NR Barbi Solicitor Pty Ltd v Miller
[2015] QCAT 57
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- Unreported Judgment
- NR Barbi Solicitor Pty Ltd v Miller[2015] QCAT 57
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NR Barbi Solicitor Pty Ltd v Miller[2015] QCAT 57
NR Barbi Solicitor Pty Ltd v Miller[2015] QCAT 57
CITATION: | NR Barbi Solicitor Pty Ltd v Miller & Old Coach Developments Pty Ltd [2015] QCAT 57 |
PARTIES: | NR Barbi Solicitor Pty Ltd (Applicant) |
| v |
| Peter John Francis Miller Old Coach Developments Pty Ltd ACN 103 572 345 (Respondents) |
APPLICATION NUMBER: | MCDO1161/14 |
MATTER TYPE: | Other minor civil dispute matters |
HEARING DATE: | 8 October 2014 |
HEARD AT: | Brisbane |
DECISION OF: | Adjudicator Gordon |
DELIVERED ON: | 9 January 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The Respondents are ordered to pay to the Applicant a total sum of $8,007.88 made up as $7,549.09 for the bills for legal fees, interest of $357.39 and filing fee of $101.40. |
CATCHWORDS: | Solicitors bills – defence of defective and incomplete work and counterclaim for consequential losses – whether jurisdiction to hear counterclaim – whether set-off available –whether appropriate for resolution by QCAT – whether bill reasonable and in accordance with costs agreement Legal Profession Act 2007 ss 319, 328, 329, 330, 331, 335, 337, 341 Uniform Civil Procedure Rules 1999 rr 296, 670, 671, 672, 673 Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87 Re: Jozef Titan v Romano & Co [1990] FCA 618 D Galambos and Son Pty Ltd v McIntyre (1974) 5 ACTR 10 Branson v Tucker [2012] NSWCA 310 In re Park; Cole v Park (1889) 41 Ch D 326 Turner & Co v O Palomo SA [1999] 4 All ER 353 Clairview Developments Pty Ltd v Law Mortgages Gold Coast Pty Ltd & Ors [2007] QCA 141 Hill Corcoran Constructions Pty Ltd v Navarro & Anor [1992] QCA 017 IRM Pacific Pty Ltd v Nudgegrove Pty Ltd & Ors [2008] QSC 195 Bryan E Fencott and Assocs Pty Ltd v Eretta Pty Ltd [1987] FCA 102 Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114 |
APPEARANCES:
APPLICANT: | Mr Barbi on behalf of the Applicant |
RESPONDENTS: | Mr Miller on his own behalf and on behalf of the second Respondent |
REASONS FOR DECISION
- [1]This is a claim brought by a firm of solicitors (NR Barbi Solicitor Pty Ltd), against its former clients (Mr Peter Miller and Old Coach Developments Pty Ltd) for payment of legal fees billed to them. The legal fees arose from the conduct by the firm of the clients’ defence to Supreme Court proceedings brought against them.
- [2]The claim is for $7,627.66 made up as follows:-
- (a)Balance due on bill dated 25 July 2013: $2,257.37;
- (b)Bill dated 13 August 2013: $761.29;
- (c)Bill dated 21 November 2013: $4,609.
- (a)
- [3]The firm relies on costs agreements dated 10 April 2013 and 1 October 2013. It claims interest on the amounts outstanding at the rate of 4.5%.
- [4]In a Response received by the Tribunal on 19 June 2014, the clients’ case was set out as follows:-
- (a)That the firm was negligent in conducting the defence to the Supreme Court proceedings because it missed the opportunity to have those proceedings automatically ended as result of a court order which provided that the proceedings would be “deemed resolved” if certain events happened. This negligence caused the proceedings to continue, requiring further legal costs to be expended. All the fees in the bills in this claim could have been avoided if this had not happened. Also other solicitors have now been engaged to act in the continued proceedings and those legal costs could also have been avoided if the negligence had not occurred.
