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Setschnjak v Derek Geddes Pty Ltd[2017] QCAT 9

Setschnjak v Derek Geddes Pty Ltd[2017] QCAT 9

CITATION:

Setschnjak v Derek Geddes Pty Ltd [2017] QCAT 009

PARTIES:

Nicole Helen Setschnjak

Mitchell Peirre Setschnjak

(Applicant/appellant)

v

Derek Geddes Pty Ltd t/as Derek Geddes Lawyers

(Respondent)

APPLICATION NUMBER:

OCR073-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

28 April 2016

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President

DELIVERED ON:

18 January 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The costs agreements be set aside pursuant to section 328 Legal Profession Act 2007 (Qld).
  2. There be an assessment of the costs payable by Nicole Setschnjak to Derek and Dwyer pursuant to the retainment agreement dated 8 October 2009.
  3. There be an assessment of the costs payable by Mitchell Setschnjak and Nicole Setschnjak to Derek Geddes Lawyers pursuant to the retainment agreement dated 10 April 2010.
  4. The assessments referred to in order 1 and 2 be undertaken on the Supreme Court scale of costs as it applied at the relevant times.
  5. The costs so assessed be paid within 30 days from the day of the assessment.
  6. The applicants file any submissions on which they wish to rely in relation to the question of costs in these proceedings, by:

4:00pm on 17 February 2017.

  1. The respondents file any submissions on which they wish to rely in relation to the question of costs in these proceedings, by:

4:00pm on 17 March 2017.

  1. Unless either party requests an oral hearing, the matter of costs in these proceedings will be determined on the papers after 20 March 2017.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – OTHER MATTERS – where the applicants applied to have two costs agreements entered into with the respondent set aside – where the applicants submitted that the respondent exercised undue influence and made misrepresentations as to the costs agreements – where the applicants submitted in the alternative that proper disclosure was not made in relation to legal fees – where a costs agreement can be set aside if not fair and reasonable pursuant to section 328 of the Legal Profession Act 2007 (Qld) – whether adequate disclosure was made – whether the costs agreements should be set aside

Legal Profession Act 2007 (Qld) ss 3(a), 308, 310(1), 315, 316, 319, 322, 328

Connollys Lawyers Pty Ltd v David William Davis [2013] QCA 231

APPEARANCES:

 

APPLICANT:

Strangman, B. instructed by Delaney Lawyers on behalf of the applicants

RESPONDENT:

Moon, A.J. instructed by DGM Lawyers on behalf of the respondents

REASONS FOR DECISION

  1. [1]
    By amended application filed pursuant to directions of the Tribunal, orders are sought that the following costs agreements be set aside pursuant to section 328(1) of the Legal Profession Act 2007 (Qld) (‘LPA’):
  1. a)
    Costs agreement entered into between Nicole Setschnjak and Derek and Dwyer Lawyers on 20 October 2009; and
  1. b)
    Costs agreement between Nicole Helen Setschinjak and Mitchell Peirre Setschnjak and Derek Geddes Pty Ltd trading as Derek Geddes lawyers on 9 April 2010.
  1. [2]
    The applicants request that the two costs to be set aside on the following grounds:[1]
    1. a)
      misleading and deceptive conduct on the part of Rita Derek.
    1. b)
      misrepresentations on the part of Rita Derek.
    1. c)
      the exercise of undue influence by Rita Derek over the applicants:
    1. (i)
      through the vulnerable and inferior position the applicants held to Rita Derek;
    2. (ii)
      through the close associate that Rita Derek held with the applicants; and
    3. (iii)
      through the taking advantage of the applicant’s position of weakness created by the emotional distress and grief from the loss of the applicant Nicole’s father.
    1. d)
      alternatively, that the respondents failed to make adequate disclosure to the applicants as required pursuant to Chapter 3 Division 3 LPA.
    1. e)
      further, and in the alternative, that the respondents should estopped from making a claim for fees and expenses on the grounds that the conduct of Rita Derek, in not providing an account to the applicants for fees, was conduct that the applicants placed reliance upon and she continued to hold herself out to the applicants as not charging for professional fees through her representations.[2]

The law

  1. [3]
    Section 322 LPA provides that costs agreements may be made between the client and a law practice retained by the client.[3] The costs agreement must be written or evidenced in writing.[4]
  2. [4]
    On application by a client, the Tribunal may order that a costs agreement be set aside if satisfied the agreement is not fair and reasonable.[5]
  3. [5]
    In deciding whether a costs agreement is fair and reasonable, and without limiting the matters to which the Tribunal can have regard, the Tribunal may have regard to matters including:
    1. a)
      whether the client was induced to enter into the agreement by the fraud or misrepresentation of the law practice or of any representative of the law practice;[6]
    1. c)
      whether the law practice failed to make any of the disclosures required under Division 3;[7]
    1. d)
      the circumstances and conduct of the parties before and when the agreement was made;[8] and
    1. e)
      the circumstances and the conduct of the parties in the matters after the agreement was made.[19]
  4. [6]
    If the Tribunal orders a costs agreement be set aside, it may make any order it considers appropriate in relation to the payment of legal costs the subject of the agreement.[10]
  5. [7]
    Without limitation the Tribunal may:
  1. a)
    apply the applicable scale of costs, if any.[11]
  1. b)
    decide the fair and reasonable costs.[12]
  1. [8]
    The level of costs ordered by the Tribunal cannot be in excess of the amount the law practice would have been entitled to recover if the costs agreement had not been set aside.[13]
  2. [9]
    The disclosure referred to is that which is required under Division 3 part 34 LPA.
  3. [10]
    Relevant to the dispute between the parties, a law practice must disclose to a client:

“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.”[14]

  1. [11]
    That disclosure must be made in writing before, or as soon as practicable after, the law practice is retained in the matter.[15]
  2. [12]
    Also of relevance to the dispute between the parties is the requirement in section 315 LPA which provides that:

“A law practice must, in writing, disclose to a client any substantial change to anything included in a disclosure already made under this division as soon as is reasonably practicable after the law practice becomes aware of that change.”[16]

  1. [13]
    If a law practice does not disclose as required under Division 3, the client need not pay the legal costs unless the costs have been assessed under Division 7 LPA.[17]
  2. [14]
    Moreover, in those circumstances the law practice cannot maintain proceedings against the client for recovery of legal costs unless the costs have been assessed under Division 7 LPA.[18]
  3. [15]
    Pursuant to section 316(3) LPA if relevant disclose is not made, the client may apply under section 328 LPA (as has been done in this case) for the costs agreement to be set aside.[19]
  4. [16]
    The broad provision with respect to payment of legal costs is again reinforced in section 319 LPA which provides that legal costs are recoverable:
    1. a)
      under a costs agreement made under Division 5; or
    1. b)
      if there is no costs agreement – under the applicable scale of costs; or
    1. c)
      otherwise according to the fair and reasonable value of the legal costs provided.[20]

Background

  1. [17]
    Statements of evidence were filed by Nicole Helen Setschnjak, Mitchell Pierre Setschnjak, Dusanka Setschnjak as well as Rita Maria-Angela Derek and Marshall Earl Pope. Oral evidence was given by those people. A further affidavit was later filed by Ms Derek.
  2. [18]
    There was little agreement in the evidence from each side.

