ASIC v Atlantic 3 Financial (Aust) Pty Ltd
[2006] QCA 540
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- Unreported Judgment
- Appeal Determined (QCA)
- ASIC v Atlantic 3 Financial (Aust) Pty Ltd[2006] QCA 540
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ASIC v Atlantic 3 Financial (Aust) Pty Ltd[2006] QCA 540
Reported at [2007] 2 Qd R 399
ASIC v Atlantic 3 Financial (Aust) Pty Ltd[2006] QCA 540
Reported at [2007] 2 Qd R 399
SUPREME COURT OF QUEENSLAND
CITATION: | ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2006] QCA 540 |
PARTIES: | AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION |
FILE NO/S: | Appeal No 5732 of 2006 SC No 4426 of 2003 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 15 December 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 October 2006 |
JUDGES: | Williams and Jerrard JJA and Philip McMurdo J Separate reasons for judgment of each member of the Court, Williams JA and McMurdo J concurring as to the orders made, Jerrard JA dissenting |
ORDER: | 1. Appeal dismissed 2. Appellants to pay the costs of the appeal to be assessed on a standard basis |
CATCHWORDS: | CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – ILLEGAL AND VOID CONTRACTS – EFFECT OF ILLEGALITY OR INVALIDITY – IN GENERAL – appellants were ordered to pay respondents’ costs – costs to be assessed on the standard basis up until specified date and thereafter on an indemnity basis – respondents applied for assessment of costs statement – appellants objected to validity of agreement between respondents and their solicitors – Senior Deputy Registrar held agreement was “void” under s 48F Queensland Law Society Act 1952 (Qld) (“the Act”) – on appeal a Supreme Court Trial Division judge declared client agreement complied with s 48 – whether client agreement between respondents and their solicitors complied with s 48 of the Act Acts Interpretation Act 1954 (Qld), s 14B Parliament of Queensland Act 2001 (Qld), s 8 Queensland Law Society Act 1952 (Qld), 6ZA, s 6ZB, s 48, s 48F Uniform Civil Procedure Rules 1999 (Qld), r 704(3) ASIC v Atlantic 3 - Financial (Aust) Pty Ltd & Ors [2006] QSC 152; BS 4426 of 2003, 23 June 2006, considered Casey v Quabba & Anor [2007] 1 Qd. R. 297, considered Herald & Ors v Worker Bee (Brisbane) Pty Ltd [2004] 2 Qd. R. 263, considered In Re WP Morgan (1881) 1 QLJ 49, considered In Re Herbert (1887) 34 Ch D 504, considered Struber v McNamara & Associates [2003] QSC 372; S 8979 of 2003, 3 November 2003, considered |
COUNSEL: | P J Davis SC for the appellants P H Morrison QC, with S J Lee, for the respondents |
SOLICITORS: | Lynch & Co for the appellants Gadens Lawyers for the respondents |
- WILLIAMS JA: The relevant facts and legislative provisions are fully set out in the reasons for judgment of McMurdo J and Jerrard JA and I will not repeat them.
- In dealing with the appellant's contention that the client agreement did not comply with clause 11 of the prescribed notice, McMurdo J and Jerrard JA reasoned differently in concluding that non-compliance had not been established. In my view there is validity in each approach, and it is clear that the client agreement was not inconsistent with clause 11.
- I agree with McMurdo J, that the solicitor and client agreement evidenced agreement upon four forms of account for purposes of clause 15 of the prescribed notice. Any one of those forms of account would satisfy the requirements of clause 15.
- That then leads to the question, was there compliance with clause 16 of the prescribed notice? Properly construed clause 16 obliges a solicitor when sending an account in an agreed form to ensure that it contains sufficient details of the work done to allow the client to decide whether the fees and costs charged are reasonable. That is something which can only be determined at the time the account is sent out and the sufficiency of the detail will depend upon circumstances prevailing at that time. The fact that an account in an agreed form as sent out does not comply with clause 16 does not mean that the client agreement is inconsistent with clause 16. In my view it is not necessary, as McMurdo J suggests in his reasons, to imply a term into the costs agreement in order to overcome the problem that an account in one of the four forms agreed to, when sent out, might not comply with clause 16. Even if there was agreement to a single form which complied meticulously with all the requirements of clauses 15 and 16, a solicitor could still in fact submit an account to the client which did not contain sufficient detail to enable the client to decide whether the fees and costs charged were reasonable. The consequence of that would be that the account as submitted did not conform to the requirements of the costs agreement; it would not mean that the costs agreement was inconsistent with clause 16.
- The appellant has not demonstrated any inconsistency between the costs agreement and either clauses 15 or 16 of the prescribed notice. The obligation is on the solicitor to ensure that the account sent out in the agreed form contains sufficient particulars to comply with clause 16.
- With respect to the allegation that the costs agreement was inconsistent with clause 20 of the prescribed notice I agree with what has been said by McMurdo J. The costs agreement itself does not contain particulars of, for example, the hourly rate to be charged by solicitors throughout the term of the costs agreement. Rather the costs agreement provides the procedure for fixing the hourly rate from time to time throughout the term of the agreement. In so doing there is no inconsistency with clause 20. The variation in fees would, as McMurdo J has said, be a consequence of applying the terms of the costs agreement and not an amendment of the costs agreement itself.
- I adhere to what I said in Casey v Quabba & Anor [2007] 1 Qd. R. 297, as to the consequence of non-compliance with s 48 of the Queensland Law Society Act 1952 ("the Act") provided for by s 48F. Void in s 48F(1) must mean void. I can see that there are reasons supporting the view that the preferable provision would be that non‑compliance with s 48 should give the client the option of avoiding the client agreement. But that is not what the legislature has said. If it is thought that non‑compliance should only confer on the client a right to elect to avoid then the statute needs to be amended.
- McMurdo J has suggested it might be arguable (though the argument was not addressed to the Court either in this case or in Casey v Quabba) that non-compliance with s 48(5) might be caught by s 48F(2) so that only the offending provision would be void. I would need to hear further argument before being convinced of that; it may well be that once the provision in question was struck-out as being void, what was left of the client agreement would not comply with s 48.
- Finally, I have to deal with the respondent's submission that s 6ZB of the Act in effect gave the client the right to waive non-compliance with s 48 of the Act and that therefore the word "void" in s 48F should be read as "voidable".