- (b)That during the proceedings the firm prepared the paperwork for “negligent and misguided” applications to the Supreme Court. These were unsuccessful and therefore wasted costs. The fees charged for this work were in earlier (paid) bills and also in the bill in this claim.
- (c)That there was overcharging on the bill because the hourly rate for the fee earner with conduct of the matter was quoted at $385 per hour including GST but the charge in the bill is at the rate of $440 including GST.
- (a)
- [5]It was said in the Response to the claim that the past wasted fees referred to in (a) and (b) above amounted to $16,469.40. This amount was sought against the firm as a “counterclaim”. There was also a counterclaim for an unspecified amount as reimbursement of the continuing costs of defending the Supreme Court proceedings which could have been avoided if the firm had allowed the proceedings to end when they should have done. Finally there was a counterclaim for interest on these amounts at 4.5% per annum.
- [6]There was a hearing before me on 8 October 2014, but there were problems over late disclosure, the parties needed to provide further submissions, and it was obvious that there would be insufficient time to deal with the matter. I gave directions for such submissions to be made and to enable the claim to be resolved in a reserved decision.
- [7]In the hearing I raised with Mr Miller the difficulties in dealing with the counterclaim because of the ambit of the Tribunal’s jurisdiction. This was because the counterclaim did not appear to come within either of the two main limbs of the Tribunal’s jurisdiction over minor civil disputes.[1] Firstly, it was not a claim for a debt or a liquidated demand of money (instead it was a claim in the nature of damages). Secondly, it could not be regarded as a claim brought against a “trader” because a solicitor’s firm was not a “trader” as defined.[2] So the counterclaim appeared to be outside the Tribunal’s jurisdiction. In any case, any such claim was not properly constituted because it had purportedly been made as a counterclaim to a Form 3 claim and the QCAT rules did not permit this.[3]
- [8]At the hearing Mr Miller accepted that the matters raised in the Response could only be raised by way of set-off against the firm’s claim on the bill. In other words, they were only matters which could be raised as a defence to the claim on the bills, and the Tribunal had no jurisdiction to make an award in the Respondents’ favour as was sought in the Response to the claim. He was content to proceed on that basis rather than have the matter transferred to another court.
New issues raised in the evidence and in the submissions
- [9]In the evidence and submissions now given by Mr Miller, he has sought to introduce some new matters in defence to the claim.
- [10]Firstly it is said that the Respondents were induced to enter into the costs agreement by a representation that the fee earner who was going to handle the matter had considerable experience in litigation and was “more than competent” to deal with it. And it is said that this representation was false and that therefore the costs agreement should be set aside.[4]
- [11]Whilst there is some reference to these representations and their falsity in the Response to the claim[5] the point is not clearly made that any consequence should flow from this. Certainly there is no suggestion that the costs agreement should be set aside because of this.
- [12]There is a procedure which needs to be followed in order to seek to set aside a costs agreement in the Tribunal. Section 328(1A) of the Legal Profession Act 2007 requires that any such application must be made as provided by the QCAT Act. There is however, no specific provision in the QCAT Act covering such an application and so it would have to be made under Rule 10 of the QCAT Rules (an application in writing, signed by the applicant, giving contact details and reasons and grounds). A fee would need to be paid. It certainly cannot be made in evidence or submissions presented in an existing claim. Therefore I do not regard this issue as currently before the Tribunal for determination. In order to regard it as before the Tribunal I would need to waive these technical requirements[6].
- [13]However, there is another difficulty. The Tribunal’s jurisdiction to set aside a costs agreement can only be exercised by a judicial member.[7] In the light of that technicality, I would not be minded to waive compliance in this case. This is because I do not think it would be proportional to the claim because it would require an entirely fresh hearing before a specially constituted tribunal.
- [14]A second point made in the evidence and submissions which was not raised in the Response to the claim is that a part payment of the bill dated 25 July 2013 was achieved by the firm using $2,963 in its Trust Account. Mr Miller says that this was not authorised.[8] Whilst nothing further is said about this by Mr Miller, it appears that he would like the Tribunal to take this into account. Again this is something which should have been raised in the Response to the claim if it is to be relied on. I propose to ignore this particular matter.