Applicant’s version of events

  1. [19]
    In September 2009, Nicole Setschnjak was involved in a legal dispute. Her mother in law, Dusanka Setschnjak recommended that she contact Rita Derek. This recommendation came as a result of a close family connection.
  2. [20]
    During a meeting which happened on 20 October 2009, Ms Derek assured Nicole Setschnjak and her husband Mitchell Setschnjak that she would not charge professional fees.[21]
  3. [21]
    Ms Derek also said that “when we win the case the other party will have to pay the costs involved.”[22]
  4. [22]
    On 20 October 2009, during the meeting at the lawyers office a costs agreement was signed. This agreement was between Derek and Derek Lawyers and Nicole Setschnjak. The question was asked of Ms Derek why an agreement was necessary to which the response was that it was “standard practice.”[23]
  5. [23]
    The clients were told to take the costs agreement away and return it at a later time after reviewing it. 
  6. [24]
    Both Mr and Mrs Setschnjak (in largely identical terms) record that, whilst they looked at the document, its contents “looked so complicated” and they both trusted Ms Derek as a close family friend.[24]
  7. [25]
    Mr and Mrs Setschnjak attended Ms Derek’s office in early April 2010, when they were asked to sign a further costs agreement on the basis that a separate matter (Supreme Court proceedings) had emerged so that a new costs agreement, for both Mr and Mrs Setschnjak, was necessary.[25]
  8. [26]
    Nothing was said about a change in arrangements concerning professional fees so each assumed that Ms Derek would make no charge for her professional time. Mr Pope, the Barrister, was present at this meeting and it was again explained that signing the costs agreement was “standard practice.” Again, Mr and Mrs Setschnjak were asked to take the documents with them and consider the contents before returning them.[26] This agreement was between Derek Geddes Lawyers and Mitchell Setschnjak and Nicole Setschnjak.  
  9. [27]
    Again, Mr and Mrs Setschnjak say that the document was long and confusing so that they did not give it any additional thought, relying upon what Ms Derek had said and trusting her.[27]
  10. [28]
    For about 2 years, Mr and Mrs Setschnjak had “still not been given any bills or invoices for any legal services provided.”[28] They had paid some out of pocket expenses. 
  11. [29]
    On or about 25 August 2011, Ms Derek approached Mr Setschnjak during a meeting in her office and asked him to make “some contributions for cash flow reasons.”[29]
  12. [30]
    Mr Setschnjak believed that Ms Derek was seeking financial assistance not payment of legal costs as he was of the belief that no charge was being made for professional fees. He felt “morally compelled” to assist but asked that he be provided with some form of invoice.[30]
  13. [31]
    Two invoices dated 31 August 2011 were sent, numbered 1633 for the sum of $76,335.84 with respect to the first matter and number 1632 for the sum of $22,088.32 with respect to the second matter. According to Mr and Mrs Setschnjak this was the first time they became aware that Ms Derek was charging for professional fees.[31]
  14. [32]
    Each of Mr and Mrs Setschnjak said that, by way of a letter of 31 August 2011, Ms Derek indicated she was “going back on her original position not to charge fees, but in an attempt to try to pacify us told us she was going to reduce them.”[32]
  15. [33]
    Mr Setschnjak reviewed the invoices and noted large amounts related to counsel fees for services provided by Mr Pope who, Mr Setschnjak said, had never provided a client agreement or disclosure notice.[33]
  16. [34]
    Over this time, Mr and Mrs Setschnjak paid a total of $64,014.34 towards the invoices because Ms Derek or her office staff were chasing them for payment. They paid even though, as both Mr and Mrs Setschnjak put it “Rita had always told us that she would not charge for her fees and that the other party would pay her costs when we won.” Again, this was said in identical terms as between the two statements.[34]

Respondents’ version

  1. [35]
    The costs agreement dated 20 October 2009, was forwarded with correspondence dated 8 October to Ms Setschnjak. Ms Derek exhibited a copy of the letter dated 8 October. The signed costs agreement and disclosure notice was returned with a payment of $4,400.00.
  2. [36]
    The agreement was with Derek and Dwyer lawyers.
  3. [37]
    Ms Derek denied saying that no charge would be made with respect to professional time or that the other party would pay the costs involved.[35]
  4. [38]
    Ms Derek denied having provided the second cost agreement with Derek and Derek’s lawyers to Mr and Mrs Setschnjak in a meeting in early April 2010. Ms Derek referred to correspondence dated 24 March 2010, which forwarded the second costs agreement.[36] This agreement was with Derek Geddes Lawyers.
  5. [39]
    When referring to the second costs agreement, Ms Derek repeated her denial that she indicated at any time to Mr and Mrs Setschnjak that she would not charge for her time. When the costs agreement was not returned, it was necessary for Ms Derek’s secretary to follow up with Mr and Mrs Setschnjak as to the return of the signed costs agreement.[37]
  6. [40]
    In relation to the assertion that no bills or invoices were forwarded with respect to any legal service provided, Ms Derek said that she did not provide invoices as Mr Setschnjak said that they would prefer to pay legal fees at the conclusion.[38]
  7. [41]
    Ms Derek denied having called Mr Setschnjak on or about 25 August 2011, seeking “some contributions for cash flow reasons.”[39] Instead, she deposed that on or about 31 August 2011, Mr Setschnjak asked that outstanding invoices for all work undertaken on the file be prepared as he required the invoices for taxation purposes. Ms Derek told Mr Setschnjak that once the invoices were generated it would be necessary for him to make payments towards the invoices as, from that time, the firm became liable to pay tax on the invoices rendered.[40]
  8. [42]
    Ms Derek asserted that Mr and Mrs Setschnjak were always aware that they had to pay the outstanding invoices once they were generated by the law firm.[41]

