Stevens v HopgoodGanim Lawyers
[2024] QCA 18
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Stevens v HopgoodGanim Lawyers[2024] QCA 18
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Stevens v HopgoodGanim Lawyers[2024] QCA 18
Stevens v HopgoodGanim Lawyers[2024] QCA 18
SUPREME COURT OF QUEENSLAND
CITATION: | Stevens v HopgoodGanim Lawyers (A Firm) [2024] QCA 18 |
PARTIES: | KARYN STEVENS (applicant) v HOPGOODGANIM LAWYERS (A FIRM) ABN 54 105 489 661 (respondent) |
FILE NO/S: | Appeal No 8210 of 2023 DC No 3159 of 2022 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Civil) |
ORIGINATING COURT: | District Court at Brisbane – [2023] QDC 96 (Rosengren DCJ) |
DELIVERED ON: | 16 February 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 October 2023 |
JUDGES: | Morrison and Boddice JJA and Martin SJA |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – where the respondent acted as the applicant’s solicitor in Family Court proceedings – where the applicant signed a Costs Agreement in mid-January 2019 and the first invoice was issued in late March 2019 – where the originating application by the applicant sought an order for the assessment of the legal costs pursuant to s 335 of the Legal Profession Act 2007 (Qld) and an order that the 12-month time limit be extended – where the learned primary judge refused the application to extend time to permit the 31 invoices to be assessed – where the applicant was only entitled to an assessment of cost in relation to the last five invoices – where the applicant submitted that factual and discretionary errors affected the learned primary judge’s findings – whether the learned primary judge erred in refusing to extend the 12-month limitation period – whether the appeal should be allowed District Court of Queensland Act 1967 (Qld), s 118(2) Legal Profession Act 2007 (Qld), s 333, s 335 Mishra v Bennett & Philp Pty Ltd (2021) 8 QR 306, [2021] QSC 158, applied Pickering v McArthur [2005] QCA 294, applied Pott v Clayton Utz [2012] QSC 167, considered Tabtill No 2 Pty Ltd & Ors v DLA Phillips Fox (a firm) & Anor [2012] QSC 115, applied |
COUNSEL: | B W J Kidston and J McLean for the applicant J W Peden KC, with J A Hughes, for the respondent |
SOLICITORS: | RCC Legal for the applicant HopgoodGanim Lawyers for the respondent |
- [1]MORRISON JA: The applicant is a former client of HopgoodGanim Lawyers,[1] which acted as her solicitors in proceedings in the Family Court of Australia between the applicant and her former husband.
- [2]In the period 6 September 2018 to 10 February 2022 the firm issued 36 tax invoices totalling $277,000 (excluding disbursements). Those invoices were paid.
- [3]By an originating application filed on 22 December 2022 the applicant sought an order:
- for the assessment of the legal costs the subject of the tax invoices, pursuant to s 335 of the Legal Profession Act 2007 (Qld); and
- to the extent necessary, that the 12-month time limit prescribed by s 335(5) of the Act be extended.
- [4]Before the learned primary judge the firm accepted that the applicant was entitled to an assessment of costs in relation to the last five invoices (delivered to the applicant between 28 October 2021 and 24 February 2022). The dispute related to the 31 invoices delivered to the applicant between 6 September 2018 and 31 August 2021.
- [5]On 9 March 2023, the learned primary judge dismissed the application as to 31 of the invoices and ordered the last five invoices to be assessed pursuant to s 335 of the Act.[2] In essence the learned primary judge refused the application to extend time so as to permit the assessment of the 31 invoices.
- [6]The applicant seeks to challenge the primary decision, seeking leave to do so under s 118(2) of the District Court of Queensland Act 1967 (Qld).
The background facts
- [7]The background facts were not in dispute before this Court. They can be adopted from the decision below.[3]
- [8]In about September 2018, the applicant instructed the firm to provide her with estate planning advice. A file (No 1811447) was opened for this work. A few weeks later the applicant was issued with a Costs Agreement with respect to this estate planning work. She signed and returned it in mid-January 2019. There was a single invoice for this work issued to the applicant in late March 2019.
- [9]The applicant also engaged the firm to provide her with family law advice in relation to a dispute with her former husband. A separate file (No 1810175) was opened for this work because the firm’s general practice was to open and maintain different internal files, where there are different sets of instructions from the same client.
- [10]By a letter dated 12 April 2019, the firm confirmed that it held instructions in relation to her family law matter. It attached the Disclosure of Costs Notice to Client (Costs Disclosure Notice) and the Family Law Costs Agreement (Costs Agreement). It was explained to her that these documents provided an overview of the legal costs for various stages of her family law matter. It was recommended to her that she obtain independent legal advice. It was further explained that at each stage of her matter, the firm would advise her of the estimate of the legal costs to reach the next stage and/or to finalise all matters. This included the legal costs that would be incurred in commencing proceedings “if necessary”. It also stated that if her family law matter ended up including parenting issues, the firm would be required to provide her with certain advice.
- [11]The Costs Disclosure Notice informed the applicant that as at April 2019, it was not possible to provide her with an accurate estimate of the total costs which she would incur. This was because it was not known how far the work would progress and there were also other unknown variables. Having said this, to assist her in understanding the total costs likely to be incurred, the firm provided an estimate to her for each of seven stages of such a dispute, some or all of which would possibly apply to her matter.
- [12]As to the bills of costs, it was explained in the Costs Disclosure Notice that the applicant had the right to receive a monthly bill of costs from the firm. It was further explained that she also had a right to receive an itemised bill of costs after the receipt of a lump sum bill, and that this would be provided within 28 days of a request being made. She was given the email and phone number of the partner of the firm whom she could contact if she had any questions or concerns about the costs.
- [13]She was also told that she could apply for a costs assessment but that it needed to be made within 12 months after the bill of costs was given, or a request was made.
- [14]The Costs Agreement was said to apply to proceedings in any of the Family Court, Federal Circuit Court, High Court or Magistrates Court. “Work” was defined to include:
- procedures under domestic violence legislation;
- all negotiations and participation in alternative dispute resolution, including arbitrations or conciliation; and
- drafting all documents including child support agreements and parenting plans.
- [15]The Costs Agreement further provided that the applicant could terminate it and withdraw her instructions at any time and for any reason. It also provided that the firm could decline to continue to act for the applicant for any number of reasons, including the failure to give adequate or timely instructions.