- Section 6ZB is found in Division 6A of Part 2A of the Act; that Part is headed "Solicitor's Complaints Tribunal" and that Division is headed "Application for assessment of account under client agreement". Sections 48 and 48F are found in Part 4A which is headed "Client Agreements". Both Division 6A and Part 4A were inserted into the Act by the amending legislation in 1998 (Act No. 20 of 1998).
- Section 6ZA(1) provides that Division 6A applies where a client is given an account in a form agreed to in a client agreement and applies to the tribunal for the appointment of a costs assessor to assess the account. The Division does not apply if the client agreement is for a lump sum amount only (s 6ZA(2)). Then comes s 6ZB which provides as follows:
"(1) A client who asks for the appointment of a costs assessor under this division is taken to dispute only the amount payable under the client agreement.
(2) The client may not subsequently challenge the validity or enforceability of the client agreement."
- In my view the operative part of s 6ZB is that found in subsection (1); the client who has submitted the account to a costs assessor may only dispute the amount payable under the client agreement. If that provision is given primacy, subsection (2) effectively means that the client cannot challenge the solicitor – client relationship.
- If subsection (2) was not so construed, and as the respondent submits here it has the effect of suggesting that the client could no longer contend that the agreement was void in the strict sense by operation of s 48F, there would, in my view, be an ambiguity in the legislation which needed to be resolved. Section 14B of the Acts Interpretation Act 1954 (Qld) provides that if a provision is ambiguous or obscure the court may have regard to "extrinsic material" in order to correctly interpret the provision. "Extrinsic material" is then defined as including "material in the Votes and Proceedings of the Legislature Assembly or in any official records of debates in the Legislative Assembly". If there be an ambiguity then recourse can be had to the Queensland Parliamentary Debates (Hansard) in order to better understand what was intended by the amendments made in 1998. In his reply to the Second Reading the Attorney-General is recorded as saying with respect to s 6ZB: "At present, a retainer may not be taxed unless it is first admitted. It is the same with this. It is commonsense. It is a concept that has prevailed for over 100 years … ". (Hansard 21 April 1998 p. 751). Then in Committee an amendment was moved by the Opposition to s 6ZB: the amendment was defeated. In the course of the debate on that proposed amendment there was reference to a statement by the Attorney-General to the Scrutiny of Legislation Committee dealing with proposed s 6ZB. Hansard at 758 records the statement of the Attorney-General as follows: "It should be noted, as well, that where a taxation under a retainer occurs at present, the client is generally taken to have admitted the existence of the retainer; for example see, In Re WP Morgan (1881) 1 QLJ 49; In re Herbert (1887) 34 Ch D 504; … ". In Re WP Morgan, Lilley CJ is reported as saying: "The taking out of the order to tax is a tacit admission of the retainer, and when the right to dispute it is required the order must be made by a judge." In In re Herbert, North J is reported as saying at 505: "Now it is said that it was not open to the parties to dispute the retainer, they having obtained a common order to tax. It is not open to them to dispute the retainer as to the whole bill, but it is to do so as to any particular items or as to any head of charges." Finally, in concluding the debate with respect to the proposed amendment the Attorney-General is recorded as saying at page 760: "The member for Yeronga spoke about some cases from sometime ago. He asked whether it was 'a retainer' or 'the retainer’. It relates to 'the retainer. … It is not open to them to dispute the retainer as to the whole bill.’”
- It seems clear that Parliament intended s 6ZB to restate the existing law, namely that a client who submitted a bill for taxation or assessment could not challenge the retainer.
- So construed there is no ambiguity between s 6ZB and s 48F, and s 6ZB cannot have the effect of suggesting that in s 48F "void" means "voidable".
- I agree with McMurdo J that the appeal should be dismissed with costs.
- JERRARD JA: This appeal involves the question whether a client agreement made between the respondents Gregory Maloney and Peter Geroff of the one part, and Messrs Gadens Lawyers of the other part, complied with s 48 of the Queensland Law Society Act 1952 (Qld) (“the Act”). The appellants were ordered to pay the respondents’ costs in the proceeding ASIC v Atlantic 3 - Financial (Aust) Pty Ltd & Ors [2006] QSC 152,[1] by an order made on 7 September 2004. Those costs were ordered to be assessed on the standard basis up to a specified date, and thereafter on an indemnity basis. The respondents applied on 26 November 2004 to the Registrar for an assessment of the costs statement prepared by their solicitors in respect of that order, and the appellants then objected to the validity of the client agreement between the respondents and their solicitors Gadens Lawyers. On 13 October 2005, a Senior Deputy Registrar found that the client agreement between the respondents and Gadens Lawyers was void under s 48F of the Act, and on 23 June 2006 the respondents obtained a declaration from this Court in the Trial Division to the effect, though not in form, that the client agreement complied with s 48. The appellants challenge that conclusion by this appeal.
- Rule 704(3) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) provides as follows:
“(3) When assessing costs on the indemnity basis, the registrar must allow all costs reasonably incurred and of a reasonable amount, having regard to –
(a)the scale of fees prescribed for the court; and
(b)any costs agreement between the party to whom the costs are payable and the party’s solicitor; and
(c)charges ordinarily payable by a client to a solicitor for the work.”
It was common ground in Casey v Quabba & Anor [2007] 1 Qd. R. 297,[2] and not challenged in this matter, that a client agreement described in Part 4A of the Act is a costs agreement for the purposes of UCPR 704(3). The respondents in this matter accordingly argued to the learned primary judge, who accepted the submission, that the registrar was obliged when assessing the respondents’ costs on the indemnity basis to have regard to the client agreement. The appellants contend otherwise, because they say it is void; this Court held in Casey v Quabba that if an agreement was void because of the operation of s 48F(1) of the Act, then the Registrar could not refer to it at the stage of assessing costs payable on an indemnity basis. This Court also held that the party ordered to pay indemnity costs could object to the Registrar having regard to a void client agreement. In this appeal the respondents urge that this Court reconsider that decision.
- Section 48 of the Act relevantly provides as follows:
“48. Usual client agreement
(1)This section does not apply to urgent work or work if the maximum amount a practitioner or firm charges as fees for the work is $750 or less.
