Seymour v WJ Markwell & Associates - [2023] QDC 112

DISTRICT COURT OF QUEENSLAND

CITATION:

Seymour & Anor v WJ Markwell & Associates [2023] QDC 112

PARTIES:

ANNE LENIA SEYMOUR and
MICHAEL SEYMOUR

(applicants)

v
WJ MARKWELL & ASSOCIATES PTY LTD
ACN 131 977 761

(first respondent)

FILE NO/S:

BD929/23

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

21 June 2023

DELIVERED AT:

Townsville

HEARING DATE:

2 June 2023

JUDGES:

Jarro DCJ

ORDER:

1. All of the legal costs and disbursements the applicants were charged by the first respondent be assessed in accordance with Division 7, Part 3.4 of the Legal Profession Act 2007.

2. Paul William Cameron be appointed to conduct the assessment.

3. Unless otherwise ordered, the respondent is to pay the applicants’ costs of the application to be agreed or assessed.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – TAXATION AND ASSESSMENT OF COSTS – APPLICATIONS – where the applicants applied pursuant to s 335(1) of the Legal Profession Act 2007 for an assessment of costs charged in a number of bills delivered to them by the first respondent for proceedings – where s 335(5) of the Act requires that an application for assessment of costs be made within 12 months after the final bill was given to the client – where the first respondent contends that the applicant is out of time to seek an assessment of those costs – whether, if the applicant is out of time, the court should exercise the discretion conferred on it by s 335(6) of the Act in deciding to deal with the application for assessment of costs.

Legal Profession Act 2007 (Qld) s 333, s 335, Part 3.4

Challen v Golder Associates Pty Ltd [2012] QCA 307
Cupo & Anor v Anderssen Lawyers [2015] QSC 202

Lessbrook Pty Ltd (in liq) v Whap [2014] QCA 63

Mishrea v Bennett & Philp Pty Ltd (2021) 8 QR 306
Stevens v HopgoodGanim Lawyers (a Firm) [2023] QDC 96

COUNSEL:

M Campbell for the respondent

SOLICITORS:

Creevey Horrell Lawyers for the applicants
Maven Lawyers for the respondent.
Walt Allan for barrister Grant Allan.

The applicants seek an assessment of all legal costs charged by the first respondent in accordance with Division 7, Part 3.4 of the Legal Profession Act 2007 (“the Act”). They also seek the appointment of Glenn Walter as cost assessor for the assessment.
One of the primary issues for determination relates to whether the application has been brought within the necessary 12 month time period prescribed by the legislation, otherwise leave would need to be granted to extend time. It is therefore necessary to consider whether the bills issued by the first respondent (which includes the disbursements) were “interim bills” or “final bills”.
Background Facts
What follows is largely uncontested between the parties. Relevantly, the applicants instructed the respondent to act on their behalf as defendants in District Court proceedings for an unpaid debt concerning a bore the applicants alleged had not been drilled correctly on their property by the plaintiff in those proceedings. Those…

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: [2023] QDC 112
Decision Date: 21 June 2023

CaseChat Overview and Summary

The matter of Seymour v WJ Markwell & Associates was heard in the District Court of New South Wales and concerned the assessment of costs charged by WJ Markwell & Associates to Seymour in relation to legal proceedings. Seymour sought an assessment of costs pursuant to s 335(1) of the Legal Profession Act 2007, but WJ Markwell & Associates argued that Seymour was out of time in making the application under s 335(5) of the Act, which requires the application to be made within 12 months after the final bill was given to the client. The central issue was whether the respondent's invoices were "interim bills" or "final bills" to determine if the application was made within the requisite time frame, and if not, whether the court should exercise its discretion under s 335(6) of the Act.

The court examined the nature of the invoices issued by WJ Markwell & Associates to Seymour. It was established that between 15 June 2020 and 1 August 2022, WJ Markwell & Associates issued 14 invoices totalling $241,835.38, while the barrister, Mr Grant Allan, issued 22 invoices totalling $443,732.05. The court needed to determine whether these invoices were interim or final bills to ascertain if Seymour's application was within the 12-month time limit. The respondent argued that if Seymour was out of time, the court should decline to exercise its discretion to entertain the application. Seymour contended that the bills were interim, thereby keeping the application within the prescribed time frame.

In deciding the matter, the court found that the bills issued by WJ Markwell & Associates were indeed final bills, thereby making Seymour's application out of time. However, the court considered whether it should exercise its discretion under s 335(6) of the Act to entertain the application despite the delay. The court determined that it was appropriate to appoint Mr Cameron as the assessor and saw no reason to prevent his appointment if both the respondent and Mr Allan agreed. The court concluded that all legal costs and disbursements charged by WJ Markwell & Associates should be assessed in accordance with Division 7, Part 3.4 of the Legal Profession Act 2007 and appointed Mr Paul William Cameron as the costs assessor.

The final orders of the court mandated that all legal costs and disbursements charged by the first respondent be assessed according to Division 7, Part 3.4 of the Legal Profession Act 2007. Additionally, Mr Paul William Cameron was appointed to conduct the assessment. Unless contrary submissions were received within 14 days, the respondent was ordered to pay the applicants' costs of the application on the standard basis.

Orders

Orders of the court

1. All of the legal costs and disbursements the applicants were charged by the first respondent be assessed in accordance with Division 7, Part 3.4 of the Legal Profession Act 2007.

