Taylor v Kolev
[2014] QCAT 50
•7 February 2014
| CITATION: | Taylor v Kolev [2014] QCAT 50 |
| PARTIES: | Kerrie Ann Taylor Previously trading as K A Taylor Solicitor (Applicant) |
| v | |
| Kaloyan Kolev As Administrator of the estate of Tzoko Hristoff Markoff (deceased) (Respondent) |
| APPLICATION NUMBER: | MCD1869-12 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 21 November 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Adjudicator Davern |
| DELIVERED ON: | 7 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The circumstances of the Respondent’s request for certain orders to be made, are to be dealt with as a separate minor debt claim. 2. Ms Taylor’s Application is Dismissed. 3. The Respondent’s Application is Dismissed. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – MINOR DEBT CLAIM – Solicitor seeking recovery of legal costs – where the requirements of Legal Profession Act 2007 not properly satisfied concerning completion of client agreement and disclosure to client – failure to comply with Tribunal directions for costs assessment – orders sought by Respondent treated as a separate minor debt claim – costs for legal representation cannot be awarded on a minor debt claim Queensland Civil and Administrative Tribunal Act 2009, ss 13, 28. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | In person |
| RESPONDENT: | Mr Tim Cunningham – solicitor D.M.Wright & Associates Solicitors |
REASONS FOR DECISION
In her application which was filed on 21 June 2012, Ms Taylor is seeking to recover a “minor debt” for the unpaid balance of legal fees from 2010, from her former client’s estate. Ms Taylor ceased trading as a solicitor on 30 June 2010. DM Wright and Associates, Solicitors (Wrights) are representing the Respondent in this Application. Mr Tzoko Hristoff Markoff died on 21 July 2010, and Mr Kaloyan Getov Kolev was appointed as Administrator of Mr Markoff’s estate. Mr Kolev is a grand nephew of Mr Markoff, and is based in the United Kingdom.
At the time that Ms Taylor ceased practicing (30/6/10), about fifteen of her files were transferred to Wrights. One of those files related to the former client (Mr) Tzoko Hristoff Markoff (the person identified in this current matter). Also at this same time, Ms Taylor was being represented by Wrights in relation to her own matrimonial dispute. The matrimonial dispute has not yet been finalised and her file is being held as a lien by Wrights for unpaid legal fees.
Ms Taylor’s claim before the Queensland Civil Administrative Tribunal (QCAT) relates to a period between about 3 February and 30 June 2010, during which time she was retained by Mr Tzoko Hristoff Markoff, to assist him with several urgent legal matters. These matters included making a will and Power of Attorney, assistance with a QCAT guardianship matter and also with various visa issues relating to his potential Bulgarian citizenship.
Ms Taylor was contacted by Logan Hospital staff on 29 January 2010 in relation to Mr Markoff’s need for assistance with legal matters. Ms Taylor’s first contact with Mr Markoff was on 3 February 2010, when she attended the Logan hospital and conducted a recorded interview with Mr Markoff, with hospital staff in attendance. It was evident that Mr Markoff spoke poor English, but Ms Taylor did not check with Mr Markoff if he could read and write in English.
During that visit Ms Taylor gave Mr Markoff a copy of her standard Costs Agreement and Disclosure Notice documents. These documents were not presented to Mr Markoff for his signing, and did not include any date, client identification, or details of legal services to be provided. There was an estimate of professional fees between $2,000 and $5,000 GST inclusive. After 3 February 2010, Ms Taylor made no attempt to have Mr Markoff complete and sign any costs agreement documents.
Ms Taylor drafted a Will document for Mr Markoff in English. The document did not identify any executor or Trustee. It was subsequently signed by Mr Markoff on 11 February 2010. However, he did not sign the Enduring Power of Attorney document that would have appointed Ms Taylor. Written communications that were sent by Ms Taylor to Mr Markoff after this time included an English to Bulgarian translation of that correspondence.
The first invoice for $3,402.69 was issued by Ms Taylor on 2 March 2010 for work supposedly done between 1/02/2010 and 11/02/2010. The $2,000 held in Ms Taylor’s trust account was subtracted from this figure. The next invoice for $5,258.74 was issued on 24 May 2010 and included work supposedly done between 12/2/10 and 29/3/2010. The last invoice for $4,716.48 was issued on 19 October 2010 for work supposedly done between 28/4/2010 and 30/6/2010. Client file records include diary notes of attendances by Ms Taylor in July and August of 2010, when it appears that Ms Taylor was working with or for Wrights.
