Turner v Mitchells Solicitors

[2011] QDC 61

DISTRICT COURT OF QUEENSLAND

CITATION:

Turner v Mitchells Solicitors [2011] QDC 61

PARTIES:

WAYNE AND JUDITH ELAINE TURNER
(Applicants)

AND

MITCHELLS SOLICITORS AND BUSINESS ADVISERS QLD
(Respondents)

FILE NO/S:

OA315/11

DIVISION:

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

29 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

21 February, 21 March 2011

JUDGE:

McGill DCJ

ORDER:

Application to be relisted for direction under r 743G.

CATCHWORDS:

COSTS – Assessment – series of bills – whether application within time – whether some bills interim bills – discretion to assess anyway

Legal Profession Act ss 333, 335(2)

Clayton Utz Lawyers v P&W Enterprises Pty Ltd [2011] QDC 5 – cited.
Danish Mercantile Co Ltd v Beaumont [1951] Ch 680 – cited.
Dromana Estate Ltd v Wilmoth Field Warne [2010] VSC 308 – not followed.
JH Milner & Son v Percy Bilson Ltd [1966] 1 WLR 1582 – cited.
Purcell v Bacon (1914) 19 CLR 241 – cited.
Retemu Pty Ltd v Ryan (NSW District Court, Coorey DCJ, 4300/08 and 4301/08, 16/4/10, unreported) – followed.
Re Romer & Haslam [1893] 2 QB 286 – cited.
Saffron Walden Second Benefit Building Society v Rayner (1880) 14 Ch D 406 – applied.
Vitovello v Russell & Co Solicitors [2009] QDC 249 – cited.
Wray v Kemp (1884) 26 Ch D 169 – cited.

COUNSEL:

D.M. Castle (Solicitor) for the applicants

G.J. Robinson for the respondent

N.J. Pearce (Solicitor) for another person served

SOLICITORS:

Forbes Dowling Lawyers for the applicants

The respondent represented itself

Carter Newell for the other person served

1. This is an application for assessment of legal costs under s 335 of the Legal Profession Act 2007. There is no dispute that the respondent acted as solicitor for the applicants, and has rendered bills purportedly charged in accordance with a costs agreement dated 16 April 2002 and signed by both parties. The application seeks assessment of all of the legal costs charged by the respondent, with 44 tax invoices identified. The first of these was dated 10 May 2002, and the last 4 February 2010.

1. Section 335(5) provides that a costs application by a client must be made within 12 months after the bill was given or the request for payment was made to the client. There is a power in the court to deal with the application even if made out of time, but there was initially a dispute as to whether any part of the application was out of time anyway. Reference was made to s 333, and it was submitted that the bills other than the final bill were interim bills, in which case they could be assessed at the time of the final bill under subsection (2). That depends on the application of s 333(1) which provides:

“A law practice may give a person an interim bill covering part only of the legal services the law practice was retained to provide.”

1. The term “interim bill” is not defined either in s 300 or in the Schedule of the…