XTH v TWC Lawyers
[2024] QCAT 278
•16 July 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
XTH v TWC Lawyers [2024] QCAT 278
PARTIES:
XTH (applicant)
v
TWC LAWYERS (respondent)
APPLICATION NO/S:
OCL060-22
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
16 July 2024
HEARING DATE:
25 October 2023
HEARD AT:
Brisbane
DECISION OF:
Judicial Member Rinaudo AM
ORDERS:
1. The application is dismissed.
CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – OTHER MATTERS – where the applicant was a client at the respondent law firm – where the applicant entered into a cost agreement - where the applicant applied to QCAT to have the respondent’s cost agreement set aside pursuant to s 328(1) Legal Profession Act 2007 (Qld) – whether the applicant was induced into the cost agreement by fraud or misrepresentation – whether the respondent failed to follow the applicants instructions and acted without her authority - whether the Tribunal should set aside the cost agreement
Legal Profession Act 2007 (Qld) s 328
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented (by video link)
Respondent:
T Smith, solicitor and T Elabbasi, solicitor
REASONS FOR DECISION
APPLICATION
XTH (‘the applicant’) makes application pursuant to s 328 the Legal Profession Act 2007 (Qld) (‘the Act’) to have a costs agreement, entered into by her on 21 February 2022 with TWC Lawyers (‘the respondent’), set aside.[1]
[1]Annexure BH-01 to the affidavit of Troy Anthony Smith dated 22 February 2023, filed 23 February 2023.
The applicant was self-represented and appeared by video link from Perth. The respondent was represented by Mr Troy Smith, solicitor and Mr Tam Elabbasi, solicitor.
History
The applicant had been in a couple relationship with a male person. Subsequent to the breakup of the relationship, the male person entered into a relationship with another person and subsequently married.
As a consequence of the applicant’s interactions with her former partner and his new wife, primarily by text message, email, and social media, on 2 February 2022, police issued a police protection notice against the applicant prohibiting her, amongst other things, from contacting, attempting to contact, or asking someone else to contact the aggrieved. The former partner’s new wife was a named person in the protection notice.[2]
[2]Annexure BH-07 to the affidavit of Troy Anthony Smith dated 22 February 2023, filed 23 February 2023.
After being served with the police notice, and in anticipation of application to court for a domestic violence protection order, the applicant after enquiries, approached the respondent law practice to act for her. She explained, “I had heard really good things about you and how reputed you were”. After a telephone conversation between the applicant and the respondent on 18 February 2022, the respondent forwarded a costs agreement on 21 February 2022. The costs agreement set out a costs estimate of up to $7,700 to retain the respondent for the purpose of the domestic violence application.
The respondent acted on behalf of the applicant for a period of seven months, during which time the respondent engaged counsel to assist with the application.
On or about 27 or 28 of September 2022, the applicant instructed another firm of solicitors to act on her behalf in the matter. On 29 September 2022, those solicitors forwarded notice of their appointment and authority to the respondent. Both firms of solicitors appeared on 30 September 2022 at the Beenleigh Magistrates Court, being the day the application was set for hearing. It was only upon arriving at court that the respondent became aware that the applicant had instructed new solicitors.
In support of her application filed with the Tribunal, the applicant contended that the respondent:
(a)“induced me to enter the agreement and were giving misleading or fraudulent information” and “Mr Troy Smith behaved in an unsatisfactory way in relation to the services”;
(b)“failed to follow instructions due to poor communication within their firm and acted on my behalf without my authority”; and
(c)“acted contrary to instructions given by my new lawyers and appeared in court even after contact ceased by giving written notice”.
Applicable law
Section 3(a) of the Act states the main purpose of the Act is to provide for the regulation of Queensland legal practice in the interests of the administration of justice and for the protection of consumers of legal services of the legal profession and the public generally.
Section 299(b) pt.3.4 (dealing with costs generally) of the Act states that one of the main purposes of the part is “to regulate the making of costs agreements relating to legal service …” sub-s (c) states that the part is “to regulate the billing of costs for legal services”.
Section 328 of the Act states:
328 setting aside costs agreements
(1)On application by a client, the Supreme Court or the tribunal may order that a costs agreement be set aside if satisfied the agreement is not fair or reasonable.
(1A) An application under subsection (1) to the tribunal must be made as provided under the QCAT Act.
The section goes on to set out a number of matters the Tribunal may take into account when determining if a costs agreement is fair and reasonable. It states:
(2) In deciding whether or not a costs agreement is fair or reasonable, and without limiting the matters to which the Supreme Court or tribunal can have regard, the Supreme Court or tribunal may have regard to any or all of the following matters—
(a)whether the client was induced to enter into the agreement by the fraud or misrepresentation of the law practice or of any representative of the law practice;
(b)whether any Australian legal practitioner or Australian-registered foreign lawyer acting on behalf of the law practice has been found guilty of unsatisfactory professional conduct or professional misconduct in relation to the provision of legal services to which the agreement relates;
(c)whether the law practice failed to make any of the disclosures required under division 3;
(d)the circumstances and conduct of the parties before and when the agreement was made;
(e)the circumstances and the conduct of the parties in the matters after the agreement was made;
(f)whether and how the agreement addresses the effect on costs of matters and changed circumstances that might foreseeably arise and affect the extent and nature of legal services provided under the agreement;
(g)whether and how billing under the agreement addresses changed circumstances affecting the extent and nature of legal services provided under the agreement.
