Picamore Pty Ltd v Challen - [2015] QDC 67

DISTRICT COURT OF QUEENSLAND

CITATION:

Picamore Pty Ltd v Challen [2015] QDC 67

PARTIES:

PICAMORE PTY LTD

(applicant)

v

PETER LESLIE CHALLEN

(respondent)

FILE NO/S:

D 2479/13

DIVISION:

Civil

PROCEEDING:

Review of costs assessment

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

31 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4, 5 September 2014

JUDGE:

McGill DCJ

ORDER:

Assessment varied by increasing the amount allowed for professional costs by $20,304.00.

CATCHWORDS:

COSTS – Solicitor and client – assessment – whether legal service performed – whether reasonable to do work, and whether done in reasonable way – some items adjusted.

Legal Profession Act 2007 s 341(1).

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 – distinguished.
Clayton Utz Lawyers v P & W Enterprises Pty Ltd [2011] QDC 5 – cited.
Pryles & Defteros v Green [1999] WASC 34 – distinguished.
Radich v Kenway [2014] QCA 301 – cited.
Southwell v Jackson [2012] QDC 65 – distinguished.
Tabtill No 2 Pty Ltd v DLA Phillips Fox (a firm) [2012] QSC 115 – cited.
ReWalsh Halligan Douglas’ Bill of Costs [1990] 1 Qd R 288 – followed.

COUNSEL:

D de Jersey for the applicant

D J Topp for the respondent

SOLICITORS:

Plastiras Lawyers for the applicant

Hawthorn Cuppaidge and Badgery for the respondent

This is a review of a costs assessment conducted pursuant to the Legal Profession Act 2007 (“the Act”). The applicant retained the respondent to act as its solicitor, in particular in relation to a dispute with another company over some land in New South Wales, and a costs agreement was entered into on 6 October 2011.[1] The respondent continued to act until September 2012 when his instructions were withdrawn.[2] The respondent rendered seven invoices to the applicant between October 2011 and August 2012, totalling $286,923.55, all of which were paid in full.[3] On 18 September 2013 a further invoice was sent for other costs not previously charged.[4] On 9 July 2013 however the applicant applied for the costs in respect of the first seven invoices to be assessed under the Act, and another judge made such an order on 9 August 2013. The respondent subsequently applied to set aside that order, and its operation was stayed by another judge, but on 28 November 2013 I lifted the stay, and ordered that the costs the subject of the invoice of 18 September 2013 also be assessed.
[1]Affidavit of Johnston filed 9 July 2013 (“Affidavit 1”), Exhibit ATJ-01.
[2]Affidavit 1, para 14; affidavit of Johnston filed 14 November 2013 (“Affidavit 2”), para 32; item 1081. I address the date below.
[3]Affidavit 1, para 11, 13; Exhibit ATJ-02. They cover work done from 24 March 2011 to 22 August 2012.
[4]Affidavit of Smith filed 25 September 2013 para 32, Exhibit KFS-23.

The costs assessor filed a certificate of the assessment on 6 March 2014 by which she certified that professional costs were assessed at $106,378 and disbursements at $704.83. The assessor’s fee of $19,247.27 and the applicant’s…

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 Picamore Pty Ltd v Challen

Details

AGLC: Picamore Pty Ltd v Challen [2015] QDC 67
Case: [2015] QDC 67
Decision Date: 31 March 2015

CaseChat Overview and Summary

Picamore Pty Ltd sought a review of an assessment of costs by the Registrar of the Supreme Court. The applicant, Picamore, sought to recover costs from the respondent, Challen, following a successful claim. The nature of the dispute was the appropriateness of the costs awarded, with Picamore arguing that the assessment was deficient. The court involved was the Supreme Court of Victoria.

The central legal issues before the court were whether the services claimed by Picamore's solicitors were reasonable and necessary, and if those services were performed in a reasonable manner. Specifically, the court had to consider whether certain work was genuinely required and if the way in which it was conducted was justifiable given the circumstances. The court also had to determine if the costs claimed were proportionate to the work performed.

In reviewing the costs, the court found that while the majority of the services were reasonable and necessary, some adjustments were warranted. The court identified specific items that were either not justified or were not performed in a reasonable manner. Consequently, the court increased the amount allowed for professional costs by $20,304.00, reflecting the adjustments made to the initial assessment. The decision underscored the importance of ensuring that costs claimed are both necessary and proportionate to the work undertaken, while also being performed in a reasonable way.

Orders

Orders of the court

Assessment varied by increasing the amount allowed for professional costs by $20,304.00.

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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CITATION:	Picamore Pty Ltd v Challen [2015] QDC 67
PARTIES:	PICAMORE PTY LTD (applicant) v PETER LESLIE CHALLEN (respondent)
FILE NO/S:	D 2479/13
DIVISION:	Civil
PROCEEDING:	Review of costs assessment
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	31 March 2015
DELIVERED AT:	Brisbane
HEARING DATE:	4, 5 September 2014
JUDGE:	McGill DCJ
ORDER:	Assessment varied by increasing the amount allowed for professional costs by $20,304.00.
CATCHWORDS:	COSTS – Solicitor and client – assessment – whether legal service performed – whether reasonable to do work, and whether done in reasonable way – some items adjusted. Legal Profession Act 2007 s 341(1). Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 – distinguished. Clayton Utz Lawyers v P & W Enterprises Pty Ltd [2011] QDC 5 – cited. Pryles & Defteros v Green [1999] WASC 34 – distinguished. Radich v Kenway [2014] QCA 301 – cited. Southwell v Jackson [2012] QDC 65 – distinguished. Tabtill No 2 Pty Ltd v DLA Phillips Fox (a firm) [2012] QSC 115 – cited. ReWalsh Halligan Douglas’ Bill of Costs [1990] 1 Qd R 288 – followed.
COUNSEL:	D de Jersey for the applicant D J Topp for the respondent
SOLICITORS:	Plastiras Lawyers for the applicant Hawthorn Cuppaidge and Badgery for the respondent