- [16]Between September 2018 and December 2019, Ms Murray predominantly acted for the applicant in relation to the family law matter. By the hearing below she was no longer employed by the firm. Subsequently, Ms Lahey had carriage of this matter with the assistance of Ms Dowling. She too, no longer worked for the firm by the time of the hearing below.
- [17]The matter proceeded to a mediation on 10 December 2019. It did not resolve and formal offers were exchanged. The applicant’s former husband made a further offer of settlement three days later. This was not accepted and on 23 December 2019, he commenced a family law proceeding against the applicant in the then Family Court of Australia (Family Court proceeding). In February 2020, the applicant instructed the firm to prepare for and represent her in the proceeding. It was listed for trial and proceeded to hearing between 16 and 18 August 2021. The applicant made an offer of settlement on the first day of the hearing. This was not accepted by her former husband.
- [18]At the conclusion of the hearing on 18 August 2021, the Judge made a direction that each party provide the court with an annotated disclosure list identifying duplicate documents that had been disclosed. The work required to comply with the direction was completed by 20 August 2021 and an invoice was forwarded to the applicant by the firm on 31 August 2021. Ms Lahey deposes that at that point she did not have any instructions from the applicant to perform any further work in relation to the Family Court proceeding, although she anticipated that the firm would later be instructed to collect the judgment when it was delivered.
- [19]Between 6 September 2018 and 31 August 2021, the firm issued 31 invoices to the applicant for work done in connection with the Family Court proceeding. The last of these was for work done up to and including the trial.
- [20]Following the trial, the decision was reserved for an unknown period. The applicant deposed that Ms Lahey told her that she would be notified when the decision was being handed down and that the firm would collect the judgment. She further deposed to being told by Ms Lahey that the Judge tended to deliver judgments relatively quickly. She said in evidence that it was her expectation that the firm would continue to act for her in relation to the balance of the work that needed to be carried out in relation to the Family Court proceeding. The applicant referred to the fact that offers of settlement had been exchanged between her and her former husband, which may have impacted on the question of costs once the judgment was delivered.
- [21]Ms Lahey deposed that the firm did not perform any legal work for the applicant between 20 August and 12 October 2021. This is because while there were ongoing communications with the applicant which are summarised in the table below, she was not charged for them.
26 August 2021 | Ms Dowling emailed the applicant to inform the applicant of her upcoming leave plans. She also provided the applicant with a written appraisal that had been requested of an asset held jointly with the applicant’s former husband. The applicant asked for some clarification around a billing issue. |
31 August 2021 | An invoice was issued by the firm. |
3 September 2021 | An email was forwarded from the firm to the applicant attaching the invoice. |
7 September 2021 | An email was forwarded from the firm to the applicant noting that there had been an error in the applicant’s email address when sending the abovementioned. There were further communications between the parties as to whether the invoice would be paid by the applicant or her parents. |
8 September 2021 | An email was forwarded from the applicant to the firm requesting clarification as to whether the invoice included counsels’ fees. |
10 September 2021 | An email was forwarded from the firm to the applicant explaining that the invoice did not include counsels’ fees. |
12 September 2021 | An email was forwarded from the applicant to the firm explaining that she would speak with her parents as to whether the invoice would be paid by her or her parents. |
13 September 2021 | An email was forwarded from the applicant to the firm indicating that the total amount outstanding had been paid. The firm acknowledged the payment and indicated that the applicant would be updated once the delivery date for the judgment was listed. |
- [22]The applicant received a telephone call from Ms Dowling notifying her that the judgment was to be delivered on 13 October 2021. The firm’s invoice dated 28 October 2021 records a time entry by Ms Dowling for a telephone call on this day. The applicant also appeared, although by telephone. Ms Lahey explained in re-examination that prior to the delivery of the judgment, it would be necessary to have seen if the applicant wanted the firm to collect the judgment. This is because a client can attend to this themselves or retain other lawyers to do this.
- [23]Following the delivery of the judgment, on 26 October 2021 the applicant met Ms Lahey and Ms Dowling. Ms Lahey explained that the applicant’s request for a meeting required her to review the judgment and to consider the legal options available to the applicant. She explained that at that meeting the applicant was asked what she would like to do and that “there were some instructions going backwards and forwards in respect of, ‘Do this draft letter. Do this.’” Ms Lahey accepted that this was work that could be done within the scope of Schedule 1 in the Costs Agreement. A further invoice was issued to the applicant on 28 October 2021, for work performed between 13 and 26 October 2021.
- [24]The firm performed additional work for the applicant between November 2021 and February 2022. A separate file (No 2194033) was opened for this work. This involved an application for costs and certain work required to give effect to the judgment, which largely related to property transfers. Four invoices were issued for this work between 29 November 2021 and 24 February 2022. Although Ms Lahey and the applicant continued to correspond in relation to the Family Law matter after 24 February 2022, the firm did not charge for it. These communications took place on 2 March, 23 May and 1 June 2022.
- [25]By email dated 17 June 2022, the applicant requested an itemised bill for each of the 37 invoices. Prior to this, the applicant had paid each of the invoices without raising any concerns. The itemised bills were provided on 20 June 2022. About a month later, the applicant requested a hard copy of her file. By email dated 16 August 2022, she was informed that not all documents were stored as hard copies, and that her file could be provided to her with a USB and supplemented by some hard copies of documents. However, on 6 September 2022 the applicant was informed that a hard copy of her file was now available for collection.
- [26]By email dated 24 November 2022, the applicant requested copies of the firm’s file notes that supported the times claimed in the various invoices that had been forwarded to her during the period that the firm acted for her. The firm sought clarification as to any specific entries in the invoices that this request related to. The applicant did not respond to this but instead requested all file notes “from day 1 until completion of my matters with your firm in relation to my Family Court matters.” In response, the firm explained that she had not been charged for the preparation of any file notes as they had been prepared for internal purposes only and that they therefore belonged to the firm.