The extent of QCAT’s jurisdiction to consider the defence to the claim
- [15]Mr Barbi on behalf of the firm argues that since the Respondents cannot make a counterclaim, all the firm has to show to succeed in the claim is:-
- (a)that there was a costs agreement;
- (b)that work was done pursuant to the costs agreement;
- (c)that the bill is of the correct amount bearing in mind the work that was done.
- (a)
- [16]Mr Barbi’s submission is that the Tribunal cannot look beyond these three things. In particular, he says that the Tribunal cannot consider any claim by the Respondents that the work was defective or of no value.
- [17]I think this ignores the following principles:-
- (a)any applicant must satisfy the court or tribunal hearing the claim that their claim is well founded; in the case of a solicitor suing for fees this includes showing that the fees were reasonable, a matter which the respondent to the claim may dispute;
- (b)a set-off is available in an appropriate case.
- (a)
- [18]The principle in (a) above was set out by the Full Federal Court on appeal from the ACT Supreme Court in Re: Jozef Titan v Romano & Co [1990] FCA 618.[9]
- [19]As for (b), if a set-off is available it does not have to be sought by way of counterclaim. It can be relied on as solely a defence to the claim. In D Galambos and Son Pty Ltd v McIntyre (1974) 5 ACTR 10 at 25 – 26 Woodward J reviewed the authorities and concluded that in contracts for work and labour:-
(i) Failure in part to perform a contract, or defective performance of a contract requiring work to be done again or directly reducing the value of the work done or goods supplied, may be raised as a defence to an action for money due under that contract.
(ii) Claims for money due under a contract and for damages for breach of the same contract (arising, for example from delay) may be set-off against each other where the equity of the case requires that it should be so. This will depend on how closely the respective claims are related, particularly as to time and subject matter. The general conduct of the respective parties will, as always, be relevant to the granting of such equitable relief.
(iii) Even where one of the claims is not in terms based upon the contract, but it flows out of and is directly connected with it, a court may be prepared to recognise an equitable set-off.
- [20]Woodward J’s dicta has been cited with approval in Queensland.[10]
- [21]It follows that, if it is appropriate to do so, the Tribunal could deal with the dispute between the parties over the bills which are the subject of this claim, since each part of the dispute falls in (i), (ii) or (iii) above.
Whether it is appropriate for QCAT to deal with the dispute
- [22]The Tribunal’s decision makers are sometimes faced with a dilemma when dealing with a claim for fees by solicitors. This is because of the facility to have such fees assessed by a costs assessor of a court under Division 7 of Part 3.4 of the Legal Profession Act 2007. Section 335 permits a client within 12 months after delivery of the bill to seek such assessment. The 12 months period can be enlarged by section 335(6) by the costs assessor or by the court.
- [23]A solicitor may also seek assessment. This is under section 337. There is no time limit for solicitor’s applications.
- [24]In some claims brought to recover monies on a solicitor’s bill where there is a genuine dispute as to the reasonableness of the bill, it will be most appropriate for an assessment to be done by a costs assessor. To that end, the Tribunal could adjourn the matter and directions be given for such assessment to be done. If the 12 months has not yet passed, the client might be directed to apply for the assessment to be done;[11] if the 12 months has passed, then the solicitor might be directed to do so.
- [25]Whether or not it is appropriate for the Tribunal to send the parties away to have the bill assessed will depend on the amount at stake, the genuineness of the dispute, the delay which would result, and the wishes of the parties.
- [26]It may also depend on the nature of the dispute. It is notable that under the Legal Profession Act, where there is a valid costs agreement (as in this case) costs are recoverable under that agreement.[12] The cost assessor would be limited to consideration whether or not it was reasonable to carry out the work to which the legal costs relate and whether or not the work was carried out in a reasonable way.[13] Subject to that, the recoverable costs would be those provided in the costs agreement.