The evidence

  1. [43]
    Mr Setschnjak was a careful witness. Mrs Setschnjak was confused and was an unimpressive witness.
  2. [44]
    The statements of Mr Setschnjak and Mrs Setschnjak were in important aspects, identical. They have the appearance of having been prepared after close collaboration.
  3. [45]
    Ms Derek was a considered and careful witness. The evidence of Ms Derek was corroborated by that of Mr Pope in relation to whether any statement was made to the effect that there would be no charge with respect to professional fees.
  4. [46]
    The evidence of Mr and Mrs Setschnjak was not independently corroborative of the other. In many important aspects, the written statements filed by Mr and Mrs Setschnjak were entirely identical. It was clear that the statements did not contain the independent recollection of each witness, but was more of a construct between the two. This was evident from the text of the statements and from the contents of the oral evidence.
  5. [47]
    There was some confusion as to where and how the cost agreements were signed. Ms Derek said the costs agreements were forwarded to Mr and Mrs Setschnjak on 8 October, signed on 20 October, and then returned on 22 October.  However, the date under her signature is 20 October 2009.
  6. [48]
    Mr and Mrs Setschnjak said that the papers were signed during a meeting on 20 October 2009 at Ms Derek’s office.
  7. [49]
    As to the second costs agreement, and where the document was signed, Mrs Setschnjak indicated that she could not remember whether the second costs agreement had been sent by way of the letter.[42]
  8. [50]
    Significantly, Mr and Mrs Setschnjak agreed that both costs agreements were taken by them away from the office to enable them to consider the contents. They were asked to do this. 
  9. [51]
    From the contents of each costs agreement and disclosure notice (which were in largely identical terms), it is clear that charges would be made with respect to professional costs. All of the evidence is to the effect that Mr and Mrs Setschnjak were given ample opportunity to review the agreements and to return the agreements to the lawyers.[43]
  10. [52]
    Mr and Mrs Setschnjak were business people engaged in running their own business[44] and, in the documents lodged in the Tribunal, demonstrated an understanding of the issues. Mr and Mrs Setschnjak were capable of understanding the agreements.
  11. [53]
    From the evidence given, particularly thereof Mrs Setschnjak, the Tribunal concludes that it is likely that there was a confusion in the understanding of the clients between the liability to pay the legal costs and the ability to recover the legal costs from the other party. 
  12. [54]
    For example, a comment by Mrs Setschnjak was “but we were always going to get money back at the end which would cover Rita. She never wanted anything from us until then…”[45]
  13. [55]
    In relation to a question of discount Mrs Setschnjak said the following:

“You may have been told or understood that there would be a discount; that’s right isn’t it? --- yes.  There would be a discount.

A discount on what? --- a discount on the – the bill at the end that we would not be paying – Rita Derek was not going to charge for her fees.

So what was the discount going to be for? --- I don’t know.”[46]

  1. [56]
    In another series of questions the following was said by Mrs Setschnjak:

“I’m asking you this. Did you understand at the beginning that – your case, that you would not have to pay Ms Derek’s own legal fees at all? --- we were told there would be – no we would not have to pay anything at all until the end because we would win the money back and that would be covering the whole bill which would be discounted and Rita Derek would not be charging us her fees.”[47]

  1. [57]
    And further:

“So, well, what is it; that you wouldn’t be paying until the end or you wouldn’t be paying anything? --- Until the end when we won – when we won the case.

Alright.  And what about in the event of you not winning? --- We were never told that we wouldn’t win… we had a good case and we would win.  And that’s where Rita Derek would get her money.”[48]

  1. [58]
    And further:

“And what did you understand…? --- Nothing would come from us because we would win the case?”[49]

  1. [59]
    The evidence of Mrs Setschnjak is consistent with the recollection advanced by Ms Derek, namely that a fee was payable, that it would be discounted and would be paid at the conclusion of the matter. The evidence is not consistent with the assertions contained in the application.
  2. [60]
    The evidence given by Mr and Mrs Setschnjak in relation to the payments made was uncompelling and illogical, particularly in circumstances where their assertion was that there was a clear agreement that no charge would be made with respect to professional costs.
  3. [61]
    The evidence was not consistent with an understanding that there would be no change for professional costs.
  4. [62]
    Mr Setschnjak, after saying he had been approached by Ms Derek because she needed money said the following:

“Then I had said to her if you want any form of payment I need something so that I can draw it out of my business account.  I have to have some record, I know that much.

So you acknowledge that you were going to have some payments did you if she sent you a bill? --- I acknowledge that I was going to help her in her financial problems.  That is how I felt.  And I was compelled to do so because of the relationship.

You were going to give her a gift were you? --- Not a gift.

Well what were you doing? --- I was giving her a loan.

A loan? --- That’s how I looked at it, as a loan, because we were going to receive the monies back at the end.  As we had been told would happen.

Did you discuss with her the fact that you were going to give her this money as a loan? --- I said ‘if you want me to help you, I need a tax invoice or some form of account’.”[50]

  1. [63]
    There is also the further exchange as follows:

“But did you raise with her the fact that you were giving her this money by way of a loan? --- I felt morally compelled to help her because of her financial status.  She would complain about people not paying her.  She had problems financially.  Her – her costs were going up.

I will ask the question again? … mmm

Did you raise with her the fact that you were paying her this money by way of a loan? --- No, it was to help her.  I didn’t say “loan”.

Alright? --- To help her out because I knew she was doing it at no cost to us for her fees but she needed to carry on.”[51]

  1. [64]
    Mrs Setschnjak also gave evidence about this issue as follows:

“Why were you paying anything in circumstances where you say you didn’t have to? --- Because Rita Derek said she needed some money.  And we – and I – you know, we didn’t think that we were paying for anything but she needed money and that we would – it doesn’t matter because we would get it back at the end when we won.”[52]

  1. [65]
    In another passage the following was said by Mrs Setschnjak:

“But isn’t it your position you say you didn’t have to pay her any money? --- Yes.  We did not have to pay her any money. 

But you did? --- This is where its become all twisted.  Because Rita said that we didn’t.  She wouldn’t be charging us for her fees.  And she – she did do a large invoice because she was going – she was going to do a full invoice, she said, because at the end of it when we won the other party was going to pay her fees and she – she was not putting any discount on because she wanted full – full fees from the other party from when – when we won our case.”[53]

  1. [66]
    Mr and Mrs Setschnjak did not, in response to the demands for payment of the accounts, assert that no monies were payable. 
  2. [67]
    For example, prior to 26 August 2013, Mrs Setschnjak requested an itemised account for professional fees and disbursements that had been incurred as at that date. Mr Setschnjak indicated he was aware of this request.[54]  This request was not consistent with the belief that no fees would be charged.
  3. [68]
    In response to demands for payment, neither of Mr or Mrs Setschnjak responded by saying that no monies were payable.
  4. [69]
    Again, the evidence was not consistent with the assertion of the applicants that there would be no change for professional costs.
  5. [70]
    In an email dated 11 October 2013, from Mrs Setschnjak reference is made just to “some anomalies and discrepancies in your accounts”.
  6. [71]
    No mention is made of the fact that no charge was to be made with respect to professional costs in an email from Mrs Setschnjak to Ms Derek dated 16 October 2013.
  7. [72]
    When discussing this issue Mrs Setschnjak said:

“So when she was ringing you chasing up fees which you thought you didn’t have to pay you didn’t say that to her? --- No, because we discussed it with Rita. We were told that we’d always get it back in the end, everything we were paying out, even though we weren’t supposed to pay out anything until the end.  We were told that we would get back what we did because we would win and the other party would pay.”[55]

  1. [73]
    When discussing the meeting when Ms Derek was making demands for payment Mrs Setschnjak’s comment was:

“That’s the first time when – when she said, well, we – we are responsible for it.  I said “but you said that we wouldn’t be and it would be covered by the other side, you know when we won.”  She said, “well I never said that” or you know to those words, she said that she never said that.”[56]

  1. [74]
    Mr Setschnjak did also not raise the matter in response to request for payment from clerical officers within the legal firm. 
  2. [75]
    One exchange was as follows:

“… I had loaned enough money to Rita Derek at that point in time.  I didn’t think that she had to keep pursuing for more anyway.

