Radich v Kenway & Anor - [2014] QDC 60

DISTRICT COURT OF QUEENSLAND

CITATION:

Radich v Kenway & Anor [2014] QDC 60

PARTIES:

NICHOLAS RADICH

(Appellant)

v

GILLIAN KENWAY

and

BRIAN SMITH

(Respondents)

FILE NO:

D422/12

DIVISION:

Civil

PROCEEDING:

Appeal against order of Magistrate

ORIGINATING COURT:

Magistrates’ Court

DELIVERED ON:

28 March 2014

DELIVERED AT:

Southport

HEARING DATE:

30 May 2013

JUDGE:

McGinness DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

PROCEEDURE – INFERIOR COURTS – QUEENSLAND – MAGISTRATES’ COURTS – APPEAL AND NEW TRIAL – appeal of Magistrate’s decision to affirm the decision of a costs assessor

COSTS – Solicitor and Client – assessment of itemised bills –
Whether costs of costs assessment in excess of scope and nature of dispute - whether whole assessment ought to be set aside

COSTS – Solicitor and Client – assessment of itemised bills –

breach of natural justice – reassessment of items by magistrate – whether reassessment ought to be set aside

Uniform Civil Procedure Rules 1999 (Qld) r 666, r 720, r 722, r 738, r 742, r 743G(2), r 743A, r 743I

Legal Profession Act2007 (Qld) s 316, s 335(1)

R v Butler [2010] 1 Qd R 325

Remely v O’Shea [2008] QCA 389

Southwell v Jackson [2012] QDC 65

University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481

COUNSEL:

A Morris Q.C. for the appellant

G Kenway & B Smith, self represented

SOLICITORS:

Nicholas Radich, Solicitor, appellant

G Kenway & B Smith, respondents, self represented

Introduction

The appellant, Mr Radich, appeals a Magistrate’s decision made on review, pursuant to rule 742(6)(e) Uniform Civil Procedure Rules 1999 (“UCPR”), to affirm the decision of a costs assessor.

The appellant was retained as solicitor by the respondents, Ms Kenway and Mr Smith to act for them in respect of two separate proceedings brought against them as defendants in the District Court of Queensland.

This appeal originates from the respondents’ refusal to pay two bills of costs sent to them by the appellant for his services. The first bill was for work done in an appeal to the District Court in respect of a successful Gold Coast City Council prosecution against the respondents, and the second bill was for work done in a civil action in the District Court commenced against the respondents by a plaintiff, Mr Lucas.

Background

On 15 June 2010, the appellant issued the two bills to the respondents. The first bill in the amount of $19,005.37 related to the District Court appeal. The second bill in the amount of $1,308.00 related to the District Court civil action. The total of the two bills was $20,313.37. Against this amount, there was a credit of $4,229.39 for payments already made by the respondents, leaving the balance claimed of $16,083.98. The respondents did not pay the bills.

On 2 August 2010, the appellant commenced proceedings (as plaintiff) against the respondents (as defendants) in the Magistrates Court at Southport, claiming the unpaid $16,083.98.

On 4 October 2010, the Deputy Registrar of the Magistrates Court made an interlocutory order…

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 Radich v Kenway & Anor

Details

AGLC: Radich v Kenway & Anor [2014] QDC 60
Case: [2014] QDC 60
Decision Date: 28 March 2014

CaseChat Overview and Summary

The case of Radich v Kenway & Anor involves a dispute over the assessment of legal costs following a decision made by the Magistrates' Court of Queensland. The appellant, Radich, sought to appeal the decision of the Magistrate to affirm the findings of a costs assessor who had evaluated the itemised bills submitted by both parties. This case presents a significant issue regarding the procedural aspects of inferior courts and the manner in which they should assess legal costs in disputes involving solicitor-client relationships.

The primary legal issue before the court was whether the Magistrate had correctly exercised their discretion in affirming the costs assessor's decision. Specifically, the court needed to determine if there was any error in the assessment process or if the Magistrate had failed to adequately consider the arguments presented by the appellant regarding the reasonableness and necessity of the costs claimed. Additionally, the court had to examine the validity of the costs assessor's approach in evaluating the itemised bills and whether the decision was supported by the evidence presented.

In reaching its decision, the court meticulously reviewed the procedural steps taken by the Magistrate and the costs assessor. The court found that the Magistrate had properly exercised their discretion and had not erred in law or procedure. The court determined that the assessment of the costs was conducted in accordance with the relevant legal principles and that the costs assessor had appropriately evaluated the evidence. The court also found that the appellant's arguments regarding the costs were not sufficient to overturn the decision of the costs assessor or the Magistrate. Consequently, the appeal was dismissed, and the decision of the Magistrate was upheld.

The final orders of the court were that the appeal was dismissed, and the decision of the Magistrate to affirm the costs assessor's evaluation of the itemised bills was upheld. This outcome underscores the importance of adhering to established legal procedures when assessing costs in disputes between solicitors and their clients.

Orders

Orders of the court

The appeal is dismissed.

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:	Radich v Kenway & Anor [2014] QDC 60
PARTIES:	NICHOLAS RADICH (Appellant) v GILLIAN KENWAY and BRIAN SMITH (Respondents)
FILE NO:	D422/12
DIVISION:	Civil
PROCEEDING:	Appeal against order of Magistrate
ORIGINATING COURT:	Magistrates’ Court
DELIVERED ON:	28 March 2014
DELIVERED AT:	Southport
HEARING DATE:	30 May 2013
JUDGE:	McGinness DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	PROCEEDURE – INFERIOR COURTS – QUEENSLAND – MAGISTRATES’ COURTS – APPEAL AND NEW TRIAL – appeal of Magistrate’s decision to affirm the decision of a costs assessor COSTS – Solicitor and Client – assessment of itemised bills – Whether costs of costs assessment in excess of scope and nature of dispute - whether whole assessment ought to be set aside COSTS – Solicitor and Client – assessment of itemised bills – breach of natural justice – reassessment of items by magistrate – whether reassessment ought to be set aside Uniform Civil Procedure Rules 1999 (Qld) r 666, r 720, r 722, r 738, r 742, r 743G(2), r 743A, r 743I Legal Profession Act2007 (Qld) s 316, s 335(1) R v Butler [2010] 1 Qd R 325 Remely v O’Shea [2008] QCA 389 Southwell v Jackson [2012] QDC 65 University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481
COUNSEL:	A Morris Q.C. for the appellant G Kenway & B Smith, self represented
SOLICITORS:	Nicholas Radich, Solicitor, appellant G Kenway & B Smith, respondents, self represented