Kneipp v Carne Reidy Herd Lawyers
[2008] QDC 237
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- Unreported Judgment
- Kneipp v Carne Reidy Herd Lawyers[2008] QDC 237
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Kneipp v Carne Reidy Herd Lawyers[2008] QDC 237
Kneipp v Carne Reidy Herd Lawyers[2008] QDC 237
DISTRICT COURT OF QUEENSLAND
CITATION: | Kneipp v Carne Reidy Herd Lawyers [2008] QDC 237 |
PARTIES: | CARL KNEIPP (Appellant) v CARNE REIDY HERD LAWYERS (Respondent) |
FILE NO/S: | 3288 of 2007 |
DIVISION: | District Court |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Brisbane Magistrates Court |
DELIVERED ON: | 30 September 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 September 2008 |
JUDGE: | Forde DCJ |
ORDER: | 1. Leave to appeal is refused 2. Appeal is dismissed 3. The appellant to pay the respondent’s costs of and incidental to the appeal to be assessed on the standard basis. |
CATCHWORDS: | APPEAL FROM MAGISTRATES COURT – summary judgement – no prospect of successful defence PROFESSIONAL COSTS – client agreement – alternative procedure for disputing costs – sum less than $5000 – whether important principle of law or justice Magistrates Courts Act 1921, s 45(2) Queensland Law Society Act 1952, s 48(4) Service and Execution of Process Act 1992 (Cth), s 20 Uniform Civil Procedure Rules r 292(2) Jenkins v Lanfranchi (1910) 10 CLR 595, applied Bond v Dawson and Anor [1923] St R Qd 65, applied American Express International Inc v Hewitt [1993] 2 Qd R 352, applied |
COUNSEL: | The appellant in person Robert Champney, solicitor, for the respondent |
SOLICITORS: | Carne Reidy Herd Lawyers for the respondent |
Introduction
- [1]In or about the month of February 2006, the appellant approached the respondent firm of solicitors requesting that they act in an estate matter. A Client Agreement was signed by the appellant on 9 February 2006 and returned to the respondent on 10 February 2006. The respondent carried out certain work in Brisbane and rendered accounts for the sum of $3,704.36.[1] After receipt of the accounts, the appellant made certain inquiries of the respondent seeking details of the accounts.
- [2]In an email of 9 March 2006,[2] there was a request for details of the times spent, the subject of telephone calls and copies of documents sent to other parties and how the matter progressed since Murphy Schmidt solicitors had been replaced. In reply, the respondent through Mr Herd referred to the Client Agreement and stated that if the account was not paid by 14 March 2006 proceedings would be commenced.[3]
- [3]Summary judgment was obtained by the respondent on 19 October 2007 in the sum of $5586.20, made up as follows:
Balance of monies owing $3704.36
Interest 531.44
Costs of the Claim 160.40
Professional costs 525.00
Bailiff fees 33.00
Plaintiff’s appearance on
Defendant’s application 240.00
Notice of intention to defend 540.00
Application for judgment 125.00
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$5586.20
- [4]Interest was claimed at the rate of 9% on the sum $3704.36. Even if this sum were allowed from October 2007, the sum claimed and interest would not exceed $5,000.00. In that event the appellant would require leave to proceed.[4] Costs are not included when determining the amount.[5] Leave can only be given if there is an important principle of law or justice involved. An important question of justice requires that there be a question involved which goes beyond the consequences for the immediate parties to the dispute.[6] There has been no application for leave in the present case. The solicitor for the respondent was aware of the point but did not press the issue.
Client Agreement
- [5]The Client Agreement provided for the basis of charging per hour, the manner of calculating fees and an estimate of costs. This was nominated at $2000.00 A Notice to Client was given to the appellant pursuant to s 48(4) of the Queensland Law Society Act 1952. Clause 12 of the Notice to Client provided that the solicitor is not bound by the estimate. The said Notice also provided that if a client wanted to challenge the account, an application had to be made to the Solicitors Complaints Tribunal for the appointment of a costs assessor to assess the account.[7] Of course, if that course was adopted, it prevented the appellant from challenging the validity or enforceability of the Client Agreement.[8] It was further provided [9] that one month had to pass from the time that the account was given before a solicitor could sue for fees or costs. That clause was complied with by the respondent, and no point is taken in that respect.