Did you say to Ms Derek?  Look, “I’ve loaned” and I mean in those terms – “loaned you money”? --- No I didn’t.”[57]

  1. [76]
    Mr Setschnjak also said in relation to discussions with an individual from Ms Derek’s office:

“Did you say to her on any occasions, then or at any occasion, that’s to Dot, that “we’re not liable to pay any of this because there was an agreement we wouldn’t pay any fees”? --- Like you said before, Dot was just an accounts person.  What the arrangement between Rita and ourselves – I didn’t see relevant to speak to somebody else in her firm.”[58]

  1. [77]
    This evidence by Mr and Mrs Setschnjak was not consistent with their assertion that Ms Derek agreed to charge no professional fees.
  2. [78]
    Ms Derek was questioned as to whether she had agreed to make no charge with respect to professional fees.
  3. [79]
    Under cross-examination she said:

“I’ve told them that I was prepared to give them a discount, but I have never said that I will not charge for professional fees for               Supreme Court litigation. That is a ridiculous suggestion and, indeed, I didn’t have the authority to do that, because I – I               was in partnership with another person.”[59]

  1. [80]
    Ms Derek was asked about the delay in issuing an invoice. The following exchange took place:

“But you have conducted Supreme Court litigation for at least two years before you even issued a single invoice? --- Yeah. Because they were supposed to pay at the end, but I also didn’t realise or didn’t – didn’t expect the matter would become protracted, that there would be issues of not wanting to disclose and those kind of things would just make the matter difficult.”[60]

  1. [81]
    Ms Derek’s evidence continued:

“Why didn’t you issue a tax invoice form as to this? --- Because they were suppose to pay at the end.”[61]

  1. [82]
    When asked about the fact that no invoices were issued, Ms Derek said:

“I do lots of files in that way. I have a lot of family and matrimonial files that are conducted in that very way. The client doesn’t have the money to fund them, and they pay at the end.”[62]

  1. [83]
    Counsel also pressed Ms Derek in relation to the fact that monies were not sought on account. As to that, Ms Derek said that it was not uncommon in her firm and in fact made reference to a case which caused the firm some financial hardship because, as a result of clients going into receivership, monies were not paid with respect to large matters.[63]
  2. [84]
    The Tribunal finds that it was not out of the ordinary in Ms Derek’s practice that substantial funds on account of costs were not sought or that invoices were not issued on a regular basis during the time the firm acted in the matter.  It follows that these facts were not corroborative of the assertion that there would be no charge by Ms Derek in relation to professional fees.
  3. [85]
    Mr Pope’s evidence corroborated the evidence by Ms Derek. In response to cross-examination, Mr Pope said that he was not in attendance at any meeting where Ms Derek said that there would be no charge with respect to her professional fees.[64]
  4. [86]
    The evidence of Mrs Setschnjak makes it clear that there was discussion regarding a discount, regarding payment at the conclusion of the matter, and also about fees paid being recovered from the other party. This evidence is consistent with the version of events which was given by Ms Derek.
  5. [87]
    Moreover, the evidence given by Mr Setschnjak and Mrs Setschnjak regarding discussions which took place at the time the payments were being sought is not consistent with the proposition that no professional fees were to be charged.
  6. [88]
    In the circumstances, the Tribunal finds that no representations were made by Ms Derek to the effect that no professional fees would be charged with respect to either matter. It follows, and the Tribunal finds, that Mr and Mrs Setschnjak were not induced by any such misrepresentations made by Ms Derek to enter into the costs agreements.

Disclosure

Factual background

  1. [89]
    Disclosure notices were provided with respect to each of the matters.
  2. [90]
    The first notice was dated 8 October 2009. Under s 3 (estimate of costs) the following is outlined:

 

Stage

 

Fees

 

Outlays

  • Initial investigations and correspondence

$1,000 - $5,000

$500 - $5,000

  • Preparation for and undertaking informal settlement negotiations

$2,000 - $10,000

$1,000 - $10,000

  • Preparation of Claim for conference or mediation

$3,000 - $10,000

$2,500 - $7,500

  • Attendance at conference/mediation per day or part thereof

$2,000 - $8,000

$5,000 - $10,000

  • Commencing Legal Proceedings

$1,000 - $3,000

$2,000 - $5,000

  • Preparation for and attendance at Court Applications per Application

$1,000 - $3,500

$5,000 - $10,000

  • Preparation for Trial

$2,000 – $20,000

$2,000 - $20,000

  • Attendance at Trial (up to 2 days) per day

$5,000 – $15,000

$4,000 - $15,000

  • Prepare for an appear at Appeal per day (if necessary)

$5,000 - $12,500

$5,000 - $10,000

  • Preparation and attendance at costs assessment

$2,000 - $5,000

$3,000 - $5,000

  1. [91]
    The second disclosure notice was dated 10 April 2010 and in s 6.1 (estimate of professional fees) the following is set out:

Stage

Range of Fees

Range of Outlays

  1. Taking instructions and initial investigations and correspondence:

$1,000 - $5,000

$500 - $1,200

  1. Preparation for and undertaking informal settlement negotiations and where necessary preparation or mediation (including assessment of liability and quantum issues):

