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Waller Family Lawyers Pty Ltd v McAuley[2025] QCA 25

Waller Family Lawyers Pty Ltd v McAuley[2025] QCA 25

SUPREME COURT OF QUEENSLAND

CITATION:

Waller Family Lawyers Pty Ltd v McAuley [2025] QCA 25

PARTIES:

WALLER FAMILY LAWYERS PTY LTD

(applicant/appellant)

v

EUGENE EDWARD JAMES McAULEY

(respondent)

FILE NO/S:

Appeal No 8484 of 2024

QCATA No 339 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal Appeal Tribunal at Brisbane – [2024] QCATA 58 (Dr J R Forbes, Member)

DELIVERED ON:

11 March 2025

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2024

JUDGES:

Mullins P, Flanagan JA and Martin SJA

ORDERS:

  1. The applicant for leave is allowed to adduce the further evidence contained in the affidavits of Victoria Clair Limerick filed on 28 June and 18 July 2024.
  2. Leave to appeal is granted.
  3. The appeal is allowed.
  4. The decision of the Queensland Civil and Administrative Tribunal Appeal Tribunal of 24 April 2024 is set aside.
  5. The appellant’s Application for Leave to Appeal dated 14 November 2022 and filed in the Queensland Civil and Administrative Tribunal be remitted to the Appeal Tribunal of the Queensland Civil and Administrative Tribunal to proceed according to law.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – TYPES OF COSTS AGREEMENTS – where the respondent engaged the appellant to represent him in legal proceedings – where the appellant and respondent entered into a costs agreement in the nature of a “do and charge retainer” wherein the agreement would continue indefinitely until terminated by either party and the scope of work performed by the appellant was to be determined by instructions given from time to time by the respondent – where the appellant issued the respondent with a costs disclosure notice identifying the initial scope of work to be performed and providing an estimate of costs to be incurred – where the costs agreement provided that the appellant would issue a further costs disclosure notice to the respondent on each occasion when a further set of instructions was provided – where the appellant issued a further costs disclosure notice to the respondent in respect of a further scope of work – where the appellant performed the work and invoiced the respondent for its costs – where the respondent did not pay the appellant’s costs in full – where the appellant commenced proceedings in the Queensland Civil and Administrative Tribunal to recover its outstanding costs – where the Adjudicator dismissed the appellant’s claim on the basis that the costs agreement lacked sufficient particularity as to the scope of work to be performed and was therefore void for contravention of the Legal Profession Act 2007 (Qld) – where the Appeal Tribunal member upheld the Adjudicator’s decision – whether the appellant should be granted leave to appeal – whether the appellant should be granted leave to adduce further evidence – whether a general “do and charge” costs agreement is void for contravention of the Legal Profession Act 2007 (Qld)

Legal Profession Act 2007 (Qld), s 3, s 299, s 308, s 310A, s 322, s 327

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150

Allen v Queensland Building and Construction Commission [2024] QCA 24, cited

Pivovarova v Michelsen (2019) 2 QR 508; [2019] QCA 256, cited

COUNSEL:

E L Robinson for the applicant/appellant

No appearance for the respondent

SOLICITORS:

Waller Family Lawyers for the applicant/appellant

No appearance for the respondent

  1. [1]
    MULLINS P:  I agree with Martin SJA.
  2. [2]
    FLANAGAN JA:  I agree with Martin SJA.
  3. [3]
    MARTIN SJA:  In the middle of 2018, Mr McAuley sought to engage the appellant (WFL) to represent him in proceedings he intended to commence in the Family Court of Australia.  Mr Waller (the sole director of WFL) sent him several documents for that purpose, including a Costs Disclosure Notice (First Disclosure Notice) and a Client Services Agreement (CSA).
  4. [4]
    Mr McAuley did not accept the offer in the Client Services Agreement and asked Mr Waller not to take any action while he resolved issues concerning his ability to fund the legal proceedings.  Mr McAuley’s hand was forced when his wife commenced proceedings in November 2018.  He executed and returned the CSA and WFL commenced acting for him.  In the proceedings below it was referred to as a “do and charge agreement”.
  5. [5]
    In March 2019 WFL sent Mr McAuley another Costs Disclosure Notice (Second Disclosure Notice).  It was the same as the First Disclosure Notice save for changes to the scope of services and the estimated maximum professional fees.
  6. [6]
    Between November 2018 and August 2019 WFL billed Mr McAuley a total of $37,057.83.  He paid all but $14,206.79 of that amount.  In January 2021, WFL commenced proceedings in the Queensland Civil and Administrative Tribunal to recover that sum.  At first instance, WFL’s claim was rejected by Adjudicator Walsh on the basis that:
    1. The CSA was void as it contravened the Legal Profession Act 2007 (LPA),
    2. When WFL provided the Second Disclosure Notice it should have also provided a new CSA, and
    3. The costs which were billed materially and substantially exceeded the sum of the two costs estimates.
  7. [7]
    WFL applied to QCAT’s appeal division for leave to appeal but that application was refused by Member Forbes.  WFL seeks leave to appeal from that decision on these issues of law:
    1. Whether the CSA was void pursuant to the LPA, and
    2. Whether WFL is disentitled from recovering fees from Mr McAuley because it did not provide a second CSA to Mr McAuley.
  8. [8]
    WFL also seeks leave to adduce evidence to support its argument that the proposed appeal raises a question of law of general or public importance.
  9. [9]
    For the reasons which follow, I would:
    1. Grant WFL leave to adduce further evidence.
    2. Grant leave to appeal.
    3. Allow the appeal.
    4. Set aside the Appeal Tribunal decision.
    5. Remit the matter to QCAT for it to proceed according to law.

Mr McAuley did not appear

  1. [10]
    Mr McAuley did not provide any written submissions and informed the court that he would not appear but would abide by the order of the court.

Should the further evidence be allowed?

  1. [11]
    WFL argues that the proposed appeal raises a question or questions of law and is of general or public importance.  It seeks to demonstrate the latter by adducing evidence to demonstrate that the CSA used by WFL is in a form commonly used by the profession and that, if the reasoning used by the QCAT members were to be applied generally, then “do and charge” agreements of the type generally in use would be void.  Similarly, the validity of an “example” costs agreement provided by the Queensland Law Society as a model for its members would also be, at least, uncertain.  The validity of costs agreements are matters of public importance as they affect many thousands of agreements entered into by members of the public each year.
  2. [12]
    On this point, I am satisfied that it is appropriate that WFL be permitted to adduce the evidence contained in the affidavits of Victoria Limerick filed in this court.

Should leave to appeal be granted?

  1. [13]
    Section 150 of the Queensland Civil and Administrative Tribunal Act 2009 provides that a person may appeal to the Court of Appeal against a decision of the QCAT Appeal Tribunal only:
    1. on a question of law, and
    2. if the party has obtained the court’s leave to appeal.
  2. [14]
    The principles relevant to a grant of leave were restated in Allen v Queensland Building and Construction Commission[1]:

“(a) Leave to appeal may only be granted if the proposed appeal is only on a question of law in the sense discussed in Pivovarova v Michelsen[2], that is, it cannot be a mixed question of fact and law.

  1. The discretion is otherwise unfettered, and exercisable according to the nature of the case, but leave to appeal will not be granted lightly, given that the applicants have already had the benefit of two hearings in QCAT.
  1. It will usually be necessary — but not sufficient — that the Court be persuaded that there is a reasonable argument that there is an error of law to be corrected, which, if corrected, would justify the applicant’s claim for relief.
  1. Tests which provide useful guidance as to the nature of the additional consideration over and above the existence of a reasonable argument that there is such an error of law to be corrected include —
  1. that leave is necessary to correct a substantial injustice; and
  1. that the proposed appeal raises a question of law of general or public importance.”
  1. [15]
    I would grant leave to appeal.  The proposed appeal does raise questions of law concerning the proper construction of the LPA and whether the CSA contravened that Act.  For the reasons given allowing the provision of further evidence, it also raises matters of general or public importance.

