Stewart v Stephens & Tozer Solicitors - [2022] QCAT 182

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Stewart v Stephens & Tozer Solicitors [2022] QCAT 182

PARTIES:

LUCY XIUMEI LIU STEWART

(applicant)

v

STEPHENS & TOZER SOLICITORS

(respondent)

APPLICATION NO/S:

OCL030-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

8 June 2022

HEARING DATE:

4 April 2022

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons QC, Judicial Member

ORDERS:

1. The costs agreement dated 23 April 2020 is set aside.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – REASONABLENESS – where the applicant alleged the legal costs agreement was not fair and reasonable – whether the costs agreement was induced by misrepresentation – whether the applicant was given time to consider the costs agreement – whether lawyers’ fees charged on a time costing basis were fair and reasonable – where there were concerns raised regarding an ‘uplift fee’ in the costs agreement – where the respondent settled the claim without instructions from the applicant

Legal Profession Act 2007 (Qld), s 313, s 315, s 300, 324, s 328, s 328(2)(e)

Legal Practitioners Act 1981 (SA), s 42(7)

Kasmeridis & Anor v McNamara Business & Property Law [2006] SASC 200

McLaren v Wiltshire Lawyers Pty Ltd [2019] QSC 305

Winn v Boss Lawyers Pty Ltd [2018] QCAT 23

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Mr R Sahay of Stephens & Tozer Solicitors

REASONS FOR DECISION

On 11 February 2020, the applicant consulted Mr Sahay of the respondent in relation to the recent termination of her employment. She entered into a costs agreement with the respondent dated 12 March 2020. The agreement related to an application to the Fair Work Commission arising out of the termination (the agreement will be referred to as “the FWC costs agreement”). That agreement is not the subject of these proceedings. The applicant subsequently entered into a costs agreement with the respondent dated 23 April 2020. It related to an application to the Federal Circuit Court of Australia, also arising out of the termination (“the FCC costs agreement”). The applicant seeks to have the FCC costs agreement set aside. She alleges that it was not fair and reasonable, on several grounds. The grounds are identified later in these reasons. They are contested by the respondent.

Background

Mr Roger Sahay is a sole practitioner, conducting his law practice under the name Stephens & Tozer Solicitors. At relevant times the practice employed two other lawyers, Ms Chyrse Lambridis and Ms Shanya Sahay.
Ms Lambridis had the day to day conduct of the FWC application, while Ms Sahay had the conduct of the FCC application.
English is not the applicant’s first language. Communications with her were at times made through her husband, Mr Paul Stewart. Both Mr and Mrs Stewart attended at the conference on 11 February, where Mr Sahay took instructions relating to the termination, including matters relevant to a claim for damages for wrongful dismissal.
The FWC costs agreement is not in evidence, but the costs disclosure for that agreement forms part of the record.…

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.

Keep reading for free

Create a free CaseChat account to read Stewart v Stephens & Tozer Solicitors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] QCAT 182
Decision Date

CaseChat Overview and Summary

Lucy Xiumei Liu Stewart (the applicant) commenced proceedings in the Queensland Civil and Administrative Tribunal (the Tribunal) seeking to have a costs agreement set aside. The respondent, Stephens & Tozer Solicitors, contested the application. The Tribunal found that the costs agreement should be set aside on several grounds. Firstly, the Tribunal found that the agreement was induced by a misrepresentation made by the respondent at the initial consultation with the applicant. The respondent had suggested that the applicant could recover hundreds of thousands of dollars in her claim, which the Tribunal found was not a reasonable view to hold. Secondly, the Tribunal found that the respondent had settled the applicant’s claim without her instructions and had acted in his own interests, rather than hers. The Tribunal found that the respondent did not seek instructions before agreeing to the settlement sum, and did not disclose to the applicant the fees she would have to pay before he agreed to the settlement sum. The Tribunal found that this conduct had the effect that the costs agreement was no longer fair and reasonable.

The Tribunal set aside the costs agreement and made no other orders.

Orders