Thomasson v Shane Ellis Legal Group Pty Ltd

[2023] QCAT 444

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Thomasson v Shane Ellis Legal Group Pty Ltd [2023] QCAT 444

PARTIES:

GARY THOMASSON

(applicant)

v

SHANE ELLIS LEGAL GROUP PTY LTD

(respondent)

APPLICATION NO:

OCL013-23

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

7 December 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member PG Stilgoe OAM

ORDERS:

1.   The Application of Mr Gary Thomasson filed 1 March 2023 is struck out.

2.   Any submission as to costs must be filed and served within 14 days of the publication of these reasons

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application to dismiss or strike out proceeding – where respondent claims applicant does not have standing and is out of time – where minor civil dispute claim is brought as an executor of an estate – where applicant is not sole executor of the estate – where applicant has filed an application to set aside legal costs out of time – whether strike out application should be granted

Legal Profession Act 2007 (Qld), s 355

Succession Act 1981 (Qld), s 45

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. Gary Thomasson and his sister Raeley Thorpe were executors of their mother’s estate. Shane Ellis Legal Group acted for the executors in the estate and, in November 2021, rendered a tax invoice for $16,577.91.

2. In March 2023, Mr Thomasson filed an application for a minor civil dispute, seeking relief against payment of the invoice. Shane Ellis has filed an application to strike out Mr Thomasson’s application on two grounds: that Mr Thomasson lacks standing to bring the application and that his application is out of time.

Does Mr Thomasson have standing to bring the application?

1. Shane Ellis submits that the tax invoice was issued pursuant to a costs agreement between the firm, Mr Thomasson and Ms Thorpe in their capacity as personal representatives. It submits that the tax invoice was addressed to the executors of the estate, and it was paid from the estate funds. It submits that the only way Mr Thomasson can challenge the tax invoice is with the consent of Ms Thorpe, which he does not have.

2. Shane Ellis points to section 45 of the Succession Act 1981 which provides that estate property is vested in the personal representatives as joint tenants, and to section 49(4) which states that the powers of the personal representatives shall be exercised by them jointly.

3. In response, Mr Thomasson asserts that there is no valid fee agreement because he had varied the letter of engagement and the work to which he objects was contained within the deleted sections. He agrees that Ms Thorpe has not consented to him bringing the application but asserted that her “self-serving email is irrelevant” because it is in her personal financial interest not to support the application.[1]

   [1] Applicant’s Response to Respondent’s Strikeout Application, filed 5 June 2023, Attachment A, 8.

4. The file shows that there was significant animosity between Ms Thorpe and Mr Thomasson during the administration of their mother’s estate. Indeed, Mr Thomasson was separately represented during the administration and Shane Ellis was required to consult with those professionals when decisions about the estate were made. Necessarily, this meant that the costs of administration were more than one would normally expect.

5. There is no evidence that Ms Thorpe gained any financial advantage over any other beneficiary.

6. It is clear that Shane Ellis was engaged on behalf of the personal representatives, did work for the personal representatives, billed the personal representatives and was paid from the estate. Mr Thomasson lacks standing to bring this application and it should be dismissed.

Is Mr Thomasson’s application out of time?

1. I have already noted that Mr Thomasson’s application was filed over a year after Shane Ellis rendered the tax invoice.

2. Section 335(5)(a) of the Legal Profession Act 2007 states that a costs application must be made within 12 months after the bill was given, or the request for payment was made. However, section 335(6) provides that a court may deal with a costs application filed out of time after considering the reasons for the delay.

3. Mr Thomasson points to a series of correspondence with Shane Ellis in which he disputed the bill, starting in August 2021 and concluding in December 2021. In late 2021, Mr Thomasson complained to the Legal Services Commission; the Commission dismissed his complaint by letter dated 6 June 2022.

4. Mr Thomasson was aware that there were time limits on the making of a complaint. He had legal advice at the time. He does not explain the delay between June 2022 and March 2023. I am not satisfied that Mr Thomasson has explained his delay in bringing this application. Even if he had standing, I would be inclined to dismiss the application pursuant to section 335(5) of the Legal Profession Act.

Orders

1. The Application of Mr Gary Thomasson filed 1 March 2023 is struck out.

2. Any submission as to costs must be filed and served within 14 days of the publication of these reasons.