$1,000 - $5,000

$2,000 - $6,000

  1. Attendance at a conference mediation

$1,100 - $5,000

$2,200 - $4,400

  1. Commencing legal proceedings:

$1,000 - $3,000

$500 – $2,200

  1. Preparation for and attendance at court proceedings:

$2,500 - $10,000

$2,200 - $4,400

  1. Preparation for trial:

$5,000 - $20,000

$2,200 - $4,400

  1. Attendance at trial (up to 2 days):

$5,000 – $15,000

$6,600 - $15,000

  1. Prepare for an appear at appeal:

$5,000 – $12,500

$5,000 - $10,000

  1. Preparation and attendance at costs assessment

$2,000 - $5,000

$3,000 – $5,000

  1. [92]
    The scope of the work with respect to the first estimate is “acting on your behalf in relation to winding up of the company, CCTV Direct Pty Ltd.”
  2. [93]
    The scope of the work for the second estimate is described as “acting on your behalf in relation to Supreme Court action 2653/10 and to do all matters and things necessary to obtain the most favourable outcome for you.”
  3. [94]
    The reason for the second agreement related to the fact that separate proceedings had been commenced.  As to the first agreement, the client was “Nicole Setschnjak” and for the second the client was “Mitchell Setschnjak and Nicole Setschnjak”. In addition, the law firm changed. The first agreement was with Derek and Dwyer Lawyers. The second agreement was with Derek Geddes Lawyers.
  4. [95]
    Ultimately, the retainers were terminated.
  5. [96]
    Ms Derek was cross-examined about the work which had been completed.  The questions were asked by reference to the stages outlined in the first disclosure notice.
  6. [97]
    Counsel noted that the “estimate of costs” section was broken up into 10 bullet points, the last four of which were:
  1. a)
    Preparation for trial;
  1. b)
    Attendance at trial;
  1. c)
    Prepare for and attend at appeal; and
  1. d)
    Preparation and attendance for costs assessment.[65]
  1. [98]
    Ms Derek was asked to confirm that none of those steps were necessary because the matter did not proceed to trial.
  2. [99]
    Ms Derek answered, “no it didn’t”.[66]
  3. [100]
    Ms Derek was asked whether at any point during the litigation there was a compulsory conference, formal negotiation, engagement of a mediator or the parties got around the table facilitated by the law firm.[67]
  4. [101]
    Ms Derek answered that there was a mediation at the outset being in the form of a discussion between the parties which took place at the boardroom of the firm but that Ms Derek was not in attendance.[68]
  5. [102]
    Counsel put to Ms Derek that by reference to the first disclosure notice, the work which was done was:
  1. a)
    Initial investigation and correspondence (dot point one).
  1. b)
    Commencing legal proceedings (dot point five).
  1. c)
    Preparation for and attendance at court appearances (dot point six).
  1. [103]
    He noted that the fees estimated for those dot points was a range between $3,000.00 and $11,500.00.[69]
  2. [104]
    Ms Derek responded, “Yeah that’s what it says but it also says that this is an estimate, not a quotation and subject to change.”[70]
  3. [105]
    Counsel asked, “so your initial estimate of fees to be charged was between $3,000.00 and $11,500.00?”[71]
  4. [106]
    Ms Derek responded “Yeah. In a normal action that would have been an estimate, but this matter was not a normal action….because it became protracted.”[72]
  5. [107]
    Cross-examination followed regarding the actual level of professional fees.  Ms Derek suggested the figure may have been $70,000.00[73] but ultimately agreed that the figure put to her of $47,000.00 in professional fees would not be unrealistic.[74] 
  6. [108]
    The question was asked, “do you think that a range of fees between $3,000.00 and $11,500.00 is a fair estimate when the actual eventually legal fees incurred were $47,000.00” to which the answer from Ms Derek was “This is an estimate only. It is on a costs agreement that was sent out to the client in 2009 before the action even commenced. It’s an estimate only, not a quotation.”[75]
  7. [109]
    Ms Derek was asked whether updated disclosure was provided to her clients in accordance with section 315 LPA and her response was “in writing, no, but we had a number of attendances where we told them – I told them specifically that the litigation was expensive and that they should look to settle the matter.”[76]
  8. [110]
    Ms Derek was then referred to the words of the relevant section and asked whether any such disclosure was made and her response was “not in writing, no, but certainly in 2011 when I sent them the invoices they were certainly aware of the costs at that point.”[77]
  9. [111]
    As to the nature of the matter, in the context of a question regarding the fact that an invoice was not issued for a period of two years, Ms Derek said:

“Yeah. Because they were supposed to pay at the end, but I also didn’t realise or didn’t expect the matter would become protracted, that there would be issues of not wanting to disclose and those kind of things would just make the matter difficult. I mean, there were a number of opportunities where Mitchell was told that the matter should resolve and should settle but he refused to. I mean even before the matter went to the last correspondence, you know, just to get an answer on going to mediation was a problem.”[78]

  1. [112]
    In subsequent affidavit, Ms Derek said, “At the time the instructions were terminated the action in relation to the breach of directors’ duties and fiduciary duties was about 3/4 prepared for trial”.[79]
  2. [113]
    Further, Ms Derek swears that in relation to the estimates provided, there were five applications to the Supreme Court and leaving aside item b – preparation and undertaking informal settlement negotiations (which were done in part) the top of the range for professional fees is $99,000.00 and for counsel $32,000.00 totalling $131,200.00.[80]
  3. [114]
    Ms Derek swears that she perused the accounts and the firm invoiced her clients $66,993.33 net of GST and disbursements of $40,096.70 totalling $107,090.03.[81]

Submissions of the parties

  1. [115]
    The applicants pointed to Ms Derek’s concession that bullet points 2, 3, 4, 7, 8, 9 and 10 from the first disclosure notice were not relevant with only bullet points 1, 5, 6 being relevant, with the estimate for those bullet points being in the range $3,000.00 to $11,500.00.[82]
  2. [116]
    The applicants submitted that, as to the first disclosure notice, fees were rendered as follows:
  1. a)
    On 31 August 2011 – the sum of $76,335.84 ($31,475.95 in professional fees).
  1. b)
    On 28 August 2013 – the fees of $24,275.59 ($20,949.50 in professional fees).
  1. c)
    On 28 August 2013 – $4,704.87 in interest.
  1. [117]
    The applicants further submitted that the disclosure in the two notices were almost identical in stages, and submitted that the similarity between the two disclosure notices is in stark contrast to the different matters to which they related, the first matter relating to a winding up application with the second matter relating to the defence of a claim for breach of fiduciary or directors’ duties.[83]
  2. [118]
    The applicants submitted that the disclosure provided on both notices was not an estimate, it being simply a precedent document printed from the firm’s computer system.[84] They submitted that this conclusion follows from the fact that the disclosure documents for two different matters were virtually identical. Moreover, in the first matter, which was an application for the winding up of a company, the stages listed bear no resemblance to a winding up application. In the second matter which was defending a claim, the disclosure bears no resemblance to that matter and in fact was drafted on the basis that the clients would be bringing proceedings (rather than defending a matter which related to a declaration). It was submitted that the disclosure was in no way relevant to the matters in which the clients engaged the law firms. There was a failure to provide an estimate because no consideration was given to the instructions, what tasks would need to be done and what costs would be likely to be incurred.[85]
  3. [119]
    The applicants further submitted that there was an obligation to provide ongoing disclosure pursuant to section 315 LPA, and that did not occur.[86]
  4. [120]
    The applicants initially submitted that the consolidation of the two matters was the substantial change.[87] This was not pressed. Ultimately the applicants submitted that, bearing in mind the very broad nature of the initial disclosure, once it became clear that the winding up application was going to be contested, it should have been obvious that the initial disclosure was deficient, and further disclosure should have been made pursuant to section 315 LPA.[88]
  5. [121]
    The applicants submitted that the “substantial change” which must happen to enliven the obligation under section 315 LPA could be a change in either the quantum of fees or the steps required to be taken as compared to the original disclosure outlined in the original estimate.[89]
  6. [122]
    As to the quantum of fees, the applicants pointed to the difference between the fees rendered and the relevant estimate by reference to the stages accepted by Ms Derek as having been relevant stages. In this context, the applicants noted Ms Derek swears that she did not know what the legal costs were, the submission being that, without that knowledge, Ms Derek was having no regard to the obligations imposed by section 315 LPA.
  7. [123]
    The respondents submitted that no evidence was advanced that there was any substantial change to anything included in the disclosure which had been made.[90]
  8. [124]
    As to the quantum of fees, the respondents submitted that for the first disclosure notice dated 8 October 2009, the range of fees was from $24,000.00 to $91,000.00 and the range of outlays was from $25,000.00 to $97,500.00.[91]  For the second disclosure dated 10 April 2010, the range of fees was from $23,600.00 to $80,500.00 and the range of outlays was from $24,200.00 to $52,600.00.
  9. [125]
    The respondents submitted that the fees were less than the total range of estimates and so there would be no indication of a substantial change, which would give rise to the obligation for further disclosure (when the figure is lower).[92]
  10. [126]
    The respondents submitted that the amounts invoiced clearly fall within the range of fees and outlays disclosed.[93]
  11. [127]
    The respondents submitted that the estimates contained in the disclosure notices were reasonable, particularly bearing in mind that the object of the legislation is to ensure that the solicitor provides an estimate of the overall fees which will be payable so that the client is aware of the potential liability which is being assumed.[94] 
  12. [128]
    The respondents submitted that, as to the question of the fees, there was no evidence led by the applicants to say that the fees were unreasonable or that the estimates were not proper estimates.[95]
  13. [129]
    The respondents submitted that after the initial estimate, if as the matter progressed it became clear that generally speaking, the costs would be greater, then there was an obligation to inform the clients.[96] This did not happen.

