Winn v Lynch Morgan Lawyers
[2018] QCAT 234
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- Unreported Judgment
- Appeal Determined (QCA)
- Winn v Lynch Morgan Lawyers[2018] QCAT 234
- Add to List
Winn v Lynch Morgan Lawyers[2018] QCAT 234
Winn v Lynch Morgan Lawyers[2018] QCAT 234
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Winn v Lynch Morgan Lawyers & Anor [2018] QCAT 234 |
PARTIES: | JULENE WINN (applicant) v LYNCH MORGAN LAWYERS HELENE JANE LYNCH AS PERSONAL REPRESENTATIVE OF THE ESTATE OF PAUL GERARD LYNCH (respondents) |
APPLICATION NO/S: | OCR221-13 |
MATTER TYPE: | Other civil dispute matters |
DELIVERED ON: | 5 July 2018 |
HEARING DATE: | 28 February 2018 and then on the papers |
HEARD AT: | Brisbane |
DECISION OF: | Justice Carmody |
ORDERS: | The application to set aside the costs agreement pursuant to s 328 of the Legal Profession Act 2007 (Qld) is dismissed. |
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – OTHER MATTERS – where the applicant alleges the costs agreement with the respondent firm is unfair and unreasonable – where the applicant complains none of the work on her matter was completed by the respondent – whether the applicant was induced to enter the agreement by misrepresentation about a consultant lawyer’s position within the firm – whether costs disclosure under the agreement was adequate – whether the respondent acted without instruction – where there is no evidence in the circumstances or conduct of the parties to enliven the tribunal’s discretion to set aside the agreement – where the application is dismissed Legal Profession Act 2007 (Qld) s 328 Southwell v Jackson [2012] QDC 65 |
APPEARANCES: |
|
Applicant: | Self represented |
Respondent: |
|
REASONS FOR DECISION
- [1]This is a contested application by a former client (a barrister since 2005) to set aside a signed costs agreement (CA) with the respondent legal practice as unfair and unreasonable under s 328 Legal Profession Act 2007 (Qld) (LPA) because of the conduct of its representatives before and after it was made on 30 January 2013.
- [2]The respondent has the ultimate onus of demonstrating the certainty, fairness and reasonableness of the CA in issue.
The context
- [3]The applicant was bankrupted in 2010 for non-payment of court ordered costs after losing legal proceedings in 2002.
- [4]In 2012 her trustee issued an invoice for administration fees equal to the value of her assets. The applicant filed an application under s 178 Bankruptcy Act 1966 (Cth) to stop foreclosure. A hearing was fixed for 11 February 2013.
- [5]The applicant decided to retain Lynch Morgan to amend the grounds of the application as necessary and appear as their $8,000 telephone quote on 22 January 2013 was “lower than … other firms”.
- [6]Paul Lynch and William Morgan were respectively the principal and consultant of the legal practice. Mr Lynch died on 2 May 2015. His interests are represented in these proceedings by his personal representative who did not actively participate. Mr Morgan retired as a partner of the respondent practice on 16 January 2013 but continued as a consultant[1] before taking up a partner’s positon in another firm on 28 February 2013.
- [7]As at 22 January 2013, Lynch Morgan Lawyers was the business name of the legal practice of which Mr Lynch was the sole proprietor until the Lynch Andrews Lawyers partnership commenced practice in about August 2013.
- [8]The legal services to be performed by the practice were described in a letter of offer dated 29 January 2013 as the possible amendment of the applicant’s application (to include annulment) as well as preparing and appearing on the listed court date.
- [9]The specified services were to be performed by Mr Morgan at the rate of $6 per minute plus a care and conduct fee fixed at 25% of the total of each bill delivered.
- [10]A costs disclosure in standard form was attached to the offer in compliance with Chapter 3 Part 3.4 LPA.
- [11]Costs of between $10,000 - $12,000, including counsel’s fees, were estimated for the billing period up to and including the court appearance on 11 February 2013. The disclosure acknowledged the applicant’s right to timely appraisal of any substantial change in disclosed matters including the basis of calculation, range of the total legal costs and major variables etc.
- [12]An upfront payment of $2,000 was payable on signing with the balance due on 7 February 2013.
- [13]The client agreement was later varied to $4,000 by 11 February 2013 and another $4,000 by 20 February 2013.
- [14]The respondent’s trust account ledger records deposits of $2,000 on 30 January 2013 and 2 x $1,500 on 14 February 2013.
- [15]On 5 February 2013 the applicant gave and rescinded instructions to Mr Morgan to negotiate a consent adjournment of her application with his solicitor, Greg Rodgers, and to agree to allow the annulment to be added to the s 82(6) application even though one had not yet been filed.
