RAMON & Z LAW FIRM - [2012] FamCA 552

FAMILY COURT OF AUSTRALIA

RAMON & Z LAW FIRM

[2012] FamCA 552

FAMILY LAW - COSTS - Between solicitor and client - Notice Disputing Itemised Costs Account – Setting aside of costs assessment order – Leave to file and serve a Notice Disputing Itemised Costs Account out of time – Where the husband alleges negligence and/or incompetence by the solicitor – Discretion – Inadequate explanation for delay – Hardship to the husband – Prejudice to the solicitor – Where the Court should err on the side of caution and grant the indulgence to file out of time

Family Law Rules 2004 (Cth) – r 1.14; Schedule 6; r 6.01(1); r 6.03; r 6.15; r 6.16; r 6.24; r 6.39

McMahon and McMahon (1976) FLC 90-038
Prowse and Prowse (1995) FLC 92-557
Rigoli Lawyers & Arman [2009] FamCA 42

APPLICANT:

Mr Ramon

RESPONDENT:

Z Law Firm

FILE NUMBER:

PAC

2186

2009

DATE DELIVERED:

20 March 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

29 August 2011

REPRESENTATION:

COUNSEL FOR THE APPLICANT:

Ms Steggall

SOLICITOR FOR THE APPLICANT:

PMF Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Maiden, SC

SOLICITOR FOR THE RESPONDENT:

Kevin O'Kane & Co

Orders

That the costs assessment order by Registrar Tran dated 11 February 2011 be set aside.
That the husband have leave to file and serve a Notice Disputing Itemised Costs Account not later than 5 April 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ramon & Z Law Firm has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 2186 of 2009

Mr Ramon

Applicant

And

Z Law Firm

Respondent

REASONS FOR JUDGMENT

These proceedings involve a costs dispute between Mr Ramon and Z Law Firm. For convenience I shall refer to them as “the husband” and “the solicitor ”.
The issue for determination is whether the Court should set aside a costs assessment order and give leave to the husband to file and serve a Notice Disputing Itemised Costs Account in circumstances where he is out of time for doing so.
The solicitor acted for the husband in proceedings in this Court in relation to settlement of matrimonial property.
The husband signed a costs agreement on 24 July 2006. This contained provisions setting out the basis on which the husband would be charged for the provision of legal professional services. The solicitor gave the husband a costs notice as required by rules 6.03 and 6.16 of Schedule 6 of the Family Law Rules 2004 (“the Rules”).
The proceedings were heard by Coleman J over four days during September 2007 and March 2008. The solicitor instructed counsel for the hearing. Two expert witnesses were also involved. Judgment was handed down on 12 May 2008 and orders were made.
Shortly after receiving the judgment, the husband instructed the solicitor to represent him in relation to an appeal that…

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.

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Details

Case: [2012] FamCA 552
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered a dispute between Mr Ramon, referred to as the husband, and Z Law Firm, referred to as the solicitor, concerning legal costs. The husband sought to set aside a costs assessment order and obtain leave to file a Notice Disputing Itemised Costs Account out of time. The solicitor had acted for the husband in matrimonial property proceedings, including an appeal.

The central legal issue before the Court was whether to exercise its discretion to grant the husband leave to file his notice disputing the itemised costs account beyond the prescribed 28-day period. This required the Court to consider the adequacy of the husband's explanation for the delay, the potential hardship to the husband if leave were refused, and the prejudice to the solicitor if leave were granted. The Court also had to determine whether the husband's allegations of negligence and incompetence were matters to be ventilated in the costs assessment process or in separate proceedings.

The Court acknowledged that the husband's explanation for the delay, stating he was uncertain what to do with the account and later that he was unaware of his right to dispute it, was not entirely convincing given the clear instructions on the account itself. However, the Court found that the husband's concerns about potential discrepancies between payments made by a finance company and the solicitor's invoices, and the possibility that some costs had already been paid, raised a significant issue that could cause hardship if not properly assessed. The Court noted that the solicitor had not provided sufficient evidence to definitively dismiss these concerns. While acknowledging the prejudice to the solicitor in facing a delayed costs assessment, the Court ultimately decided to err on the side of caution and grant the indulgence sought by the husband. The Court reiterated that allegations of professional negligence were not to be determined within the costs assessment process but in separate proceedings.

The Court ordered that the costs assessment order made by Registrar Tran on 11 February 2011 be set aside. The husband was granted leave to file and serve a Notice Disputing Itemised Costs Account no later than 5 April 2012.

Orders