Applicant’s submissions
On 20 October 2022, the applicant filed submissions dated 12 October 2022 in support of her contention that she was induced to enter into the costs agreement with the respondent. The applicant set out details of conversations which she had with Mr Troy Smith and in particular, a telephone call on 18 February 2022, in which Mr Smith gave the applicant advice (which was in fact a telephone attendance note written by Mr Smith setting out advice he gave her and stating a confirmation that the applicant was happy to proceed). [3]
[3]Respondent’s affidavit dated 22 February 2023, exhibit BH-2.
This advice was:
I confirmed that I received her email and had reviewed the material. I explained that based on the material and the fact that she was now living in WA it was my advice she had good prospects of contesting the DVO. … I advised BH that initially we would require a deposit of $1,100, and the full cost of $6,600 would only be payable if the matter proceeded to a hearing.
BH confirmed that she was happy to proceed.
Two further telephone attendance notes were set out, dated 7 March 2022 and 7 July 2022. The applicant then notes:
almost every month I kept on paying these lawyers and my final hearing date was set for 30th September 2022. On 27 July 2022, just before 2 months the trial date, my lawyer suggested me to get a barrister as they were more qualified, which I did and paid an extra $2200 Barrister fee.
At that point, I was thinking that Mr. Troy was a qualified solicitor and knew my case very well so why do I need a barrister. But without arguing I paid the Barrister fee of $2200 as requested by Mr. Troy.
The applicant noted in paragraph 7 of the submissions that, on 26 September 2022, she was contacted by the respondent who said, in her words, that “you will lose the case if we run the trial”. The applicant stated that she was very concerned about the advice she was now being given since nothing had changed in the intervening seven months. She contended that ultimately the barrister and Mr Smith gave her only one option, which was to consent to an order without admission, otherwise she would lose the case.
The applicant submitted that if she had been contemplating consenting without admission, she could have done so in the first place without paying any money to the respondent. XTH was very concerned that if she lost, her visa could be cancelled. She was also concerned because she was scheduled to have surgery, and if she was deported, she could not have the surgery which she desperately needed.[4]
[4]See file note BH-12 to the affidavit of Troy Anthony Smith dated 22 February 2023, filed 23 February 2023.
On 28 September 2022, the applicant emailed the respondent, as noted in paragraph 12, “as you know, I have invested financially and emotionally into this case, my whole life is at stake right now and I still hope that we could work together on this matter so things could turn out in my favour”. The applicant states that, after receiving a cold and unsatisfactory response from Mr Smith over the phone on 28 September 2022, she started looking for another lawyer.
Also on 28 September 2022, the applicant attended the Royal Perth Hospital Emergency Department and was admitted on a diagnosis of nervous breakdown, migraine, depression, stress, and anxiety.[5] XTH stated that, on 30 September 2022, she received a call from Mr Smith saying that he was in court and waiting for her to arrive. She further stated that her new lawyers contacted the respondent, and she asked Mr Smith to refund the trial fee of $5,500, which he refused to pay back.
[5]See medical certificate from emergency department Royal Perth Hospital dated 29 September 2022 attached to the applicant’s submissions.
On 30 September 2022, the hearing was adjourned to 27 January 2023. The domestic violence application was withdrawn at that hearing.
The applicant submitted that the respondent was negligent as Mr Smith had attended the Beenleigh Magistrates Court on 27 June 2022 rather than 27 July 2022, which was the actual appearance date.
XTH also submitted that Mr Smith had not “studied my case in depth”. The applicant identified a sales invoice from the respondent, in respect of which she said that Mr Smith had confused the name of the aggrieved with the name of the named person in the application. The applicant stated “looks like this is not a big error for him but it is 100% a big error which can cost me my future.”[6]
[6]At paragraph 34 of her submissions, the applicant sets out file notes dated 2 April 2022, 7 April 2022 and 11 April 2022.
XTH was also concerned about two invoices which she received on 30 September 2022, one with entries stating “no charge” and one with an entry for $1,485 pertaining to return travel with counsel to Beenleigh Magistrate Court for trial. The applicant submitted this was a further indication of the negligence of the respondents.
In conclusion, the applicant submitted that she had been induced to enter into the agreement and was given misleading and fraudulent information from the start. She submitted that Mr Smith behaved in an unsatisfactory way, failed to follow instructions due to poor communication, acted without her authority, failed to see the email authority from her new solicitors in the respondent's admin email, appeared in court contrary to the notice and authority, grossly overcharged the applicant in their final invoice, and acted dishonestly conducting her case from the start.
XTH further noted that she was assured to contest the matter so she can
keep paying TWC Lawyers and later I was told by the lawyer and barrister, not to run the trial, otherwise I will lose. I understand that there is no guarantee whether one will win the case or not, but telling 4 days before the trial date that I will loose is horrible experience and traumatising.