- [27]Where there is no costs agreement nor any scale of costs which applies, then the costs are recoverable according to the fair and reasonable value of the legal services provided.[14] This is to be assessed by criteria set out in section 341.
- [28]Here, part of the set-off is claimed because the Respondents say they have incurred and continue to incur costs in defending the Supreme Court proceedings which could have been avoided if the firm had not been negligent. This is effectively a claim for damages for past loss in the form of costs paid to others because of the solicitor’s negligence and for prospective loss not yet incurred.
- [29]The Respondents say that even if part of the unpaid bill was work done reasonably and in a reasonable way, they would wish to have the recoverable amount under the bill reduced by those past and prospective damages.
- [30]It would appear that because of the statutory provisions in the Legal Profession Act, a costs assessor might have difficulty allowing a reduction on that basis.
- [31]But as a set-off against the claim on the bill in a court or tribunal however, this set-off would appear to come within paragraph (ii) in the principles set out by Woodward J in D Galambos and Son Pty Ltd v McIntyre above.
- [32]In this case therefore there is a real difference in the way the dispute could be handled by a costs assessor as compared with the way it can be handled by a court or tribunal.
- [33]It would also be remembered that a costs assessment is in a regime where the costs of the assessment may have to be borne by the party effectively “losing” the assessment. A solicitor who has chosen to sue for fees in the Tribunal as a minor debt claim is a party who has opted for the Tribunal’s no costs regime. A client who is disputing the bill but who has not applied for a Division 7 assessment when he could have done so, appears also to prefer to have the dispute decided in a no costs regime. In such circumstances, the Tribunal would not wish to impose upon such parties a costs regime contrary to their desires if this could be avoided.
- [34]Here both parties at the hearing expressed the desire to have this matter resolved by the Tribunal. They do not want a Division 7 costs assessment. Bearing in mind the amount at stake, a costs assessment would appear to be disproportionate and bearing in mind the distinct difference in the way the matter could be handled as described above, it would probably be inappropriate. In the circumstances I do take the view that it is proper for me to deal with the matter.
Technical aspects which require proof
- [35]In Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 087 Judge Fleur Kingham, Deputy President sitting with Dr Bridget Cullen Mandikos held that it is for a solicitor’s firm which is claiming its fees to satisfy the Tribunal that it has complied with those mandatory requirements in the Legal Profession Act which entitle it to bring proceedings to recover the fees.
- [36]In particular the firm must prove that the bill has been served and then it waited 30 days before bringing the proceedings[15]. And the bill must be in the form required by the Act[16] and unless the client is a “sophisticated client” (as defined) it must be accompanied with a notification of client’s rights[17]. I am satisfied in this case that these formalities have been complied with.
The factual history of the legal work done for the clients
- [37]The legal work done by the firm was to act for the Respondents in Supreme Court proceedings brought by Devron Pty Ltd on 26 June 2012. Mr Miller and Old Coach Developments Pty Ltd were two of five defendants to that claim. Mr Miller was and is, a director of Old Coach and instructed the firm on behalf of that company. One of the defendants to the claim was Mr Miller’s wife. And Mr Miller together with his wife were closely connected with the other defendants to the Supreme Court claim. I shall call all these defendants “the Miller entities”.
- [38]In order properly to understand Mr Miller’s complaints about the work done by the firm I need to understand what this case was about. Although I have not been provided with the full pleadings in the Supreme Court proceedings it is possible to glean this from the evidence and from the documents provided.
- [39]Under a joint venture between Devron and the Miller entities, land at Redcliffe was developed, divided into lots and largely sold. One lot remained unsold. Devron claimed that it was entitled to this lot pursuant to a clause in the joint venture agreement. The Miller entities denied this, the issue being whether the clause concerned had been triggered or remained effective.
- [40]Relying on an equitable interest in the lot, Devron lodged a caveat over its title at the Titles Registry. The Miller entities disputed that Devron had a right to lodge the caveat.
- [41]Clearly whether Devron had a right to lodge the caveat turned on the very same issues as in the claim itself – whether Devron was entitled to the lot itself.
