Pott v Clayton Utz - [2015] QDC 66

DISTRICT COURT OF QUEENSLAND

CITATION:

Pott v Clayton Utz [2015] QDC 66

PARTIES:

CECILIA KIT-YING POTT (AS EXECUTOR OF THE ESTATE OF BRYAN FREDERICK NIEBOUR POTT, DECEASED)

(applicant)

v

CLAYTON UTZ (REGISTERED BUSINESS NAME)

(respondent)

FILE NO/S:

5000 of 14

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 April 2015

DELIVERED AT:

District Court at Rockhampton

HEARING DATE:

28 January 2015

JUDGE:

Reid DCJ

ORDER:

The court directs that:

1.        The applicant effect service of copies of all            documents as filed in these proceedings on Mr G Thomson QC and Ms J Fitzgerald (counsel) on or before Friday 17 April 2015, pursuant to s 339(1)(a) of the Legal Profession Act 2007 (Qld).

2.        The applicant file and serve any application in relation to the adequacy of itemisation on or before the earlier of 2 May 2015 or 14 days after the service of material on counsel.

3.        The applicant’s solicitors shall deliver and provide to the costs assessor, when appointed, the following:

(i)          a sealed copy of the order of the Honourable Justice Boddice dated 5 June 2012 and 19 June 2012;

(ii)         a copy of the letter written by the applicant’s solicitors to the respondent dated 18 July 2012 (which is Exhibit CKP1 to the applicant’s affidavit filed on 12 December 2012), pursuant to paragraph 4 of the said orders of the Honourable Justice Boddice;

(iii)        the written details provided by the respondent to the applicant dated 14 September 2012 (which is Exhibit CKP2 to the applicant’s affidavit filed 12 December 2012) pursuant to order 5 of the said order of the Honourable Justice Boddice;

(iv)        a copy of the applicant’s affidavit filed 12 December 2012 pursuant to order 6 of the said order of the Honourable Justice Boddice and pursuant to the declaration made by the Honourable Justice Douglas on 22 November 2012.

4.        The parties shall provide to the costs assessor, when appointed, such documents as are reasonably necessary for him to perform his functions, including copies of:

(i)          the documents and files returned by the respondent to the applicant;

(ii)         costs agreements against which the costs are to be assessed;

(iii)        invoices delivered by Clayton Utz and/or counsel containing items that are in dispute between the parties;

(iv)        the orders of the Courts in the within proceedings together with transcripts from the hearings;

(v)         the letter from Gall Standfield & Smith to Clayton Utz dated 18 July 2012 (being Exhibit CKP1 to the applicant’s affidavit of 12 December 2012);

(vi)        the details provided by the respondent to the applicant dated 12 September 2012 (being Exhibit CKP2 to the applicant’s affidavit of 12 December 2012).

5.        In conducting the assessment, the cost assessor shall be subject to the provisions of the Legal Profession Act2007 (Qld) and the provisions of the Uniform Civil Procedure Rules1999 (Qld) (as amended) determine the procedure to be followed.

6.        Either party or counsel have liberty to apply for further orders or directions upon…

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 Pott v Clayton Utz

Details

AGLC: Pott v Clayton Utz [2015] QDC 66
Case: [2015] QDC 66
Decision Date: 2 April 2015

CaseChat Overview and Summary

The case of Pott v Clayton Utz involved an application by the applicant, Mr Pott, for an assessment of costs. The applicant sought a preliminary determination of certain issues prior to the costs assessment, including issues of credit. The application was heard in the Queensland Supreme Court. The central legal issues the court needed to decide included the proper procedure for assessing costs in light of preliminary determinations, adherence to natural justice in serving notice of a costs application, and the necessity for an opportunity for counsel to make submissions on the conduct of the costs assessment, particularly where fees are disputed.

The court examined the procedural requirements under the Legal Profession Act 2007 (Qld) and the Uniform Civil Procedure Rules 1999 (Qld), emphasising the importance of natural justice. The court held that the applicant must serve all relevant documents on counsel prior to the costs assessment. Furthermore, the court stressed that counsel must be given an opportunity to participate in the determination of preliminary orders that could impact the costs assessment. This ensures that all parties have a fair chance to present their arguments, thus upholding the principles of natural justice.

In directing the service of documents and outlining the procedure for the costs assessment, the court ensured that the assessment would be conducted fairly and transparently. The court mandated specific documents to be served on counsel and provided detailed instructions on the materials to be submitted to the costs assessor. The court also outlined the rules and statutes that would govern the assessment process and allowed for further applications if necessary. The final orders were aimed at ensuring that the assessment process was transparent, fair, and in compliance with all relevant legal requirements.

Orders

Orders of the court

The court directs that:

1. The applicant effect service of copies of all documents as filed in these proceedings on Mr G Thomson QC and Ms J Fitzgerald (counsel) on or before Friday 17 April 2015, pursuant to s 339(1)(a) of the Legal Profession Act 2007 (Qld).