The relevant provisions of the LPA

  1. [16]
    The context in which the applicable provisions of the LPA should be considered commences with s 3 of the Act.  It provides that:

“Main purposes

The main purposes of this Act are as follows—

  1. to provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
  1. to facilitate the regulation of legal practice on a national basis across State borders.” (emphasis added)
  1. [17]
    The sections which are concerned with costs disclosure and assessment are contained in Part 3.4.  All the sections considered below are within that Part.
  2. [18]
    Section 299 of the LPA relevantly provides:

“Main purposes of pt 3.4

The main purposes of this part are as follows—

  1. to provide for law practices to make disclosures to clients regarding legal costs;
  1. to regulate the making of costs agreements relating to legal services, including conditional costs agreements;

….” (emphasis added)

  1. [19]
    Division 3 of Part 3.4 contains various provisions concerning costs disclosure.  Section 308(4) sets out the matters which must be disclosed to a client.  It specifically requires that a client be told the basis on which legal costs will be calculated and be given an estimate of the total legal costs if reasonably practicable.

“(1) This section applies in relation to a matter if the total amount of the legal costs in the matter, excluding disbursements and exclusive of GST, is likely to exceed the detailed disclosure threshold amount.

…

  1. The law practice must disclose to the client under this division—
  1. the basis on which legal costs will be calculated, including whether a scale of costs applies to any of the legal costs; and
  1. the client’s right to—
  1. negotiate a costs agreement with the law practice; and
  1. receive a bill from the law practice; and
  1. request an itemised bill after receipt of a lump sum bill; and
  1. be notified under section 315 of any substantial change to the matters disclosed under this section; and
  1. an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable, a range of estimates of the total legal costs and an explanation of the major variables that will affect the calculation of those costs; and
  1. details of the intervals, if any, at which the client will be billed; and
  1. the rate of interest, if any, that the law practice charges on overdue legal costs, whether that rate is a stated rate of interest or is a benchmark rate of interest as mentioned in subsection (5); and
  1. if the matter is a litigious matter, an estimate of—
  1. the range of costs that may be recovered if the client is successful in the litigation; and
  1. the range of costs the client may be ordered to pay if the client is unsuccessful; and
  1. the client’s right to progress reports under section 317; and
  1. details of the person whom the client may contact to discuss the legal costs; and
  1. the following avenues that are open under this Act to the client in the event of a dispute in relation to legal costs—
  1. costs assessment under division 7;
  1. the setting aside of a costs agreement under section 328; and
  1. any time limits that apply to the taking of any action mentioned in paragraph (i); and
  1. that the law of this jurisdiction applies to legal costs in relation to the matter; and
  1. information about the client’s right—
  1. to accept under a corresponding law a written offer to enter into an agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter; or
  1. to notify under a corresponding law, and within the time allowed by the corresponding law, the law practice in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter.” (emphasis added)
  1. [20]
    The manner of the disclosure required by s 308 is governed by s 310A.  So far as a disclosure under s 308 is concerned, it may be made in a costs agreement but the legislation does not require that.  Disclosure may be made in a separate document.
  2. [21]
    Section 310A provides:

“How disclosure must be made

  1. Disclosure under section 307B—
  1. may be made orally or in writing; but
  1. if made orally, must be confirmed in writing as soon as practicable after the time that disclosure must be made under section 310.
  1. Subsection (1)(b) does not apply if the law practice’s provision of legal services for the matter is completed before the confirmation in writing is required.
  1. Disclosure under section 308 must be made in writing.
  1. Disclosure under section 309(1) must be made—
  1. if disclosure to the client has been made under section 307B—orally or in writing; or
  1. if disclosure to the client has been made under section 308—in writing.
  1. Disclosure under section 307B, 308 or 309(1) may be made in a costs agreement or an offer to enter into a costs agreement but, in that case, the disclosure must be in a prominent position at the beginning of the agreement or offer.” (emphasis added)
  1. [22]
    The making of costs agreements is dealt with separately in s 322.  Among other things, it sets out: who may be a party to a costs agreement, that they must be written (or evidenced in writing), and how the offer can be made and accepted.

“Making costs agreements

  1. A costs agreement may be made between—
  1. a client and a law practice retained by the client; or
  1. a client and a law practice retained on behalf of the client by another law practice; or
  1. a law practice and another law practice that retained that law practice on behalf of a client; or
  1. a law practice and an associated third party payer.
  1. The costs agreement must be written or evidenced in writing.
  1. The costs agreement may consist of a written offer under subsection (4) that is accepted in writing or by other conduct.

Note—

Acceptance by other conduct is not permitted for conditional costs agreements—see section 323(3)(c)(i).