- [42]There were also a number of other claims brought by Devron.[18] In a nutshell it claimed that Mr Miller had been obstructive and that it was due monies from the joint venture.
- [43]The firm was engaged to defend the claim brought by Devron. It went on the record and with the assistance of counsel prepared a Defence to the claim which was lodged on 6 August 2012.
- [44]On 22 March 2013 Atkinson J made a case flow directions order. The order provided for further and better particulars of the Defence to be requested and answered; for a Reply to be filed and served; for disclosure to be completed; for the appointment of an agreed expert witness and for the filing of the expert’s report. The order then continued as follows:-
- The parties file a consent order for mediation by 12 June 2013 such mediation to be completed by 3 July 2013.
- If the mediation proposed in paragraph 7 is unsuccessful, the parties sign and file a Request for Trial Date by 26 July 2013 or the matter will be deemed resolved.
- [45]The expression “deemed resolved” is explained in the Supreme Court Practice Direction No 17 of 2012 as meaning that ‘the proceeding is in abeyance and no step can be taken unless and until the matter is reactivated by order of the court’.[19]
- [46]For reasons which do not form the subject of any complaint by the Respondents, the timetable was not complied with. In particular, the parties did not file a consent order for mediation in accordance with paragraph 7 of the order. 26 July 2013 therefore passed by. The effect of the order in these circumstances is important for the Respondents’ defence because they say that an opportunity was missed to end the Supreme Court proceedings.
- [47]It certainly appears from the papers that both Mr Miller and Ms Natalie Strijland who was the fee earner conducting the proceedings on behalf of the Respondents believed that the passing of 26 July 2013 with no progress towards mediation meant that the Supreme Court proceedings were deemed resolved.
- [48]It was on that basis that soon after that date Mr Miller asked the Titles Registry to remove the caveat. This request was supported by an affidavit which he had drafted and which was checked and amended by Ms Strijland.
- [49]Inevitably upon receiving notice of the attempt to remove the caveat Devron’s solicitors informed the Titles Registry that there was still a live issue about Devron’s interest in the lot, and the Titles Registry declined to remove the caveat.
- [50]Meanwhile, Mr Miller was anxious to have a backup plan, and he asked the firm to prepare paperwork for three applications in the Supreme Court proceedings – one for security for costs, one for summary judgment and for removal of the caveat.
- [51]These applications and supporting affidavits were prepared by the firm between 19 July 2013 and 24 July 2013, and lodged with the court on 9 August 2013.
- [52]Between 20 August 2013 and 30 September 2013 the firm was off the record. This meant that the Miller entities were self represented between these dates.
- [53]The applications were heard on 21 August 2013 before Peter Lyons J. Mr Miller acted for himself. The main issue before the court that day was the lifting of the caveat. His Honour refused to lift the caveat on the grounds that the prejudice which would be suffered by Devron if the caveat were to be removed and it had a right to the lot exceeded the prejudice which would be suffered by the Miller entities if the caveat were to remain and Devron did not have a right to the lot.[20] This decision was made with the intention that the claim itself would be proceeding to trial. Mr Miller was ordered to pay the other side’s costs in the sum of $1,000.
- [54]Mr Miller also made an application for security for costs which failed because the Miller entities were not at the time legally represented.
- [55]On 25 September 2013 there was a hearing before Applegarth J. Each side made applications on that day. The firm had not gone back on the record and Mr Miller again represented himself at the hearing.[21] Two of the applications made by Mr Miller were dismissed. These were an application for summary judgment and a refreshed application for the caveat to be removed. The third, a refreshed application for security for costs, was successful and was made on the basis that solicitors acting would go on the record within 21 days of the order. This happened by the Applicant filing a Notice of Appointment of a Solicitor. Orders were made for further pleadings and in relation to expert evidence. Costs of all the applications were to be costs in the proceedings.
