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Tucker v Murphy[2018] QDC 264

DISTRICT COURT OF QUEENSLAND

CITATION:

Tucker v Murphy [2018] QDC 264

PARTIES:

DAVID ROBERT WALTER TUCKER

and

RICHARD TERRICK COWEN

(plaintiff)

v

GEOFFREY JOHN MURPHY

(defendant)

FILE NO/S:

BD2532/2018

DIVISION:

 

PROCEEDING:

Determination of questions before trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

14 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

6 December 2018

JUDGE:

McGill SC DCJ

ORDER:

Questions answered: Question 1: Yes; Question 2: Yes; Question 3 “No”. 

CATCHWORDS:

EQUITY – Equitable set-off – available for cause of action barred by Limitation of Actions Act 1974. 

COSTS – Solicitor and client – statutory provision for assessment – whether exclusive mechanism for resolving disputes as to quantum. 

Legal Profession Act 2007 s 335.

Attard v James Legal Pty Ltd [2010] NSWCA 311 – cited.

Australian Mutual Provident Society v Specialist Funding Consultants Pty Ltd (1991) 24 NSWLR 326 – cited.

Branson v Tucker [2012] NSWCA 310 – considered.

Bravale Pty Ltd v A Whistle & Co (1979) Pty Ltd [2015] QDC 174 – considered.

CMF Projects Pty Ltd v Riggall [2016] 1 Qd R 187 – applied.

Esso Petroleum Co Ltd v Milton [1997] 1 WLR 938 – cited.

Harrison v Tew [1990] 2 AC 523 – cited.

Henriksens Rederi A/S v THZ Rolimpex [1974] 2 QB 233 – applied.

Jezer Construction Group Pty Ltd v Lilischkies [2005] 1 Qd R 125 – cited.

Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439 – cited.

Sidney Raper Pty Ltd v Commonwealth Trading Bank of Australia [1975] 2 NSWLR 227 – cited.

Smith v Betty [1903] 2 K B 317 – cited.

Woolf v Snipe (1933) 48 CLR 677 – applied.

Young v National Australia Bank Ltd [2004] WASCA 298 – cited.

COUNSEL:

G W Dietz for the plaintiffs

G J Robinson for the defendant

SOLICITORS:

Tucker & Cowen for the plaintiffs

Cooper Grace Ward for the defendant

  1. [1]
    This is the determination separately and before trial of three questions under UCPR r 483. The plaintiff is a firm of solicitors which acted for a company, JM Kelly (Project Builders) Pty Ltd, which has gone into liquidation. It is suing the defendant on his guarantee of the liability of the company for legal costs under a client agreement with the plaintiff. On 28 November 2018 I placed the proceeding on the commercial list and ordered that three questions be answered at a hearing on 6 December 2018, when I heard submissions.

