SMITH -v- LEWIS BLYTH & HOOPER [2013] WASC 408
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 408 | |
| Case No: | CIV:2390/2011 | 12 MARCH 2013 | |
| Coram: | JENKINS J | 14/11/13 | |
| 49 | Judgment Part: | 1 of 1 | |
| Result: | Application for declaration that South Perth costs agreement is unreasonable, refused Probate Action costs agreement cancelled Family Trust Action costs agreement cancelled | ||
| B | |||
| PDF Version |
| Parties: | ROBERT JOHN SMITH LEWIS BLYTH & HOOPER |
Catchwords: | Solicitors' costs agreement Whether unreasonable Discretionary considerations Delay in bringing application for review Failure of solicitor to give estimate of costs Flat rate time unit billing |
Legislation: | Legal Practice Act 2003 (WA), s 221, s 222, s 232, s 235 Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 Legal Practitioners Act 1893 (WA), s 59 Legal Profession Act 2008 (WA), s 598, s 616 Limitation Act 2005 (WA) |
Case References: | Alman v Macdonald Rudder (A Firm) [2001] WASCA 375 Alman v Macdonald Rudder [2001] WASC 65 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 Brown v Talbot & Olivier (1993) 9 WAR 70 Computer Accounting & Tax Pty Ltd v Bowen Buchbinder Vilensky [2009] WASC 171 Harrison v Hocking [2000] WASC 188 Jovetic v Stoddart & Co (1992) 7 WAR 208 McNamara Business & Property Law v Kasmeridis [2007] SASC 90; (2007) 97 SASR 129 New South Wales Crime Commission v Fleming (1991) 24 NSWLR 116 Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103 Stoddart & Co v Jovetic (1993) 8 WAR 420 Webb v Malcolm J Bateman & Co (Unreported, WASC, Library No 6305, 27 May 1986) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- CIV 3315 of 2011
CIV 3316 of 2011
- Plaintiff
AND
LEWIS BLYTH & HOOPER
Defendant
Catchwords:
Solicitors' costs agreement - Whether unreasonable - Discretionary considerations - Delay in bringing application for review - Failure of solicitor to give estimate of costs - Flat rate time unit billing
Legislation:
Legal Practice Act 2003 (WA), s 221, s 222, s 232, s 235
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008
Legal Practitioners Act 1893 (WA), s 59
Legal Profession Act 2008 (WA), s 598, s 616
Limitation Act 2005 (WA)
Result:
Application for declaration that South Perth costs agreement is unreasonable, refused
Probate Action costs agreement cancelled
Family Trust Action costs agreement cancelled
Category: B
Representation:
Counsel:
Plaintiff : Mr D J Garnsworthy
Defendant : Mr S V Forbes
Amicus Curiae : Mr K J Mony De Kerloy & Mr B W Ashdown
Solicitors:
Plaintiff : George Papamihail
Defendant : Lewis Blyth & Hooper
Amicus Curiae : The Law Society of…
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Details
- AGLC
- SMITH -v- LEWIS BLYTH & HOOPER [2013] WASC 408
- Case
- [2013] WASC 408
- Decision Date
CaseChat Overview and Summary
In Smith v Lewis Blyth & Hooper, the court was tasked with determining the reasonableness of a costs agreement between the plaintiff, Smith, and the defendant's solicitors, Lewis Blyth & Hooper. Smith sought a declaration that a South Perth costs agreement was unreasonable and cancellation of two other costs agreements related to probate and family trust actions. The court was required to consider various factors, including the delay in bringing the application for review, the failure of the solicitor to provide an estimate of costs, and the use of flat rate time unit billing.
The primary legal issues the court addressed were whether the South Perth costs agreement was unreasonable and whether the other two costs agreements should be cancelled. The court considered the discretionary considerations relevant to the assessment of the reasonableness of the costs agreement, including the delay in bringing the application and the absence of an estimate of costs from the solicitors. Additionally, the court examined the appropriateness of the flat rate time unit billing method used in the agreements.
The court found that the delay in bringing the application and the absence of an estimate of costs were significant factors. However, the court held that these factors did not, on their own, render the costs agreement unreasonable. The court also noted that the flat rate time unit billing method was not inherently unreasonable. As a result, the application for a declaration that the South Perth costs agreement was unreasonable was refused. Furthermore, the court cancelled the probate action costs agreement and the family trust action costs agreement due to the delay in bringing the application and the lack of an estimate of costs.
In summary, the court refused the application for a declaration that the South Perth costs agreement was unreasonable. However, it cancelled the probate action costs agreement and the family trust action costs agreement. The court's decision highlights the importance of timely applications for costs review and the provision of cost estimates by solicitors to clients.
The primary legal issues the court addressed were whether the South Perth costs agreement was unreasonable and whether the other two costs agreements should be cancelled. The court considered the discretionary considerations relevant to the assessment of the reasonableness of the costs agreement, including the delay in bringing the application and the absence of an estimate of costs from the solicitors. Additionally, the court examined the appropriateness of the flat rate time unit billing method used in the agreements.
The court found that the delay in bringing the application and the absence of an estimate of costs were significant factors. However, the court held that these factors did not, on their own, render the costs agreement unreasonable. The court also noted that the flat rate time unit billing method was not inherently unreasonable. As a result, the application for a declaration that the South Perth costs agreement was unreasonable was refused. Furthermore, the court cancelled the probate action costs agreement and the family trust action costs agreement due to the delay in bringing the application and the lack of an estimate of costs.
In summary, the court refused the application for a declaration that the South Perth costs agreement was unreasonable. However, it cancelled the probate action costs agreement and the family trust action costs agreement. The court's decision highlights the importance of timely applications for costs review and the provision of cost estimates by solicitors to clients.
Orders
Orders of the court
Application for declaration that South Perth costs agreement is unreasonable, refused
Probate Action costs agreement cancelled
Family Trust Action costs agreement cancelled
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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