(2)Within a reasonable time after starting work for a client, a practitioner or firm must make a written agreement with the client expressed in clear plain language and specifying the following matters:
(a)the work the practitioner or firm is to perform;
(b)the fees and costs payable by the client for the work.
(3)The fees and costs payable by the client for work must specify-
(a)a lump sum amount; or
(b)the basis on which fees and costs will be calculated
(whether or not including a lump sum amount).
(4)The notice in the schedule must be completed by the practitioner or firm and given to the client, together with a copy of any scale for the work provided under an Act, before the client signs the client agreement.
(4A)....
(5)The client agreement must not be inconsistent with the notice in the schedule.”
That notice is a statutory draft of a notice required to be given to the client by the solicitor.
- Section 48F provides:
“48FEffect of non-compliance or prohibited provision
(1)If a client agreement to which section 48 applies does not comply with that section, the client agreement is void.
(2)If a provision is included in a client agreement and inclusion of the provision is prohibited by this part, the provision is void.”
- In Casey v Quabba this Court held that the expression “void” in each subsection meant void, i.e. having no legal effect for any purpose as against the world, for the reasons explained in the judgment of Williams JA. Relying on that decision, the appellants contend that the client agreement between the respondents and Gadens Lawyers was void. It consisted of a letter from Gadens Lawyers dated 1 October 2003, described as “the Engagement Letter”, and a separate document entitled “General Terms”; the respondents signed the engagement letter on 16 October 2003, thereby accepting a client agreement constituted by those two documents. The appellants argue that the client agreement thus constituted offends against s 48(5), being inconsistent in its terms with clauses 11, 15, 16, and 20 of the notice in the schedule.
- Clauses 10, 11, and 12 should be read together. They provide:
“10.A client agreement may set a lump sum amount for fees and costs.
11.Otherwise, the client agreement must state the basis on which fees and costs will be calculated (whether or not including a lump sum) and give either –
- an estimate of the total amount of fees and costs likely to be payable for the work; or
- if it is not reasonably practicable to estimate the total amount of fees and costs likely to be payable for the work – a range of estimates of the total amount of fees and costs likely to be payable for the work and an explanation of the significant variables that will affect the calculation of the amount.
12.However, your solicitor or firm is not bound by the estimate or range of estimates given in this client agreement.”
- Paragraphs 15 and 16 should likewise be read together. They provide:
“15.An account from your solicitor or firm must be in the form agreed to in this client agreement or must clearly set out all items of work done for you and the amount charged for each item.
16.If a form of account is agreed to, it must be a form resulting in the inclusion in each account of sufficient details of the work done to allow you to decide whether the fees and costs in the account are reasonable.”
- Clause 11 describes something that must appear in the client agreement. Clause 15 describes the form in which later accounts must be presented, or their contents. Clause 16 requires that a form of account agreed upon must produce a specific result. Whether accounts received from the solicitor or firm comply with clause 15 will only be known when the account is received. Whether a form of account agreed upon is a form resulting in the inclusion in each account of sufficient details of the work done to allow the client to decide whether the fees and costs in the account are reasonable is also likely to be a matter established only on receipt of each account. It follows it will be difficult for a client agreement to be inconsistent with clauses 15 and 16 of the notice in the schedule; those clauses mandate the form and contents of accounts, not the terms of the client agreement, although the terms cannot be inconsistent with those clauses. On the other hand, a client agreement could readily be found inconsistent with clause 11.
- Clause 20 provides:
“20.This agreement may be amended if you and your solicitor or firm agree to the changes in writing.”
A client agreement could be inconsistent with that clause. Obvious inconsistencies would be if the client agreement provided that it could not be amended by agreement in writing, or if it provided that one party to the agreement could unilaterally change the terms, without the agreement of the other party.
- The respondents are members of a firm of chartered accountants, who were appointed as investigative accountants to prepare and file a report to this Court in relation to certain unregistered managed investment schemes conducted by the company Atlantic 3-Financial (Aust) Pty Ltd. In the course of that they sought assistance from Gadens Lawyers for advice and representation generally with respect to matters arising out of the activities of that company, and in relation to the managed investment schemes of which they had been appointed liquidators. They also sought representation on a successful application for approval of their remuneration and disbursements pursuant to the order of 27 May 2003 appointing them investigative accountants. The appellants had given undertakings at the time of those orders to pay those costs as agreed or as determined by the court. The client agreement into which the respondents and Gadens entered described the respondents having asked Gadens to carry out the work of giving the respondents advice and representation generally including representation in court as required, adding that that was only a general description. The Engagement Letter specified the work the firm was to perform. The respondents’ affidavit evidence in their proceeding for a declaration described Gadens performing various work on their behalf, and that they paid the Gadens invoices, being satisfied with the reasonableness of the sums claimed. The evidence did not disclose any suggestion that the respondents were not satisfied with the description in the client agreement of the work Gadens were engaged to perform, and accordingly it appears that the client agreement complied with s 48(2)(a) of the Act.
- The Engagement Letter nominated two specified insolvency partners and a litigation solicitor in Gaden’s employ who would be the lawyers working with the respondents. It relevantly reads as follows:
“3. Charges for our services
Our charges for professional services are affected by a number of variables and are made in accordance with the General Terms. Hourly rates are used by most major law firms and are a general basis for determining an appropriate fee.
The current hourly rates for the nominated lawyers for this matter are:
Partner [named] $ [amount specified]
Partner [named] $ [figure specified]
Solicitor [named] $ [figure specified]
These rates are exclusive of GST.
The costs you can expect to incur will depend on many variables such as the length of the process, early settlement, the institution of formal proceedings, the way any proceedings are conducted and appeals. An early settlement can result in significant cost savings, provided the settlement terms are otherwise acceptable to you.
We attach costs scales for the Supreme Court which itemise how recoverable costs are assessed in that forum. If proceedings are commenced and you are successful in this forum, you may receive an order entitling recovery against another party or parties of certain of your costs and disbursements, but typically this will be in the vicinity of 50%-75% of your actual costs. If you are unsuccessful in proceedings, you could expect to be required to pay a similar percentage of the other parties’ costs and disbursements.”