Background

  1. [2]
    The company retained the plaintiff in relation to a building dispute which became the subject of a proceeding in the Supreme Court. It entered into a client agreement for that purpose dated 29 April 2009, which was signed by the defendant as guarantor on 15 May 2009.[1]  Between 30 April 2009 and 5 May 2016 the plaintiff issued 89 tax invoices to the company for legal costs, the last of which was a final bill.  Over five million dollars was paid by the company, but in March 2016 the plaintiff ceased work because of unpaid invoices, and the company applied to the court under the Legal Profession Act 2007 (“the 2007 Act”) for the assessment of all legal costs charged by the plaintiff.  The plaintiff also applied for assessment of the costs.  An order for assessment was made on 13 May 2016, and a costs assessor was appointed, who sought payment of $55,000 as the estimated fees for the assessment before commencing work.  Soon after, on 20 June 2016, liquidators were appointed to the company.  Neither they nor the plaintiff nor the defendant ever made the payment, and no assessment has ever occurred.
  1. [3]
    On 28 June 2016, these proceedings were commenced seeking to recover $312,969.41, the balance claimed after the payments made by the company. The proceeding was commenced in this court, but on 31 August 2016 was transferred to the Supreme Court in order to enable an application to be made by the defendant under s 328 of the 2007 Act. Ultimately the defendant abandoned any such intention, and on 25 June 2018 the proceeding was transferred back to this court.
  1. [4]
    The defendant has defended the proceedings on the basis of a set-off, alleging that he or the company had a claim against the plaintiff for breach of the contract of retainer, in certain respects.[2]  For example, it is alleged that, in respect of a large number of particular items of work, the charges imposed by the plaintiff were not fair and reasonable, in that they involved more solicitors doing the work than was reasonably necessary.[3]  For present purposes, it is sufficient to say that the matters raised are matters which could be raised by a client on a costs assessment under the 2007 Act, and decided by a costs assessor.  All of these complaints were disputed in the plaintiff’s reply, which also raised two specific legal issues:
  1. (a)
    Some of the matters complained of occurred more than six years ago, so the alleged breaches were statute barred under the Limitation of Actions Act 1974 s 10.
  1. (b)
    These claims could not be pursued in this way, because of division 7 of chapter 3 of the 2007 Act, in particular s 335.

The preliminary questions concern whether these matters are capable of amounting to good answers to the pleaded set-off, or part of it.

  1. [5]
    The first two questions are as follows:

Question 1: Whether, as a matter of law, the Defendant is entitled to set-off against the Plaintiff’s claim any claim that the Defendant and/or J.M. Kelly (Project Builders) Pty Ltd may have for damages for breach of contract in the nature of the claim pleaded in paragraphs 44, 46 and 47 of the Defendant’s Further Amended Counterclaim (“Solicitor Agreement Damages Claim”) to the extent that the Solicitor Agreement Damages Claim is statute-barred by reason of section 10 of the Limitation of Actions Act 1974 (Qld)?

Question 2: Whether, as a matter of law, the Defendant is entitled to set-off against the Plaintiff’s claim any claim that the Defendant may have for damages for breach of contract in the nature of the claim pleaded in paragraphs 48 to 54 of the Defendant’s Further Amended Counterclaim (“Client Agreement Damages Claim”) to the extent that the Client Agreement Damages Claim is statute-barred by reason of section 10 of the Limitation of Actions Act 1974 (Qld)? 