  1. The offer must clearly state—
  1. that it is an offer to enter into a costs agreement; and
  1. that the offer can be accepted in writing or by other conduct; and
  1. the type of conduct that will constitute acceptance.
  1. Except as provided by section 344, a costs agreement can not provide that the legal costs to which it relates are not subject to costs assessment under division 7.

Note—

Under section 327(1), if a costs agreement attempts to provide that the legal costs are not subject to a costs assessment, the costs agreement will be void.

  1. A reference in section 328, or in a provision of this part prescribed under a regulation, to a client is, in relation to a costs agreement that is entered into between a law practice and an associated third party payer as mentioned in subsection (1)(d) and to which a client of the law practice is not a party, a reference to the associated third party payer.”
  1. [23]
    Section 322(4) sets out what the agreement must clearly state.  Section 322(5) sets out what it cannot provide.  The section does not require that a costs agreement contain a costs disclosure statement.
  2. [24]
    Section 322 is contained in Division 5 of Part 3.4.  That Division also contains other provisions concerning cost agreements.  It deals with matters such as conditional costs agreements, uplift fees and contingency fees.  It also sets out, in s 327(1), that:

“A costs agreement that contravenes, or is entered into in contravention of, any provision of this division is void”

  1. [25]
    It is not required in any part of the LPA, let alone Division 5, that a costs agreement must contain a costs disclosure.  The absence of a costs disclosure in a costs agreement is not a contravention of Division 5.

What was provided for in the Disclosure Notices and the CSA?

  1. [26]
    So far as is relevant, the First Disclosure Notice provided:

“4. Scope of Services

  1. The work we will perform for you under the Agreement is described in Item 1 of the Schedule attached to this Disclosure Notice.

…

5. Estimate of Your Costs

  1. We estimate that the maximum of our professional fees exclusive of GST to undertake the scope of work provided for in Item 1 of the Schedule is set out in Item 2 of the Schedule attached to this Disclosure Notice.
  1. There are numerous matters that can impact the level of fees you incur and they include the following:
  1. the detailed nature and timelines of your instructions;
  1. the attitude, motives and acumen of the other parties;
  1. unexpected disclosure of material documents;
  1. the number of preliminary applications to the court (either by you or the other parties);
  1. protracted negotiations;
  1. whether the matter is resolved before trial, or you ultimately proceed to trial;
  1. the length of the trial;
  1. the seniority of the barrister/s you ultimately instruct us to retain.

…

SCHEDULE

Item 1 The scope of work to be performed within the cost estimate noted in Item 2 is to provide you advice on and begin and conduct a Court Application in the Family Court for and final property orders to the end of a case assessment conference.

The scope of work will include:

  • Attending with you and others relevant to the matter;
  • Telephone attendances with you and others necessary and relevant to the scope of work;
  • Drafting, settling or reading financial documents, court documents, reports, submissions, outlines, letters and e-mails;
  • Preparing for and attending listed Court mentions; and
  • Preparing for an attending a case assessment conference.

Item 2 Up to $10,000.00” (emphasis added)

  1. [27]
    The Client Services Agreement included, relevantly, the following:

“1. Disclosure Prior to Legal Services

  1. A Disclosure Notice has been provided to you with this document containing information required by the Legal Profession Act 2007 (Qld) (Act), and by signing this document or otherwise accepting our offer to enter into this Agreement with you:
  1. you acknowledge you have received the Disclosure Notice; and
  1. you acknowledge that you have read the Disclosure Notice.

2. Acceptance of this Offer

…

  1. The work you have instructed us to provide is the provision of legal services as requested from time to time throughout the duration of this Agreement.
  1. We will throughout the duration of this Agreement, upon the receipt of each new set of instructions, forward to you a separate Disclosure Notice in accordance with the requirements of the Act.
  1. The provision of further instructions to us to provide you with additional legal services may be confirmed by signing and returning to us any additional Disclosure Notices we send you.

…

6. Term and Termination of Agreement

  1. This Agreement will be ongoing until terminated by either you or us.”
  1. [28]
    The Second Disclosure Notice was identical to the First Disclosure Notice, save that the scope of services in Schedule Item 1 and the estimated maximum of professional fees in Schedule Item 2 were as follows:

“SCHEDULE

Item 1 The scope of work to be performed within the cost estimate noted in Item 2 is to provide you advice on and prepare for and attend a Conciliation Conference on 20 May 2019, then attend before Judge Spelleken for mention and respond to Cassie’s Application in a Case filed 13 March 2019 and all other relevant work to the end of 20 May 2019.