Missing the opportunity to have the claim “deemed resolved”
- [56]The suggestion here is that the firm was negligent by missing the opportunity to have the Supreme Court proceedings deemed resolved. The complaint is that Mr Barbi agreed with Devron’s solicitors on 11 June (as confirmed in a letter of 12 June 2013) to relax the timetable in the order of Atkinson J and therefore on 26 July 2013 the matter was not deemed resolved as it would otherwise have been. This, it is said, resulted in the Supreme Court proceedings continuing and this caused the Respondents’ loss.
- [57]To my mind this is not what happened. On my interpretation of paragraph 8 the order of Atkinson J on 22 March 2013, the parties were only required to request a trial date by 26 July 2013 if the mediation proposed in paragraph 7 was unsuccessful. This condition was not satisfied because the mediation proposed in paragraph 7 never took place. Hence nothing happened as 26 July 2013 passed by.
- [58]The Supreme Court Practice Direction anticipates that the usual directions given by the court would be that failure to request a trial date or notice of discontinuance by the date given in such an order would result in the proceeding being deemed resolved.[22] But an order of the court can make other provisions, and the order of 22 March 2013 did not say this.
- [59]Mr Miller is not suggesting that Mr Barbi was wrong not to insist that paragraph 7 was complied with.
- [60]It follows that the complaint is not well founded on this issue.
- [61]However, this is not the end of this particular issue. Ms Strijland encouraged Mr Miller to apply to the Titles Registry to remove the caveat. This was because she was of the view that the proceedings were deemed resolved because the date of 26 July 2013 passed without a mediation taking place.[23] As a result of this, she did some work on this issue which was unnecessary. The relevant bill is that dated 13 August 2013 but only part of the bill relates to the unnecessary work. In the light of Mr Miller’s evidence that on 9 August 2013 the firm prepared and lodged other applications[24] it can be seen that most of that bill concerned that other work. The following work in the bill however appears to have been unnecessary:-
29 July 2013 perusal of email from client (which I assume attached a draft affidavit)
29 July 2013 perusal of revised affidavit
30 July 2013 drawing email to client (this email attached a revised draft affidavit)
- [62]The earlier work on the bill done on 29 July 2013 and the perusal of Mr Miller’s email of 26 July 2013 would have been required in any event.
- [63]3 units are involved which was charged at $120 plus GST. However, the whole bill was heavily discounted and applying the same discount reduces the charge for the 3 units to $71.43 plus GST = $78.57. This is the amount which should be deducted from this bill.
The “negligent and misguided” applications
- [64]There are three applications referred to here by Mr Miller. Despite these words being used by Mr Miller, he is not complaining that the firm should not have assisted him to make the applications and charge accordingly. Instead he has some specific complaints about the work done by the firm in helping him with his paperwork in respect of them. I restrict myself to considering these specific complaints.
- [65]The first application was for security for costs. Mr Miller says that the firm was negligent in preparing the application for security for costs because it faced difficulty because:-
- (a)at the time it was heard, the Miller entities were self represented; and
- (b)it sought security for past costs not future costs.
- (a)
- [66]It cannot be said that either (a) or (b) above are fatal to the claim for security for costs. There is nothing in the applicable rules[25] to that effect nor in the provision in the Corporations Act 2001 under which the application was made.[26] The fact that a party is self represented does not mean that the application will automatically fail where that party intends to engage solicitors to conduct the litigation. Indeed this is how the application was eventually dealt with. On 25 September 2013 Applegarth J made an order for security for costs conditional upon the Miller entities filing and serving an affidavit that they had engaged solicitors.
- [67]Also to my mind, the fact that the application for security covered some past costs makes no difference to the merits of any such application. The security is to cover the chance of getting a costs order at the hearing which the other side is unable to pay. That costs order would be for the costs of the proceedings whenever they have been incurred. There is authority to the effect that it is possible to obtain security for past costs as well as for future costs.[27]
- [68]It is true as Mr Miller points out, that during the argument about this, Applegarth J stated that “security for costs is for future costs”. I understand this to mean that the amount of the security ordered would normally be limited to those costs likely to be incurred from the date of the application where the party applying should have applied earlier.[28] In any case there were plenty of prospective future costs sufficient to form the basis for the application so this did not affect its merits.