- [27]The applicant has paid $277,375.48 on account of the firm’s professional fees, inclusive of GST and exclusive of disbursements. Schedule 4 of the Costs Agreement provided an estimate for complex matters of up to $300,000 plus valuation fees, expert fees and senior counsel’s fees. Ms Lahey deposed to the Family Court proceeding being a complex matter:
- there were issues in relation to the contributions of the applicant and her former husband to the matrimonial asset pool and the increase in loan accounts of related entities;
- some of the matrimonial assets were held in a corporate structure and these assets were required to be valued by a single expert accountant;
- there was a dispute regarding the proper method of valuation of some apartments held through an interposed entity, leading to a dispute as to the value of her former husband’s interest in a related trust;
- the applicant had instructed the firm to engage an accountant as a shadow expert to consider the applicant’s concerns as to the loan accounts in the related entities;
- there was a dispute about several balance sheet issues leading to a dispute as to the true value of the matrimonial asset pool;
- there were complicated taxation issues in relation to their assets; and
- there was an issue regarding the applicant’s former husband’s earning capacity and the treatment of an insurance payment received by him post separation.
Grounds 2(A)-(D)
- [28]Consideration of these grounds requires an assessment as to whether the bill issued on 31 August 2021 was a final bill for the purpose of s 333 of the Legal Profession Act. That, in turn, depends on whether there was a “natural break” in the firm’s retainer.
- [29]
“[18] In Challen, the observation was made that the costs agreement was relevant in identifying the final bill because it specified the extent of the retainer. At first blush, that would seem in the present case to suggest that one should regard the entirety of the work in the trial division proceeding as the subject of the relevant retainer, since the costs agreement described the work as acting in the proceeding. However, a number of judges sitting at first instance have taken the approach that the existence of a costs agreement containing a broad description of work to be undertaken in a proceeding does not preclude the existence of specific retainers in relation to distinct services to be provided within the larger retainer.
[19] In Re Lynch & Co Bill of Costs, Chesterman J, noting equity’s development of a principle that:
“…distinctly identifiable parts of the retainer would constitute a separate retainer for the purposes of billing and if a ‘natural break’ occurred in the conduct of the litigation a bill could be delivered up to the time of the break.”
applied it to the determination of whether questions of taxation in the case before him (involving the Legal Practitioners Act 1995) should be determined on the basis that there was effectively a single bill of costs for work performed pursuant to a single retainer or, alternatively, on the basis that there were three distinct bills. His Honour, concluding that there were in the case before him no distinct services being rendered and no “natural break” in the litigation justifying the delivery of separate bills, proceeded on the first basis.
[20] In Tabtill No 2 Pty Ltd v DLA Phillips Fox (a firm), Applegarth J was dealing with costs applications relating to work done under a client agreement for legal services which were described as acting in two specified Supreme Court proceedings and “associated disputes”. The trial of one of the proceedings having concluded in December 2009, bills had been sent then for the trial costs. After judgment was handed down nine months later, the solicitor was retained to act in respect of costs arguments, with further bills being sent between then and July 2011 for that work. The costs application was made in March 2012. Applegarth J applied the principle which Chesterman J had identified in Re Lynch & Co Bill of Costs [2000] QSC 3 and McGill DCJ’s approach in Turner v Mitchells Solicitors (2011) 33 Qld Lawyer Reports 96, finding that at the time the trial ended, there was a “natural break” in the litigation and, while there was a general retainer to undertake the legal work required for the proceeding, specific instructions were given in relation to preparation for representation of the applicants at the trial. Those legal services having been performed, the bill sent once the trial was concluded was a final bill, notwithstanding that further instructions were likely to be given (and were given) in relation to preparation for the delivery of judgment and costs arguments following it.
[21] Tabtill No 2 was referred to in Challen as having applied Turner v Mitchells Solicitors, without further comment. In Dart Mining NL v Foster Nicholson Jones Wood AsJ in the Victorian Supreme Court referred to Applegarth J’s statement in Tabtill No 2 that specific retainers the subject of specific instructions might exist within a broader general retainer; in the case before him, his Honour found, there were discrete issues giving rise to separate retainers grouped under a general retainer agreement. In Mango Boulevard Pty Ltd v Whitton, Rangiah J referred to Tabtill No 2 in accepting that a single costs agreement, depending on its terms, could apply to more than one retainer for a barrister to provide legal services.
[22] In the interests of comity, it seems to me that I should accept that instructions to prepare for, and represent clients at, trial may constitute a specific retainer within a larger retainer to act in the proceedings and that a bill given for that work at a natural break in the proceeding, in the absence of further instructions, should be regarded as final. Here, as at 31 May 2018, the specific retainer to prepare for and provide representation at the trial was complete and the respondent had no instructions to perform further work in that regard. Nothing more was required or done until 2 October 2018, when delivery of judgment was imminent. The bill rendered in May 2018 was a final bill.”
- [30]From that the following applicable principles may be extracted:
- the costs agreement is relevant in identifying the final bill because it specifies the extent of the retainer;
- the existence of a costs agreement containing a broad description of work to be undertaken in a proceeding does not preclude the existence of specific retainers in relation to distinct services;
- there is a principle in equity that distinctly identifiable parts of the retainer would constitute a separate retainer for the purposes of billing and if a “natural break” occurred in the conduct of the litigation a bill could be delivered up to the time of the break;
- specific retainers the subject of specific instructions might exist within a broader general retainer;
- instructions to prepare for, and represent clients at, trial may constitute a specific retainer within a larger retainer to act in the proceedings and that a bill given for that work at a natural break in the proceeding, in the absence of further instructions, should be regarded as final.
- [31]The “natural break” principle is well established. Mr Kidston of Counsel, appearing for the applicant, did not dispute that. In short, as explained by Chesterman J in Re Lynch and Co Bill of Costs,[6] equity has developed a principle that distinctly identifiable parts of the retainer would constitute a separate retainer for the purposes of billing and if a “natural break” occurred in the conduct of the litigation a bill could be delivered up to the time of the break. Such a bill could be a final bill for the purposes of the Act.
The Costs Agreement
- [32]The applicant contended that the Costs Agreement and its accompanying Disclosure of Costs Notice, when properly construed, was a specific retainer for the applicant’s “family law matter”. That description and the many references to “your matter” and “each stage of your matter”, had the effect that the terms of the retainer were not complete until the Family Court’s decision was handed down. Therefore, it was said, a final bill could not be sent before that time.
- [33]It was put in the applicant’s outline:[7]
“The intention of the parties (ascertained objectively from the text, context and purpose) in entering into the Costs Agreement could not have been clearer. By the Costs Agreement the respondent was retained to act on behalf of the appellant in relation to her ‘family law matter’ and the scope of the work to be undertaken expressly included pre-action steps, commencing or defending court proceedings in whichever court they were commenced, conducting the said proceeding through to ‘the final conclusion of proceedings’ and carrying out all necessary work to ‘put into effect the terms of any orders.’”