- [16]On 18 February 2013 an invoice for $8,249.18 was emailed to the applicant but she “disputed it in its entirety” and asked for an itemised bill.[2]
- [17]By 18 February 2013 Mr Morgan had decided to end the retainer for reasons he explained in a letter.[3]
- [18]The hearing of the application was adjourned to 4 March 2013.
- [19]According to Mr Morgan the application was adjourned to 4 March 2013 instead of 11 March 2013 as negotiated with the trustee as early as 5 February 2013 because the applicant had meddled in the matter by contacting the court directly.[4]
- [20]The firm drew down the $5,000 from the trust account in reduction of the invoiced amount on 10 July 2013.
The rival positions
- [21]The applicant asserts[5] that “none of the instructed work on my matter” had been completed and she was told on 15 February 2013 that work in progress “is about $6,000” after being informed the previous day that assuming counsel’s fees are no more than $4,000 the initial estimate of $10,000-$12,000 had been revised to $15,000.
- [22]At [58]-[63] of her affidavit sworn 30 September 2014 (first affidavit) the applicant states:
[58] Throughout the week beginning 4 February 2013 Mr Morgan’s efforts on a daily basis were solely related to repeated contact with the trustee’s solicitor to obtain an adjournment of the hearing on 11 February 2013. No work was done to prepare the amended application.
[59] As a result of that ongoing correspondent without efficient result, costs and failure to receive response form Mr Morgan at the time, I contacted the Court registry on 7 February 2013 to enquire if any material had been filed in relation to an adjournment of the hearing on 11 February 2013.
[60] The registry confirmed that no contact had been made with the Court and there was no solicitor on the record representing me and told me that I would need to take prompt action myself to have the hearing on 11 February 2013 relisted.
[61] On or about 7 February 2013 Mr Morgan wrote to the Registrar of the Federal Magistrates Court regarding adjournment of the hearing on 11 February 2013. The letter was written without my instruction. It contains the statement, “The Applicant only obtained legal representation on 31 January 2013 and the Applicant’s solicitors consider that the Applicant will need to file further affidavit material in support of the Application. The parties agree that the matter cannot proceed on the first Court date with the Application in its current form.” I rejected the former statement as untrue. Exhibit 13 Pg 107
[62] At 8 February 2013 Mr Morgan had not made any amendment at all to the application. For that reason, I was unsure whether he would or could do so.
[63] As Lynch Morgan was not on the court record, I sought an adjournment by consent which was granted. Exhibit 14 Pg 109
- [23]In his first affidavit in reply taken on 19 January 2015 Mr Lynch relevantly says that the details given in the original invoice were sufficient.
- [24]Later it was conceded by Mr Morgan that the time charges for attendances is billed at $6 a minute (for a partner) instead the consultant’s rate of $5 reducing the balance due from $5,070 to $4,225.[6]
- [25]Mr Morgan addresses the applicant’s allegations in his first affidavit and denies at [10] that he failed to disclose an intention to leave the respondent practice at the time he was retained because he did not decide to do so until 14 February 2013. In any event, he was not obliged to disclose “personal matters” and it had no relevant impact on the work he did for her until the termination of the costs agreement on 18 February 2013 for client breach.
- [26]At [14]-[15] of his first affidavit Mr Morgan states:
[14] When Ms Winn first contacted me in 22 January 2013 I was no longer a partner of the firm and I never told Ms Winn I was not a partner. I had been a partner since August 2008 until I retired as a partner on 16 January 2013. From this date I worked at Lynch Morgan Lawyers as a consultant. The costs agreement refers to me as a consultant and so does the first substantial written letter of advice I gave Ms Winn on 3 February 2013. I also signed the Costs Agreement at page 9 as a consultant. Ms Winn signed the same page (page 49 of Winn Exhibit Bundle).
[15] I refer to paragraph 29 of Ms Winn’s affidavit. I cannot recall whether at 22 January 2013 and during the time I acted for Ms Winn the firm’s website referred to me as a partner. At some point it was changed and no longer referred to me as a partner but I cannot recall the date the change was made.
- [27]As to the adequacy of costs disclosure issues Mr Morgan says at [18]-[19]:
[18] Ms Winn retained the firm to consider and make amendments to an application prepared by Ms Winn and filed by her which was set for hearing on 11 February 2013 and to appear at the hearing on that date. An estimate of $10,000 to $12,000 was provided in the cost disclosure letter which forms part of the costs agreement (page 28 of Exhibit “WAM-1”). This estimate was revised within a short time to $15,000.00 including counsel’s fees as referred to in paragraph 72 of Ms Winn’s affidavit. The initial estimate was also explained and qualified in an email I sent Ms Winn at 11:31am on 29 January 2013 (page 23 of Exhibit “WAM-1”).
