Mould v Preston

[2015] QCAT 43

CITATION: Mould v Preston [2015] QCAT 43

PARTIES:	John-Paul Stephen Mould (Applicant)
v
Gayle Preston (Respondent)

APPLICATION NUMBER: MCDO73-14

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 12 January 2015

HEARD AT: Brisbane

DECISION OF: Adjudicator Bertelsen

DELIVERED ON: 9 February 2015

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application is dismissed.

CATCHWORDS: Costs – client agreement – evidence of agreement – work conducted pursuant to agreement – tax invoice rendered – adequacy of tax invoice – itemised costs in taxable form

APPEARANCES:

APPLICANT: John-Paul Stephen Mould

RESPONDENT: Gayle Preston by telephone

REASONS FOR DECISION

Application

1. By application filed 18 June 2014 John-Paul Stephen Mould (Mr Mould) seeks as a debt the sum of $5,952.57 from Gayle Preston (Ms Preston) on account of tax invoices or estimates dated 18 June 2008 and 23 June 2008.

Background and Evidence

1. Mr Mould, a legal practitioner at the time, claimed he was retained by Ms Preston pursuant to a written family law costs agreement to provide legal professional services to her namely the enforcement of child support liability from Mr Sams the father of Ms Preston’s then 11 year old son. Prior to that orders had apparently been made regarding visitation rights and arrears of child support. According to Mr Mould he was instructed to pursue child support payments from Mr Sams. Legal Aid was not available for that purpose.

2. Mr Mould produced to the Tribunal an electronic copy of the client agreement – family law. It was neither signed nor dated nor witnessed. Ms Preston said she did not recall signing any client agreement.

3. Clause 6.3 of the client agreement required a deposit of $500 to be paid in advance to cover part of the estimated fees and expenses. Ms Preston said she never ever paid Mr Mould any money at all. She said Mr Mould stated to her that if Mr Sams did not pay money owing to her that he, Mr Mould, would take Mr Sams to court and ask the court to order Mr Sams to pay Ms Preston’s costs.

4. Mr Mould produced an office memo dated 17 June 2010. It recorded a telephone conversation between one Averell Donnelly of Mr Mould’s office and Ms Preston. Ms Preston was recorded as stating that she had received only $10 per week through the child support agency and that Mr Sams was not working; that no lump sum payments had been made; that as her son was 17 years old it was not worth pursuing the matter any further. When asked for further instructions by Ms Donnelly Ms Preston was recorded as saying ‘it is up to you’ but that she had no intention of doing anything about it anymore because it had been dragging on for so long.

5. At some stage and probably sometime later Ms Preston did receive some child support of some $4,000 and $11,000. These payments were in fact tax refunds that would otherwise have been payable to Mr Sams but in effect garnisheed by the child support agency to partly amortise child support arrears.

6. Mr Mould’s tax invoice of 18 June 2008 states on the first page to be an itemised tax invoice and that the end or foot thereof i.e. on the third page to be an estimate only. It is also stated at the end or foot thereof that:

   If a bill of costs is requested, or if payment is not received as aforesaid, we will render to you a bill of costs and in that event our fees shall, for all purposes, be such amount as may be shown on the bill of costs in itemised taxable form.

7. No bill of costs in itemised taxable form was produced to the Tribunal.

8. The client agreement – family law at clause 6.1 thereof stated that costs for work performed would be calculated on the basis of an attached ‘our charges for a family law action’. No such document was produced to the Tribunal.

9. Ms Preston stated that despite receipt of some child support Mr Mould never made any attempt to further pursue Mr Sams for payment. Mr Mould asserted his retainer was terminated in June 2010; that the two tax invoices record work carried out in the period 29 March 2007 to 13 November 2008.

Conclusion

1. Mr Mould asserted work carried out in the period 29 March 2007 to 13 November 2008 was in accord with the client agreement – family law. Whilst an electronic blank copy of such an agreement was produced no signed, dated and witnessed copy was able to be produced. Nor was the document ‘our charges for a family law action’ said to be attached to that client agreement. No deposit it appears was ever paid pursuant to clause 6.3 of the client agreement otherwise it would have necessarily properly appeared as a credit against any tax invoice issued.

2. Ms Preston did not recall signing any client agreement. She did not pay any monies whatsoever to Mr Mould ever.

3. The two tax invoices were estimates only and stated that if payment was not received (within seven days) that Mr Mould would render a bill of costs in itemised taxable form. There was no evidence of any such itemised bill having been rendered.

4. Section 329 of the Legal Profession Act 2007 states that a law practice cannot start legal proceedings to recover legal costs until at least 30 days after the law practice has given the bill to the client in accord with s 330 and s 331 of the Act.

5. Section 330 states a bill must be in the form of a lump sum or an itemised bill and delivered to the client.

6. Section 331 states the bill must include or be accompanied by a written statement setting out the avenues open under the Act to the client in the event of a dispute in relation to legal costs. The two avenues stated are costs assessment and setting aside of the costs agreement. Any time limits applying to the taking of any such action must also be stated.

7. There was no such written statement accompanying the tax invoices of 18 June 2008 and 23 June 2008. That excludes the tax invoices for the purposes of recovery and the general time limit of six years that would otherwise be available to commence proceedings. That being so the application must fail.

8. The application is dismissed.