Oric Legal v. Webb
[2008] QDC 218
•8 September 2008
DISTRICT COURT OF QUEENSLAND
CITATION:
Oric Legal v Webb [2008] QDC 218
PARTIES:
ORIC LEGAL
Applicant/Respondent
v
BARBARA JUNE WEBB
Respondent/Applicant
FILE NO:
240 of 2007
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court
DELIVERED ON:
8 September 2008
DELIVERED AT:
Maroochydore
HEARING DATE:
22 August 2008
JUDGE:
K S Dodds, DCJ
ORDER:
On application by Oric Legal judgment for the applicant, Oric Legal for $94,101.35 with interest thereon at 10% from 1 August 2008 to judgment.
On application by Barbara June Webb application dismissed.
CATCHWORDS:
LEGAL PRACTITIONERS – Solicitor and Client – legal costs – security for costs over real property in joint tenancy – client agreements under Queensland Law Society Act 1952 – whether client agreements void – assessment of costs by costs assessor under Legal Profession Act 2007 – assessors certificate of assessment filed – judgment for assessed costs – severance of joint tenancy by sequestration order – whether order compelling – was bankrupt joint tenant client to request registrar register transmission of the bankrupt interest to trustee
Legal Profession Act 2007 s 326, s 328, s 340, s 735, s 738
Queensland Law Society Act 1952 s 48, s48A, s48F
Uniform Civil Procedure Rule 1999 r 720, r 743G, 743H, r 743I, r 738, r 742
COUNSEL:
A H Sinclair for the applicant/respondent (Oric Legal)
P L Rennick for the respondent/applicant (B Webb)
SOLICITORS:
Oric Legal for the applicant/respondent
Greenhalgh Pickard for the respondent/applicant
The Applications
In these reasons I shall refer to Oric Legal as the applicant. The principal of the applicant is Helena Maria Mumford (Mumford) a solicitor who acted for the respondent in a matrimonial matter.
This matter has its origins in the fees charged by the applicant, a claim for the payment thereof and security for payment. It commenced with an application by the applicant filed 26 October 2007. The application sought an order “that pursuant to rule 685(2) of the Uniform Civil Procedure Rules the court order that the respondent pay to the applicant the agreed sum of $77,502.72 inclusive of GST and that an assessment order is issued.” It also sought an order the respondent act to sever a joint tenancy of the respondent’s former matrimonial home in lieu, the Registrar of the Court act to do so.
The joint tenant other than the respondent (the husband of the respondent) had voluntarily become a bankrupt: sequestration order 22 January 2007. The joint tenancy as it had existed had therefore been severed. Declarations giving effect to that were made and the application was adjourned.
By an order of an acting Deputy Registrar of the court made 7 February 2008 on the application of the respondent, a costs assessor agreed between the applicant and the respondent was appointed “as costs assessor of the accounts rendered by the applicant to the respondent which are in dispute;
2. That within 28 days from the date of these orders the applicant and the respondent do all such acts and provide all such documents as the appointed costs assessor requests or requires;
3. That these proceedings be adjourned to the Registry awaiting the form 62 assessment of the costs assessor---”.
On 1 August 2008 the costs assessor’s certificate was filed. It certified as follows:
----
“3. I have assessed the legal costs payable by the respondent to the applicant pursuant to the itemised bills of costs of the applicant dated 25 January 2008 (invoice number 580) and 30 January 2008 (invoice numbers 581 and 582) (which are in dispute in these proceedings) in the amount of ninety four thousand one hundred and one dollars, thirty five cents ($94,101.35), comprising:
(a) Professional fees $86,277.09;
(b) Disbursements $7824.26
4. My fees of $4345.00 are payable by the applicant and have been included as a disbursement.
5. The party entitled to be paid the costs of the assessment is the respondent. Those costs are assessed at $4345.00 (including my fees as stated in the previous paragraph) and have been deducted from the disbursements”.
