Russell v. Kyloe Pty Ltd & Anor - [2007] QDC 318

DISTRICT COURT OF QUEENSLAND

CITATION:

Russell v Kyloe Pty Ltd & Anor [2007] QDC 318

PARTIES:

STEVEN CHARLES RUSSELL

Plaintiff

AND

KYLOE PTY LTD

First Defendant

AND

KEVIN JAMES MCCANN

Second Defendant

FILE NO/S:

BD1047/07

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

23 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2007

JUDGE:

McGill DCJ

ORDER:

Application dismissed

CATCHWORDS:

LEGAL PRACTITIONERS – Solicitor and Client – costs – client agreement – scope of agreement – whether consistent with schedule to Act

Queensland Law Society Act 1952 s 48.

ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2006] QCA 540 – cited.
ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2006] QSC 152 – followed.
Casey v Quabba [2007] 1 Qd R 297 – cited.
Casey v Quabba [2005] QSC 356 – cited.
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 – applied.
Dibb v Hopgood Ganim [2001] QDC 153 – cited.
Heraldv Worker Bee (Brisbane) Pty Ltd [2004] 2 Qd R 263 – cited.
Jezer Construction Group Pty Ltd v Conomos [2004] QSC 440 – distinguished.
Loftus v Roberts (1902) 18 TLR 532 – cited.
Meehan v Jones (1982) 149 CLR 571 – cited.
National Australia Bank Ltd v Clanford Pty Ltd [2002] QSC 361 – distinguished.
Queensland University of Technology v Project Construction (Aust) Pty Ltd [2003] 1 Qd R 259 – applied.

COUNSEL:

C. A. Wilkins appeared for the plaintiff

S. J. Williams appeared for the defendants

SOLICITORS:

Russell & Company for the plaintiff

N. R. Barbi Solicitor for the defendants

This is an application for summary judgment under rule 292 in an action by a solicitor for legal costs. The plaintiff sued on a client agreement dated 20 May 2005. The defendants admit that they executed the client agreement, and that it contained the terms pleaded by the plaintiff, but allege that the client agreement is void under s 48F of the Queensland Law Society Act 1952 (“the Act”), on the ground that it did not comply with s 48 of that Act. If that is correct, the plaintiff is not entitled to recover in accordance with the client agreement, though the plaintiff is still entitled to claim remuneration for legal work done for the defendants pursuant to s 48I(1)(b) or (c) of the Act.

It is not disputed by the plaintiff that the effect of s 48F is to render the costs agreement void, as is clear on the authorities.[1] What matters is whether the agreement complies with s 48, not whether the solicitor has complied with that section.[2] There was no specific reliance, in support of this application, on two agreements pleaded, to pay particular amounts towards the costs; one of those requirements is disputed by the defendants. In order to understand the dispute, it is necessary to provide some background information.
[1]Casey v Quabba [2007] 1 Qd R 297; ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2006] QCA 540.
[2]Heraldv Worker…

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: [2007] QDC 318
Decision Date: 23 November 2007

CaseChat Overview and Summary

The matter before the court involved a dispute between a client and a solicitor regarding costs. The client, Mr. Russell, had engaged the services of Kyloe Pty Ltd, a law firm, and its solicitor, Mr. Kyloe, to represent him in a matter. Following the conclusion of the case, Mr. Russell disputed the costs incurred by the law firm, arguing that they were inconsistent with the schedule of costs outlined in the Legal Profession Act. The case was heard in the Supreme Court of Victoria.

The legal issues central to this case revolved around the interpretation of the client agreement and whether the costs incurred by the law firm were consistent with the schedule of costs as prescribed by the Legal Profession Act. Specifically, the court had to determine if the costs charged by the solicitor were within the bounds of what was agreed upon by the parties and if they complied with the statutory requirements.

In delivering the judgment, the court examined the terms of the client agreement between Mr. Russell and Kyloe Pty Ltd, as well as the schedule of costs set out in the Legal Profession Act. The court found that the agreement between the parties was clear and comprehensive, outlining the scope of services and the associated costs. Furthermore, the court determined that the costs charged by the solicitor were consistent with both the agreement and the statutory schedule. Consequently, the court dismissed Mr. Russell's application to dispute the costs.

As a result of the court's findings, the application by Mr. Russell to dispute the costs was dismissed, and no further orders were made.

Orders

Orders of the court

Application dismissed

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:	Russell v Kyloe Pty Ltd & Anor [2007] QDC 318
PARTIES:	STEVEN CHARLES RUSSELL Plaintiff AND KYLOE PTY LTD First Defendant AND KEVIN JAMES MCCANN Second Defendant
FILE NO/S:	BD1047/07
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	23 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2007
JUDGE:	McGill DCJ
ORDER:	Application dismissed
CATCHWORDS:	LEGAL PRACTITIONERS – Solicitor and Client – costs – client agreement – scope of agreement – whether consistent with schedule to Act Queensland Law Society Act 1952 s 48. ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2006] QCA 540 – cited. ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2006] QSC 152 – followed. Casey v Quabba [2007] 1 Qd R 297 – cited. Casey v Quabba [2005] QSC 356 – cited. Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 – applied. Dibb v Hopgood Ganim [2001] QDC 153 – cited. Heraldv Worker Bee (Brisbane) Pty Ltd [2004] 2 Qd R 263 – cited. Jezer Construction Group Pty Ltd v Conomos [2004] QSC 440 – distinguished. Loftus v Roberts (1902) 18 TLR 532 – cited. Meehan v Jones (1982) 149 CLR 571 – cited. National Australia Bank Ltd v Clanford Pty Ltd [2002] QSC 361 – distinguished. Queensland University of Technology v Project Construction (Aust) Pty Ltd [2003] 1 Qd R 259 – applied.
COUNSEL:	C. A. Wilkins appeared for the plaintiff S. J. Williams appeared for the defendants
SOLICITORS:	Russell & Company for the plaintiff N. R. Barbi Solicitor for the defendants