The scope of work will include:

  • Attending with you and others necessary and relevant to the scope of work;
  • Telephone attendances with you and others necessary and relevant to the scope of work;
  • Drafting, settling or reading financial documents, court documents, reports, submissions, outlines, letters and emails;
  • Preparing for and attending a Conciliation Conference.

Item 2 Up to $15,000.00 plus GST”

The first QCAT decision

  1. [29]
    In order to understand the decision of Member Forbes it is necessary to consider the earlier decision of Adjudicator Walsh.  He identified the issue as being “whether the absence of “salient terms” or specificity in scope of works rendered Waller’s costs agreement void for contravention of Division 5 of the LPA.”  After examining the CSA in the light of the relevant provisions of the LPA, he concluded that: “Waller’s Client Services Agreement with [Mr McAuley] is in my opinion therefore void for contravention of Part 3.4, Division 7, of the LPA.”[3]
  2. [30]
    Adjudicator Walsh acknowledged that the LPA neither expressly permits or prohibits a “do and charge retainer” where the scope of work is determined by instructions given from time to time by the client – s 322(4) is silent in this regard.  However, he noted that “sections 322 and 327 of the LPA must be considered in their statutory context which is as follows.”
  3. [31]
    By reference to s 14A(1) of the Acts Interpretation Act 1954, the Adjudicator concluded that the “consumer protection features in Divisions 3 and 5 of Part 3.4 of the LPA” and the “consumer protection purpose in section 3” require that a costs disclosure notice and a costs agreement must “each state with some particularity the scope of work by reference to each and all reasonably foreseeable stages of the work to be undertaken.”  Accordingly, he reasoned, the LPA cannot be understood to envisage, let alone sanction, a general “do and charge” costs agreement lacking particularity when considered in the context of:
    1. stringent costs disclosure obligations and the consumer protection purpose of the LPA;
    2. a solicitor’s ethical duty of honesty and candour; and
    3. a solicitor’s fiduciary duty of good faith.

The second QCAT decision

  1. [32]
    Member Forbes began by identifying what he calls a “statutory gap” and highlights “the meagre provisions of section 322(4)” which outline the required content of a costs agreement.  He observes that the section “is manifestly not a code”.
  2. [33]
    He then quotes from the Adjudicator’s conclusion that a costs agreement must state the scope of work with some particularity, before concluding:

“Indeed, it is curious that the recipe for a CDN is elaborated in section 308 (Detailed Disclosure of Costs to Clients) in more than thirty subsections and sub-subsections, while the contents of agreements is left to common law or statutory interpretation. It is a reasonable inference that the Act requires no less of any contract that ensues, and that ‘nebulous generality’ and anodyne phrases are to be avoided in favour of a more intelligent and specific approach. One consumer printout may not fit all. If drafting better tailored to the case in hand is needed, then so be it.

…

Given the wonders of modern computers, and with adequate wording in the CDN, it should be a simple matter to ‘cut and paste’ the CDN’s work description into the draft agreement.

I discern no error in the Adjudicator’s treatment of the statutory gap.” (emphasis added, footnote omitted)

  1. [34]
    Member Forbes appears to have found that the LPA requires costs agreements to also satisfy the provisions of the LPA governing cost disclosure requirements.  On that approach, the “statutory gap” is filled by importing into Division 5 the particular requirements of Division 3.  While not explicitly stated, he appears to adopt the conclusion of the Adjudicator – that s 322 implicitly requires that a costs agreement contain certain information and there is therefore a contravention of Part 3.4 Division 5 of the PLA – and concludes that there is then no error in the Adjudicator’s conclusion that the costs agreement is void.

Is the CSA void?

  1. [35]
    Section 327 of the LPA provides that “A costs agreement that contravenes, or is entered into in contravention of, any provision of this division is void.”  The division is Division 5 which deals with: making costs agreements, conditional costs agreements, the effect of costs agreements, and setting aside costs agreements.
  2. [36]
    There is nothing in Division 5 which requires that a CSA contain the same details as a costs disclosure notice.
  3. [37]
    The reasoning of the Adjudicator appears in [86] of his reasons:

“Only by spelling out the scope of works comprehensively and with some particularity in a proposed costs agreement will a solicitor be obliged in antecedent [sic] costs disclosure to ensure the client is informed of the estimable [sic] costs or costs range for the gamut of prospective services so the client may make an informed decision on whether to retain the solicitor, having regard to affordability and budgetary criteria and the importance of not running out of money part way through.”