2. The applicant file and serve any application in relation to the adequacy of itemisation on or before the earlier of 2 May 2015 or 14 days after the service of material on counsel.

3. The applicant’s solicitors shall deliver and provide to the costs assessor, when appointed, the following:

(i) a sealed copy of the order of the Honourable Justice Boddice dated 5 June 2012 and 19 June 2012;

(ii) a copy of the letter written by the applicant’s solicitors to the respondent dated 18 July 2012 (which is Exhibit CKP1 to the applicant’s affidavit filed on 12 December 2012), pursuant to paragraph 4 of the said orders of the Honourable Justice Boddice;

(iii) the written details provided by the respondent to the applicant dated 14 September 2012 (which is Exhibit CKP2 to the applicant’s affidavit filed 12 December 2012) pursuant to order 5 of the said order of the Honourable Justice Boddice;

(iv) a copy of the applicant’s affidavit filed 12 December 2012 pursuant to order 6 of the said order of the Honourable Justice Boddice and pursuant to the declaration made by the Honourable Justice Douglas on 22 November 2012.

4. The parties shall provide to the costs assessor, when appointed, such documents as are reasonably necessary for him to perform his functions, including copies of:

(i) the documents and files returned by the respondent to the applicant;

(ii) costs agreements against which the costs are to be assessed;

(iii) invoices delivered by Clayton Utz and/or counsel containing items that are in dispute between the parties;

(iv) the orders of the Courts in the within proceedings together with transcripts from the hearings;

(v) the letter from Gall Standfield & Smith to Clayton Utz dated 18 July 2012 (being Exhibit CKP1 to the applicant’s affidavit of 12 December 2012);

(vi) the details provided by the respondent to the applicant dated 12 September 2012 (being Exhibit CKP2 to the applicant’s affidavit of 12 December 2012).

5. In conducting the assessment, the cost assessor shall be subject to the provisions of the Legal Profession Act 2007 (Qld) and the provisions of the Uniform Civil Procedure Rules 1999 (Qld) (as amended) determine the procedure to be followed.

6. Either party or counsel have liberty to apply for further orders or directions upon seven days’ notice to the other parties.

7. The costs of and incidental to the application are reserved.

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:	Pott v Clayton Utz [2015] QDC 66
PARTIES:	CECILIA KIT-YING POTT (AS EXECUTOR OF THE ESTATE OF BRYAN FREDERICK NIEBOUR POTT, DECEASED) (applicant) v CLAYTON UTZ (REGISTERED BUSINESS NAME) (respondent)
FILE NO/S:	5000 of 14
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	2 April 2015
DELIVERED AT:	District Court at Rockhampton
HEARING DATE:	28 January 2015
JUDGE:	Reid DCJ
ORDER:	The court directs that: 1. The applicant effect service of copies of all documents as filed in these proceedings on Mr G Thomson QC and Ms J Fitzgerald (counsel) on or before Friday 17 April 2015, pursuant to s 339(1)(a) of the Legal Profession Act 2007 (Qld). 2. The applicant file and serve any application in relation to the adequacy of itemisation on or before the earlier of 2 May 2015 or 14 days after the service of material on counsel. 3. The applicant’s solicitors shall deliver and provide to the costs assessor, when appointed, the following: (i) a sealed copy of the order of the Honourable Justice Boddice dated 5 June 2012 and 19 June 2012; (ii) a copy of the letter written by the applicant’s solicitors to the respondent dated 18 July 2012 (which is Exhibit CKP1 to the applicant’s affidavit filed on 12 December 2012), pursuant to paragraph 4 of the said orders of the Honourable Justice Boddice; (iii) the written details provided by the respondent to the applicant dated 14 September 2012 (which is Exhibit CKP2 to the applicant’s affidavit filed 12 December 2012) pursuant to order 5 of the said order of the Honourable Justice Boddice; (iv) a copy of the applicant’s affidavit filed 12 December 2012 pursuant to order 6 of the said order of the Honourable Justice Boddice and pursuant to the declaration made by the Honourable Justice Douglas on 22 November 2012. 4. The parties shall provide to the costs assessor, when appointed, such documents as are reasonably necessary for him to perform his functions, including copies of: (i) the documents and files returned by the respondent to the applicant; (ii) costs agreements against which the costs are to be assessed; (iii) invoices delivered by Clayton Utz and/or counsel containing items that are in dispute between the parties; (iv) the orders of the Courts in the within proceedings together with transcripts from the hearings; (v) the letter from Gall Standfield & Smith to Clayton Utz dated 18 July 2012 (being Exhibit CKP1 to the applicant’s affidavit of 12 December 2012); (vi) the details provided by the respondent to the applicant dated 12 September 2012 (being Exhibit CKP2 to the applicant’s affidavit of 12 December 2012). 5. In conducting the assessment, the cost assessor shall be subject to the provisions of the Legal Profession Act2007 (Qld) and the provisions of the Uniform Civil Procedure Rules1999 (Qld) (as amended) determine the procedure to be followed. 6. Either party or counsel have liberty to apply for further orders or directions upon…