Grounds of Appeal
- [6]The appellant has two main bases for contesting the liability to pay the account as pleaded in the defence and counter claim. The first relates to the action being brought in Queensland. The appellant in argument conceded that the account would be paid to Mr Herd at a place nominated by him. Of course, as Mr Herd practised in Brisbane, Queensland then the monies were payable to him in Brisbane. The appellant relied upon s 20 of the Service and Execution of Process Act 1992 (Cth). An application was brought in the Federal Court which in effect found no basis for the matter in Queensland not proceeding in the Magistrates Court.[10]
- [7]The defence also raised issues of competence in the manner in which Mr Herd conducted the estate matter. There are no specific issues which support such an allegation. An allegation was made that other solicitors made an application for a caveat to be lodged. Obviously, some of the property relevant to the estate was situate in Brisbane. It cannot be said that the respondent was therefore negligent engaging a specialist to do the property aspect. The question of the costs involved is another issue. In argument, the appellant seemed to be concerned that the procedure adopted by the respondent in Queensland differed from the approach with which he was familiar in Sydney. That by itself is no basis for refusing to pay fees properly charged by the respondent.
- [8]It has not been shown that the respondent was not entitled to summary judgment. The defences raised by the appellant had no prospects of success at a hearing.[11] The appellant failed to have the matter assessed by the Solicitors Complaints Tribunal. In any event, as the amount involved was less that $5000.00, leave to appeal was necessary. No such leave was sought. However, as the appellant was self represented, the appeal has been approached on the basis that if he was able to point to an important principle of law or justice, then leave would have been granted. He has not done so.
- [9]The appellant raised the issue of prejudice or nepotism by the magistrate particularly given that he was misinformed of the procedures and did not receive any assistance from the court. It was the appellant who filed an application returnable on 13 June 2007 seeking to permanently stay the proceedings on jurisdictional grounds. He failed to appear on that day. The defence did not properly raise prejudice. It was raised only in the context of the matter being heard in Queensland and not New South Wales [12] The appellant has filed further material by leave. As he was self represented, an indulgence was granted to him to refer to such material although it was in effect fresh evidence. The appellant asserted that he was not granted his request to have the assessor appointed. Even if that be correct, it does not assist the appellant’s application for leave to appeal. An action had been commenced by the respondent as it was entitled to so do under the Client Agreement. There was no attempt to prove the quantum allegedly arising from the allegations of negligence. The magistrate was justified in giving summary judgement.[13] There has been no material put before the court which would justify the counter claim being sustained. The question of any alleged negligence has been referred to.
Orders
- Leave to appeal is refused
- The appeal is dismissed
- It is ordered that the appellant do pay the costs of the respondent of this appeal to be assessed on a standard basis.
Footnotes
[1] The account was sent on 28 February
[2] Other emails of similar effect were sent.
[3] This material was provided by the appellant in correspondence with the Registry. An affidavit deposing to these matters was sent on 26 September 2008. Leave is given to file that affidavit and exhibits.
[4] Magistrates Courts Act 1921, s 45(2)
[5] Jenkins v Lanfranchi (1910) 10 CLR 595; Bond v Dawson and Anor [1923] St R Qd 65
[6] American Express International Inc v Hewitt [1993] 2 Qd R 352
[7] Clause 21
[8] Clause 22
[9] Clause 24
[10] The decision is exhibited to the affidavit of the appellant filed by leave on the morning of the hearing
[11] R 292(2) Uniform Civil Procedure Rules
[12] Page 8 para 4 of Defence and Counter Claim
[13] See affidavit of Mr Herd sworn 20 August 2007