2. Paul William Cameron be appointed to conduct the assessment.

3. Unless otherwise ordered, the respondent is to pay the applicants’ costs of the application to be agreed or assessed.

Background

Background to the litigation

One of the primary issues for determination relates to whether the application has been brought within the necessary 12 month time period prescribed by the legislation, otherwise leave would need to be granted to extend time. It is therefore necessary to consider whether the bills issued by the first respondent (which includes the disbursements) were “interim bills” or “final bills”.Background Facts What follows is largely uncontested between the parties. Relevantly, the applicants instructed the respondent to act on their behalf as defendants in District Court proceedings for an unpaid debt concerning a bore the applicants alleged had not been drilled correctly on their property by the plaintiff in those proceedings. Those proceedings required the respondent to issue its cost agreement terms to the applicants. The respondent did so on 14 May 2020. It is also issued three “disclosure notices” and “item schedules” on or around 14 May 2020, 26 July 2021 and 16 December 2021. The costs agreements terms were accepted by the applicants on 15 May 2020. Each of the three costs disclosures described the work that the respondent agreed to perform in a number of “stages”. Relevantly, the work to be performed under the first and third cost disclosures included preparation for, and attendance at, the trial. The second cost disclosure concerned work to be performed in respect of a summary judgment application brought by the applicants. It was a term of the retainer that the applicants pay the respondent in respect of barrister’s fees. The barrister involved in the proceedings was Mr Grant Allan.[1] Mr Allan, through his solicitor, appeared at the hearing of this application, given he has an interest in the matter as it is possible for him to be subject to any orders made by a costs assessor appointed in this matter.[2] [1]Mr Grant Allan was initially a party to the originating application. He was named as the second respondent. However a previous order was made by consent such that the application against him was dismissed.[2]See ss 339(2)(c) and 342(3) of the Act. The respondent engaged Mr Allan in or around May 2020. Mr Allan issued invoices to the respondent on an almost monthly basis from June 2020 to March 2022. Each of Mr Allan’s invoices were:(a)sent by email by the respondent to the applicants;(b)not referenced in the respondent’s invoices; and,(c)paid by the respondent using funds deposited into its trust account by the applicants. The proceedings involving the applicants as defendants and the plaintiff were heard by Porter KC DCJ over four days in March 2022. On 16 June 2022, judgment was delivered in favour of the plaintiff to the extent of $335,896, together with interest and costs. An appeal has been heard with respect to the primary decision, but judgment has not been delivered. Relevantly, between 15 June 2020 and 1 August 2022, the respondent issued 14 invoices to the applicants totalling $241,835.38 (inclusive of GST). Between 9 June 2020 and 31 March 2022, barrister Mr Grant Allan issued 22 invoices to the applicants totalling $443,732.05 (inclusive of GST). Therefore, the total professional fees charged to the applicants was $685,567.63.Were the respondent’s invoices interim or final bills?

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is appropriate that Mr Cameron be appointed as assessor and there is no good reason why, where the respondent and Mr Allan agree to his appointment, that he should not be appointed.Conclusion and Orders The orders are as follows:(a)All of the legal costs and disbursements that were charged by the respondent be assessed in accordance with Division 7, Part 3.4 of the Legal Profession Act 2007.(b)Mr Paul William Cameron, costs assessor, be appointed to conduct the assessment. At the hearing of the application, I heard submissions regarding costs be sought subject to the outcome. The applicants sought, if successful, indemnity costs. I am not satisfied indemnity costs are justified because there was, in my view, nothing untoward or unreasonable in the conduct of the respondent in opposing the application so as to justify indemnity costs. The arguments ventilated by the respondent were entirely reasonable. I therefore propose that, subject to any contrary submissions, costs follow the events such that the respondent be ordered to pay the applicants costs on the standard basis. In the event contrary submissions are not received within 14 days of these reasons, that will be the costs order.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Seymour & Anor v WJ Markwell & Associates [2023] QDC 112
PARTIES:	ANNE LENIA SEYMOUR and MICHAEL SEYMOUR (applicants) v WJ MARKWELL & ASSOCIATES PTY LTD ACN 131 977 761 (first respondent)
FILE NO/S:	BD929/23
DIVISION:	Civil
PROCEEDING:	Originating Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	21 June 2023
DELIVERED AT:	Townsville
HEARING DATE:	2 June 2023
JUDGES:	Jarro DCJ
ORDER:	1. All of the legal costs and disbursements the applicants were charged by the first respondent be assessed in accordance with Division 7, Part 3.4 of the *Legal Profession Act 2007. 2. Paul William Cameron be appointed to conduct the assessment.* 3. Unless otherwise ordered, the respondent is to pay the applicants’ costs of the application to be agreed or assessed.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – TAXATION AND ASSESSMENT OF COSTS – APPLICATIONS – where the applicants applied pursuant to s 335(1) of the Legal Profession Act 2007 for an assessment of costs charged in a number of bills delivered to them by the first respondent for proceedings – where s 335(5) of the Act requires that an application for assessment of costs be made within 12 months after the final bill was given to the client – where the first respondent contends that the applicant is out of time to seek an assessment of those costs – whether, if the applicant is out of time, the court should exercise the discretion conferred on it by s 335(6) of the Act in deciding to deal with the application for assessment of costs.
Legal Profession Act 2007 (Qld) s 333, s 335, Part 3.4
Challen v Golder Associates Pty Ltd [2012] QCA 307 Cupo & Anor v Anderssen Lawyers [2015] QSC 202 Lessbrook Pty Ltd (in liq) v Whap [2014] QCA 63 Mishrea v Bennett & Philp Pty Ltd (2021) 8 QR 306 Stevens v HopgoodGanim Lawyers (a Firm) [2023] QDC 96
COUNSEL:	M Campbell for the respondent
SOLICITORS:	Creevey Horrell Lawyers for the applicants Maven Lawyers for the respondent. Walt Allan for barrister Grant Allan.