- [34]In my view, that submission should be rejected. The proper construction of the Costs Agreement is that it was a general retainer, the terms of which did not prevent a final bill being sent during a natural break.
- [35]
“Your family law matter
Thank you for your recent instructions in relation to your family law matter. We set out below some important information that explains how we will approach your matter and the costs involved. We have also included information about other legal issues for you to consider.”
- [36]It is a fact that the Family Court proceedings had not commenced when the Costs Agreement was signed. Therefore, the reference to “your family law matter” can be seen to be broader than any specific proceedings in a court. Therefore, when the agreement was signed, any subsequent reference to “your matter” would take it no narrower.
- [37]The breadth of the retainer can be seen from the fact that the accompanying letter contemplated that “additional legal services” might be required and such services were “offered by our firm [to clients] so that other legal issues impacting their family law matter including taxation, property or corporate issues” could be dealt with. Various topics for additional work were mentioned, such as superannuation, making a new or altered will, powers of attorney, impact on any joint tenancy and financial advice.
- [38]The Costs Disclosure Notice was enclosed. It was referred to in the initial letter as providing “disclosure about our costs, including how our costs are calculated, our billing process, and your rights to ask for further information about our costs”. On the face of that statement, the intention of the Costs Disclosure Notice was not to define the retainer but to address more general matters.
- [39]Under the heading “Legal costs” the letter said:
“In the enclosed documents we have provided to you an overview of the legal costs for various stages of proceedings. At each stage of your matter we will advise you of our estimate of your legal costs to reach the next stage and/or to finalise all matters (taking into account particular circumstances of your case). We commit to keeping you fully informed of your legal costs during all stages of negotiations, commencing proceedings if necessary and resolving your matter.”
- [40]Given that there were no proceedings actually on foot at that time the reference to “various stages of proceedings” was a general one.
- [41]
“It is not possible at this time to provide you with an accurate estimate of the total costs which you will incur in relation to your matter, because we do not know how far the work will progress, and many of the variables involved are not matters which are within our control.
However, to assist you in understanding the total costs likely to be incurred, we estimate that your total costs for each stage of your matter are likely to range as follows:
Note: these estimates apply to standard type matters where there are no complex issues involved”.
- [42]As is plain, that statement was not specific to particular proceedings. It could not be as none were then on foot. All it was doing was giving an estimate based on notional stages of a hypothetical proceeding. The same comment applies to the estimates by stages which then followed. That is emphasised by the inclusion of sections dealing with agreements reached prior to proceedings being instituted, and on drafting and settling pre-nuptial agreements.[11] That feature tells heavily against construing the document as a specific retainer limited to the proceedings later instituted.
- [43]Importantly, clause 8.3 provided the time limit of 12 months for seeking to have a bill of costs assessed:
“8.3 Costs assessment
If you wish to make an application to have the costs assessed, the application must be made within 12 months after:
- the bill of costs was given or a request for payment was made; and
- the costs were paid, if neither a bill of costs was given, nor a request made.”
- [44]
- [45]Clause 1.1 provided:
“1.1 This costs agreement (Agreement) is a costs agreement for the following purposes:
- in compliance with division 5 of the Legal Profession Act 2007 (Qld);
- where applicable proceedings in the:
- Family Court of Australia (including any proceeding before the Full Court of the Family Court of Australia);
- Federal Circuit Court of Australia;
- Magistrates Court of Queensland; or
- High Court of Australia.”
- [46]The applicant sought to advance a submission that this clause demonstrated that the retainer was confined to the first instance proceedings:[13]
“Further, note the disjunctive “or” separating clauses 1.1(b)(1) to (4) and between the courts specified at items 5 and 6 of schedule 1 of the Costs Agreement. The inclusion of the Full Court and the High Court is presumably to accommodate the rare instances of cases stated to those courts. Importantly, no estimate is given for an appeal and no work associated with an appeal is specified in the Costs Agreement.”
- [47]I respectfully disagree with that proposition. There is nothing in the circumstances of this case that would suggest an otherwise ordinary family law dispute qualified as something that could be the subject of a case stated in the High Court. Nor is it reasonably probable that a case stated could be brought to the Full Court of the Family Court. In my view, clause 1.1(b) simply states a number of potential options that were, at the time of the Costs Agreement, unknown. The Costs Agreement included clauses such as 1.1(b) as a “catch-all” to the nature and scope of work, identifying the possibilities in broad terms. Many of the potential options may never have been required depending on how the matter progressed and the instructions given. That is what was meant by the phrase “where applicable” in clause 1.1(b).
- [48]Clause 1.2(b) and (d)[14] define the “Work” to be done under the agreement as including pre-action procedures in the Family Court and Federal Circuit Court, and conducting litigation in all four nominated courts.
- [49]In my view, the inclusion of multiple courts with different jurisdictions tells against construing the costs agreement as being confined to a particular legal proceeding, and certainly not one yet to be instituted.
- [50]Clause 2.3 provided that the firm would perform the work set out in Schedule 1. Schedule 1[15] provided that the work would include:
- Clause 1 – “all aspects of my family law dispute”;
- Clauses 5 and 6 – filing and conducting proceedings in appellate courts (the Full Court of the Family Court and the High Court);
- Clause 12 – “Attending at court as instructed by … me”; and
- Clause 13 – “Giving effect to any terms of Family Court orders or Federal Circuit Court, orders …”.
- [51]The fact that the work under Schedule 2 expressly contemplated the firm taking steps in appellate courts does not support the construction of the agreement for which the applicant contends. In my view, those provisions support a construction that the retainer covered by the agreement is not a specific retainer defined by the end of the proceedings in the Family Court by delivery of the first instance decision.
- [52]Clause 3.4[16] provided that it was not reasonably practicable to estimate the total costs, and to that end Schedule 4 “contains a range of estimates of the costs and disbursements likely to be payable for the work in family law matters and explains the factors which might affect the amount of costs and disbursements”.[17]
- [53]Schedule 4[18] listed seven stages ending with the first day of trial. Notably that clause said nothing about the balance of the trial (if there was one) or delivery of judgment. In my view, that supports a construction that the retainer was not specific to the first instance proceedings, nor delivery of the first instance decision.
- [54]Schedule 4 also included a section dealing with “Special and other additional events”,[19] which included pre-action mediation, and work on pre-nuptial agreements. These items suggest a general retainer, not one specific to the first instance proceedings.