Discussion

  1. [130]
    Relevant to the dispute between the parties, section 308 LPA requires the law practice to disclose to a client:
  1. (c)
    An estimate of the total legal costs if reasonably practicable or, if that is not practicable, a range of estimates of the total legal costs and an explanation of the major variables that will affect the calculations of those costs.
  1. [131]
    Also relevant to the dispute between the parties is the requirements of section 315 LPA which provides:

“A law practice must, in writing, disclose to a client any substantial change to anything included in a disclosure already made under this division as soon as is reasonably practicable after the law practice becomes aware of that change.”

  1. [132]
    As was observed by Fraser JA in Connollys Lawyers Pty Ltd v David William Davis:[97]

“When considering the requirements of sections such as s 308 & s 315, it is appropriate to take account of the main purpose of such provisions which is outlined in the Legal Profession Act.

Section 299(a) provides that the main purposes include ‘to provide for law practices to make disclosures to clients regarding legal costs.’

The main purposes of the Legal Profession Act include ‘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’.”[98]

  1. [133]
    As was observed by Fraser JA,[99] the word “disclose” in section 308(1) LPA should not, in the context of the main purposes of the Act, be given an unduly narrow meaning.
  2. [134]
    Fraser JA also postulates it is arguable that the obligation in section 315 LPA to disclose “any substantial change to anything included in a disclosure…as soon as it is reasonably practicable after the law practice becomes aware of that change” is not satisfied by the delivery of invoices which take the total invoiced amounts above the estimated costs. He further postulates it is arguable that the requirement to disclose “the change” required the law firm to communicate a fresh costs estimate or a range of cost estimates. He points to the fact that this argument is open upon the meaning of the statutory text and is consistent with the context that section 308(1)(b)(iv) LPA requires the disclosure to include disclosure of “the clients right to…be notified under section 315 LPA of any substantial change to the matters disclosed in this section.” Whilst, in that case, the law firm submitted that such a construction would impose a very onerous burden on solicitors, Fraser JA concludes that the imposition of that burden is not inconsistent with the text of section 315 LPA or the expressed purposes of the Legal Profession Act.[100]
  3. [135]
    In relation to the initial disclosure, the requirement of the legislation is to provide “an estimate”. According to Oxford dictionaries, an estimate is an approximate calculation or judgment of the value.  That is the appropriate meaning in the context in which the word “estimate” is used in section 308 LPA.
  4. [136]
    It is not required that the practitioner provide one figure. At the outset of a litigious matter, this is often not possible. This is because of the fact that, at the outset, it is usually not possible to know with certainty the way in which a litigious matter will proceed.
  5. [137]
    Hence, the legislation sensibly provides that, where it is not reasonably practicable to provide an estimate of the total legal costs, a range of estimates of the total legal costs, and an explanation for the major variables that will affect the calculations of those costs, may be provided.
  6. [138]
    Even where the law practice opts to provide a range of estimates, it is necessary that the particular requirements for the specific matter be considered and that the estimate (the approximate calculation or judgment of the value) be complied by reference to the work which is likely to be undertaken with respect to the specific matter. This must necessarily involve the practitioner turning the person’s mind to the particular matter and providing an estimate which is structured by reference to the matter.
  7. [139]
    Where the law practice decides to provide the estimate broken down by reference to stages in the proceedings, then, it follows, that those stages, and the estimates provided with respect to each of those stages, should be referable to the likely steps which will be taken in the particular matter.  Otherwise, it becomes obvious that the practitioner has not taken the necessary steps to exercise judgment and to make an approximate calculation.
  8. [140]
    This allows the client to understand the scope of the obligation being accepted in the context of retaining the law practice and achieves the aim of the protection of the consumers of services of the legal profession which is a main purpose as described in section 3 LPA.
  9. [141]
    There is no reason why this cannot be done by way of a more generic or templated disclosure so long as the contents are prepared by reference to, and specifically based upon, the matter to which the retainer relates.
  10. [142]
    In this case, the matters to which the instructions related were very different.  One was an application to wind up a company, the second was a claim in which the client was a defendant based upon breach of duties and in which a declaration was sought.
  11. [143]
    However, the disclosure notices were identical.  Moreover, the disclosure in the winding up matter had very little relationship to the steps which would likely be taken in a winding up matter. As to the Supreme Court breach of fiduciary duty litigation, the disclosure was on the premise that the client was a applicant rather than a respondent. Steps were included in the second disclosure (pre-proceedings settlement negotiations), which could not have been contemplated as, by the time the retainer was entered into, the proceedings had been commenced.
  12. [144]
    In the circumstances, it is clear that the disclosure notices did not satisfy the requirement that the law practice must provide an “estimate”. Mr Moon objected on the basis that it was not put to Ms Derek in cross-examination as to whether she applied her mind to the disclosure notices.[101]
  13. [145]
    The conclusions which I have reached regarding the estimate flow very clearly from the contents of the documents. The law practice decided to provide an estimate by reference to steps. That is evident from the documents which were exhibited to Ms Derek’s affidavit. The nature of the stages are clear from the disclosure notices and those stages, on their face, do not relate to the stages which are applicable in the litigation to which the instructions related.
  14. [146]
    I therefore find that the law practice did not disclose an estimate as was required by section 308(c) LPA.
  15. [147]
    For the sake of completeness, I will also deal with the obligations contained in section 315 LPA.
  16. [148]
    Section 315 LPA requires that the law practice disclose to the client, any substantial change to anything included in the disclosure already made under this division as soon as reasonably practicable after the practice becomes aware of that change. 
  17. [149]
    The obligation under section 315 LPA will be particularly important when, at the outset, it was not reasonably practicable for the law practice to provide the estimate of “the total legal cost”.
  18. [150]
    Initial disclosure by reference to the stages in the litigation seems a sensible approach to take in informing the client in the most accurate and meaningful way as is possible at the outset (when a more accurate estimate may not be possible). 
  19. [151]
    When the law practice has made the initial disclosure by reference to the stages in the matter,  the duty under section 315 LPA (the duty to disclose any substantial changes to anything included in the disclosure already made) must logically mean a substantial change which is judged by reference to the stages and the estimates of the legal costs for each of those stages.
  20. [152]
    If the initial disclosure has been made by reference to stages, this will mean further disclosure is necessary if there has been a substantial change with respect to a stage.
  21. [153]
    The obligation to disclose the substantial change requires the law firm to communicate a fresh costs estimate or range of estimates, which have been subject to the substantial change.
  22. [154]
    These requirements are consistent with the main purpose of the Act which is to allow for the protection of consumers of services of the legal profession and the public generally.
  23. [155]
    In this case, there was cross-examination of Ms Derek relating to the relevant stages which had been completed. That cross-examination revealed that, for the relevant stages set out in the first disclosure, the range of fees was $3,000.00 to $11,500.00.  The actual charges were substantially in excess of the estimated amounts.
  24. [156]
    Ms Derek’s answer to the difference between the estimate (by reference to the stages completed) and the fees was to say that it was an estimate only, not a quotation.[102] Of course, what Ms Derek said is correct. The figure provided is an estimate – the best which can be made at the outset. It seems clear that a section such as section 315 LPA is included is so that if it becomes obvious that the estimate is wanting, further disclosure must be made. Again, this seems to flow clearly from the wording of the section and is consistent with the purposes of the Act which relate to protection of consumers.
  25. [157]
    As to the question of substantial change, the evidence of Ms Derek is also relevant. Ms Derek said that she “didn’t expect the matter would become protracted and that there would be issues of not wanting to disclose and those kind of things which would make the matter difficult.”[103]
  26. [158]
    She went on to suggest that the reason for the difficulties arose because of the instructions (or lack of instructions) provided by Mr Setschnjak. Ms Derek’s comments in relation to these events which occurred which were not anticipated in the outset, seem to relate to both matters, and therefore both disclosure notices.  The comments demonstrate that there was a substantial change. 
  27. [159]
    When asked about updated disclosure Ms Derek said she had given no disclosure in writing but had a number of attendances where the clients were told that litigation was expensive and they should look to settle the matter.[104] Ms Derek seems to concede that further disclosure was necessary, that she made disclosure verbally, but, regrettably, did not comply with the requirements of section 315 LPA.
  28. [160]
    The Tribunal finds that there was a substantial change to that which was included in section 308 LPA disclosure made by the law practices in each of the retainers.
  29. [161]
    It was common ground between the parties that no disclosure in writing was made by the law practice to the clients in accordance with section 315 LPA.  It follows that each law practice did not comply with the requirements of section 315 LPA.

