Turner v Macrossan & Amiet Pty Ltd - [2016] QCAT 5

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)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 6(2), 6(3), 9(2), 10(1), 32, 60(1)

Athanasiou v Ward Keller (6) Pty Ltd (1998) 122 NTR 22
Beckwith v R (1976) 135 CLR 569

Brown v Talbot & Oliver (1993) 9 WAR 70

Clare v Joseph [1907] 2 KB 369

Commonwealth v Baume (1905) 2 CLR 405
Ermogenous v Greek Orthodox Community of South Australia Inc (2002) 209 CLR 95
Gregg Lawyers Pty Ltd v Viki Maree Farrar [2014] QDC 194
Jovetic v Stoddart & Co (1992) 7 WAR 208
Kasmeridis v Mcnamara Business & Property Law [2006] SASC 200
McNamara Business & Property Law v Kasmeridis (No 2) (2007) 97 SASR 129
Moleirinho v Talbot Olivier Lawyers Pty Ltd [2014] WASCA 65
Nicholson v Behan and Speed Pty Ltd [2000] VLPT 28
Passey v Chanaka Bandarage (t/as City First Solicitors) [2002] ACTSC 105
Portuguese Cultural and Welfare Centre v Talbot Olivier Pty Ltd (No 2) [2015] WASC 54
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Morris, Fletcher & Cross’ Bill of Costs [1997] 2 Qd R 228

Re Stuart; Ex parte Cathcart [1893] 2 QB 201

Thorby v Goldberg (1964) 112 CLR 597

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.

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Details

Case: [2016] QCAT 5
Decision Date: 5 January 2016

CaseChat Overview and Summary

The applicant, Turner, entered into two costs agreements with the law firm Macrossan & Amiet Pty Ltd for legal services. Turner subsequently filed an application for miscellaneous matters seeking to have the costs agreements set aside due to uncertainty and unfairness. The agreements included a general care and conduct component that permitted the imposition of an additional item of costs at a rate of up to 50% of the legal professional costs. Turner argued that the agreements should be set aside as they were uncertain and unfair, particularly due to the broad discretion given to the law firm.

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

Full text does not contain this section.

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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