- The Engagement Letter then advised of specific charges for the reproduction of documents and sending documents by facsimile, and of the charges for interstate, international, and mobile telephone calls. It continued:
“4. Present estimate of costs and disbursements
We estimate that our professional fees and disbursements for this matter will be $20,000. In estimating this amount, we have attempted to identify the tasks to be performed on your behalf to complete the work.
This estimate is neither a quote nor a cap on what we will charge you. The actual fees charged will be determined by the General Terms and will depend on the work undertaken. As the matter proceeds, other tasks may have to be undertaken, for instance upon your further instructions, if our role changes or due to unforeseen circumstances (such as protracted negotiations). We encourage you to contact us from time to time for our updated estimate as to costs.”
- I pause to observe that the client agreement thus did state the basis on which fees and costs would be calculated, namely the identified hourly rates and the specified charges for document reproduction, etc., as required by the first part of clause 11 of the notice in the schedule. It also gave an estimate of the total professional fees and disbursements. It accordingly complied with the first dot point in clause 11. It did not provide a range of estimates, but that was not inconsistent with clause 11, in which the two dot points describe alternative requirements. The agreement did describe the matters likely to affect the costs. It thus generally satisfied Rule 11 and s 48(3)(a) and (b) of the Act.
- The General Terms included the following:
“These General Terms and the Engagement Letter are referred to in these General Terms as our ‘agreement’. Our agreement sets out your rights and duties in retaining us to act for you as well as our rights and duties in acting on your behalf. This agreement is a requirement of the Queensland Law Society Act 1952 (Qld) and our Quality Assurance Accreditation.
Precedence
To the extent that there is a conflict between these General Terms and the Engagement Letter, the Engagement Letter will prevail.
Variations of our agreement
You agree to be bound by our General Terms as varied from time to time. Please contact us at any time to ensure you have a copy of our current General Terms.
Subject to the above, no variation of our agreement will be valid unless confirmed in writing by us on or after the date of signature of the Engagement Letter.”
It went on:
“Charges for our services
Hourly rates. We will charge on the basis of hourly rates, unless otherwise agreed.
If hourly rates apply, please note that they are only a general basis for determining the appropriate fees for our work. We may adjust our fees to reflect the value and skill we bring by delivering an innovative solution or the special responsibility or urgency of the matter. We may also adjust our fees to reflect the benefit to you of previous work product or precedents.
Hourly rates vary according to the type of work and to the experience and expertise of the lawyers involved. The current rates are generally set out in the Engagement Letter. If hourly rates for any lawyer are not included, you can assume they will be on the general basis of our standard rates applicable at that time for that lawyer doing that work.”
- There later appeared:
“Review of rates and fees. Rates for our fees and disbursements are reviewed regularly and may change during the course of your matter. If they do, the revised rates will apply to your matter from the date of the change. We usually inform clients of rate changes for fees and disbursements but you agree to be bound by any changes we make regardless. We will seek your approval for changes that will apply only to you. Please contact us at any time to ensure you have a copy of our current applicable rates.”
- Under the heading “Accounts” the following appeared:
“Accounts. Unless otherwise agreed, we will send you an account for our professional costs and disbursements at regular intervals, usually at the end of each month, while work is in progress and when the work is complete.
In our accounts we may, but shall not be required to, set out the individual items of work and the charges applicable to them. For instance, you agree that we may furnish accounts detailing only the number of hours worked by each lawyer on the matter and/or a general description of the work undertaken and disbursements incurred.”
It added:
“If, on receipt of our account, you have any issue with either the time spent on the matter or our charges generally, you are required to take the matter up with us within 14 days of receipt. In the event you do not, you are deemed to accept the reasonableness of our charges or the time spent, whether or not the account has been paid.”
- Although the words “for instance” in the General Terms are both unusual and somewhat laconic in a contract, those General Terms do record agreement as to a number of forms of account, and Mr Davis SC for the appellants accepted that more than one form could be agreed upon. While Mr Davis is correct in the submission that the express terms of the client agreement do authorise Gadens to deliver a bill which does not comply with the requirements in the second alternative in clause 15, I accept his principal submission that a number of different forms of account were agreed. Accordingly, the first alternative in clause 15 applies, engaging clause 16; and I disagree with Mr Davis that the forms agreed were not ones “resulting” in the inclusion of the necessary sufficient details to allow the client to decide if the fees and costs are reasonable.
- A copy of the tax invoice from Gadens dated 29 November 2004 is included in the appeal record. It lists by chronological date each step or act done for the respondents, and the total of the fees and disbursements charged. It does not specify a separate amount charged for each of those numerous items. The amount charged ($69,754.07) considerably exceeds $20,000. The respondents decided the fees and costs charged were reasonable,[3] and paid the bill, after perusing the items listed. That prima facie means the account was in a form resulting in the inclusion of sufficient details for the respondents to decide if the charges were reasonable; the client in matters of this sort is probably the best judge on that point.
- The tax invoice supplied does answer the description of an account detailing a general description of the work undertaken and disbursements incurred, which was one of the forms of account agreed to in that client agreement. Accordingly there was no inconsistency between the client agreement and the notice in the schedule in clause 16. I add that I agree with the observations of Chesterman J in Struber v McNamara & Associates [2003] QSC 372,[4] where His Honour held that parties have a choice: either the solicitor must deliver a fully detailed bill which clearly sets out all items of work done and the amount of charges for each item, or the parties can agree to a form of account, provided that form complies with the minimum requirements laid down in clause 16. Further, a client agreement is not avoided merely because of a failure by the solicitor to issue an account in a form which complies with the required standard (in clause 15 or in the client agreement), because it is the agreement which must be inconsistent with the schedule for the agreement to be void. It is not the solicitor’s performance of the agreement which avoids it.[5]
Clause 20
- The object of that clause appears to be that the client and solicitor agree that the client agreement into which they enter can only be amended by agreement in writing. The respondents resisted the argument that the General Terms assert that the solicitor can unilaterally vary them, and make the point that there is no express claim of a right to unilaterally vary them. But unfortunately for the respondents, that is the effect of those General Terms. As Mr Davis submitted, advising the client to contact the solicitor to ensure the client has a copy of the current General Terms would be unnecessary if any variations to the General Terms (already supplied to the client) had to be agreed upon with the client in writing. The second paragraph of the “Variations of our agreement” restricts the client’s capacity to effect variations, to those to which the solicitors agree in writing. The first paragraph describes an agreement to be bound by the current General Terms, as varied from time to time. In context, that means as varied by the solicitor.