- [69]The general merits of the application were good as appears from the firm’s letter of 17 April 2013. The application was ultimately successful before Applegarth J. Accordingly I do not think it can properly be said that the firm was negligent in permitting Mr Miller to proceed with this application or in the way the paperwork was drafted.
- [70]The second application was for summary judgment. Mr Miller’s complaint about this is that it was served later than required by rule 296 of the Uniform Civil Procedure Rules 1999. It can be seen from the correspondence exhibited to Ms Strijland’s affidavit that this was indeed the case. Devron’s solicitors objected to the late service. As a result of this, Ms Strijland’s suggested to Mr Miller that he consent to this application being postponed to a date to be fixed, which he did. It does not appear from the evidence who was to blame for the late service of this application. The lateness may have been caused by a number of things. It cannot be said, on the evidence, that the firm was negligent in being late with this application.
- [71]In any case, it does not appear that the lateness of the application and its postponement to a date to be fixed caused any loss to the Respondents. It did not make any difference to the hearing before Peter Lyons J. The application for removal of the caveat was the important issue on that day and was dealt with fully. The application for summary judgment was eventually dealt with by Applegarth J on 25 September 2013. So the fact that it was postponed earlier because of its late service made no difference to the eventual outcome of that application.
- [72]The third application was for removal of the caveat. The complaint here is that the evidence prepared for this application was inadequate in respect of one of the arguments presented by Mr Miller before Peter Lyons J. That argument was that there had been an agreement between the parties reached in correspondence which overrode the clause in the joint venture agreement which gave Devron a right to the unsold lot.
- [73]On this matter, Peter Lyons J accepted the submission made by counsel for Devron that there was no evidence that this subsequent agreement had been acted upon. It appears that the significance of this was that the evidence was then insufficient to affect the equity to which Devron was entitled by reason of the original clause in the joint venture agreement.
- [74]Mr Miller says that an attempt was made to correct this at the hearing before Applegarth J by presenting evidence showing that the agreement reached in correspondence had indeed been acted upon. On that basis Mr Miller refreshed the application that the caveat should be removed. However Mr Miller says that Applegarth J refused this application because it amounted to re-litigation of a matter that had been determined by Peter Lyons J.
- [75]The difficulty with this allegation in this claim is that without sight of all the evidence relating to this matter as presented to Peter Lyons J and the additional material presented to Applegarth J it is impossible to say whether a solicitor acting sufficiently carefully should have included that evidence in the first place. This is something that the Respondents to this claim would have to prove to me. The burden is upon them to show that the firm acted negligently.
- [76]Even if that could be shown, the next step would be to show that Peter Lyons J would have been so impressed with the material that he would have removed the caveat there and then. There is absolutely no evidence before me to show that this would have been the case. In fact, it can be seen from the judgment of Peter Lyons J that he was concerned to protect the rights of the parties pending final determination of the proceedings. It cannot be said that the decision would have been any different if the grounds for removing the caveat had been stronger bearing in mind a final hearing of all matters was anticipated.
- [77]Accordingly I am unable to say that the firm was negligent in the respect alleged nor that if it was negligent it had any effect on the outcome of the application before Peter Lyons J.
Overcharging by using the wrong hourly rate
- [78]The Response to this claim says that the hourly rate of the solicitor with conduct of the matter on behalf of the Respondents was quoted at $385 per hour including GST, but it was charged at $440 per hour. But in Mr Miller’s evidence it is said that the Respondents did agree the hourly rate of $440 for her services.[29] This can also be seen from the costs agreement of 10 April 2013 itself.
- [79]Accordingly the rates claim in the bill do accord with the costs agreement and this ground for reducing the bills does not succeed.
Counter argument: acceptance of reduced bills
- [80]The firm argues that by accepting a reduction in the bills in response to other complaints, Mr Miller has “resolved any issues” with them.