The matter was then re-listed by the applicant for 22 August 2008 pursuant to rule 743H Uniform Civil Procedure Rules 1999 (Qld) (UCPR). The rule provides:
“(1)---
(2) The court or any party may on notice to all parties who participated in the assessment have the application re-listed before the court;
(3) In relation to any issue in dispute between the parties, the court may give directions or decide the issue;
(4) If there are no issues in dispute the court may give the judgment it considers appropriate having regard to the certificate;
(5) The court may delay giving a judgment or stay enforcement of the judgment given, pending a review by the court of a decision of the costs assessor.”
On 20 August 2008 the respondent filed an application seeking a declaration a registered bill of mortgage over the former matrimonial home was void and an order it be set aside. This mortgage was registered on 6 November 2007 over real property owned by the respondent and her husband as joint tenants “so far as it relates to the interests of Barbara Jane Webb only” in favour of Mumford. An order was sought that pursuant to rule 15 of UCPR the application proceed by way of claim and for directions that:
§ the applicant deliver a discharge of the bill of mortgage in registrable form to the respondent;
§ the applicant file and serve a claim and statement of claim within 14 days;
§ the respondent file and service a defence and counterclaim within 14 days of receiving the claim and statement of claim;
§ that within 28 days each party make disclosure and within a further period disclosure be completed;
§ that the parties participate in and act reasonably and generally in a mediation to be conducted by a mediator agreed between the parties or ordered by the court no later than 112 days from the date of the directions;
§ the proceedings be stayed until 6 business days after the mediators certificate is filed or further earlier order;
§ each party have liberty to apply on 7 days notice;
§ an order that the applicant pay the respondent’s costs of and incidental to the application.
The applicant, by amended application, seeks judgment against the respondent in the assessed sum of $94,101.35 together with interest at 10% on $77,502.72 (the amount of costs for which an order of payment was sought in the application filed 26 November 2007) from 10 November 2007 (the return date of the original application) and costs. It also seeks an order compelling the respondent to do all that is necessary to sever the joint tenancy, in the alternative, empowering the Registrar to do so.
Background
In 2005 Mumford practiced as a solicitor under the name Elias Mumford Solicitors. In about September 2005 the respondent engaged Mumford to act for her in a family law property settlement matter.
By letter dated 22 September 2005, the applicant wrote to the respondent enclosing:
§ A client agreement;
§ The schedule notice (important notice to client) required by section 48(4) of the Queensland Law Society Act 1952 (Qld);
§ A copy of the firm’s legal scale of fees for legal work;
§ A copy of a brochure providing information about legal costs in family law matters which included a schedule detailing family law party and party costs.
The letter asked the respondent to carefully read the important notice to client and the client agreement, seek independent legal advice on the contents and consequences of the client agreement, advised that it was in the respondent’s interests to seek independent legal advice and said that if, after reading the costs agreement carefully and obtaining any independent advice she required she wished to proceed, to sign both copies of the client agreement, return one to the firm and keep the letter, the important notice to client and the other copy of the client agreement. It said that the respondent would, if she wished, be able to find a solicitor who would be prepared to act without requiring a signed agreement, or who would charge a lesser fee. It said it was not possible to furnish an accurate quotation of how much the matter would cost and provided information about why that was. It provided information about how charges would be based on 6 minute time units, that the rate would vary depending on who did work and said that billing would occur on a regular basis. It said that if the client elected to pay the fees due at the conclusion of the matter, then fees would be charged at a higher rate and that security for costs would be required, such as a mortgage over real property or a written guarantee by a family member.
These various matters were also contained in the important notice to client and/or in the client agreement. The client agreement contained information about party and party costs following the event and what that meant. It contained information about things which could affect the amount of fees and costs. It contained information about payment of fees and costs and security for payment thereof.
The costs agreement was signed by the respondent, as was the important notice to client.