- [55]In my respectful view, on its proper construction the Costs Agreement reflected a retainer that was not specific or limited to the conduct of the proceedings at first instance in the Family Court. Those proceedings were instituted by the applicant’s former husband in December 2019, about eight months after the Costs Agreement was signed.[20] The retainer was broader than that.
Was there a natural break?
- [56]The applicant’s contention was that the retainer extended beyond the end of the trial and to (i) collecting the judgment and (ii) implementing the orders when handed down.
- [57]At the conclusion of the trial the decision was reserved for an unknown period.
- [58]The applicant deposed that Ms Lahey told her that she would be notified when the decision was being handed down and that the firm would collect the judgment. She further deposed to being told by Ms Lahey that the Judge tended to deliver judgments relatively quickly.
- [59]She said in evidence that it was her expectation that the firm would continue to act for her in relation to the balance of the work that needed to be carried out in relation to the Family Court proceeding. The applicant referred to the fact that offers of settlement had been exchanged between her and her former husband, which may have impacted on the question of costs once the judgment was delivered.
- [60]
“21. As at 31 August 2021, the particular legal work required to prepare for and provide representation at the trial of the FC Proceeding was complete and, after the conclusion of the trial, the Firm had no instructions to perform any further work in connection with the FC Proceeding. Judgment in the FC Proceeding was reserved, potentially for a lengthy period. Nothing more was required to be done and no further work was done until 11 October 2021, when notification was received that the judgment would be delivered in the FC Proceeding on 13 October 2021.
- On 13 October 2021, the firm received further instructions from Ms Stevens to perform work arising from the imminent delivery of judgment in the FC Proceeding.”
- [61]And further:[23]
“24. Once the work required to comply with the direction of the Court referred to in paragraph 14 above was completed on 19 and 20 August 2021, there was no further work to do in relation to the FC Proceeding, nor did I have any instructions from Ms Stevens to perform any further work in relation to the FC Proceeding. While I anticipated that the Firm would at a later stage be instructed by Ms Stevens to collect judgment whenever it was delivered and potentially to perform further work in relation to any matters arising from the judgment, I did not hold instructions to do any work after 20 August 2021 following the completion of the trial of the FC Proceeding.
- Between 20 August 2021 and 12 October 2021 (being the day before the delivery of judgment in the FC Proceeding) the Firm did not perform any legal work for Ms Stevens or otherwise charge Ms Stevens for any work.”
- [62]And then in oral evidence:[24]
“In light of the answers you gave in respect of those questions, do you maintain it’s the case that at the conclusion of the trial the firm had no instructions – sorry – as at 20 August the firm held no instructions to perform any further work?---Yes.
Well, I suggest to you that’s wrong and you’re at least mistaken because the costs agreement set out the work that you were engaged to do, and that went as far as implementing the orders when handed down. Do you accept that?---No.
….
In light of that work that you went through that had to be done, do you maintain that nothing more was required to be done and no further work was done until 11 October?---No further chargeable work.
Okay. But other work in the nature of legal work was required to be done, wasn’t it?---Look, I regarded it as administrative and not chargeable for that reason.”
- [63]The learned primary judge accepted the evidence of Ms Lahey:[25]
“It was contended by the applicant that in the two or so weeks after the invoice was issued on 31 August 2021, the respondent continued to perform legal work for the applicant under the Costs Agreement. This is not supported by the evidence. The work that was undertaken by the respondent during this period is summarised in paragraph 16 above. The applicant was not charged for any of this work. I accept Ms Lahey’s categorisation of this as administrative rather than legal work. Once the judgment was reserved and the parties had complied with the Judge’s orders made at the conclusion of the hearing, nothing further needed to be done to perform the respondent’s retainer at that time. It was the conclusion of a distinct and definite part of the Family Court proceeding. The fact that each of the 36 invoices were issued under the same matter description and with reference to the same code does not alter this. There were separate retainers for specified stages of work, including the further work to be performed for the applicant to give effect to the judgment. This largely related to property transfers and was allocated a separate file number.”
- [64]That finding was open to her Honour. Therefore, the position at the end of the trial was that:
- the decision was reserved for an unknown period;
- the parties complied with the orders made at the end of the trial (provision of an annotated disclosure list identifying duplicate documents that had been disclosed);
- whilst the applicant could have done so, she did not instruct the firm to collect the judgment; the firm was awaiting instructions to do so, which is reflective of clause 12 of Schedule 1 of the Costs Agreement, which specifies part of the work to be done as: “Attending at court as instructed … by me”;[26] and
- in the interim some administrative work was done by the firm, and not charged to the applicant.
- [65]In my respectful view, her Honour was right to conclude that in those circumstances there was a natural break in the proceeding. In Tabtill[27] Applegarth J was considering a situation where there was a retainer to act for a client in a trial and at the end of the trial there had been no further instructions at the point in time when a bill was sent. His Honour identified the contention:[28]
“In that regard, even if the relevant retainer is identified as a retainer to act for the applicants in the proceedings, the respondents contend that once the trial concluded and there had been no further instructions, then the legal services the first respondent was retained to provide had been performed. The respondents contend a bill sent at that point was a final bill, and did not become an interim bill simply because at some later stage further instructions were likely to be given for additional legal services to be provided at about the time judgment was to be delivered.”
- [66]As to that Applegarth J found that there was a natural break and the bill sent then was a final bill:[29]
“[70] This is a situation in which the costs agreement covered certain legal work, namely the work that had been the subject of specific instructions in relation to preparation for trial and representation at trial, and also governed other legal work which the first respondent might be instructed to carry out in relation to the conduct of the nominated proceedings. The particular legal work involving preparation for the trial and appearance at the trial was completed on 9 November 2009. Nothing more was to be performed at that point. There is no suggestion that once the trial concluded existing instructions required further work to be carried out at that stage. Further disputes might have been in contemplation once judgment was delivered. There was at least a break in hostilities, even if no-one expected an outbreak of peace.
[71] To adopt the expression used by Chesterman J, there was a “natural break” in the litigation at the conclusion of the trial. The first respondent had performed the work it was retained to perform in connection with the proceedings. No further instructions were given at that stage in connection with the proceedings. A bill sent at that point in relation to the conduct of the trial was a final bill for the purposes of s 333. The fact that the costs agreement continued to apply does not alter this conclusion and the bill that the first respondent was entitled to deliver upon the conclusion of the trial did not become an interim bill because the costs agreement contemplated that further legal work might be required at some later stage after the break in the proceedings.”