- [81]I do not agree that the disputes have been resolved in this way. Although I can see from the correspondence that the firm agreed to go back on the record on 1 October 2013 provided their outstanding bills at that time were paid, this was not on the basis that the bills were accepted as reasonable.
- [82]Also there was certainly no agreement reached between the parties that any discount to the bill was in full and final settlement of any dispute between them about the bills, nor that Mr Miller has acted in a way which could properly demonstrate that he has waived his right to dispute the bills in these proceedings.
Disposal
- [83]I have found that there should be a deduction of $78.57 from the bill dated 13 August 2013. The remainder of the work which was billed was done within the firm’s retainer, and was properly charged at the rate provided for in the costs agreement. The amount recoverable from the Respondents is therefore $7,549.09.
- [84]As for interest, the costs agreements signed by the Respondents provide for interest to be added after 30 days at 2% above the Cash Rate Target (a rate of 4.5%).[30] The claim follows that provision although there is a concession in respect of the earlier bills so that all interest commences on 21 December 2013 being 30 days from the last bill. To the date of this decision, the interest on the award of $7,549.09 is $357.39. The firm is also entitled to its filing fee of $101.40.
Footnotes
[1] As set out in Schedule 3 to the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
[2] Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87 at [22].
[3] Queensland Civil and Administrative Tribunal Rules 2009 (QCAT Rules) r 48(3).
[4] Paragraphs [7] respectively of Mr Miller’s affidavit sworn on 26 September 2014 and the submissions of 7 November 2014.
[5] Ibid [9].
[6] QCAT Act s 61.
[7] Legal Profession Act 2007 s 598.
[8] Paragraph 27 respectively of Mr Miller’s affidavit sworn on 26 September 2014 and the submissions of 7 November 2014.
[9] See also to the same effect, Branson v Tucker [2012] NSWCA 310 and the English cases of In re Park; Cole v Park (1889) 41 Ch D 326 and Turner & Co v O Palomo SA [1999] 4 All ER 353.
[10] See for example, Clairview Developments Pty Ltd v Law Mortgages Gold Coast Pty Ltd & Ors [2007] QCA 141 at [24]; Hill Corcoran Constructions Pty Ltd v Navarro & Anor [1992] QCA 017 and IRM Pacific Pty Ltd v Nudgegrove Pty Ltd & Ors [2008] QSC 195 at [12], [13].
[11] And if the client fails to apply for the assessment this might amount to an acceptance that the bill was reasonable: Re: Jozef Titan v Romano & Co [1990] FCA 618 at [34].
[12] Legal Profession Act 2007 s 319(1)(a).
[13] Ibid ss 341(1)(a) and (b).
[14] Ibid s 319(1)(c).
[15] Ibid s 329.
[16] Ibid s 330.
[17] Ibid s 331.
[18] These appear from submissions prepared by Mr Miller at pages 64 to 71 of the affidavit of Ms Strijland sworn on 3 September 2014.
[19] Paragraph 3.3, also paragraph 8 provides for the manner in which proceedings can be reactivated after being deemed resolved.
[20] Transcript of judgment, exhibit PM9 to Mr Miller’s affidavit sworn on 26 September 2014.
[21] The order appears on page 102 of Ms Strijland’s affidavit.
[22] Paragraphs 6.1(i) and 7.1
[23] This appears from her attendance note of 17 July 2013, her email to Mr Miller of 29 July 2013 and the draft affidavit which she amended for use at the Titles Registry.
[24] Paragraph 19 of his affidavit of 26 September 2014.
[25] Uniform Civil Procedure Rules 1999 rr 670 to 673.
[26] Corporations Act 2001 s 1335.
[27] Bryan E Fencott and Assocs Pty Ltd v Eretta Pty Ltd [1987] FCA 102 French J at [102].
[28] Delay being an important factor in determining whether security for past costs should be ordered: Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114 Waddell J at page 123.
[29] Paragraph 7 of Mr Miller’s affidavit of 26 September 2014.
[30] This corresponds with the limit provided by regulations made under the Legal Profession Act.