The respondent apparently did not have the capacity to pay legal fees and outlays in advance, or as the matter progressed. She did not have legal aid. Mumford funded the matter throughout. She performed legal work and provided legal services for the respondent in the period September 2005 to October 2007 when she terminated the retainer. She represented the applicant at trial in the Federal Magistrates Court on 31 May 2007. Ultimately, by judgment of that court of 11 April 2008 the respondent’s former husband was ordered to transfer all his right title and interest in the jointly owned former matrimonial residence to the respondent together with motor vehicle, furniture, cash savings in the respondent’s name and superannuation in the respondent’s name and judgment was entered against the former husband for $263,851.00. Costs were awarded against the husband on the indemnity basis.
In April 2006 Mumford ceased practice as Elias Mumford Solicitors. The practice was sold to John Hawes and Associates (Hawes) another firm of solicitors. According to Mumford the respondent signed a transfer of file authority to Hawes, which so far as she knew, was in Hawes possession. According to the respondent she did not sign a transfer of file authority. Mumford worked for Hawes as an employed solicitor from April 2006 to late June 2006 and during that time performed work on the respondent’s file. When she left the respondent’s file remained with Hawes.
In or about August 2006 Mumford established Oric Legal. On or about 12 October 2006 the respondent contacted Mumford and requested she resume carriage of her matter. The file was eventually transferred from Hawes to the applicant on 11 January 2007.
On 7 November 2006 the respondent signed a fresh client agreement with the applicant and another important notice to client. These documents were similar to those signed in 2005 and were sent under cover of a letter in essentially the same terms as had been sent in September 2005. This client agreement included a clause whereby the respondent authorised Mumford to engage a barrister to advise and appear in court.
The respondent was requested on a number of occasions to provide security for costs. The only form of security available was a mortgage over the former matrimonial home. The marital property had been held in joint tenancy by the respondent and her former husband. When the sequestration order was made the trustee in bankruptcy became a party to the proceedings. Eventually the respondent agreed to provide a mortgage but despite a number of requests, did not take steps to sever the joint tenancy. By letter dated 25 September 2007, the applicant wrote to the respondent advising it would no longer act for her and that the client agreement was terminated due to her breach of it. The letter advised that all legal costs due under the agreement were immediately due and payable. A statement of account was enclosed referring to invoices for work performed totalling $76,319.06.
Date Invoice # Invoice Total Balance Due
19/01/2007 65 $14,231.56 $14,231.56
12/02/2007 85 $16,901.29 $16,901.29
26/03/2007 159 $7462.12 $7462.12
23/05/2007 232 $11,922.13 $11,922.13
30/05/2007 243 $2,733.40 $2,733.40
14/08/2007 364 $4178.33 $4178.33
14/08/2007 366 $15,241.77 $15,241.77
26/09/2007 433 $3804.96 $3804.96
When the matter first came before this court on the application filed 26 October 2007, the respondent appeared unrepresented. She informed the court she had written to the Legal Services Commission making a complaint against Mumford. She said she was disputing the bill for the work that had been done, that she had been charged for things Mumford had not done, that in effect, Mumford had not kept her up to date with the amount of escalating costs. A copy of the letter was received and marked Exhibit 1.
The matter next came before the court when the respondent sought a consent order from the Registrar for the appointment of an agreed costs assessor. On that occasion, the respondent filed an affidavit. By that stage she had solicitors acting for her. In her affidavit she deposed:
§ In or about September 2005 she engaged Elias Mumford Lawyers to act on her behalf in the property settlement proceedings against her husband and that she understood the solicitor handling the matter would be Mumford. To the best of her knowledge the client agreements exhibited by Mumford in her affidavit were the client agreements she signed. Mumford did not explain the provisions of them to her, rather told her to sign them.
§ Throughout the progress of the matter, on various dates she became concerned about the extent of the legal bill with Elias Mumford Lawyers and asked Mumford on many occasions to present her with the bill. Until late 2006 Mumford kept telling her the bill was not much. She believed in late 2006 she was provided with the account from Oric Legal which had been exhibited to the affidavit of Mumford.
§ She was applying for particular invoices to be assessed by a costs assessor. She detailed aspects of the invoices provided by Mumford which were disputed. The disputes variously were about the time involved for various items charged, alleged doubling up between invoices, that instructions had not been given to involve counsel, that Mumford was not authorised to take her file to Hawes, that she did not instruct Oric Legal to draft a mortgage to secure fees nor consent to a mortgage over the matrimonial property, that she should not be charged for certain types of work for which she had been charged, that charges for disbursements were not reasonable, that it was not reasonable to carry out and charge for various work.
