Morales v Murray Lyons Solicitors (a firm) - [2010] QCATA 87

CITATION:

Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87

PARTIES:	Cristobal Murillo Morales
v
Murray Lyons Solicitors (a firm)

APPLICATION NUMBER:

APL194-10

MATTER TYPE:

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Fleur Kingham,
Deputy President
Dr Bridget Cullen Mandikos,
Member

DELIVERED ON:

26 November 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

The default decision of QCAT in Cairns Claim 183/10 is amended to reflect that the Respondent is appropriately named “Cristobal Murillo Morales”.

The Respondent, Murray Lyons Solicitors (a firm), must file in the Tribunal and serve on the Appellant, Mr Christobal Murillo Morales, an affidavit exhibiting material which establishes compliance with Chapter 3, Part 3.4 of the Legal Profession Act 2007 (Qld) by 3 December 2010.

If the Respondent does not comply with Order 2 above, the default decision will be set aside and the matter remitted for hearing by QCAT in Cairns.

If the Respondent does comply with Order 2 above, the Application to set aside the decision in default will be dismissed.

CATCHWORDS :

APPEALS IN QCAT – Nature of Appeal – Whether an appeal or application to set aside default decision.

DEFAULT DECISION – grounds to set aside decision made in default by QCAT, whether regularly or irregularly entered

MINOR CIVIL DISPUTE – jurisdiction of QCAT to hear disputes seeking recovery of legal fees as a demand for a debt or liquidated sum – conditions precedent to the recovery of legal fees that arise under the Legal Profession Act 2007 (Qld).

Legal Profession Act 2007 (Qld), Chapter 3, Part 3.4 “Costs disclosure and assessment”; ss 319, 328 – 331

Queensland Civil and Administrative Tribunal Act 2009, ss 11, 61, 50(5), Schedule 3

Uniform Civil Procedure Rules (Qld), r 290

Alexander v Ajax Insurance Co Ltd [I956] VLR 436

City Pacific Limited (in liq) & Anor v Ballandean Investments P/L [2010] QCA 113

Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65

Green v Tri-Barfen Pty Ltd [2006] QDC 160

Spain v Union Steamship Company of New Zealand Ltd [1923] HCA 21; (1923) 32 CLR 138

Unique Product Marketing Pty Ltd v Bortek Sales Pty Ltd [2000] QDC 314

APPEARANCES and REPRESENTATION (if any):

On the papers decision.

REASONS FOR DECISION

Dr Bridget Cullen Mandikos, Member

Nature of claim and background

This is an appeal by Mr Cristobal Murillo Morales (“Mr Morales”) from a default decision of the Queensland Civil and Administrative Tribunal (“QCAT”), in relation to a minor debt claim involving the non-payment of solicitor’s fees. Mr Morales’ had failed to lodge any response to an application brought by Murray Lyons Solicitors (“ML Solicitors”) in relation to the non-payment of fees. Consequently he was ordered to pay the sum of $24,588.99.

The originating application in this matter[1] reveals that ML Solicitors made application for fees it alleged were payable under a client agreement that existed between the parties, for the provision of legal services. ML Solicitors acted on Mr Morales’ behalf in a personal injuries…

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: [2010] QCATA 87
Decision Date: 26 November 2010

CaseChat Overview and Summary

The appellant, Morales, sought to appeal a decision made in default by the Queensland Civil and Administrative Tribunal (QCAT). Morales had commenced a proceeding in QCAT against the respondent, Murray Lyons Solicitors (a firm), seeking the recovery of unpaid legal fees. The central issue was whether the appeal was validly made and, if so, whether QCAT had jurisdiction to hear the matter. The appeal also questioned the grounds on which QCAT could set aside a default decision and whether the recovery of legal fees under the Legal Profession Act 2007 (Qld) met the necessary conditions precedent.

The court examined whether the appeal was properly lodged, distinguishing it from an application to set aside a default decision. It was noted that the appeal was made within the stipulated timeframe, but the grounds for appeal needed to be clearly identified. Regarding jurisdiction, the court considered whether the recovery of legal fees was a demand for a debt or liquidated sum, thereby falling within QCAT's minor civil dispute jurisdiction. The court further analysed the conditions precedent under the Legal Profession Act 2007 (Qld) that must be satisfied for the recovery of legal fees, including the requirement for a costs disclosure statement.

The court concluded that the appeal was validly made and that QCAT had jurisdiction to hear the matter. However, it found that the default decision could only be set aside if specific grounds were met, and these grounds had not been adequately demonstrated. The court held that the recovery of legal fees must adhere to the conditions precedent set out in the Legal Profession Act 2007 (Qld), and since these conditions were not satisfied in this case, the default decision stood. The appeal was dismissed, and no orders were made to set aside the default decision.

Orders