The application was filed with QCAT on 21/6/12. On 16/7/12 the Respondent filed a Response to the claim, together with an application for leave to be represented and Miscellaneous application for directions. On 30/7/12 Adjudicator Gordon refused the Miscellaneous application. On 28/9/12 the Respondent applied for leave to appeal the decision of Adjudicator Gordon. That application was refused, and the original application was listed for hearing on 21/11/12. After successive adjournments the matter was listed for hearing before me on 4 February 2013.
After hearing the matter on 4 February 2013, the Tribunal issued a set of Directions by consent (see para.[11]):
(1) Ms Taylor is to deliver to DM Wright and Associates the recording of discussions between her and Mr Markoff regarding the establishment of a client agreement. This is to be provided on a USB stick within 14 days.(2) After receipt of the recording DM Wright and Associates are to deliver the recording and the client file of documents to cost assessors D.G.THOMPSON for a full costs assessment.
(3) Ms Taylor shall be solely liable for the costs assessor’s fees.
(4) The assessor’s assessment shall reflect the sum that is to be agreed between the parties as settlement.
On 26 August 2013 the Respondent filed a miscellaneous application to dismiss the original application because of Ms Taylor’s failure to comply with the directions of 4 February 2013. On 3 October 2013 Ms Taylor filed a request for certain orders to be made. By my further directions on 17/10/13, the Respondent’s application was to be treated as a renewal application and the matter to be re-listed.
On the next hearing date (21/11/13) Ms Taylor raised objection to the appointment of the nominated costs assessor due to bias. She presented no evidence to support this allegation and she raised no such objection on 4 February 2013 when the consent directions were made. It is evident that the reason that she did not comply with the terms of those directions, was because she couldn’t or wouldn’t pay the costs assessor’s fees before they proceeded with their assessment. After hearing further evidence on the matter and receiving the client file and USB stick recording, the final decision was reserved.
In challenging the claim, the Respondent has highlighted a range of issues identifying Ms Taylor’s non-compliance with the requirements in the provisions of the Legal Profession Act 2007 (LPA).
An important object of the Queensland Civil and Administrative Tribunal Act and Rules, is for matters to be dealt with in a way that is ‘accessible, fair, informal and quick’. As most of the people appearing in minor civil dispute matters don’t have a legal background, then it is often a critical part of an Adjudicator’s role to be an inquisitor, to uncover the relevant evidence and information, to deliver a determination (s 28 QCAT Act). In the case before me, there is nothing in the representations or submissions that have necessitated the involvement of Wrights in this case, apart from the delivery of the client file. The relevant elements requiring consideration would have been dealt with by me as a matter of course.
Much time and effort seems to have been spent by Wrights in the fruitless pursuit of the appeal against Adjudicator Gordon’s decision dated 30 July 2012. This related to the miscellaneous application for directions on the validity of the client agreement and disclosure. It was decided by the learned Adjudicator that they were issues not suitable for determination at an interlocutory stage of the proceedings. The content of subsequent submissions from Wrights suggests that they still do not grasp or accept that Adjudicator Gordon’s decision was in fact the correct one. Nor do Wrights seem to understand the limited range of orders that can be made in this jurisdiction (s 13 QCAT Act).
In the “Response” document prepared by Wrights, the Respondent requests that four specific orders be made. One of those requests is for an order that:
…the Applicant pay Kaloyan Getov Kolev as Administrator of the Estate of Tzoko Hristoff Markoff costs or and incidental to responding to this matter on an indemnity basis as the Applicant well knew, pursuant to Sections 316 and 342 of the LPA that she had no right to institute recovery proceedings until she, at her own cost had her file assessed by an independent cost assessor. Pursuant to Section 342 of the LPA, the solicitor is to pay the costs of the assessment’.
When an application for representation is granted in this limited (minor debt claim) jurisdiction, it is on the basis that the party bears its own costs in that regard. It appears that Wrights have failed to observe that the allowable costs in this case are limited to those prescribed in QCAT Rule 84, and do not include costs for representation. There has been no indication that the subject issues have been raised in any other forum.