- The respondents argue that first paragraph under the heading “Variation of our agreement” is a non-promissory declaration, which merely provides information. But that information was given in the preceding, opening paragraph of the General Terms; the first paragraph under the heading “Variations” describes the client being bound by the current General Terms, and implies the solicitors can vary those without reference to the client. The opposite construction would mean either that there could be a very large number of differently worded General Terms, which would be inconsistent with having one current set of General Terms, or else that construction would necessitate the solicitors obtaining approval, from all clients who had entered client agreements on the General Terms, to any proposed variation in the General Terms. That would be most unwieldy and difficult, and not what the solicitors intended. The whole point of General Terms is that those apply generally to all clients. The submission by Mr Davis accords with the contents of the Engagement Letter, which enclose the current General Terms, and advises that those are amended from time to time. There is no suggestion that the apparently regular amendments will require the client’s agreement, or any client’s agreement. Those General Terms and that Engagement Letter are therefore inconsistent with clause 20 of the notice in the schedule. That is because the contents of the General Terms assert that those, and the Engagement Letter, are “our agreement”. So when the General Terms are varied, the terms of the agreement are varied. On this point I respectfully disagree with McMurdo J.
- Mr Davis also argued that the reservation by the solicitors of the right to review and change the hourly rates specified in the Engagement Letter, and the agreement that the client will be bound by any changes to those current hourly rates (with approval being sought only for changes applying only to the specific client) was also inconsistent with clause 20. I do not agree with that submission. The client agreement envisages that clients will be told the current hourly rate, and advised of the obvious enough proposition that from time to time those hourly rates will change, and that the client will be charged the current hourly rate. The client may incur a greater liability than the client realised, when the hourly rate is increased without the client promptly learning of it, but the issue is not whether or not client agreements are good or bad agreements. The issue is simply whether an earlier and expressly agreed power in the solicitors to increase their hourly rates results in an amendment of the agreement when the power is exercised. I think not; the client has agreed to pay the current rate as specified from time to time, and the specific rates were not terms of the agreement. In that respect they differ from the General Terms.
Void
- Regarding reconsideration of the word “void” in s 48F(1) of the Act, the respondents appear to accept that “void” means void in s 48F(2). But they argue that in s 48F(1) it means voidable. That argument is supported by the submission that the object of the legislation was to protect clients, and the result in this matter is that clients who have paid the bill and who were satisfied with the solicitor’s work, as they have sworn, satisfied with the form of the account submitted, and satisfied with the amount of the bill, are being penalised at the expense of an opponent who is ordered to indemnify those clients in respect of the account which they had paid. That is correct, but that consequence follows from the form in which the solicitors have drafted the client agreement.
- The respondents submitted that s 6ZB of the Act, effectively repeated in clauses 21 and 22 of the notice in the schedule, suggest that it is within the power of the client to waive noncompliance with s 48 of the Act. They argue that is consistent with “void” meaning “voidable”. Sections 6ZA and 6ZB read as follows:
“6ZA. Application of div 6A
(1) This division applies if a client -
(a)is given an account that -
(i)is in a form agreed to in a client agreement between the client and the practitioner or firm; or
(ii)clearly sets out all items of work done for the client and the amount charged for each item; and
(b)applies to the tribunal for an appointment by the clerk of the tribunal of a costs assessor to assess the account and gives the clerk a notice of objection stating, to the best of the client’s ability, the items in the account to which the client objects and the client’s grounds for the objection.”
- Omitting s 6ZA(2), s 6ZB provides:
“6ZB. Effect of request for appointment of assessor
(1)A client who asks for the appointment of a costs assessor under this division is taken to dispute only the amount payable under the client agreement.
(2)The client may not subsequently challenge the validity or enforceability of the client agreement.”
- Mr Davis suggested that the report of the debate in the Legislative Assembly when those provisions were inserted in the Act suggests that the members of the Assembly may have intended by s 6ZB to prevent clients who asked for the appointment of a costs assessor from subsequently challenging the validity or enforceability of the retainer between the solicitor and the client, rather than the client agreement. That may be so, but in my opinion considering the merits of that submission would require referring to and analysing the report of the proceedings in the Legislative Assembly. That would risk breaching the prohibition in s 8 of the Parliament of Queensland Act 2001 (Qld).
- The schedule notice provides as follows in clauses 21 to 23:
“21.You may formally challenge the amount of an account by applying to the Solicitors Complaints Tribunal for the appointment of a costs assessor to assess the account.
22. If you do this, you cannot subsequently challenge the validity or enforceability of this client agreement.
23.This means that before applying for the appointment of a costs assessor, you should consider, and, if necessary, obtain advice about, whether there are grounds for challenging the validity or enforceability of this agreement.”
That advice, restating s 6ZA and 6ZB, but inaccurately, does not describe a power to waive noncompliance with s 48; it describes an inability to challenge on any other ground once the amount payable is disputed by asking for a costs assessor to be appointed. Section 6ZB does not prohibit the costs assessor who is appointed, nor a court to which either the client or the practitioner or firm applies after the costs assessment (pursuant to s 6ZF), from finding the client agreement is void, and for that reason ignoring it when making the assessment or deciding the reasonableness of the fees and costs.
- As to the argument that “void” has been used to mean “voidable” in legislation, current legislation in this State includes numerous examples of the use of “voidable” with apparent appropriate intent (such as in the Public Trustee Act 1978 (Qld), the Introduction Agents Act 2001 (Qld), the Tourism Queensland Act 1979 (Qld), the Trade Measurement Act 1990 (Qld), and the Property Law Act 1974 (Qld)) and the term “void” with apparent appropriate intent. Examples of the latter include the Financial Intermediaries Act 1996 (Qld), the Hire Purchase Act 1959 (Qld), the Credit (Rural Finance) Act 1996 (Qld), the Legal Aid Queensland Act 1997 (Qld), the Powers of Attorney Act 1998 (Qld), the Queensland Competition Authority Act 1997 (Qld), the Commercial and Consumer Tribunal Act 2003 (Qld), the Bills of Sale and Other Instruments Act 1955 (Qld), the Retail Shop Leases Act 1994 (Qld), the Criminal Proceeds Confiscation Act 2002 (Qld), the Land Tax Act 1915 (Qld), the Residential Tenancies Act 1994 (Qld), the Pharmacists Registration Act 2001 (Qld), and the Body Corporate and Community Management Regulation 1997 (Qld)). The respondents did not do nearly enough to produce a persuasive argument that the term was used in one sense in s 48F(1) and in the opposite in s 48F(2).