Queensland Law Society Act 1952
The client agreements were governed by the provisions of the Queensland Law Society Act 1952. Section 48 thereof requires such a written agreement be expressed in plain language, specifying the work to be performed, the fees and costs payable by the client for the work: subsection (2). The fees and costs payable must specify –
“(a) a lump sum amount; or
(b) the basis on which fees and costs will be calculated (whether or not including a lump sum amount)”; subsection (3).
Subsection (5) provides that the client agreement must not be inconsistent with the important notice to client in the schedule.
Subsection (4) provides that “the notice in the schedule must be completed by the practitioner or firm and given to the client together with a copy of any scale for the work provided under an Act before the client signs the client agreement”.
Section 48F provides:
“(1) If a client agreement to which section 48 applies, does not comply with that section, the client agreement is void;
(2) If a provision is included in a client agreement and inclusion of the provision is prohibited by this part, the provision is void”.
The respondent’s submissions
The respondent has submitted that the client agreements did not comply with section 48 in that:
§ they did not provide an estimate of fees;
§ the client agreement dated 7 November 2006 was inconsistent with the important notice to client and thereby in breach of section 48(5);
§ there was no indication in the important notice to client which accompanied the client agreement signed 23 September 2005 to indicate the respondent saw it before signing the client agreement.
The client agreements were therefore void by virtue of section 48F of the Act.
The 2005 client agreement disclosed:
§ That the work to be performed was family law property settlement including domestic violence;
§ that fees would be based on the time involved and the seniority and experience of the person carrying out the work, normally charged in 6 minute units;
§ the client would also have to pay for other costs; barristers fees and other examples were instanced;
§ costs for document production, outgoing facsimiles, long distance phone calls, sundry expenses were indicated;
§ an estimate of fees set out in the special conditions attached to the agreement;
§ that the firm was not bound by the estimate and an indication given of various things which may effect the total amount of fees and costs including that if fees were to be paid at the conclusion of the matter there would be a 20% loading
Scales of fees including the firm’s scale of costs accompanied the documents.
The special conditions disclosed that the fee arrangement was for payment on conclusion of the matter and accordingly charges would be according to the Elias Mumford scale of fees provided plus 20%. If no client agreement was entered into the scale fees were as disclosed in the Family Law Costs Notice. An estimate of fees exclusive of disbursements, outlays and GST up to the stage of commencing court proceedings was $1500.00 with the proviso that it was difficult to estimate fees. That amount was said to be exclusive of fees for barristers, expert reports or valuations.
The client agreement of November 2006 was in somewhat similar terms. The work to be performed was family law property settlement. Additionally, in paragraph 11 under the heading “Estimate of Fees” it referred to an estimate of fees contained in the special conditions attached to it. It said the firm was not bound by the estimate. It disclosed matters which may affect the amount of fees and costs. In the special conditions it contained information about charges for work being in accordance with the enclosed firm’s scale of fees and informed if those fees were to be paid at the conclusion of the matter, an additional 20% would be payable. It advised that if no client agreement was entered into, the scale fees were as disclosed in the enclosed family law costs brochure. An estimate of fees exclusive of disbursements, outlays and GST was provided with the proviso that it was difficult to estimate fees in the matter. A range of amounts were provided against various types of legal work including trial preparation and trial. The amounts total, at most $30,000.00. At that time, so far as may be gathered from tax invoices exhibited detailing work done by Mumford in the period 20 September 2005 to 11 April 2006 when the practice was sold, fees totalled $12,493.25.
The respondent’s submission cannot be accepted. In my view the agreements specify so far as was possible the work the solicitor was to perform, the fees and costs payable for the work and the basis on which fees and costs would be calculated. Whilst it is true that the important notice to client on each occasion does not contain therein a written acknowledgement that they were read before signing and returning the client agreement, the letters which accompanied the documents plainly exhorted the respondent to carefully read the documents before signing the client agreement. Each important notice to client has been signed by the respondent.