Consequences

  1. [162]
    Pursuant to section 328 LPA, upon application by the client, the Tribunal may order that a costs agreement be set aside if satisfied that the agreement is not fair or reasonable.[105]
  2. [163]
    In deciding whether or not a costs agreement is fair or reasonable, the Tribunal may have regard to a number of factors which include:
    1. a)
      whether the client was induced to enter into the agreement by the fraud or misrepresentation of the law practice or of any representative of the law practice.
    1. b)
      whether the law practice failed to make any of the disclosures required under division 3.
  3. [164]
    In this case, the Tribunal has found that there were no representations made by the law practice to the effect that no costs would be charged by the law practice.
  4. [165]
    The Tribunal has, however, found that the law practices failed to make the necessary disclosures required under division 3 LPA.
  5. [166]
    On that basis, the Tribunal is satisfied that the agreements are not fair or reasonable. The Tribunal therefore orders that the costs agreements be set aside.
  6. [167]
    Upon the Tribunal making an order that a costs agreement be set aside, the Tribunal may make an order, as it considers appropriate, in relation to payment of legal costs the subject of the agreement.[106]
  7. [168]
    Without limitation, in making the order under subsection 4, the Tribunal may:
    1. a)
      apply the applicable scale of costs, if any; or
    1. b)
      decide the fair and reasonable legal costs in relation to the work to which the agreement related.
  8. [169]
    At the conclusion of the hearing, the Tribunal sought the views of the parties as to the order which would be appropriate were the applicants successful in any respect.
  9. [170]
    The applicants submitted that, were the Tribunal to find that there had been misrepresentations there should be no charges for costs upon the agreements being set aside and that there should be no further orders. The applicants also submitted that were the Tribunal to find against them with respect to the question of misrepresentation but find that either the initial disclosure or the continuing disclosure obligations had not been complied with then the matter should be assessed in accordance with the Supreme Court scale.
  10. [171]
    The respondents submitted that the costs be assessed and paid on the appropriate Supreme Court scale.
  11. [172]
    There is no evidence from which it is possible for the Tribunal to decide the “fair and reasonable legal costs” in relation to the work to which the agreement related.
  12. [173]
    The applicants were not induced to enter into the agreements by fraud or misrepresentation, and work was completed on behalf of the clients. There should be payment for the work which has been done, but not by reference to the terms of the agreements. The matters about which the instructions were provided were each conducted in the Supreme Court of Queensland, and on that basis, the relevant and appropriate scale is the Supreme Court scale.
  13. [174]
    The Tribunal further orders that:
  1. There be an assessment of the costs payable by Nicole Setschnjak to Derek and Dwyer pursuant to the retainment agreement dated 8 October 2009.
  2. There be an assessment of the costs payable by Mitchell Setschnjak and Nicole Setschnjak to Derek Geddes Lawyers pursuant to the retainment agreement dated 10 April 2010.
  3. The assessments referred to in order 1 and 2 be undertaken on the Supreme Court scale of costs as it applied at the relevant times.
  4. The costs so assessed be paid within 30 days from the day of the assessment.

Costs in these proceedings

  1. [175]
    At the conclusion of the hearing, the parties requested the opportunity to make further submissions in relation to the costs of these proceedings.  On that basis, the Tribunal orders that:
  1. The applicants file any submissions on which they wish to rely in relation to the question of costs in these proceedings, by:

4:00pm on 20 February 2017.

  1. The respondents file any submissions on which they wish to rely in relation to the question of costs in these proceedings, by:

4:00pm on 20 March 2017.

  1. Unless either party requests an oral hearing, the matter of costs in these proceedings will be determined on the papers after 20 March 2017.

Footnotes

[1] Amended application filed 15 June 2015, paragraph 15.

[2] Ibid, paragraph 16.  

[3] Legal Profession Act 2007 (Qld) s 322(1)(a).

[4] Ibid, s 322(2).

[5] Ibid, s 328.

[6] Ibid, s 328(2)(a).

[7] Ibid, s 328(2)(c).

[8] Ibid, s 328(2)(d).

[9] Ibid, s 328(2)(e).

[10] Ibid, s 328(4).

[11] Ibid, s 328(5)(a).

[12] Ibid, s 328(5)(b).