- In the result I would uphold the appeal by reason of the inconsistency between the client agreement and clause 20 of the notice in the schedule. I would therefore allow the appeal, and order that the respondents pay the appellants’ costs to be assessed.
- McMURDO J: The respondents to this appeal were awarded costs against the appellants, in part on the indemnity basis. On the assessment of those costs, the respondents sought to rely upon their agreement with their solicitors, according to which they had been billed and they had paid. The Deputy Registrar conducting the assessment ruled that the agreement did not comply with s 48 of the Queensland Law Society Act 1952 (Qld) and was void. He further ruled that in consequence, the respondents should have their indemnity costs assessed upon the Court’s scale. The correctness of that last ruling may be doubted, but at least so far, the respondents have not challenged it. Their challenge was to the Registrar’s ruling that their agreement with their solicitors was void. That challenge was upheld by Mullins J at [2006] QSC 152 from which there is this appeal.
- The appellants argue that the agreement does not comply with s 48 in several respects, (including one which was not argued before Mullins J) and that as a result, as this Court held in Casey v Quabba [2007] 1 Qd. R. 297, the agreement is void and the Registrar was right to disregard it. The respondents say that the agreement complied with s 48 in every respect. Alternatively they say that Casey v Quabba should be overruled.
- Section 48 relevantly provides as follows:
“48.(1) …
(2) Within a reasonable time after starting work for a client, a practitioner or firm must make a written agreement with the client expressed in clear plain language and specifying the following matters –
- the work the practitioner or firm is to perform;
- the fees and costs payable by the client for the work.
- The fees and costs payable by the client for work must specify –
- a lump sum amount; or
- the basis on which fees and costs will be calculated (whether or not including a lump sum amount).
- The notice in the schedule must be completed by the practitioner or firm and given to the client, together with a copy of any scale for the work provided under an Act, before the client signs the client agreement.
- The client agreement must not be inconsistent with the notice in the schedule.
(6)…”
- Each of the appellants’ arguments refers to an alleged inconsistency between the client agreement and the prescribed notice. The relevant terms of the notice are as follows:
“(10)A client agreement may set a lump sum amount for fees and costs.
- Otherwise, the client agreement must state the basis on which fees and costs will be calculated (whether or not including a lump sum) and give either –
- an estimate of the total amount of fees and costs likely to be payable for the work; or
- if it is not reasonably practicable to estimate the total amount of fees and costs likely to be payable for the work – a range of estimates of the total amount of fees and costs likely to be payable for the work and an explanation of the significant variables that will affect the calculation of the amount. ..
- An account from your solicitor or firm must be in the form agreed to in this client agreement or must clearly set out all items of work done for you and the amount charged for each item.
- If a form of account is agreed to, it must be a form resulting in the inclusion in each account of sufficient details of the work done to allow you to decide whether the fees and costs in the account are reasonable. …
- This agreement may be amended if you and your solicitor or firm agree to the changes in writing. …”
The Clause 11 Argument
- Clause 11 requires a client agreement to give an estimate of the total amount of fees and costs likely to be payable. Alternatively, if it is not reasonably practicable for that estimate to be given, a range of estimates is to be given with an explanation of the significant variables likely to affect the ultimate costs. As Mullins J held, the client agreement was constituted by an engagement letter to the respondents dated 1 October 2003 and an enclosed document headed “General Terms (as at 28 July 2003)”. The letter referred to the General Terms as outlining “the basis of all work we undertake for you, subject to any written changes in this or other correspondence” and added that “these General Terms are amended from time to time (see the attachment for more details)”. The letter also enclosed a document which constituted the notice required by s 48(4).
- The engagement letter provided an estimate of fees and disbursements, in these terms:
“We estimate that our professional fees and disbursements for this matter will be $20,000 In estimating this amount, we have attempted to identify the tasks to be performed on your behalf to complete the work.
This estimate is neither a quote nor a cap on what we will charge you. The actual fees charged will be determined by the General Terms and will depend on the work undertaken. As the matter proceeds, other tasks may have to be undertaken, for instance upon your further instructions, if our role changes or due to unforeseen circumstances (such as protracted negotiations). We encourage you to contact us from time to time for an updated estimate as to costs.”
- The appellants’ written submission, which was not the subject of oral argument, is that the solicitors should have given a more extensive explanation of the contingencies which could affect the amount of work and its cost. The argument focuses upon the second dot point of cl 11 and its requirement for “an explanation of the significant variables”. But that is a requirement if it is not reasonably practicable for the solicitors to then give an estimate. In this case the solicitors must have thought it was practicable, because they gave that estimate ($20,000). The appellants do not argue that this was not a genuine estimate or that it was not reasonably practicable to give it. Rather, their argument seems to assume that where an estimate can be and is given, the solicitors must still explain the significant variables that might affect the ultimate cost. That argument is inconsistent with cl 11 and Mullins J was correct to reject it.
Clauses 15 and 16
- The argument which the appellants put to Mullins J, which had found favour with the Deputy Registrar, was an inconsistency with cl 16. The premise of that argument is that there was an agreed form of account. Her Honour did not accept that premise and so rejected the argument. Her Honour was not asked to consider the alternative now advanced by the appellants, which is that if no form of account was agreed, then cl 15 was relevant and the agreement was inconsistent with its requirement that an account set out all items of work done and the amount charged for each item.
- At the commencement of the hearing of the appeal, leave was sought to add a ground of appeal to raise this new point. That was strenuously opposed by the respondents, on the basis that had the point been taken earlier, it would have been met by further evidence. In an endeavour to explain that, the respondents tendered an affidavit indicating that there was a course of dealings between the respondents and their solicitors, by which the respondents accepted the form of the accounts which they received. The Court reserved its decision on whether the appellants would be given leave to add this ground, but ultimately heard full argument upon it. Leave should be granted. The factual enquiry which the respondents say they would have pursued would not have been relevant. Although s 48 requires the client agreement to be made in writing, and soon after starting work for a client, the respondents seem to suggest that there was an agreement as to a form of account which was made either orally or well after the work commenced.