[19] Ms Winn in paragraph 3 of the Amended Application states that Lynch Morgan misrepresented the costs involved in the proceeding. However, what she was given was an initial estimate in the costs agreement and revised estimate by email when the need to give one arose. No statement was made to Ms Winn by me that fixed the professional costs and outlays that she would incur in retaining Lynch Morgan Lawyers. Rather she was provided with an estimate as is required by the relevant legislation.
- [28]He denies the applicant’s suggestion that the firm deliberately delayed sending her the costs agreement until 29 January 2013 to pressure her into signing it and justify the adjournment after being paid. His explanation is at [23]-[24] of his first affidavit:
[23] The client agreement was sent to Ms Winn 13 days before the return date of the Application prepared by and filed by Ms Winn. At this stage Ms Winn had paid no funds to Lynch Morgan Lawyers and I had formed no view and had not had an opportunity to form a view about whether the matter needed to be adjourned. The costs agreement required an initial payment of $2,000.00 into trust upon Ms Winn signing the client agreement and a further $8,000.00 within 7 days. Ms Winn did not pay the sum of $8,000.00 within 7 days of signing the client agreement and by 7 February 2013 and thereafter was in breach of the terms of the client agreement in this regard.
[24] The timing of the delivery of the costs agreement was not intended to put pressure on Ms Winn but to formalise the retainer in accordance with the requirements of the Legal Profession Act 2007 with the benefit of having met Ms Winn on Friday 25 January 2013 on an obligation free basis so Ms Winn could satisfy herself that she wished the Firm to act for her and so that Lynch Morgan could commence legal work for Ms Winn once a client agreement was signed. The intervening long weekend had seen an interruption to power at my home from storms that prevented me working remotely from home and preparing the costs agreement. I informed Ms Winn of this in the email dated 29 January 2013 sent at 11:31am (page 23 of Exhibit “WAM-1”) attaching the client agreement. It was not sent at 5:00pm as Ms Winn states in paragraph 34 of her Affidavit. This email asked Ms Winn to consider the client agreement carefully and ask me about any concerns she had about it. She raised no concerns about the terms of the Costs Agreement at the time and raises no concerns about its terms in her Affidavit.
- [29]Mr Morgan also rejects the implication in the applicant’s material that his conduct of her matter between 30 January 2013 (when the costs agreement was signed) and termination was below standard. Specifically, at [26], [27], [37] and [38] of his first affidavit he says:
[26] Ms Winn was aware from prior to signing the costs agreement of a possible need for an adjournment as shown by her email to me on 29 January 2013 sent at 11:16am (page 22 of Exhibit “WAM-1”) in which she asked ‘if we amend the application to include an annulment that will require vacation of 11 Feb hearing’.
[27] My email to Ms Winn at 9:41am on 30 January 2014 [sic] (page 60 of Exhibit “WAM-1”) responded to an email by Ms Winn received from Ms Winn at 9:30am that day (page 61 of Exhibit “WAM-1”) in which she proposed that she prepare her own affidavits and in which stated she had contacted the Court about the amendment of her application. This email is referred to in paragraph 38 of Ms Winn’s affidavit. At this time I formed the view that Ms Winn found it difficult to trust lawyers to act for her or needed to take control of the running of her matter. At this time I was aware she had self-represented without success but not the full extent of her previous self-representation, nor the outcome of all of those mattes. Within a short period of time I formed a view that Ms Winn could not trust lawyers and accept their advice and wanted to second guess what I was doing.
[37] I formed a view that the application Ms Winn had prepared and filed was seriously defective. It sought relief against parties who were not named as respondents to the application and sought relief beyond the Court’s jurisdiction and which Ms Winn informed me in the conference on 31 January 2013 that she did not wish to pursue after initial oral advice from me at that conference. The application and the affidavit she provided to me showed that she was seeking to re-litigate matters that had already been decided against her in other proceedings.
[38] I sent a 10 page letter of advice to Ms Winn by email at 3:43 pm on 3 February 2013 (pages 138-148 of Exhibit “WAM-1”). This letter of advice outlines the many problems with the application Ms Winn had filed and which was returnable on 11 February 2014 [sic]. Once I had prepared this advice I had no doubt that the hearing on 11 February 2013 needed to be adjourned.
- [30]At [41] Mr Morgan denies advising the applicant to have her application dismissed and says that he first formally raised the possibility of an annulment on solvency grounds until a letter of advice on 3 February 2013.[7]
- [31]Mr Morgan points to an email from the applicant on 4 February 2013 in which she responds:
…
Therefore I seek that the filed application be amended to include application for annulment, enquiry into trustee’s conduct and disallowance of such fees.
The current application needs to stand in the event that I need to comply with time limits, as I have done.
Also, I would seek application for annulment, or in the alternative, my original application with amendments.
