Rainmaker Investments Pty Ltd v Resolute Legal Pty Ltd
[2018] QCATA 77
•25 May 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Rainmaker Investments Pty Ltd v Resolute Legal Pty Ltd [2018] QCATA 77
PARTIES:
RAINMAKER INVESTMENTS PTY LTD
(applicant/appellant)v RESOLUTE LEGAL PTY LTD
(respondent)
APPLICATION NO:
APL304-17
ORIGINATING APPLICATION NO:
MCDO48-17 (Townsville)
MATTER TYPE:
Appeals
DELIVERED ON:
25 May 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
Application for leave to appeal refused.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL
– GENERAL PRINCIPLES – RIGHT OF APPEAL – where application for leave to appeal – where a solicitor took instructions to prepare a commercial lease – where lease not executed by lessee – where identity of party responsible for solicitor’s fees not admitted – where issues raised in application for leave to appeal and appeal not matters presented to the tribunal below for determination – whether the solicitor’s claim breached the requirements of the Legal Profession Act 2007 (Qld)Legal Profession Act 2007 (Qld), s 329(1), s 330, s 331,
s 335
Legal Profession Regulation 2017 (Qld), s 70Pickering v McArthur [2005] QCA 294
REPRESENTATION:
Applicant:
R Collins
Respondent:
M Spearman
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
The respondent firm of lawyers was engaged by Mr Ross Collins to prepare a lease of commercial premises at 4/57 Stagpole Street, West End in Townsville on 20 October 2015.
The instructions were given by email. The email was from Mr Collins of Collins Realty. The address in the email was 2/57 Stagpole Street, West End.
The email stated ‘Dear Michael, Could you please do the lease for Fujitsu. Regards, Ross.’
Mr Michael Spearman, a solicitor with Resolute Legal Pty Ltd, evidently at that stage the sole practitioner with the company, prepared the lease.
According to Mr Spearman he forwarded it to Mr Collins on or about
2 November 2015 and on Mr Collins’ instructions sent it to Fujitsu on
11 November 2015.
Fujitsu replied to the applicant firm that it needed to have a full legal review of the lease. It would advise of any changes required.
Mr Spearman sent reminders to Fujitsu enquiring about the progress of the legal review of the lease. Changes were requested and Mr Spearman says he made them and sent the lease with changes back to Fujitsu.
Despite reminders to Fujitsu, that company did not sign the lease and on 13 January 2017 Mr Spearman phoned Fujitsu only to be told that the company was dealing directly with Mr Collins.
The applicant firm sent a short form bill addressed to Rainmaker Investments Pty Ltd (‘Rainmaker’) for preparation of the lease in the sum of $1,457.05 on 18 December 2015. Rainmaker was apparently the lessor of the Fujitsu property, though neither party made clear to the tribunal during hearing whether it was the only named lessor in the lease. No copy of the lease was tendered in evidence. Mr Collins with his wife are the directors of Rainmaker.
In February and March 2016, the applicant sent reminders of the outstanding account. These were made out to Fujitsu at the direction of Mr Collins, but given to Mr Collins. The account remained unpaid however.
From April 2016 the reminders went back to naming Rainmaker as the party responsible for the account.
The applicant eventually brought proceedings in the tribunal to recover the amount of $1,457.05 from Rainmaker. The matter was heard on 24 August 2017 and judgment was given in favour of the solicitor in the amount claimed plus filing and service fees.
Rainmaker has filed an application seeking leave to appeal and appeal from that decision.
Given this is an appeal from a decision made in the tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
[1]QCAT Act, s142(3)(a)(i).
Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
[2]Pickering v McArthur [2005] QCA 294, [3].
Rainmaker lists many grounds of appeal, mostly concerning failure of the solicitor to provide disclosure pursuant to requirements of the Legal Profession Act 2007 (Qld) (‘the Act’). Additionally, it is claimed Rainmaker should not have been held responsible for the fees.
The following appear to be the grounds of appeal relied on:
Ground 1The tribunal erred in finding Rainmaker responsible for the fees where there was no evidence that Rainmaker gave instructions to prepare the lease;
Ground 2The tribunal erred in giving judgment for the respondent in circumstances where there was no cost agreement in existence as required by s 308 of the Act;
Ground 3The tribunal erred in giving judgment for the respondent in the amount of the claim because the costs claimed were never agreed upon or disclosed in a disclosure statement;
Ground 4The tribunal erred in giving judgment for the respondent in circumstances where there the respondent failed to provide any disclosure notice as required by s 315 of the Act;
Ground 5The tribunal erred in giving judgment for the respondent in circumstances where the costs claimed have never been assessed under Division 7 of the Act; and
Ground 6The tribunal erred in giving judgment for the respondent in circumstances where the respondent was not entitled to claim fees because of breach of the disclosure requirements of the Act pursuant to s 316(1) and s 316 (2) of the Act.