- Was there an agreed form of account? The General Terms provided as follows:
“Accounts.
Unless otherwise agreed, we will send you an account for our professional costs and disbursements at regular intervals, usually at the end of each month, while work is in progress and when the work is completed.
In our accounts we may, but shall not be required to, set out the individual items of work and the charges applicable to them. For instance, you agree that we may furnish accounts detailing only the number of hours worked by each lawyer on the matter and/or a general description of the work undertaken and disbursements incurred.”
- On any view, the agreement did not specify one and only one form of account. It permitted the solicitors to choose between alternatives and as Mr Davis SC for the appellants identified, there are four of them. The first is an account setting out individual items of work and the charges for them. The second is an account setting out only the number of hours worked by each lawyer. The third is an account setting out both the numbers of hours worked by each lawyer and a general description of the work undertaken. The fourth is an account simply giving that general description.
- The first of those alternatives corresponds with that part of cl 15 of the notice, which provides that if an account is not sent in an agreed form, it must clearly set out all items of work and the amount charged for each. The question then is whether the parties have agreed on a form or forms of account by what I will call the second, third and fourth alternatives. The fact of an agreement is suggested by the words “you agree that we may furnish accounts detailing only … .” Those words are preceded by “for instance”, which might suggest yet further variations. But in my view the words “for instance” do not have that effect: they do not indicate an agreement whereby the solicitors can send an account not only in one of those four forms, but in any other form of their liking. Mr Davis SC correctly submits there that there were four, but only four, possibilities from which the solicitors could choose when sending an account.
- For the purposes of cl 15 and cl 16, a form of account could be agreed to by the client agreement permitting the solicitor to use that form. It need not be an agreement which requires the solicitor to use that form. So in this case, the agreement permitted the solicitors to use any of second, third and fourth alternatives instead of a form which set out each item of work and the charge for it. In terms of cl 15 and cl 16, each of the second, third and fourth alternatives was an agreed form of account.
- The agreement thereby accords with cl 15: any account had to be in one of those four forms, and if it was, the account would satisfy one or the other requirement of cl 15.
- The question then is whether there was some inconsistency with cl 16. As Fryberg J said in Herald v Worker Bee (Brisbane) Pty Ltd [2004] 2 Qd. R. 263, and Chesterman J said in Struber v McNamara & Associates [2003] QSC 372, this question involves a comparison of the requirements of cl 16 with the terms of the client agreement, and not a comparison of cl 16 with what the solicitors did when sending their accounts.
- In Struber, Chesterman J said:
“[22] … If by the terms of the agreement bills will be delivered in a form which do not itemise work, or to use the words of the clause, do not include sufficient details to allow a decision on the reasonableness of the fee, then the agreement will be inconsistent with cl 16 of the schedule and will be void. If the client agreement describes a form of account which is capable of providing the detail demanded by cl 16, it cannot be said to be inconsistent with the schedule…
[23]In order to determine whether a client agreement is inconsistent with the notice, and therefore void, one looks to see whether the form of account provided for in the agreement is such that if the contract is performed strictly according to its terms, the account will not give sufficient detail of the work done to allow the client to decide whether the charges are reasonable.”
- My view is different. There is an inconsistency with cl 16 where the agreed form inevitably will fail to provide sufficient details, but, in my view, also where it could do so. If an agreement permits the solicitor to use a certain form of account and not to provide sufficient details, it permits the solicitor not to do what cl 16 requires, and there is an inconsistency.
- In the present case the agreement gave the solicitors a choice. The appellants’ argument is that at least one of those choices would, or at least could, result in there being no “sufficient details of the work done”, and there is thereby an inconsistency with cl 16.
- By the second alternative, the solicitors could refer simply to the number of hours worked on the matter. It is argued that this would, or at least could, result in the provision of no “details of the work done”. But it is not inevitable that an account in that form would have that defect. The circumstances might be that the client was well aware, not from the account itself but by other means, of what its solicitors had been doing during the hours billed within an account. For example, the solicitors might tell the client that for the next month they would be working on the task of reading the client’s documents for the purpose of disclosure. And the clients might then be closely involved with the solicitors as they do that work. In these circumstances, when an account is sent at the end of the month, the client would already know what the solicitors had been doing, and the account would tell the client how long it had taken. So what constitutes sufficient detail to enable the client to decide whether the account is reasonable depends on what the client otherwise knows. The same applies to an account in a form which contains merely a general description of the work undertaken: whether such an account contains sufficient detail depends on the circumstances.
- Did the client agreement permit an account to be sent in a certain form if, in all the circumstances, the client had insufficient details to decide whether the fees were reasonable? There is no express requirement of this agreement that any account should provide that detail. The question is whether the agreement as to forms of account should be interpreted as limiting the solicitors to accounts which have that detail, or if it be a different matter here, whether that limitation on the solicitors results from a necessary implication.
- If the result of non-compliance with s 48 through an inconsistency with cl 16 would be that the agreement as a whole is void, then there is a strong basis for such an implication. If it is necessary to imply that limitation in order to save the validity and effect of the contract, then the implication would satisfy that pre‑condition for the implication of a term which is that it must be necessary to give business efficacy to the contract.[6] And, in my view that implication would satisfy the other pre-requisites: it is reasonable and equitable, the implication is so obvious that “it goes without saying”, it is capable of clear expression (corresponding with the terms of cl 16) and in my view it does not contradict any express term. In that last respect, there is no express term in this agreement that the solicitors may send accounts in one or more of these forms without providing sufficient details to enable the client to decide whether the amount is reasonable. Similarly, as a matter of interpretation of the express terms, the agreement for these forms of account should be understood as qualified in the way I have described, not only because that qualification may be necessary to preserve the effect of the agreement as a whole, but also because any reasonable solicitor would regard it as necessary that his or her account did allow the client to make an assessment of the reasonableness of the charge, and any reasonable client would expect to receive such an account. In construing a contract, a court will presume that the parties did not intend its terms to operate unreasonably[7] or to contravene the law.[8]
- In my conclusion, the provision for these alternative forms of account is necessarily limited, as a matter of construction or by the implication of a term, to the effect that any of the agreed forms of account must in every case provide the details as described in cl 16. It follows that there is no inconsistency with cl 16 and this ground of appeal fails.
