O'Neill v Wilson - [2011] QSC 220

SUPREME COURT OF QUEENSLAND

CITATION:

O’Neill v Wilson [2011] QSC 220

PARTIES:

KERRY JOSEPH O’NEILL (trading as O’Neills Business Lawyers)
(applicant)
v
ROBYN LYNETTE WILSON

(respondent)

FILE NO/S:

SC No 3286 of 2011

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Delivered ex tempore 18 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2011

JUDGE:

Atkinson J

ORDER:

The application is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – OTHER MATTERS – where the applicant solicitor sought an order that the respondent pay him $34,364.46 together with costs and interest and a declaration that he held an equitable mortgage over her land – where the applicant solicitor relied upon documents entitled ‘Costs Agreement’ that were not signed by the respondent – whether a valid costs agreement existed – whether the applicant was entitled to the relief he sought

Legal Profession Act 2007 (Qld), s 319(1)(b), s 322

Property Law Act 1974 (Qld), s 11(1)(c)

COUNSEL:

N R Collins for the applicant

The respondent appeared on her own behalf

SOLICITORS:

O’Neills Business Lawyers for the applicant

The respondent appeared on her own behalf

HER HONOUR: An application was made to the Court that the defendant be ordered to pay the plaintiff the sum of $34,364.46 together with costs and interest, and that there be declarations that:

(a) by clause 13 of each of the costs agreements made between the plaintiff and the defendant on or about 11 February 2009 and 14 May 2009, the defendant granted to the plaintiff an equitable mortgage of all her interest in her land described as Lot 511 on Registered Plan 905762, Count of Stanley, Parish of Kedron, title reference 50155689 (“the land”) to secure all amounts owing by the defendant to the plaintiff; and

(b) that the land be charged with the payment of all amounts due by the defendant to the plaintiff.

Otherwise there are applications for the appointment of the trustee for sale and other relief under the Property Law Act 1974 (Qld). The plaintiff acted as solicitors for the defendant. The application was made ex parte, but the defendant attended in person in answer to it.

There are, it seems to me, two major and insuperable problems for the applicant and they both arise from the fact that the applicant is relying upon unsigned documents entitled 'Costs Agreement'. Those unsigned documents purport to create the equitable mortgage and charge over the respondent's real property.

Unfortunately, Mr Collins, who appears for the applicant/plaintiff, was unable to tell me an equitable mortgage could be created by an unsigned document in spite of section 11 of the Property Law Act, which inter alia provides in section 11(1)(c) that the disposition of an equitable interest in land must be manifested and proved by some writing signed by the person disposing of the same or by the person's agent lawfully authorised in writing or by will.

The second problem which arises from the fact…

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.

Continue reading O'Neill v Wilson

Details

AGLC: O'Neill v Wilson [2011] QSC 220
Case: [2011] QSC 220
Decision Date: 18 July 2011

CaseChat Overview and Summary

The applicant, Mr O'Neill, a solicitor, brought an action against the respondent, Mrs Wilson, seeking an order that she pay him $34,364.46 in unpaid legal fees, together with costs and interest, and for a declaration that he held an equitable mortgage over her property. The basis of Mr O'Neill's claim was a document entitled 'Costs Agreement', which was not signed by Mrs Wilson. Mr O'Neill argued that despite the absence of a signature, the document constituted a valid costs agreement.

The central legal issue for the court was whether the unsigned document could be considered a valid costs agreement and if it could be enforced against Mrs Wilson. Additionally, the court had to determine if Mr O'Neill was entitled to the equitable mortgage over the property and the additional relief he sought. The court considered the nature of costs agreements, the requirements for their validity, and whether the terms of the document could be sufficiently established to warrant enforcement.

The court held that for a costs agreement to be valid and enforceable, it must be signed by the client. Since the document in question was not signed by Mrs Wilson, it did not constitute a binding costs agreement. Consequently, the court found that Mr O'Neill was not entitled to the relief he sought. The court dismissed the application, finding that there was no valid costs agreement in place, and thus no basis for the claimed amount, equitable mortgage, or additional costs and interest.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	O’Neill v Wilson [2011] QSC 220
PARTIES:	KERRY JOSEPH O’NEILL (trading as O’Neills Business Lawyers) (applicant) v ROBYN LYNETTE WILSON (respondent)
FILE NO/S:	SC No 3286 of 2011
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	Delivered ex tempore 18 July 2011
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2011
JUDGE:	Atkinson J
ORDER:	The application is dismissed.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – OTHER MATTERS – where the applicant solicitor sought an order that the respondent pay him $34,364.46 together with costs and interest and a declaration that he held an equitable mortgage over her land – where the applicant solicitor relied upon documents entitled ‘Costs Agreement’ that were not signed by the respondent – whether a valid costs agreement existed – whether the applicant was entitled to the relief he sought Legal Profession Act 2007 (Qld), s 319(1)(b), s 322 Property Law Act 1974 (Qld), s 11(1)(c)
COUNSEL:	N R Collins for the applicant The respondent appeared on her own behalf
SOLICITORS:	O’Neills Business Lawyers for the applicant The respondent appeared on her own behalf