- [67]The situation here is relatively indistinguishable from that in Tabtill.
Error in refusing to extend time?
- [68]The learned primary judge refused an extension of time within which to seek an assessment of the costs in the 31 invoices. Her Honour’s approach was:
- s 335(6) of the Act permits a court to extend time after “considering the reasons for the delay”; adopting Mishra, the focus is intended to be more on the difficulties faced by the applicant in making the application than those which will face the respondent should it be granted;[30]
- the delay period to focus on is that after the expiry of the statutory 12-month period; that is the four months between 31 August 2022 and 22 December 2022;[31]
- one reason given by the applicant to explain the delay was that she was reluctant to challenge any of the invoices while the firm was acting for her as she feared that this would detrimentally affect the quality of the representation she received, or that it would result in a dispute with the firm requiring her to engage alternative lawyers to act for her; that was not well founded and inconsistent with the way the firm had behaved;[32]
- a second reason was that she did not know whether she had the financial resources to assess the costs; she said she had ongoing financial commitments involving her children, that her former husband was behind in his child support payments, and that she had required a loan from her father to facilitate compliance with the court orders; her Honour found that these assertions lacked detail and cogency, and she was not satisfied that the financial commitments created any uncertainty;[33]
- a third explanation for the delay related to the stress and distractedness the applicant experienced in relation to the divorce proceedings over the two-month period between 20 June and 20 August 2022, when she was served with the proceedings for divorce; her Honour found the evidence on this aspect to be “of the vaguest kind”, and was not satisfied that it prevented any application to assess the costs;[34]
- yet another explanation was the applicant’s asserted confusion as to the Costs Disclosure Notice and Costs Agreement; her Honour rejected that explanation on the basis that any such confusion would not provide a reason to support the indulgence of an extension; the documents were provided with a direction that she should seek independent legal advice, the name of the partner who could assist her, and information as to the 12-month period to apply;[35] and
- lastly, the applicant pointed to the absence of file notes and “other documents” missing from the file provided by the firm; her Honour rejected this explanation on the basis that the missing documents were not required to make a decision to assess the costs.[36]
- [69]The learned primary judge’s conclusion was expressed thus:[37]
“[47] In my view, having regard to the considerations to which I have referred, the applicant has not shown that there is any good reason why she should be exempted from the general prohibition imposed by s 335(5) of the Act, to permit an assessment of invoices 1 to 31 to occur out of time. I therefore do not extend time.”
- [70]The applicant challenges the refusal on the basis that errors were made of the kind in House v The King.[38]
- [71]The first is that the learned primary judge construed Mishra too narrowly “such that factors beyond the reason for the delay should or could have been taken into account in exercising the discretion and were not”.
- [72]
“But the fact that the Queensland provision specifies consideration only of the reasons for delay, not its effect, suggests that the focus is intended to be more on the difficulties faced by the applicant in making the application than those which will face the respondent should it be granted. That is consistent with the character of pt 3.4 of the Legal Profession Act 2007 as consumer protection legislation.”
- [73]The learned primary judge cited the same passage in Mishra.[40] As her Honour recognised, the focus in the consideration of the reasons for the delay is more on the applicant’s difficulties, than those of the respondent. Her Honour did not purport to confine that principle. True it is that her Honour considered the reasons advanced by the applicant and rejected them. That simply means that in this particular case, there was no need to weigh the difficulties that the firm might experience if an extension were granted, as might have been the case if any of the reasons had merit. It does not betray a misapplication of the principle.
- [74]Secondly, the applicant submits that there was some significance in the fact that the applicant’s request on 19 July 2022, for the firm to provide the file to her, followed on 15 August 2022 by a request for an “urgent reply”, was not satisfied until 16 September 2022. It is said that that two-month delay “was at the critical time”.[41]
- [75]I reject that submission. It is difficult to see why the period between 19 July 2022 and 16 September 2022 is said to be the “critical time”, and why that period is different from the rest of the 12-month period. The applicant’s first request for the file was 11 months after the commencement of the 12-month period. In any event, as the learned primary judge found, there was no need for the file or the file notes to determine the desirability of seeking to assess the costs. The applicant could have applied for an assessment without the file or the documents, thus preserving the time limit, and adjusted her position after getting them. There was no suggestion that such a stance would have caused any prejudice to the applicant or the firm.
- [76]Thirdly, the applicant submits that the “short” delay between 31 August 2022 and 22 December 2022 was wrongly treated as being “not a matter that weighs heavily against the applicant” and ought to have been found to be a matter that weighed in favour of the exercise of the direction. Further, it was submitted that her Honour should have found that the delay after the expiry of the time limit had caused no prejudice to the firm.
- [77]I do not accept those submissions. The delay being referred to is the delay after the expiry of the 12-month period set for applying to assess costs. I am unable to accept that such delay should be seen to be in the applicant’s favour. The focus under s 335(6) is on the reasons for the delay and the rationale for the time limit.[42] If the delay after the expiry of the time limit is relevant it would more rationally be a factor against the applicant. Her Honour found that it did not weigh heavily against the applicant. That finding was appropriate.
- [78]Further, there was no finding that the firm was prejudiced by the delay after the expiry of the time limit. A positive finding was not necessary in the circumstances. If one was to be made it is probable that it would have been that the firm would likely suffer general prejudice, in that the assessment of 31 extra bills of costs was likely to be lengthy and costly, and hampered by the fact that relevant staff no longer worked for the firm and the assessment would be done years after the events.
- [79]Fourthly, it was submitted that the learned primary judge ought to have found that the applicant had established a prima facie case on the merits that there was utility in carrying out the assessment and that the loss of that opportunity might have resulted in a substantial injustice to the applicant in that she might achieve a material reduction in respect of the amount she was obliged to pay and had paid. That was based on an objection to costs prepared by an assessor in relation to four bills sent prior to the Costs Agreement.
- [80]I reject that submission. The applicant’s case at first instance was that the assessment “reveals that she may have been materially overcharged”, and the four bills the subject of the objection represented “a further example of species of overcharging”.[43] Those matters are outside the focus of s 335(6) which, as Mishra held, was on the reasons for the delay, not its effect.