[13] Ibid, s 328(6).

[14] Ibid, s 308(1)(c).

[15] Ibid, s 310(1).

[16] Ibid, s 315.

[17] Ibid, s 316(1).

[18] Ibid, s 316(2).

[19] Ibid, s 316(3).

[20] Ibid, s 319(1).

[21] Statement of Nicole Helen Setschnjak dated 8 September 2014, paragraph 8;  Statement of Mitchell Pierre Setschnjak dated 9 September 2014, paragraph 11.

[22] Statement of Nicole Helen Setschnjak dated 8 September 2014, paragraph 9.   Statement of Mitchell Pierre Setschnjak dated 9 September 2014 paragraph 12.

[23] Statement of Nicole Helen Setschnjak dated 8 September 2014, paragraph 13;  Statement of Mitchell Pierre Setschnjak dated 9 September 2014, paragraph 12.

[24] Statement of Nicole Helen Setschnjak dated 8 September 2014, paragraph 14; Statement of Mitchell Pierre Setschnjak dated 9 September 2014, paragraph 16.

[25] Statement of Nicole Helen Setschnjak dated 8 September 2014, paragraph 15;  Statement of Mitchell Pierre Setschnjak dated 9 September 2014, paragraph 17.

[26] Statement of Nicole Helen Setschnjak dated 8 September 2014, paragraph 16;  Statement of Mitchell Pierre Setschnjak dated 9 September 2014, paragraph 18.

[27] Statement of Nicole Helen Setschnjak dated 8 September 2014, paragraph 17;  Statement of Mitchell Pierre Setschnjak dated 9 September 2014, paragraph 19.

[28] Statement of Nicole Helen Setschnjak dated 8 September 2014, paragraph 18;  Statement of Mitchell Pierre Setschnjak dated 9 September 2014, paragraph 20.

[29] Statement of Mitchell Pierre Setschnjak dated 9 September 2014, paragraph 27.

[30] Statement of Mitchell Pierre Setschnjak dated 9 September 2014, paragraphs 28, 29.

[31] Statement of Nicole Helen Setschnjak dated 8 September 2014, paragraph 21; Statement of Mitchell Pierre Setschnjak dated 9 September 2014, paragraph 30.

[32] Statement of Nicole Helen Setschnjak dated 8 September 2014, paragraph 23;  Statement of Mitchell Pierre Setschnjak dated 9 September 2014, paragraph 32.

[33] Statement of Nicole Helen Setschnjak dated 8 September 2014, paragraph 33;  Statement of Mitchell Pierre Setschnjak dated 9 September 2014, paragraph 34.

[34] Statement of Nicole Helen Setschnjak dated 8 September 2014, paragraph 26; Statement of Mitchell Pierre Setschnjak dated 9 September 2014, paragraph 38.

[35] Affidavit of Rita Maria-Angela Derek dated 30 September 2014, paragraph 7 & 8.

[36] Ibid, paragraph 14.

[37] Ibid, paragraph 16.

[38] Ibid, paragraph 18.

[39] Ibid, paragraph 20.

[40] Ibid, paragraph 20.

[41] Ibid, paragraph 28.

[42] T1-31, ll 1 & 2.

[43] T1-12, ll 35-46; pp 1-13, ll 1 - 15; pp 1-14, ll 39-46; pp 1-28, L 29.

[44] T1-13, ll 16 - 40.

[45] T1-26, ll 45 - 46. 

[46] T1-27, ll 18 - 24.

[47] T1-27, ll 32 - 36. 

[48] T1-27, ll 37 - 45.

[49] T1-28, ll 11 - 12.

[50] T1-17, ll 25 - 45.

[51] T1-18, ll 1 - 12.

[52] T1-31, ll 43 - 47.

[53] T1-32, ll 9 - 14.

[54] T1-19, ll 6 - 7 and 12 - 13.

[55] T1-35, ll 32 - 37.

[56] T1-37, ll 6 - 9.

[57] T1-22, ll 17 - 24.

[58] T1-22, ll 41 - 45.

[59] T1-48, ll 9 - 13.

[60] T1-50, ll 15 - 19.

[61] T1-50, ll 25 & 26.

[62] T1-50, ll 31 - 33.

[63] T1-51, ll 4 - 9.

[64] T1-54, ll 31 - 35.

[65] T1-51, ll 21 - 25.

[66] T1-51, ll 30 & 39.

[67] T1-51, ll 32 - 34.

[68] T1-51, ll 32 - 45.

[69] T1-52, ll 5 - 10.

[70] T1-52, ll 11 & 12.

[71] T1-52, ll 14 - 15.

[72] T1-52, ll 15 -19.

[73] T1-52, ll 24, 25.

[74] T1-52, ll 26, 27.

[75] T1-52, ll 30 - 34.

[76] T1-52, ll 35 - 39.

[77] T1-50, ll 6 - 9.

[78] T1-50, ll 16 - 23.

[79] Affidavit of Rita Maria-Angela Derek sworn 31 July 2015, paragraph 12.

[80] Ibid, paragraph 14.

[81] Ibid, paragraph 13.

[82] Submissions in reply on behalf of the applicants filed 13 November 2015, paragraphs               18, 19.

[83] Ibid, paragraphs 21, 22.

[84] Transcript of hearing 28 April 2016, page 1-20, lines 13 – 15.

[85] T1-21, ll 35 - 47; T1-22, ll 1, 2.

[86] Submissions in reply on behalf of the applicants filed 13 November 2015, paragraph               24.

[87] Ibid, paragraph 26.

[88] T1-24, ll 33 - 38.

[89] T1-25, ll 23 - 30.

[90] Submissions on behalf of the respondent, filed 2 November 2015, paragraph 11.

[91] Ibid, paragraph 14.

[92] T1-7, L 13.

[93] Submissions in reply on behalf of the respondent, filed 13 November 2015, paragraph               22.

[94] T1-13, ll 23 - 27.

[95] T1-13, ll 29 - 31.

[96] T1-14, ll 1, 2.

[97] [2013] QCA 231 at [21].

[98] Legal Profession Act 2007 (Qld) s 3(a). 

[99] Connollys Lawyers Pty Ltd v David William Davis [2013] QCA 231 at [21].

[100] Connollys Lawyers Pty Ltd v David William Davis [2013] QCA 231 at [22].

[101] T1-21, lines 9-14.

[102] T1-52, ll 30-34.

[103] T1-50, ll 17-19.

[104] T1-52, ll 35-39.

[105] Legal Profession Act 2007 (Qld) s 328(1).

[106] Ibid, s 328(4).

Close

Editorial Notes

  • Published Case Name:

    Nicole Helen Setschnjak and Mitchell Peirre Setschnjak v Derek Geddes Pty Ltd t/as Derek Geddes

  • Shortened Case Name:

    Setschnjak v Derek Geddes Pty Ltd

  • MNC:

    [2017] QCAT 9

  • Court:

    QCAT

  • Judge(s):

    Thomas P

  • Date:

    18 Jan 2017

Appeal Status

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