For the pursuit of a “minor debt” claim within the ‘minor civil dispute’ jurisdiction of QCAT, there must be evidence of an actual debt, or that there is a liquidated demand that can be identified by some appropriate calculable means, from terms of an agreement or contract between the parties. In a case for recovery of legal costs, then that agreement or contract must be in accordance with the provisions of the LPA.
Ms Taylor is relying on the content of the recorded interview with Mr Markoff to establish that she has complied with the requirements of Part 3.4 (Costs disclosure and assessment) of the LPA. Both sides in this case have had access to the recording (on a USB stick), but neither party has transcribed any part of the recording or made any submissions on any specific elements contained in that recording.
After having studied relevant content of the recorded interview with Mr Markoff, I find that Ms Taylor has not provided any additional disclosure to Markoff beyond the incomplete documents that she provided to him on the day. In fact, it is as if he wasn’t entirely clear on what had been discussed. To assist Mr Markoff in his understanding of things near the end of the interview a staff member said to him:
‘Mike Kerry is going to do is it two things for you, a number of things for you, one is your will. Kerry just can we summarise what Kerry is going to do for you. And it will cost you between $2000 and $5000 to achieve it.’
The general discussions that followed in the interview were such that the client should have been given a written summary of the required legal work to be done. Ms Taylor has seen fit to issue English to Bulgarian translations with follow up correspondence to the client. On this basis she should have sent the client a properly prepared Costs Agreement and Disclosure Notice with accompanying English to Bulgarian translation, as a precaution. Ms Taylor made no attempt to have Mr Markoff complete and sign any costs agreement documents.
The client file confirms that the Will document that was completed by Ms Taylor did not identify any Executor or Trustee. As a result it was necessary for Wrights to make application to the Supreme Court for Letters of Administration, so that an administrator of the estate (Mr Kolev) could be appointed. This is an indication that at least some of the work done by Ms Taylor was incomplete, and did not sufficiently provide for the client’s needs.
Also from the client file, I refer to diary notes dated 10/2/10 and 2/6/10. From a 50 minute attendance on 10/2/2010 the diary note reads:
Est $2,000 will/EPOA/Application visa application fee $200 Have to call when Eva (carer) is there – so she can explain (1) will (2) POA …
From a 6 minute telephone attendance on 2/6/2010 the diary note reads:
(Mr Markoff) …not happy with us- his bill is too high – no expectation he would receive … told to expect $2k to find family …bill $3k – paid $2k …doesn’t understand why he is receiving further bills – no explanation – hasn’t authorised any further expenditure – doesn’t want to use us.
The Respondent has not raised any issue in relation to the $2,000 that was paid to the Applicant in 2010. The Tribunal must now consider if the liquidated demand in the application, is one that can be enforced by way of a Tribunal order for the payment of a minor debt. A scrutiny of the requirements of the provisions of the LPA shall follow.
A study of the available evidence confirms that Ms Taylor has failed to comply with her obligations of disclosure to the client (s 314). There has been no sufficient explanation of the costs agreement terms or disclosure either in writing or orally. There is a confirmed diary note recording on 10/2/2010 that an estimate of $2,000 would cover the range of work previously discussed with the client, and there has been no further communication with the client to explain any additional charges (s 315).
Section 316 provides that when there is a failure to disclose, then legal costs can still be recoverable if assessed in accordance with the provisions of Division 7 of the LPA. This opportunity was provided to Ms Taylor with the set of directions I issued on 4 February 2013 for that purpose. She failed to follow through with this process because she couldn’t or wouldn’t pay the costs assessor’s fees in that regard.
The evidence suggests that the only clear costs agreement between the parties was for Mr Markoff to pay Ms Taylor $2,000 for the range of work discussed at the meetings on 3 and 10 February 2010. There is nothing to suggest that there has been anything beyond the scope of work discussed on those dates that has been of any value to the client. Consequently there is nothing to justify any charges or fees beyond that $2,000.
I treat the request from the Respondent for certain orders to be made (Response document) as a separate minor debt claim (QCAT Rule 49). There is nothing in the scope of orders sought by the Respondent that can be granted in this jurisdiction and there is no identifiable justification for the making of any order at all as regards the costs associated with the representations by Wrights in challenging Ms Taylor’s application.
Consequently, the Tribunal makes the following orders: 1. The circumstances of the Respondent’s request for certain orders to be made, are to be dealt with as a separate minor debt claim; 2. Ms Taylor’s Application is Dismissed;
3. The Respondent’s Application is Dismissed.
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