The present position
The Queensland Law Society Act 1952 was repealed by the Legal Profession Act 2007 (Qld). Since the commencement of the latter act on 1 July 2007 costs assessments must be made under its provisions: section 738 of the Legal Profession Act 2007.
A client agreement (in the Legal Profession Act 2007 called a costs agreement) may be set aside by application by a client or solicitor to the Supreme Court: sections 328 and 735(4). No application has been made. Otherwise, assessment of costs is undertaken by the costs assessor, in this case agreed between the parties. The assessment process and criteria are provided in sections 340 to 342 inclusive.
Costs and their assessment are the subject of chapter 17A of the UCPR. Part 4 relates to assessment under the Legal Profession Act 2007. By rule 743I of UCPR, a number of the rules in part 3 of chapter 17A are incorporated for an assessment under part 4.
After the parties had agreed on an assessor, a consent order appointing the assessor was made by the Registrar. No application was made by either party to the court for directions under rule 743G of UCPR. After the assessment was completed and the assessors certificate issued no application was made to the assessor by either party within the time allowed by rule 738 or at all, for his reasons for his decision. No application was made by either party to the court within the time allowed by rule 742 or at all, to review the decision of the costs assessor.
The respondent filed a further affidavit in support of her application referred to in paragraph 6 of these reasons. In that affidavit she deposed:
§ That throughout the time she was dealing with Mumford she was suffering from depression.
§ She recalled receiving a letter with the client agreement and that the day after receiving it she went with it to Mumford because she had some questions. She told Mumford she had not had the client agreement checked by another lawyer and asked her whether she should get it checked. Mumford told her she did not have to, that it was pretty straightforward. She then signed the client agreement. She was never informed she had to sign a mortgage to secure legal fees.
§ As far as she was aware she did not sign an authority to transfer her file to Hawes, she was not informed that Mumford was an employee of Hawes and she did not sign a client agreement with Hawes. She recalled Mumford telling her that she was moving, that she was merging with John Hawes. She did speak to Mumford a few times when she was at Hawes. She then learned in or about October 2006 that Mumford had left Hawes. She was told by John Hawes that he was handling her case and she needed to come and see him and sign a client agreement.
§ She eventually found out where Mumford was and went and saw her. Mumford sent her another client agreement and she queried why she had to sign another one. She was not told she had to seek legal advice prior to signing the document and was not told she had to sign a mortgage to secure any legal fees.
§ When she first engaged Mumford, she was told the legal costs would not be much and she thought an estimate of $1500.00 was provided. In a later discussion Mumford told her the legal fees would be no more than $50,000.00.
§ Throughout she became concerned how much legal costs would amount to. In November 2006 she requested a bill and was told by Mumford she was too busy, that she did not have time for it. She received the first bill in about January 2007 which showed charges commencing in or about 2006. She queried where the charges from 2005 were and Mumford told her she would go back and catch them up.
§ In or about January 2007, she received a letter from Mumford enclosing the bill for 2005 fees (this is a letter dated 18 January 2007, Exhibit HM2 to Mumford’s affidavit filed 6 February 2008). The letter informed her she would have to pay her legal costs upfront, obtain litigation funding or provide a mortgage. This was the first time she had been told she would need to provide a mortgage. She tried to obtain litigation funding but was unsuccessful.
§ After that she received various letters on various dates from Mumford with accounts attached. They did not indicate the total amount owed.
§ Mumford told her that a barrister needed to be engaged; she did not explain the reason. She told her repeatedly she could not afford a barrister. She recalled getting a letter from Oric Legal confirming her instructions to engage a barrister even though she had specifically instructed her not to get one.
§ She understood that on or about 6 November 2007 Oric Legal registered a mortgage over the matrimonial property.
