Setschnjak v Derek Geddes Pty Ltd - [2017] QCAT 9

CITATION:

Setschnjak v Derek Geddes Pty Ltd [2017] QCAT 009

PARTIES:	Nicole Helen Setschnjak Mitchell Peirre Setschnjak (Applicant/appellant)
v
Derek Geddes Pty Ltd t/as Derek Geddes Lawyers (Respondent)

APPLICATION NUMBER:

OCR073-14

MATTER TYPE:	Occupational regulation matters
HEARING DATE:	28 April 2016

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President

DELIVERED ON:

18 January 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The costs agreements be set aside pursuant to section 328 Legal Profession Act 2007 (Qld).

2. There be an assessment of the costs payable by Nicole Setschnjak to Derek and Dwyer pursuant to the retainment agreement dated 8 October 2009.

3. There be an assessment of the costs payable by Mitchell Setschnjak and Nicole Setschnjak to Derek Geddes Lawyers pursuant to the retainment agreement dated 10 April 2010.

4. The assessments referred to in order 1 and 2 be undertaken on the Supreme Court scale of costs as it applied at the relevant times.

5. The costs so assessed be paid within 30 days from the day of the assessment.

6. The applicants file any submissions on which they wish to rely in relation to the question of costs in these proceedings, by:

4:00pm on 17 February 2017.

7. The respondents file any submissions on which they wish to rely in relation to the question of costs in these proceedings, by:

4:00pm on 17 March 2017.

8. Unless either party requests an oral hearing, the matter of costs in these proceedings will be determined on the papers after 20 March 2017.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – OTHER MATTERS – where the applicants applied to have two costs agreements entered into with the respondent set aside – where the applicants submitted that the respondent exercised undue influence and made misrepresentations as to the costs agreements – where the applicants submitted in the alternative that proper disclosure was not made in relation to legal fees – where a costs agreement can be set aside if not fair and reasonable pursuant to section 328 of the Legal Profession Act 2007 (Qld) – whether adequate disclosure was made – whether the costs agreements should be set aside

Legal Profession Act 2007 (Qld) ss 3(a), 308, 310(1), 315, 316, 319, 322, 328

Connollys Lawyers Pty Ltd v David William Davis [2013] QCA 231

APPEARANCES:

APPLICANT:

Strangman, B. instructed by Delaney Laywers on behalf of the applicants

RESPONDENT:

Moon, A.J. instructed by DGM Lawyers on behalf of the respondents

REASONS FOR DECISION

By amended application filed pursuant to directions of the Tribunal, orders are sought that the following costs agreements be set aside pursuant to section 328(1) of the Legal Profession Act 2007 (Qld) (‘LPA’):
a)Costs agreement entered into between Nicole Setschnjak and Derek and Dwyer Lawyers on 20 October 2009; and
b)Costs agreement between Nicole Helen Setschinjak and Mitchell Peirre Setschnjak and Derek Geddes Pty Ltd trading as Derek Geddes lawyers on 9 April 2010.
The applicants request that the two costs to be set aside on…

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: [2017] QCAT 9
Decision Date: 18 January 2017

CaseChat Overview and Summary

Setschnjak v Derek Geddes Pty Ltd involved a dispute over the validity of two costs agreements between the Setschnjak family and Derek Geddes, a legal practitioner. The applicants sought to have the agreements set aside, arguing that they were not fair and reasonable under section 328 of the Legal Profession Act 2007 (Qld), and that there was undue influence and misrepresentation in the formation of the agreements. They also argued that proper disclosure was not made in relation to the legal fees. The matter was heard by the Queensland Supreme Court.

The primary legal issue before the court was whether the two costs agreements between the applicants and Derek Geddes were fair and reasonable, and thus valid under section 328 of the Legal Profession Act 2007 (Qld). The court also needed to determine whether there was undue influence or misrepresentation in the formation of the agreements and whether proper disclosure was made regarding the legal fees. The court considered the principles of fairness and reasonableness in the context of costs agreements and whether there was an adequate disclosure of the costs to the applicants.

The court found that the costs agreements were not fair and reasonable, and thus were set aside pursuant to section 328 of the Legal Profession Act 2007 (Qld). The court concluded that there was inadequate disclosure regarding the legal fees, and that the applicants were not fully informed about the costs they would incur. The court ordered an assessment of the costs payable by the applicants to Derek Geddes, to be undertaken on the Supreme Court scale of costs as it applied at the relevant times. The court also directed that the costs be paid within 30 days of the assessment and set deadlines for the parties to file submissions on the costs in these proceedings.

The court's final orders included setting aside the costs agreements, assessing the costs payable by the applicants, and setting deadlines for the parties to file submissions on the costs in these proceedings. The matter of costs in these proceedings was to be determined on the papers unless either party requested an oral hearing. The court's decision highlights the importance of fair and reasonable costs agreements and the need for adequate disclosure of legal fees to clients.

Orders

Orders of the court

1. The costs agreements be set aside pursuant to section 328 Legal Profession Act 2007 (Qld).

2. There be an assessment of the costs payable by Nicole Setschnjak to Derek and Dwyer pursuant to the retainment agreement dated 8 October 2009.

3. There be an assessment of the costs payable by Mitchell Setschnjak and Nicole Setschnjak to Derek Geddes Lawyers pursuant to the retainment agreement dated 10 April 2010.

4. The assessments referred to in order 1 and 2 be undertaken on the Supreme Court scale of costs as it applied at the relevant times.

5. The costs so assessed be paid within 30 days from the day of the assessment.

6. The applicants file any submissions on which they wish to rely in relation to the question of costs in these proceedings, by:

4:00pm on 17 February 2017.

7. The respondents file any submissions on which they wish to rely in relation to the question of costs in these proceedings, by:

4:00pm on 17 March 2017.

8. Unless either party requests an oral hearing, the matter of costs in these proceedings will be determined on the papers after 20 March 2017.

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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