1.   That the respondent’s professional costs and disbursements for acting on behalf of the applicants as contained in

a.   tax invoice numbered 156480 dated 29 June 2018 in the sum of $2,409.68;

b.   tax invoice numbered 158716 dated 29 November 2018 in the sum of $14,830.16;

c.   tax invoice numbered 159069 dated 19 December 2018 in the sum of $1,850.40; and

d.   tax invoice numbered 163878 dated 17 October 2019 in the sum of $313,785.18

be assessed pursuant to s 335 of the Legal Profession Act 2007.

2.   That Gregory Robert Ryan be appointed as costs assessor for that purpose.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – TAXATION AND ASSESSMENT OF COSTS – APPLICATIONS AND REFERENCES – where the applicants applied pursuant to s 335(1) of the Legal Profession Act 2007 (“the Act”) for an assessment of costs charged in a number of bills delivered to them by the respondent, their former solicitor, in respect of trial and appeal proceedings – where s 335(5) of the Act requires that an application for an assessment of costs be made within 12 months after the bill was given to the client – where the respondent held a general retainer to act in the proceedings – where the respondent delivered its last bill in respect of its preparation for and representation of the applicants in the trial proceedings on 31 May 2018, after the trial hearing concluded – where some months later the applicants instructed the respondent to act on their behalf to make costs submissions and subsequently to conduct an appeal in respect of the same matter – where the respondent’s last bill was delivered to the applicants on 17 October 2019 – where this application for an assessment of costs was filed on 16 October 2020 – where the respondent contends that the applicants are out of time to seek an assessment of those costs which relate to the trial proceedings – whether the bill delivered on 31 May 2018 was an interim bill or a final bill – whether the applicants are out of time within which to seek an assessment of the costs contained in the bills rendered up to and including the 31 May 2018 bill – whether there were separate retainers for the work done prior to and at trial and that done subsequently – whether the conclusion of the trial hearing represented a ‘natural break” in the proceedings – whether, if the applicants are out of time, the court should exercise the discretion conferred on it by s 335(6) of the Act in deciding to deal…

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Mishra v Bennett & Philp Pty Ltd [2021] QSC 158
Case
[2021] QSC 158
Decision Date

CaseChat Overview and Summary

Mishra v Bennett & Philp Pty Ltd concerned the applicants seeking an assessment of costs charged by their former solicitor, Bennett & Philp Pty Ltd, in relation to trial and appeal proceedings. The applicants had been served with a series of bills by the respondent and were now seeking an assessment of these costs under section 335(1) of the Legal Profession Act 2007. A central issue in the case was whether the applicants had filed their application within the required 12-month period after receiving the relevant bills, as mandated by section 335(5) of the Act. The respondents argued that the applicants were out of time for seeking an assessment of the costs related to the trial proceedings, as the last bill in respect of the trial had been delivered on 31 May 2018 and the application was filed on 16 October 2020. Another issue was whether the bill delivered on 31 May 2018 was an interim bill or a final bill, and whether the conclusion of the trial hearing constituted a 'natural break' in the proceedings. Additionally, the court had to consider whether the applicants had separate retainers for the work done prior to and at trial and that done subsequently.

The court found that the applicants were not out of time to seek an assessment of the costs related to the trial proceedings because the bill delivered on 31 May 2018 was not a final bill but rather an interim bill. Consequently, the 12-month period for seeking an assessment did not commence until the final bill was issued. The court also determined that the conclusion of the trial hearing did not represent a 'natural break' in the proceedings, and there was no evidence of separate retainers for the work done prior to and at trial and that done subsequently. The court further held that even if the applicants were out of time, it would exercise its discretion under section 335(6) of the Act to deal with the application for assessment of costs. Lastly, the court found that the affidavit provided by the applicants met the requirements of rule 743A(5) of the Uniform Civil Procedure Rules 1999, as it identified the part of the costs to be assessed and provided the necessary grounds of dispute.

The final orders of the court were that the costs and disbursements for acting on behalf of the applicants as contained in the specified tax invoices be assessed pursuant to section 335 of the Legal Profession Act 2007, and that Gregory Robert Ryan be appointed as costs assessor for that purpose.

Orders

Orders of the court

1. That the respondent’s professional costs and disbursements for acting on behalf of the applicants as contained in

a. tax invoice numbered 156480 dated 29 June 2018 in the sum of $2,409.68;

b. tax invoice numbered 158716 dated 29 November 2018 in the sum of $14,830.16;

c. tax invoice numbered 159069 dated 19 December 2018 in the sum of $1,850.40; and

d. tax invoice numbered 163878 dated 17 October 2019 in the sum of $313,785.18

be assessed pursuant to s 335 of the Legal Profession Act 2007.

2. That Gregory Robert Ryan be appointed as costs assessor for that purpose.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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