Simons v Dowd Lawyers Pty Ltd (No 4) - [2021] QCAT 134

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Simons & Ors v Dowd Lawyers Pty Ltd (No 4) [2021] QCAT 134

PARTIES: ADAM MARK SIMONS

(first applicant)

FIX CONSULTANTS PTY LTD

(second applicant)

SPIEL GROUP PTY LTD

(third applicant)

v

DOWD LAWYERS PTY LTD

(respondent)

APPLICATION NO/S:

OCL047-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

21 May 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons QC, Judicial Member

ORDERS:
1.   The application of the applicants to have the costs agreement dated 28 September 2017 set aside is dismissed.

2.   The respondent is to file submissions and any other material on which it relies in support of its counter-application and serve them on the first and second applicants by 4:00pm on 4 June 2021.

3.   The first and second applicants are to file submissions and any other material on which they rely in relation to the counter-application and serve them on the respondent by 4:00pm on 18 June 2021.

4.   The respondent is to file any submissions and other material in reply and serve them on the first and second applicants by 4:00pm on 25 June 2021.

5. The submissions are also to deal with the question whether the counter-application is to be determined entirely on the basis of documents under s 32 of the QCAT Act.

6.   Parties serving submissions and material under these directions are at the same time to serve a copy on the liquidator of Spiel Group Pty Ltd.

7.   The respondent is to serve a copy of these reasons on the liquidator of Spiel Group Pty Ltd when it serves its first set of submissions.

8.   Parties serving submissions and material under these directions may do so by email to the last known email address of another party or entity.

9.   The hearing of the counter-application is adjourned to a date to be fixed.

10.   There is liberty to apply.

CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – REASONABLENESS – where respondent provided legal services to applicants – where fees exceeded initial costs estimate provided to applicants – where applicants claim respondent failed to disclose substantial change in amount of fees charged – where applicants applied under s 328 of the Legal Profession Act 2007 (Qld) (“LP Act”) to set aside three costs agreements with the respondent – where it was declared only one agreement recorded costs agreement – whether costs agreement should be set aside – whether costs agreement fair or reasonable – whether respondent complied with disclosure obligations under s 315 of the LP Act – whether failure to make further estimate of costs meant agreement was not fair or reasonable – whether provision of range of hourly rates meant agreement not fair or reasonable – whether time-based charging system not fair or reasonable – whether Tribunal should make orders for costs and assessment of costs

Legal Practitioners Act 1981 (SA), s 42

Legal Profession Act 2007 (Qld), s 308, s 315,…

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: [2021] QCAT 134
Decision Date

CaseChat Overview and Summary

This case concerns an application by the applicants to have three costs agreements set aside, under the Legal Profession Act 2007 (Qld). The first agreement is dated 28 September 2017 between the first applicant and the respondent. The second and third agreements were purportedly entered into between the respondent and the first and second applicants, and the first and third applicants respectively, on 5 and 12 February 2018. A declaration was made under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) that the second and third of these did not record any agreement. The only agreement to be considered in these reasons is the agreement dated 28 September 2017. The third applicant, Spiel Group, has been in liquidation since March 2020 and has not participated in these proceedings.The applicants’ application was determined entirely on the basis of documents, without the parties, their representatives, or witnesses appearing at a hearing, under s 32 of the QCAT Act. The ground for the application, so far as it relates to the first costs agreement, is that the respondent failed to disclose a substantial change to anything included in the initial costs disclosure, as required by s 315 of the LP Act. The respondent contended that the fact that fees exceeded the estimate in a costs agreement does not provide a sufficient basis to set aside the agreement. In its written submissions, the respondent contended that the failure to make the additional disclosure required by s 315 of the LP Act did not mean that the costs agreement was not fair or reasonable. The question is to be determined by reference to the costs agreement as opposed to some other aspect of the relationship between the client and the solicitor, and at the time the costs agreement was struck. The nature of the client is a relevant consideration. The onus of proof falls on the applicants, and it has not been discharged.In the result, the application of the applicants to have the costs agreement dated 28 September 2017 set aside is dismissed. The respondent is to file submissions and any other material on which it relies in support of its counter-application and serve them on the first and second applicants by 4:00pm on 4 June 2021. The first and second applicants are to file submissions and any other material on which they rely in relation to the counter-application and serve them on the respondent by 4:00pm on 18 June 2021. The respondent is to file any submissions and other material in reply and serve them on the first and second applicants by 4:00pm on 25 June 2021. The submissions are also to deal with the question whether the counter-application is to be determined entirely on the basis of documents under s 32 of the QCAT Act. Parties serving submissions and material under these directions are at the same time to serve a copy on the liquidator of Spiel Group Pty Ltd. The respondent is to serve a copy of these reasons on the liquidator of Spiel Group Pty Ltd when it serves its first set of submissions. Parties serving submissions and material under these directions may do so by email to the last known email address of another party or entity. The hearing of the counter-application is adjourned to a date to be fixed. There is liberty to apply.

Orders