§ In or about May 2007 Mumford sent her a letter indicating she would cease work if the mortgage was not signed. She also telephoned and asked her to bring in the mortgage. She went to see her and informed her she was getting a solicitor to look over the mortgage before she signed it. Mumford told her to sign it, she didn’t need a solicitor to look over it, that it was perfectly legal. Mumford’s husband was also present and offered to have a friend who was a solicitor look over the mortgage for her. Mumford said, don’t worry about it, she doesn’t need a solicitor. She signed the mortgage because she felt she was under pressure from both Mumford and her husband.
§ The next she heard about the mortgage from Mumford was in September when Mumford sent her a letter saying she had not signed the mortgage so it could be registered. She tried to telephone her and speak to her, but Mumford did not speak to her.
§ To numerous matters about which she disputed being charged.
§ Mumford did not have good grounds for withdrawing from the matter.
§ Mumford acted negligently in handling the case and failing to advise her properly.
Discussion
The 18 January letter Exhibit HM2 to Mumford’s affidavit filed on 6 February 2008 referred to a phone conversation between Mumford and the respondent the previous day and to the respondent’s request for an itemised account for work done prior to the matter being transferred to Hawes. It enclosed an itemised interim account for work done on the respondent’s matter since Oric Legal had conducted the file and referred the respondent to the costs notice brochure attached to the client agreement. It continued:
“an itemised account for work done prior to the matter being conducted by Hawes Legal will be provided to you shortly as you requested.
To date you have provided no security to us for our costs or the costs incurred by the writer prior to the matter being transferred to Hawes Legal. You have provided no evidence that you have taken steps to ensure that our costs will be paid on the completion of your matter.
We are now concerned proper security must be given by you for our costs before we proceed any further. As you know the barrister has also agreed to payment on a deferred basis and we must ensure that the barrister also has proper security for his costs.
These are your options:
1. You must pay for your costs as you go (it is clear you do not have the capacity to do this);
2. You obtain a litigation loan to fund your legal costs (details below);
3. You pay your legal costs on a deferred payment basis on the conclusion of your matter being heard in court.
If you select option 3 we require that the joint tenancy on the real property (the unit) be forthwith severed and that you provide us with a mortgage over your half interest in the property in order to secure your costs. As per the costs agreement and as we have previously discussed with you, any costs associated with severing the joint tenancy or the giving and registering of your mortgage are costs payable by you.
We would undertake the severance of the joint tenancy and the drawing of the mortgage document.
----
Please contact the writer as soon as you receive this letter in order to advise which option you are taking.”
Also exhibited to Mumford’s affidavit filed 6 February 2008 was a letter dated 2 April 2007 from the applicant to the respondent and a letter from a barrister dated 29 March 2007 to the applicant (HM4).
The letter dated 2 April 2007 to the respondent read as follows:
“Your family law matter
Please find enclosed a letter from Mr Rob Hamwood, family law barrister who has agreed to take on your matter on the basis that $2000.00 will be paid immediately upon receipt of his tax invoice and the balance of his fees are to be paid once the orders have been made and you finance a loan to pay out your legal fees.
Please read Mr Hamwood’s letter of engagement terms carefully. We recommend that you accept his terms. If you are happy for us to brief Mr Hamwood, please sign the bottom of this letter and return it to us as soon as possible.
---”
On the bottom of the letter appears – “I, Barbara Webb instruct my solicitors to engage Robert Hanwood as abovementioned” and a signature, B. Webb. The signature appears the same as the signatures of B.Webb on the client agreements.
Section 48A of the Queensland Law Society Act 1952 provided that a client agreement may be enforced in a court of competent jurisdiction in the same way as another contract.
Section 735(1) and (3) of the Legal Profession Act 2007 applies Part 3.4 of Chapter 3 of the Act to client agreements such as those here.
Section 326 (contained in part 3.4) of the Legal Profession Act 2007 provides that subject to Division 5 and Division 7 of Part 3.4 of Chapter 3 of the Act “a costs agreement may be enforced in the same way as any other contract”. Here there is no Division 5 issue. Division 7 contains provisions for costs assessment. In particular section 341(1) (in Division 7) requires the costs assessor to consider:
“(a) whether or not it was reasonable to carry out the work to which the legal costs relate; and
(b) whether or not the work was carried out in a reasonable way; and
(c) the fairness and reasonableness of the amount of legal costs in relation to the work, except to the extent that section 340 applies to any disputed costs.”