[as per original]
The applicant submitted that the poor service of the respondent had impacted her life in many ways. She submitted that she had been ripped off by the respondent, who gave her fraudulent information from the very beginning.
XTH requested that the Tribunal take disciplinary action against “this money-making firm”, return to her all the fees she had paid to the lawyers, and compensate her for damages as a result of their unprofessional attitude.
TWC Lawyers’ submissions
The respondent submitted that the applicant entered into a costs agreement with the firm after discussions about her matter and how the matter would proceed. They contended that it would be unfair and unreasonable to set aside the costs agreement.
TWC Lawyers stated they completed all work over the seven-month period in accordance with their client's instructions.[7]
[7]See outline of submissions on behalf of the respondent.
At paragraph 10 of the respondent’s submissions, TWC Lawyers noted that, on 26 September 2022 a telephone conversation occurred with the applicant and counsel. The respondent stated that:
during this conference, Counsel provided the Applicant with advice, namely that there were always risks in running a trial. Further, that the Applicants [sic] immigration status would likely be impacted more seriously if she lost at the hearing, than if she consented to the making of the DVO, on a without admissions basis, before trial.
The respondent denied having appeared in the Beenleigh Magistrates Court on 27 June 2022, as stated by the applicant, then further denied that they had telephoned the applicant on that day.
TWC Lawyers also denied being confused about who the aggrieved and named person were. They noted that it was not until 8 June 2022 that the brief of evidence was received by them, and subsequently they drafted affidavits which were filed in the Court on or about 21 June 2022. Indeed, they stated they were at court and ready to proceed with the matter on 30 September 2022, not having seen the email from the applicant's new solicitors, which was received into the administrative email address of the respondent's office on 29 September 2022 at 3:48pm.
The respondent noted that, on 27 September 2022 at 12:54pm, the applicant had telephoned to seek to have the hearing postponed. XTH advised that she had a history of migraines and asked what would happen if she did not travel to court because she was too unwell. The respondent stated that if she failed to appear at the hearing without a valid medical certificate, the proceeding of the matter could proceed in her absence.
The respondent submitted that during the seven months they acted on behalf of the applicant, at no time had she made any complaint to the respondent about legal fees or their professional work performance. TWC Lawyers denied that the applicant had been “induced” into entering into the costs agreement. They noted they had forwarded a letter of offer and costs agreement to the applicant, who had returned them the same day. They noted that they were duty-bound to act in the best interests of the applicant, which required them to provide advice to the applicant that was not positive and that she may not want to hear.
The respondent noted that the invoice dated 30 September 2022 was the final invoice in accordance with the costs agreement as varied and included all work completed by the respondent up to the date the applicant instructed new solicitors.
At the time of the initial instructions the respondent made an assessment of prospects of success on the basis of what it was told by the respondent. Upon receiving the brief of evidence, it was apparent that the applicant had not divulged information and had made admissions against interest when talking to police. This is what caused the respondent to review prospects and to advise the applicant to resolve the matter on the basis of consent without admission.
The respondent submitted that it had acted in good faith throughout.
Discussion and decision
As set out above, solicitor’s firms in Queensland must comply with the provision of the Act in respect of costs charged to clients. In this case the respondent appears to me, to have complied in every respect with the requirements of the Act in their dealings with the applicant.
In particular, after being appointed to act for the applicant the respondent sent to the applicant a costs agreement for her to sign. This agreement set out the maximum amount of costs to be charged. On 4 August 2022 the respondent wrote to the applicant advising her of changes to the estimate set out in the agreement as they were required to do. This changed was to advise that counsel had been engaged to appear at the hearing. An update cost agreement for the additional counsel fees was provided to the applicant who confirmed she would pay the additional amount by 30 August 2023.[8]
[8]Respondent’s submission, [7]-[8].
Unfortunately, the applicant became very concerned when told that it was unlikely she was going to succeed. It is possible that she was motivated by concerns her visa might be cancelled.[9]
[9]Respondent’s submission parade and [11].
From the evidence, I am satisfied that initially the respondent gave advice that the applicant was likely to be successful in the application. However, after reviewing the Brief of evidence from the prosecution it became apparent that they had not been told the whole facts.
I am satisfied that the respondent accounted to the applicant for all monies received from the applicant. There is discrepancy between what the applicant paid, and the invoices rendered for fees and outlays. The respondent received only the amounts the applicant had agreed to in the original costs agreement and the amended cost agreement.
I am satisfied that the respondent has acted in accordance with its obligations under the law and professionally.
In the circumstances, I am satisfied that the respondent has complied with its obligations under the Act.
In order to succeed in her application, the applicant must be able to satisfy me that one of the matters set out in ss 328(2)(a)-(g) is applicable.
Accordingly, I find that the respondent was not induced to enter into the agreement by the fraud or misrepresentation of the respondent or any representative of the respondent.[10]
[10]The Act, s 328(2)(a).
Section 328(2)(b) is not applicable.
I am satisfied that the respondent has complied with the other obligations in the section.
Accordingly, the application is dismissed.
0
0
1