…
The issue now is time with the hearing next Monday. I expect you would need an adjournment (as the trustee has not had enough notice) and would seek that by consent as soon as possible. I need to avoid costs (yours and theirs) of appearing next Monday just to get an adjournment. As you know, it is not sensible for me to overspend on legal fees when I have been without professional income for two years a result of sequestration. …
- [32]At [46]-[47] he adds:
[46] I promptly responded to this email at 10:36am (page 156 of Exhibit “WAM-1”) informing Ms Winn that before I could make any decision about amending the application and filing another application I needed her instructions about the trustee’s conduct. I realised she had concerns about the trustee’s conduct but she had not yet given me instructions about the conduct.
[47] In an email received from Ms Winn (page 156 of Exhibit “WAM-1”) later that morning at 11:30am she indicated that her affidavit (which she had prepared herself) dealt with the trustee’s conduct. This was the affidavit filed in support of the current application she had prepared. I had reviewed the affidavit and formed a view it did not adequately identify conduct of the trustee of which she complained. In any event given the defects in her application and her history of unsuccessful self-representation I had no confidence that the affidavit she prepared was adequate. I formed a view that I need [sic] to properly take her instructions in conference and that she should assist me, given she wanted to be involved and save costs, by giving me a chronological summary of the trustee’s conduct of which she complained including all the relevant emails and correspondence between her and the trustee.
- [33]At [66] he confirms his attempt to adjourn the application were on instructions and that no work was done on the amendments to the application because she had not provided necessary instructions on solvency or the trustee’s conduct.
- [34]
Julene
Your actions on your own behalf have caused myself and the Trustee’s lawyers to waste time this morning.
You are either incapable or unwilling to follow my advice which means you do not trust me.
You continue to deal with the other party and the Court without reference to me and inconsistently with my instructions. I had intended to place this firm on the Court record as your solicitor today in conjunction with the request for adjournment.
You think that you know a lot of law but the facts show that you have been very unsuccessful representing yourself and made a mess of your legal matters.
My impression is that despite your past failures you continue to prefer your own opinion over my advice. You have continually argued with me and interrupted me when I have tried to give you explanations.
You have also breached the client agreement and failed to pay monies into trust as required.
The 1 February 2013 represents the date you attended to give substantive instructions after signing the client agreement (which was only on 30 January 2013). The purpose was to show the Registry why you need more time to give your lawyers a chance to thoroughly review and consider the amendments and prepare an amended application.
Normally I would regard your conduct in contacting the Court yourself as termination of our retainer. Could you please confirm that you no longer wish this firm to act for you and that you wish to terminate our retainer.
- [35]In a letter dated 13 February[9] Mr Morgan summarises the concerns and frustrations he had in representing the applicant and suggested a change of solicitor.
Findings
- [36]A review and consideration of the evidence and submissions of each party leads me to reject the grounds of the application as unfounded and based on the material I accept and reject I find that:
- there was no significant delay in the provision of the costs agreement to the applicant;
- any delay (which is a contestable matter of opinion) was not intended to put pressure on the applicant for the reasons alleged;
- there is no evidence capable of justifying the conclusion that Mr Morgan withheld relevant personal information about his status within the practice, future employment intentions, any problems at home, his health or his professional experience and competence prior to the execution of the costs agreement;
- adequate costs disclosure was made in the CA specifically at pp 3-7 of the document;
- the revision of costs estimates were fully explained, prompt and warranted by changed circumstances as well as envisioned as a possibility by s 315 LPA and CA itself;
- the CA is valid notwithstanding the inclusion of a care and consideration change;[10]
- the tax invoice adequately identifies the items of work performed, applicable charges and method of calculation;
- the evidence does not support the applicant’s complaints about the standard of work performed by the practice which have limited relevance to the fairness and reasonableness of the CA;
- nothing in the circumstances and conduct of the parties before, when and after it was made including the disclosures made by the law practice, the provisions concerning the effect of charges in circumstances on the agreed scope of services and costs enlivens the discretion to set aside the CA;
- the costs agreement is not void or affected by inducing misrepresentation, non-disclosure, misleading conduct or performance breaches. No costs were excessive or incurred for unauthorised work;
- there is no legal basis for setting aside the costs agreement on the grounds raised by the applicant in her application, material filed in support or submissions.
- [37]The application is dismissed accordingly.
Footnotes
[1]First affidavit of William Arthur Morgan, 19 January 2015 at [2].
[2]First affidavit of Julene Winn, 30 September 2014 at [79]-[80].
[3]See Exhibit WAM-1 pp 225-227.
[4]See Exhibit WAM-1 p 209.
[5]First affidavit of Julene Winn, 30 September 2014 at [70].
[6]Second affidavit of William Arthur Morgan, 27 January 2015 at [4].
[7]See Exhibit WAM-1 at pp 139-148.
[8]See Exhibit WAM-1 at p 196.
[9]See Exhibit WAM-1 pp 213-216.
[10]Southwell v Jackson [2012] QDC 65.