Struber v McNamara and Associates

SUPREME COURT OF QUEENSLAND

CITATION:

Struber v McNamara & Associates [2003] QSC 372

PARTIES:

ANITA CHRISTINE STRUBER
(applicant)
v
McNAMARA & ASSOCIATES
(respondent)

FILE NO:

S8979 of 2003

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

3 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2003

JUDGE:

Chesterman J

ORDER:

1.   Application dismissed

CATCHWORDS:

COST AGREEMENT – Where cost agreement for professional fees– s48 Queensland Law Society Act (1952)  - whether professional fees should be calculated in accordance with the client agreement or the Supreme Court scale – whether client agreement can be avoided for non-compliance with the Act – consideration of the term “form of account”

Queensland Law Society Act (1952) (QLD), Part 4A, s48
Uniform Civil Procedure Rules

Herald & Ors v Worker Bee (Brisbane) Pty Ltd [2003] QSC 223

COUNSEL:

Mr G. Robinson for the applicant
Mr R. Cameron for the respondent

SOLICITORS:

Clewett Corser and Drummond Lawyers for the applicant McNamara & Associates Solicitors for the respondent

1. The respondent is a firm of solicitors who practise in Toowoomba and the Darling Downs.  For about a year the applicant was a client of the firm whom she retained to enforce the proper administration of her late parents’ estates.  A dispute has arisen between them with respect to the professional fees charged by the respondent.  The applicant has determined their retainer and paid part only of the bills delivered by the respondent.

1. By her originating application, the applicant seeks:

1.A declaration that a cost agreement between the applicant and the respondent is void.

2.That the respondent prepare a detailed account in accordance with the Supreme Court scale and serve it on the applicant’s solicitors by … 10 December 2003.

3.A declaration that the respondent is limited in the amount it can claim for costs for acting in the estate … for the period 7 June 2002 to 27 March 2003 to the maximum sum of $59,267.76.

4.That the respondent pay the applicant’s costs of and incidental to this application.

1. The respondent has delivered two bills to the applicant.  The amounts charged aggregate the sum set out in para 3 of the application.  The applicant, as I mentioned, has paid part only of the amount claimed, namely the sum of $33,000.  Following a discussion between the parties on 29 April 2003 in which the applicant expressed dissatisfaction with the amount charged she required the bills to be examined by a costs assessor.  The respondent then submitted their files to Ryan Cost Consultant Pty Ltd who determined that the respondent’s fees should be for a substantially higher amount.

1. The applicant disputes the respondent’s right to withdraw its original bills and

   
   

   re-submit bills for that higher amount.  That is the subject of the third order sought in the application.

1. The parties, however, agree that the court consider only the relief sought in paragraphs 1 and 2 of the application.  If the applicant succeeds, the respondent will have to prepare its account in accordance with the Supreme Court…