Clause 20
- Clause 20 of the Notice provides that any amendment to the agreement is to be in writing. The appellants say that the client agreement, in two respects, provides otherwise.
- The first is in this part of the General Terms:
“Variations of our agreement
You agree to be bound by our General Terms as varied from time to time. Please contact us at any time to ensure you have a copy of our current General Terms.
Subject to the above, no variation of our agreement will be valid unless confirmed in writing by us on or after the date of signature of the Engagement Letter.”
- The appellants say that by these words, the respondents agreed to be bound by amendments to their contract which were not amendments agreed in writing and hence there is an inconsistency with cl 20. However, this argument requires a consideration of what was originally agreed, and of what is an amendment for the purposes of cl 20.
- As already mentioned, the Engagement Letter enclosed a document entitled “General Terms (as at 28 July 2003)”, and it advised that “these General Terms are amended from time to time …”. It would be apparent to someone receiving these documents that these “General Terms” were so called because they were not specific to this contract: they were of general application in the solicitors’ practice. It was also made plain that from time to time these General Terms might change, in that the terms upon which the solicitors ordinarily act for their clients might change. What the solicitors were saying was that the agreement would be governed by whatever was the content from time to time of the General Terms which they generally used for their practice. In Godecke v Kirwan (1973) 129 CLR 629 at 642, Walsh J (with whom Mason J agreed) said that it is no objection to the validity of a contract that it makes it possible for a party to determine some of its terms. Gibbs J (at 646-647) doubted that proposition, at least where it is an essential term which is to be determined by one party, because that would effectively give the party a discretion as to whether it would carry out its purported promise, and accordingly there is no concluded agreement.
- In this case, there is no argument that the client agreement is invalid because it leaves the conditions susceptible to change at the solicitors’ discretion. That argument would have had the difficulty that the concern which Gibbs J had expressed as to whether there was a concluded contract, was not relevant in the present case, where there was an agreement reached upon certain (initial) terms.
- If the respondents were to be bound in terms of any changes to the solicitors’ General Terms from time to time, then that would not be the consequence of any amendment to the client agreement. Rather, it would be the consequence of the client agreement as originally made. It would result from the original agreement and not the result of some further consensus reached between the respondents and their solicitors. Put another way, the respondents would have to accept the General Terms, as used by the solicitors across their practice from time to time, regardless of whether the respondents were happy with them. To the extent that they would be affected by such changes, it would not be by an amendment to their agreement but by the result of it. Clause 20 requires the subject of some further consensus to be recorded in writing.
- The appellants’ second point in relation to cl 20 concerns the potential for changes to the rates for fees and disbursements. The General Terms provided:
“Review of Rates and Fees
Rates for our fees and disbursements are reviewed regularly and may change during the course of your matter. If they do, the revised rates will apply to your matter from the date of the change. We usually inform clients of rate changes for fees and disbursements, but you agree to be bound by any changes we make regardless. We will seek your approval for changes that will apply only to you. Please contact us at any time to ensure you have a copy of our currently applicable rates.”
- The answer to that argument is the same. The clients’ agreement was to pay fees and disbursements according to those rates applied generally by the solicitors from time to time. If the respondents became bound to pay a different rate upon, for example, a variation to the solicitors’ usual charge out rates, then that would be in consequence of the original agreement and not an amendment of it.
- I conclude, therefore, that the appellants’ challenge upon the basis of cl 20 also fails.
Conclusion
- For these reasons, the decision of Mullins J, which was that the client agreement did comply with s 48 and was not void, was correct and should be affirmed.
- This makes it unnecessary for me to consider whether Casey v Quabba should be overruled. As to that, the respondents argued that s 48F makes a non-complying agreement voidable at the client’s option and not void. The appellants argued that s 48F(1), in providing for a result of voidness, means just that.
- Section 48F provides:
“48FEffect of non-compliance or prohibited provision
- If a client agreement to which section 48 applies does not comply with that section, the client agreement is void.
- If a provision is included in a client agreement and inclusion of the provision is prohibited by this part, the provision is void.”
- The respondents did not argue whether s 48F(1), in providing that if a client agreement in some respect does not comply with s 48, “the client agreement is void”, has the effect of rendering void the agreement only to the extent of the non compliance, and in the case of a non compliance with the schedule notice, only to the extent of the inconsistency. Nor did they argue that s 48F(2) applies, in that the inclusion of a provision which is prohibited by s 48(5) because of its inconsistency with the prescribed notice, is a provision which is void, so that it is severed from the otherwise effective agreement.
- On one view, s 48F(2) might be thought to relate only to provisions the inclusion of which is prohibited by s 48C, s 48D or s 48E. However, s 48F(2) refers to any provision prohibited by this part, which includes s 48. Within subss (2) and (3), s 48 requires the inclusion of provisions of a certain effect. Within s 48(5) it requires the inclusion of some provisions (where the notice requires them) and it prohibits the inclusion of provisions of another effect, ie provisions inconsistent with the notice. There is no apparent reason for reading down s 48F(2) so that it applies to some provisions wrongly included, but not those wrongly included contrary to s 48(5). If s 48F(2) does apply to a provision the inclusion of which is inconsistent with the relevant notice, the consequence would be that the provision, and not the whole agreement, would be void, a consequence which would seem to be rational and proportionate, as this case illustrates.
- I would dismiss the appeal and order the appellants to pay the costs of the appeal to be assessed on a standard basis.
Footnotes
[1] BS 4426 of 2003, 23 June 2006.
[2] [2006] QCA 187; Appeal No 10881 of 2005, 2 June 2006.
[3] AR 2, per affidavit of Gregory Maloney at [9].
[4] SC No 8979 of 2003, 3 November 2003.
[5] Struber v McNamara & Associates [2003] QSC 372 at [21] and [26] (Chesterman J referring to the observation of Fryberg J in Herald v Worker Bee (Brisbane) Pty Ltd [2004] 2 Qd. R. 263; [2003] QSC 223; SC No 10373 of 2002, 18 July 2003).
[6] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283.
[7] L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235.
[8] Langley v Foster (1906) 4 CLR 167, 180-181.