Section 340 so far as it applied to this matter required the costs assessor to assess any disputed costs by reference to the provisions of the client agreements insofar as they or either of them contains a “relevant provision” specifying “the amount, or a rate or other means for calculating the amount, of the costs”.
Rule 720 UCPR provides the costs assessor is to decide the procedure to be followed on the assessment, that the procedure “must be appropriate to the scope and nature of the dispute and the amount in dispute--- consistent with the rules of natural justice---be fair and efficient”.
I earlier referred to rule 743H of the UCPR. It provides that where a certificate of assessment is filed as here:
“(2)----
(3) In relation to any issue in dispute between the parties, the court may give directions or decide the issue;
(4) If there are no issues in dispute, the court may give the judgment it considers appropriate having regard to the certificate.”
I also mentioned earlier that neither party applied to the court for a directions hearing in relation to the application for a costs assessment. On such an application the court may consider various matters including whether it is appropriate for any question to be tried before costs are assessed.[1]
[1]Uniform Civil Procedure Rules 1999 (Qld) rule 743(b).
Are there issues in dispute?
The costs assessment has dealt with matters such as whether it was reasonable to carry out work charged for, whether the work was carried out in a reasonable way and the amount of costs charged for the work.
The client agreements and important notices to client were signed by the respondent. They were accompanied by the letters earlier referred to. I have set out above matters dealt with therein. There was disclosure of the solicitor’s requirement to secure payment of fees by mortgage or other means. In the 2006 agreement the applicant respondent authorised the applicant to retain a barrister. In the letters bearing dates 18 January 2007 and 2 April 2007 there is plain reference to a barrister being retained and on a copy of the letter of 2 April 2007 an explicit instruction from the respondent to engage a barrister. In the event this apparently was not done, Mumford appearing herself at the hearing before the court.
If it be the case, as the respondent has deposed, that she cannot recall signing an authority to transfer her file to Hawes and she did not sign a client agreement with Hawes, it has no relevant bearing on fees for work done by Mumford which have been assessed.
The client agreements make plain the solicitors requirement for security for costs. Not unreasonably, from the solicitor’s perspective, the security required was a mortgage over the real property and severance of joint tenancy. Section 320 of the Legal Profession Act 2007 provides that a law practice may take reasonable security from a client for legal costs and refuse to act or stop acting for a client who does not provide reasonable security.
The only other matter is a bare assertion Mumford was negligent in handling the case and failing to advise properly. Of some relevance to this is the outcome Mumford achieved in the ultimate court proceeding.
I am unable to see that there are any issues in dispute between the parties which are relevant to the assessment of the costs.
Accordingly I give judgment for the applicant against the respondent for $94,101.35 together with interest at 10% calculated on $94,101.35 from 1 August 2008 to judgment.
I decline to make any order regarding severance of a joint tenancy. The joint tenancy of the respondent and her husband which existed was severed on the making of the sequestration order and thereafter the respondent held the property in equal shares in a tenancy in common with the trustee in bankruptcy. The trustee’s interest is vested in equity. It will vest at law on a request to the Registrar to register transmission of the husband’s interest pursuant to section 115 of the Land Title Act 1994 (Qld); section 58 Bankruptcy Act 1966 (Cth).
What the applicant is seeking is an order for the respondent to take what steps the Registrar requires so that the register reflects the tenancy in common in equal shares of the respondent and the trustee in bankruptcy. The ground upon which this is based is the client agreements which advise of the solicitor’s requirement for security for fees and the respondent’s failure in the face of the solicitor’s requests for an executed mortgage and severance of the joint tenancy, to take steps to sever the joint tenancy.
I do not consider that is an adequate basis to make any such order. The applicant has judgment which may proceed to execution if necessary against the respondent’s interest in the real property.
I order the respondent’s application be dismissed.
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