  1. [38]
    He went on to say that the CSA was void for contravention of Part 3.4, Division 5 of the LPA.
  2. [39]
    Member Forbes approached the analysis by reference to the heading of s 322 – “Making costs agreements” – and saying that the heading “raises an expectation that here will be found an explicit and extensive list of essential ingredients of a valid costs agreement under the LPA, and not least a meaningful account of the work to be done and invoiced.”  Whether the heading to that section raises such an expectation – and I do not accept that it does – it is the contents of the section to which reference is more usefully made.
  3. [40]
    He then went on to say that it was curious that s 308 should set out the necessary ingredients of a costs disclosure notice while the contents of agreements were left to the common law or statutory interpretation.  He concluded that it was reasonable to infer that the Act required no less of any contract that ensued, and that generalities were to be avoided in favour of a more intelligent and specific approach.  Those conclusions, with respect, overlook the clear requirements of the LPA.
  4. [41]
    There is no “statutory gap”.  The basic requirements for a CSA are set out in s 322.  Such an agreement is a contract and so must satisfy the common law requirements for a contract and any other requirements imposed by statute.  Such an agreement may be enforced in the same way as any other contract – see s 326.
  5. [42]
    The statute deals expressly with the circumstances in which a costs agreement will be void.  It was not for the Adjudicator or Member to grapple with some perceived “statutory gap” and discern whether or not it had been plugged.  Neither set of reasons identifies any provision in Division 5 which the CSA contravened.
  6. [43]
    A costs agreement and a costs disclosure notice serve different purposes.  The costs agreement establishes the relationship between the solicitor and the client.  It is subject to the ordinary common law and to the specific requirements of the LPA.  The costs disclosure notice is a document created under the regime established under Part 3.4 Division 3 of the LPA.  Its purpose is to ensure that clients are properly informed of the costs which they are likely to incur or that they are provided with, at least, an estimate of those costs.
  7. [44]
    The structure of the LPA provides for what occurred in this case, namely, the creation of an agreement, the provision of a costs disclosure notice, and the revision of that costs disclosure notice when further work was required.  It does not require, as the reasoning of Member Forbes would imply, that when a client gives instructions to perform more work with respect to the subject of the CSA the parties must enter into a new agreement.  Nor does the Act require that a CSA, which is based upon a “do and charge” framework, be varied each time the client instructs that a new tranche of work be undertaken.  It does not require that the information set out in a costs disclosure notice must also be set out in a CSA and, in effect, reissued every time a new set of instructions is given.
  8. [45]
    Section 308 provides a detailed set of requirements for disclosure.  Section 310A sets out how disclosure must be made and provides that where detailed disclosure is given, it must be given in writing.  Neither section requires that such disclosure be incorporated into the CSA.  It is open to a solicitor to incorporate the disclosure into a costs agreement but there is no compulsion to do it in that way.  The circumstances of the individual case will usually dictate the most efficient way in which the information required by the LPA is conveyed to the client.
  9. [46]
    So far as the Member adopted the Adjudicator’s reasoning (set out in [36] above) it should, with respect, be rejected.  The reasoning of the Adjudicator is unsupported by a proper construction of the Act and the CSA.  In this case, the CSA specifically referred to the costs disclosure notice and Mr McAuley, by signing the agreement, agreed that he had received and read the costs disclosure notice.  The CSA also provided that, upon the receipt of new instructions, a separate disclosure notice would issue and that confirmation that the additional legal services were to be provided could be confirmed by Mr McAuley signing and returning the disclosure notice.
  10. [47]
    The CSA is not void.

Is WFL disentitled from recovering fees from Mr McAuley because it did not provide a second CSA to him?