Ground 1
Mr Collins admitted he gave instructions as agent to the respondent firm to prepare the lease. He failed to make clear on whose behalf he acted as agent however. He was asked about that by the tribunal but he did not make clear answer.[3] He did not deny he acted as agent for Rainmaker at any stage, he simply claimed he was acting in the capacity of real estate agent rather than director of Rainmaker.
[3]Transcript 1-9, Lines 11-34.
Regardless of his occupation or directorship, if he acted as an agent for Rainmaker in any capacity, real estate agent or otherwise, and engaged the law firm to act for Rainmaker, then Rainmaker is responsible for the fees incurred in the work done by the law firm preparing the lease.
Mr Spearman, in replying to a question from the tribunal why Rainmaker was the only party being sued, said all his instructions were taken from Mr Collins who was a director of Rainmaker. In the application filed to initiate proceedings in the tribunal the solicitor asserted the lease was between Fujitsu and Rainmaker. It is unfortunate that a copy of the lease was not tendered.
Mr Spearman also referred at hearing to correspondence from Mr Collins on 27 January 2017 in which he said Fujitsu had moved to other premises and if Mr Spearman insisted on claiming fees he (Mr Collins) would ‘recommend to my partner that we counter-claim for our losses.’[4]
Mr Spearman understood from that that Mr Collins’ company Rainmaker was responsible for the fees.
[4]Transcript 1-9, Line 5.
According to Mr Spearman he received no instructions otherwise than from Mr Collins and Mr Collins was at all times acting as agent for Rainmaker.
There is no evidence that the initial bill for the work, which was issued to Rainmaker on 18 December 2015, was ever challenged on the basis that Rainmaker was the wrong party to pay. The respondent was asked to change the bill to name Fujitsu as responsible, but that was when it appeared the lease would be signed by Fujitsu. It would be standard in such commercial documents to provide that the lessee pay the lessor’s legal costs of preparation of the lease documents. But that lease did not eventuate.
It is clear the tribunal accepted that Rainmaker was the principal behind Mr Collins as agent who instructed the respondent firm to prepare the lease. There was sufficient evidence before the tribunal to come to that conclusion.
In respect of this ground of appeal the appellant has no reasonable prospects of success.
Grounds 2 to 6
These grounds may be conveniently dealt with together.
There was no cost agreement between the parties. At the hearing before the tribunal Mr Spearman agreed about that but said because the sum involved was less than $1,500 he was not obliged to send a cost agreement.
He was wrong on that point. The exclusion applying to costs under $1,500 is limited to the requirement of disclosure only. Disclosure about such things as the basis of charging and the estimate of the costs and the range of costs need not be made if the likely costs in the matter do not exceed $1,500.[5]
[5]S 311(1)(a). The reference in the Act at s 311(1)(a) is to $750, but by s 70 of the Legal Profession Regulation 2017 (Qld) that amount is increased to $1,500.
That does not mean however that the solicitor was unable to bring its claim in the tribunal.
Legal costs may be recoverable in the absence of a cost agreement or under an applicable scale of costs according to the reasonable value of the legal services provided.
The matter of the reasonableness of the charges was never put in issue in the proceeding before the tribunal and it cannot be raised now at this late stage. An appeal is not an opportunity for a second attempt to try new arguments that were not presented at the first hearing.
By s 329(1) of the Act a law practice must not start legal proceedings to recover legal costs until at least 30 days after the practice has given a bill to the person complying with s 330 and s 331.
Here, the bill was given on or 18 December 2015. The application in the tribunal was filed on 24 February 2017. That is far more than a month after the bill was given.
The requirements of s 330 and s 331 appear to have been met, but again, that factor was not raised at the hearing.
Finally, concerning the claim that judgment for the respondent should not have been given because the costs claimed have never been assessed under Division 7 of the Act, that is not an impediment to the respondent giving a bill then suing on it. By s 335 of the Act (Division 7) a client may apply for assessment of legal costs but that must be done within 12 months of the bill being given. Neither Rainmaker nor Mr Collins has ever applied to the respondent for an assessment of costs.
In respect of Grounds 2 to 6 the appellant has no reasonable prospects of success on appeal. There are no errors to be corrected in the decision of the tribunal below.
Application for leave to appeal is refused.
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