| CITATION: | Turner v Macrossan & Amiet Pty Ltd [2016] QCAT 5 |
| PARTIES: | Markis Scott Turner (Applicant) |
| v | |
| Macrossan & Amiet Pty Ltd (ACN 131 659 384) (Respondent) |
| APPLICATION NUMBER: | OCL007-15 |
| MATTER TYPE: | Occupational Regulation Matters |
| HEARING DATE: | 28 September 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Carmody |
| DELIVERED ON: | 5 January 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | THE TRIBUNAL ORDERS THAT: 1. the application for miscellaneous matters in OCL007-15 to set aside the costs agreements is dismissed. 2. costs are reserved for further directions. | ||
| CATCHWORDS: | PROFESSIONS AND TRADES – LEGAL PRACTITIONERS – COSTS AGREEMENTS – UNCERTAINTY– where the applicant entered into two costs agreements with the respondent law firm for the delivery of legal services – where the costs agreements included a general care and conduct component permitting the imposition of an additional item of costs at a rate of up to 50% of the legal professional costs – where the applicant filed an application for miscellaneous matters to have the costs agreements set aside for uncertainty – whether the costs agreements should be set aside for uncertainty because the care and conduct clause confers a discretion on the respondent. PROFESSIONS AND TRADES – LEGAL PRACTITIONERS – COSTS AGREEMENTS – UNCERTAINTY– where the applicant entered into two costs agreements with the respondent law firm for the delivery of legal services – where the costs agreements included a general care and conduct component permitting the imposition of an additional item of costs at a rate of up to 50% of the legal professional costs – where the applicant filed an application for miscellaneous matters to have the costs agreements set aside as unfair or unreasonable – whether the costs agreements should be set aside for being unfair or unreasonable. Legal Profession Act 2007 (Qld), ss 300, 326, 328(1), 328(8), 328(9A), 335, 342(1) Athanasiou v Ward Keller (6) Pty Ltd (1998) 122 NTR 22 Brown v Talbot & Oliver (1993) 9 WAR 70 Clare v Joseph [1907] 2 KB 369 Commonwealth v Baume (1905) 2 CLR 405 Re Stuart; Ex parte Cathcart [1893] 2 QB 201 | ||
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- Case
- [2016] QCAT 5
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the costs agreements should be set aside for being uncertain or unfair or unreasonable. The key legal issue was the interpretation and application of the care and conduct clause in the costs agreements. The court had to assess whether the clause conferred an unacceptably broad discretion on the law firm, which would render the agreements uncertain and thus unenforceable.
The court found that the care and conduct clause did not confer an unacceptably broad discretion on the law firm. The clause was considered to be a standard term in legal costs agreements and did not render the agreements uncertain. The court also found that the agreements were not unfair or unreasonable, as they were the result of arm's length negotiations between the parties. The court dismissed Turner's application for miscellaneous matters, holding that the costs agreements were not uncertain or unfair.
The tribunal ordered that the application for miscellaneous matters to set aside the costs agreements is dismissed, and that costs are reserved for further directions. This decision reinforces the principle that standard terms in costs agreements, including those that allow for a degree of discretion in the calculation of costs, are not necessarily unfair or unenforceable.
Orders
Orders of the court
THE TRIBUNAL ORDERS THAT:
1. the application for miscellaneous matters in OCL007-15 to set aside the costs agreements is dismissed.
2. costs are reserved for further directions.
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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