  1. [48]
    WFL is not disentitled.  In these circumstances, for the reasons given above, there was no requirement for WFL to provide a second CSA.
  2. [49]
    The CSA included terms which provided that:
    1. the agreement would continue until terminated by either party, and
    2. the scope of the work would be the work which was instructed by the client from time to time.
  3. [50]
    It was contemplated in the CSA that further costs disclosure notices might be given.  Clause 2(e) of the CSA provided: “We will throughout the duration of this Agreement, upon the receipt of each new set of instructions, forward to you a separate Disclosure Notice in accordance with the requirements of the Act.”  The actions of WFL were consistent with both the terms of the CSA and the requirements of the LPA so far as costs are concerned.

Is WFL otherwise precluded from recovering its fees?

  1. [51]
    Adjudicator Walsh also held that WFL was not entitled to recover its fees because it had not complied with its obligation under s 315 to disclose to Mr McAuley a “substantial change” to its costs disclosure “as soon as is reasonably practicable” and, so, was disentitled under s 316 from recovering its fees.  This issue was not dealt with by Member Forbes.  WFL seeks an order remitting this issue.  But it is a mixed question of fact and law and, so, outside the boundaries of this appeal.  Given the manner in which the appeal was dealt with below, the order I propose will result in all issues being reconsidered by the Appeal Tribunal.

An unfortunate finding

  1. [52]
    In [94] of his reasons, Adjudicator Walsh held that to allow the claim for unpaid legal costs would, among other things, “[reward] Waller’s breach of the fiduciary duty in delivering the professional services for which it was retained.”  This was not a finding sought by Mr McAuley and was not raised by the Adjudicator with WFL.  It is not for this court to engage in determining whether WFL is precluded from recovering the relevant fees by reason of s 315 or s 316 of the LPA.  But, even assuming that there had been a contravention of s 315, there was no basis to conclude that WFL had breached its fiduciary duty.  The finding was unsought, unsupported by the material, and made in circumstances where the subject of the finding had no opportunity to deal with it.  The finding should not have been made.

Orders

  1. [53]
    WFL did not seek its costs of this application for leave to appeal and the appeal.
  2. [54]
    I would make the following orders:
  1. The applicant for leave is allowed to adduce the further evidence contained in the affidavits of Victoria Clair Limerick filed on 28 June and 18 July 2024.
  2. Leave to appeal is granted.
  3. The appeal is allowed.
  4. The decision of the Queensland Civil and Administrative Tribunal Appeal Tribunal of 24 April 2024 is set aside.
  5. The appellant’s Application for Leave to Appeal dated 14 November 2022 and filed in the Queensland Civil and Administrative Tribunal be remitted to the Appeal Tribunal of the Queensland Civil and Administrative Tribunal to proceed according to law.

Footnotes

[1]  [2024] QCA 24 at [23].

[2]  [2019] QCA 256.

[3]The reference to Division 7 is a typographical error with intended reference to Division 5. The appeal member treated it as such.

Close

Editorial Notes

  • Published Case Name:

    Waller Family Lawyers Pty Ltd v McAuley

  • Shortened Case Name:

    Waller Family Lawyers Pty Ltd v McAuley

  • MNC:

    [2025] QCA 25

  • Court:

    QCA

  • Judge(s):

    Mullins P, Flanagan JA, Martin SJA

  • Date:

    11 Mar 2025

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2022] QCAT 36218 Oct 2022Proceeding to recover unpaid legal fees dismissed: Adjudicator Walsh.
Primary Judgment[2024] QCATA 5824 Apr 2024Application for leave to appeal dismissed: Member Forbes.
Notice of Appeal FiledFile Number: CA 8484/2428 Jun 2024Application filed.
Appeal Determined (QCA)[2025] QCA 2511 Mar 2025Leave to appeal granted, appeal allowed, decision below set aside, matter remitted for reconsideration: Martin SJA (Mullins P and Flanagan JA agreeing).

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Allen v Queensland Building and Construction Commission [2024] QCA 24
2 citations
Jump To
Cite 1 - [2024] QCA 24
Cite 2 - [2024] QCA 24
Pivovarova v Michelsen(2019) 2 QR 508; [2019] QCA 256
3 citations
Jump To
Cite 1 - [2019] QCA 256
Cite 2 - [2019] QCA 256
Cite 3 - (2019) 2 QR 508
Waller Family Lawyers Pty Ltd v McAuley [2024] QCATA 58
1 citation
Jump To
Cite 1 - [2024] QCATA 58

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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