- [81]Further, it is relevant that an applicant for a costs assessment may require assessment of the whole of the costs without specifying any reason.[44] That being so, an applicant does not need to establish any prejudice at all, if in time. Once out of time, the focus is on why, not what the effect is. Put another way, s 335(6) does not require that an applicant for an extension of time prove that they would have a degree of success on an assessment, even on a prima facie basis. If the court does not exercise the discretion under s 335(6) to extend the time to seek an assessment an applicant, there will inevitably be a “lost opportunity” to carry out an assessment. That supports the conclusion that establishing a prima facie case, as postulated by the applicant, is not significant in this case.
- [82]Fifthly, it was submitted that the firm should have told the applicant that it regarded the 31st bill as a final bill or advised her in relation to that bill, in breach of its fiduciary duties.
- [83]I do not accept that submission. The applicant was plainly aware that the Costs Agreement specified that the applicant had 12 months in which to seek an assessment of the costs. There was no retainer to advise about the Costs Agreement. To the contrary, the firm, via the Costs Agreement itself, advised the applicant to seek independent legal advice as to the effect of the agreement itself, which would comprehend the matters of a final bill as opposed to an interim bill.
- [84]Further, in Tabtill and Mishra no point seems to have been taken that the law practice was required to inform the client that the conclusion of the trial was a natural break in a proceeding, for a bill issued at a break in a proceeding to be a final bill. However, in Tabtill Applegarth J referred to the usual test as to the specificity required in a bill when a client is considering whether to assess or not:[45]
“[92] As to those alleged deficiencies, and more generally, the test is not whether the bill on its face is objectively sufficient. That point was made in the passages that I have earlier quoted from the judgment in Ralph Hume Garry v Gwillim (CA). The test is whether ‘the information in the bill supplemented by what is subjectively known to the client enables the client with advice to take an informed decision whether or not to exercise the only right then open to him, viz, to seek taxation reasonably free from the risk of having to pay the costs of that taxation.’”
- [85]No advice of the kind suggested was called for as there was no retainer to advise on such matters arising as between the firm and the applicant. The highest that it might put, in my view, is that the firm should have sent the applicant off to another firm for advice on the issue as to the status of each bill of costs, and whether there might be a natural break in the proceedings. However, in my view that goes too far in the circumstances. The bill of costs was issued pursuant to the Costs Agreement and it was not suggested that it lacked the specificity required to enable the applicant, with advice, to determine whether to seek assessment. The applicant had 12 months to seek an assessment and did not do so. In that time there was ample opportunity to seek advice from another firm as to the bills, and nothing suggested as to why she could not do so.
- [86]Sixthly, it was submitted that her Honour erred by “equating the mere questioning of an invoice to commencing an application for a costs assessment, when they were in fact and law materially different”, and finding that the firm’s preparedness to honour an agreement to cap its fees for the 36th bill and the previous giving of a discount rendered the applicant’s concerns about ending up in dispute with the firm “not well founded”.
- [87]These submissions concerned the following in the reasons below:[46]
“[42] Turning to the reasons for the delay, the applicant deposes that she was reluctant to challenge any of the invoices while the respondent was acting for her. It is said that she feared that this would detrimentally affect the quality of the representation she received, or that it would result in a dispute with the respondent requiring her to engage alternative lawyers to act for her. This was confirmed in her evidence where she expressed a concern that she might well end up in arguments with the respondent if she was to question any of their invoices. In my view, any such concerns of the applicant were not well founded. Inconsistently with this position, the respondent had conducted itself in a way that ought to have reassured the applicant that any reasonable queries that she raised about the invoices would be appropriately considered by the firm. Ms Lahey deposes that she recalls that in January 2022, the applicant’s father queried the costs to complete the property settlement work required to give effect to the judgment in the Family Court proceeding. This was on the basis that another legal firm could perform the work more cheaply. The respondent agreed to reduce its rate to complete this work and the invoice (being number 36) was subsequently paid without complaint. This was the second occasion the respondent had offered the applicant a discount on its fees. The first occasion was in September 2021, when the respondent offered to and did reduce its professional fees by approximately $10,000.”
- [88]The learned primary judge did not equate questioning a bill with commencing an application for assessment. Nor did her Honour base the finding in that passage on that or the firm’s preparedness to cap fees, alone. Her Honour found that the firm “had conducted itself in a way that ought to have reassured the applicant that any reasonable queries that she raised about the invoices would be appropriately considered by the firm”. That is the relevant finding of fact upon which her Honour found that the alleged fears were not well founded. As a basis for that her Honour said when the applicant’s father questioned one area of costs (to finish the property settlement work), the firm responded by capping its fees, but in addition, that was the second occasion the firm had offered the applicant a discount on its fees.
- [89]The passage in paragraph [87] above, concerns the learned primary judge’s resolution of disputed facts. The findings were open. Equally open is the conclusion that because the applicant held the fears she did there was a reason to seek other legal advice, and ample opportunity to do so, yet she did not.
- [90]This submission is rejected.
- [91]Seventhly, it was submitted that there was error in the learned primary judge’s findings concerning the applicant’s financial position. In essence the submission is that her Honour should have found that the applicant’s financial commitments at the time placed her in a position of uncertainty as to whether she could finance the application for a costs assessment, and the finding to the contrary “seems to be based on speculation”.
- [92]The submission is misconceived. The learned primary judge found that the evidence adduced on this topic “lacked detail and therefore cogency”, and her Honour was “not satisfied that the financial commitments … placed the applicant in a position of uncertainty”.[47] The finding was that the applicant had not satisfied the onus of proving that which she asserted. It was not that her Honour made a positive finding to the opposite of what the applicant said. There is no error by giving little or no weight to the assertion.
- [93]Eighthly, it was submitted that there was error in the learned primary judge’s findings concerning the applicant’s evidence as to stress and anxiety. It was said that her Honour wrongly found “that it was necessary for the stress and anxiety that the applicant had been receiving medical treatment for since 2022 had to prevent her from applying for a costs assessment before any weight ought to be given to this issue”.
- [94]I reject this submission. The basis for her Honour not placing weight on this factor was that “the applicant’s evidence on this point is of the vaguest kind”, and that the applicant had not persuaded her Honour “that any stress or anxiety experienced by the applicant had the consequence of preventing her from applying for a costs assessment prior to 31 August 2022”.[48] In other words, the applicant did not adduce evidence of sufficient cogency to persuade her Honour. There is no error by giving little or no weight to the assertion.
- [95]Finally, it was submitted that there was error in the learned primary judge’s findings concerning the impact of the absence of the file and file notes on the applicant’s ability to determine the desirability of seeking a costs assessment. The contention is that her Honour ought to have found that it was reasonable for the applicant to seek the file and file notes prior to determining to seek and assessment. I do not accept the submissions on this point.
- [96]The learned primary judge found:[49]
“This assertion does not withstand scrutiny. Clearly those documents were not required when making the decision to file the application in December 2022, as copies of those had not been provided to the applicant at that time. Further, by mid-June 2022 the applicant had been provided with itemised bills for each of the subject invoices. These ought to have provided the applicant with sufficient detail to enable her to determine the desirability in seeking a costs assessment.”
- [97]The salient features of the findings are: (i) the applicant did not have those documents when she filed the application to extend time, so she plainly did not need them to determine whether she challenged the bills; (ii) by mid-June 2022 the applicant had itemised bills which should have given her all she required to decide.
- [98]The passage from Tabtill, set out at paragraph [84] above is apt. By mid-June the applicant was in a position to decide if she wished to assess the costs.
- [99]
“[10] The Legal Profession Act 2007 (Qld) provides a procedure by which a client may request an itemised bill from a legal practitioner. Relevantly, a person who is entitled to apply for an assessment of legal costs in respect of a bill given in the form of a lump sum bill may request the law practice give an itemised bill. An itemised bill is a bill stating, in detail, how the legal costs are made up in a way that would allow the legal costs to be assessed under the Act.
[11] To satisfy these requirements, a bill must contain such detail as will enable the client to make up his or her mind on the subject of assessment, and so as to enable those advising the client to advise effectively on whether assessment is desirable or not. This requirement is not to be determined in a vacuum. The sufficiency of a bill must be assessed in the context of the knowledge of the client. As such, the test is not that another solicitor should be able to look at the bill and see on its face all requisite information in order to enable an assessment of whether the charges were reasonable. The test is whether the information in the bill, supplemented by what is subjectively known to the client, enables the client, with advice, to take an informed decision whether or not to exercise a right of assessment.”
Leave to appeal
- [100]Leave to appeal is required and accepting the test laid down in Pickering v McArthur,[52] the applicant submits:
- there is a substantial injustice, in that:
- she has been charged on a time-costed basis in respect of the first five tax invoices all of which concerned work undertaken prior to a Costs Agreement being entered into;
- a list of objections prepared by a costs assessor reveals that, prima facie, the applicant would be likely to achieve a substantial reduction on the first 31 tax invoices were they to be assessed; and
- the applicant was ordered to pay the costs of the proceeding; such costs will be material;
- there is a reasonable argument that there is an error to be corrected; and
- it is in the interests of the community at large that the issues of the proper characterisation of costs agreements and the proper approach to the exercise of the discretion to extend time for costs assessment to be carried out be the subject of a decision of this Court.
- there is a substantial injustice, in that:
- [101]In my view, the matters raised by the applicant do not warrant the grant of leave. As explained above:
- the determination of the issues raised as to the retainer, and whether there was a final bill on 31 August 2021, turn on the construction of the particular Costs Agreement and no point of principle is raised; the resolution of the disputes does not involve any interest of the community at large;
- the factual and discretionary errors said to affect the learned primary judge’s findings have not been shown to have merit; and
- no error of the kind in House v King[53] has been demonstrated; in so far as such errors are contended to exist, they are based on findings of fact that are unimpeachable, or a misconception as to the actual findings.
Conclusion
- [102]For the reasons expressed above, the application for leave to appeal must be dismissed.
- [103]I propose the following orders:
- The application for leave to appeal is dismissed.
- The applicant pay the respondent’s costs of the application.
- [104]BODDICE JA: I agree with Morrison JA.
- [105]MARTIN SJA: I agree with the reasons of Morrison JA and the orders proposed by his Honour.
Footnotes
[1]To which I shall refer, for ease of reference, as “the firm”.
[2]Stevens v HopgoodGanim Lawyers (a Firm) [2023] QDC 96.
[3]Paragraphs [6]-[21].
[4][2021] QSC 158, (2021) 8 QR 306.
[5]Mishra at [18]-[22]. Footnotes omitted.
[6][2000] QSC 3, at [12].
[7]Paragraph 19.
[8]AB 70.
[9]AB 75.
[10]AB 79.
[11]AB 82.
[12]AB 87.
[13]Applicant’s outline, paragraph 23.
[14]AB 89.
[15]AB 101.
[16]AB 92.
[17]Clause 3.10 is to similar effect.
[18]AB 107.
[19]AB 108.
[20]Affidavit of Ms Lahey sworn 21 February 2023, paragraph [17]; AB 491.
[21]AB 925 lines 7-14.
[22]AB 492, paragraphs 21-22. Emphasis added.
[23]AB 742, paragraphs 24-25. Emphasis added.
[24]AB 935 lines 26-32; AB 936 lines 22-27.
[25]Reasons below at [34].
[26]Emphasis added.
[27]Tabtill No 2 Pty Ltd & Ors v DLA Phillips Fox (a firm) & Anor [2012] QSC 115.
[28]Tabtill at [64].
[29]Tabtill at [70]-[71].
[30]Reasons below at [40].
[31]Reasons below at [41].
[32]Reasons below at [42].
[33]Reasons below at [43].
[34]Reasons below at [44].
[35]Reasons below at [45].
[36]Reasons below at [46].
[37]Reasons below at [47].
[38](1936) 55 CLR 499.
[39]Mishra at [30].
[40]Reasons below at [40].
[41]Applicant’s outline, paragraph 48(b)(i)-(iii).
[42]Mishra at [16]; see also Lewis Blyth and Hooper v Dennis [2007] WASC 177 at [67].
[43]AB 957 lines 27-41.
[44]Mishra at [42]-[43].
[45]Tabtill at [92]. Footnotes omitted.
[46]Reasons below at [42].
[47]Reasons below at [43].
[48]Reasons below at [44].
[49]Reasons below at [46].
[50][2012] QSC 167 at [10]-[11]. Footnotes omitted. Citing Ralph Hume Garry (a firm) v Gwillim [2003] 1 WLR 510 at 522.
[51]As his Honour then was.
[52][2005] QCA 294 at [3]. See also Turner v Mitchells Solicitors [2011] QDC 61 at [29]; Tabtill No 2 Pty Ltd v DLA Phillips Fox [2012] QSC 115, at [61]-[71].
[53](1936) 55 CLR 499.