  1. [6]
    These different sections of the defence and counterclaim cover the same alleged conduct on the part of the plaintiff, said to be in breach of the same terms of the agreement, and are pleaded in the alternative depending on whether the agreement with the plaintiff is characterised as set out in the statement of claim, or as set out in the defence and counterclaim. In paragraph 55 of the reply, the plaintiff pleads that any claim for damages arising from any breach of contract more than six years prior to the time when the defendant commenced the proceedings by counterclaim against the plaintiff on 29 July 2016 was statute barred under the Limitation of Actions Act 1974.[4]  The issue is whether this is a good answer to the set-off.
  1. [7]
    The answer to that question depends on whether the set-off relied on by the defendant is a set-off in law, or an equitable set-off. A cause of action which is statute barred cannot be the basis for a legal set-off,[5] but the position is different in the case of an equitable set-off, where the existence of a time bar of this nature does not prevent effect being given to a set-off.[6]  This is because an equitable set-off depends upon the relationship between the respective claims of the parties being such that the claim of the defendant is so closely connected with the rights that are relied on by the plaintiff that it would be unjust that the plaintiff should proceed without permitting a set-off.[7] 
  1. [8]
    In the present case, the defendant’s set-off relies on the existence in him or the company of a claim for damages for breach of contract which could be set-off against his liability to the plaintiff under the contract. In relation to the present proceeding, there was no argument on behalf of the plaintiff that, if the various breaches of contract alleged by the defendant were made out, they did not give rise to an equitable set-off which could be relied on by the defendant. If that is the case, the expiration of a limitation period in respect of the cause of action for damages against the plaintiff did it not prevent him asserting an equitable set-off.
  1. [9]
    So much was decided by the Court of Appeal in England in Henriksens Rederi A/S v THZ Rolimpex [1974] 2 QB 233, where Lord Denning MR said at p 245 that no matter raised by way of defence was subject to a time bar under the limitation statute.  That decision was followed by the New South Wales Court of Appeal in Sidney Raper Pty Ltd v Commonwealth Trading Bank of Australia [1975] 2 NSWLR 227, which in turn was followed in Australian Mutual Provident Society v Specialist Funding Consultants Pty Ltd (1991) 24 NSWLR 326 at 332.[8]  Counsel for the defendant drew to my attention a decision of mine in which the same principle was applied: Bravale Pty Ltd v A Whistle & Co (1979) Pty Ltd [2015] QDC 174.  He relied however on a proposition I stated, that the defendant was not entitled to rely against the plaintiff on any loss that may have arisen from a cause of action statute barred because no set-off was asserted in response to the plaintiff’s claim or demand before action was taken by the plaintiff in reliance on the failure to comply with the claim or demand.
  1. [10]
    In Bravale (supra) the question of a set-off arose in a particular situation, which made the timely assertion of the right to set-off relevant.  The plaintiff and defendant were parties to a franchise agreement, and for a time the plaintiff had been paying too much to the defendant under the franchise agreement, though this was not conceded by the defendant.  Eventually the plaintiff stopped paying, and the defendant gave notice of intention to terminate the agreement because of the failure to make particular payments unless they were made within a certain time.  The plaintiff’s response was that it had already overpaid more than that amount, but the defendant purported to terminate the agreement.  At trial I held that there had been overpayments of greater than the amount the defendant alleged to have been owing at that time, and that the plaintiff’s communication had asserted a right of set-off against the amount owing to the defendant, so that the defendant was not entitled to terminate the agreement on the basis of the (undisputed) non-payment of certain amounts: [60]. 
  1. [11]
    It follows that my reference to the need for the party in default to assert a set-off arose in a context where the other party was relying on the debt for some purpose other than enforcement of the debt in court, such as to justify terminating a contract for breach. That is not the situation here; the defendant is simply relying on the set-off as a defence in a context where he is being sued on the guaranteed debt. There is nothing in the authorities to indicate that, in that context, it is necessary for the right of set-off to be asserted in response to the plaintiff’s claim or demand before the plaintiff commenced its proceeding, and therefore it is unnecessary for such an assertion to have been raised at the present case. The defendant having been sued, he is entitled to raise an equitable set-off, which cannot be defeated by reliance on the Limitation of Actions Act 1974 s 10.  The answer to the first two questions is therefore “yes”.
  1. [12]
    In these circumstances, it is unnecessary for me to consider the question of when the defendant first effectively pleaded a set-off in respect of the plaintiff’s claim in relation to any particular claim, a matter which was the subject of some debate during the course of the hearing. Because an equitable set-off is strictly a matter of defence, the Limitation Act does not apply to it, so it is unnecessary to consider whether any part of the matters relied on, if included in a claim by the company, would have been statute barred at any particular time, or to consider when any particular matter relied on first came to be included in the defence of set off in the present proceeding.  It probably does mean that the paragraph in the reply raising this plea should be struck out, but that has not been the subject of argument. 
  1. [13]
    The third question to be determined as a preliminary matter is as follows:

Question 3: Whether, as a matter of law, the costs assessment legislative regime prescribed by Division 7 of Chapter 3 of the Legal Profession Act 2007 (Qld), and in particular s 335, precludes the Defendant from setting-off against the Plaintiff’s claim:

  1. (i)
    the Solicitor Agreement Damages Claim; and
  1. (ii)
    the Client Agreement Damages Claim?
  1. [14]
    The 2007 Act provides an avenue by which a client (or someone other than the client liable to pay the costs) can have legal costs paid or payable to a law practice assessed by an independent person. This is the current version of a long standing history of legislative protection for the clients of lawyers (originally solicitors) with a view to preventing overcharging.[9]  Statutory control dates back to an Act to Reform the Multitudes and the Misdemeanours of Attornies, (1605) 3 James 1 c 7.[10]   A statutory right to a solicitor and client assessment by a court officer was introduced by the Attorneys and Solicitors Act 1728 (2 Geo 2 c 23), and in Queensland the Costs Act 1867 s 24 provided for taxation of costs locally in a provision based on 6 and 7 Vic c 73, s 37.  The Act, dutifully copying the English precedent, said that on the common law side of the court costs were to be taxed and settled by the prothonotary, and in equity matters by the master of equity; in practice both functions were performed by the registrar.[11]  The Costs Act proved quite durable, though in 1995 most of its provisions, including those relating to taxation of costs, were included in the Legal Practitioners Act 1995, with the former s 24 becoming s 7.[12]
  1. [15]
    The Civil Justice Reform Act 1998 repealed the provisions in the Legal Practitioners Act 1995 which had come from the Costs Act, and amended the Queensland Law Society Act 1952 to insert provisions for client agreements, provisions regulating payment for legal work, and provisions for assessment of solicitor’s accounts by costs assessors appointed by the clerk of the tribunal.  Among other provisions, s 48K provided that in a proceeding to recover the fees or costs the court may –

“appoint a tribunal costs assessor or another person to assess the account…”

  1. [16]
    Subsection (2) however provided that this did not apply if the parties were already bound by an assessment by a costs assessor under the Act. Section 6ZE provided that a costs assessment by an assessor appointed under the Act was binding only if the client and practitioner or firm had agreed in writing that it would be, or if at the end of 30 days after the assessment no application had been made to a court to decide the reasonableness of the fees and costs charged in the assessed account. That section went on to provide that a binding costs assessment could be enforced as a debt for the assessed amount “and the parties may not subsequently challenge the amount payable”. That legislation therefore had two significant features: Assessed costs could become binding if that was agreed or if the parties after the assessment did not challenge the assessment, and, if there had been no prior assessment which had become binding, the court in a proceeding to recover costs could refer the assessment to an assessor “or another person”. The latter confirmed that the issue could arise in such a proceeding, and did not make such a reference mandatory.
  1. [17]
    The provisions in the 1952 Act were in turn superseded when that Act was repealed by the 2007 Act, which contains in Division 7 of Chapter 3 a mechanism by which costs can be assessed by a costs assessor, appointed by the court under the UCPR on the application of a client, a third party payer, a law practice retaining another law practice, or the law practice giving the bill. Nowhere is assessment made mandatory, although s 316(1) provides that if a law practice does not disclose to a client or an associated third party payer anything required by Division 3 to be disclosed, the client or associated third party payer need not pay the legal costs unless they have been assessed under Division 7. One of the benefits attributed to the 2007 Act in the Explanatory Note for the Bill for it was a “nationally consistent criteria for the assessment of costs”.[13]
  1. [18]
    There is nothing in Division 7 which makes the costs assessment process it sets outs exclusive. Section 335(8)(b)(ii) provides that if there is an associated third party payer for a client of a law practice the assessment is to be binding on the client and associated third party payer, both of whom may participate in a costs assessment, and the law practice is by para (c)(ii) bound by the costs assessment. Sub-section (9) deals with a situation where there is a non-associated third party payer for a client of a law practice, and provides that the client is bound by the assessment but does not provide for either the law practice or the non-associated third party payer to be bound by the assessment: s 335(9)(b)(ii). Indeed, s 335(9)(d) provides expressly that the assessment of costs payable by the non-associated third party payer does not affect the amount of legal costs payable by the client to the law practice. There does not however appear to be any express provision in the section which makes the result of the assessment binding as between the law practice and the client if there is no third party payer involved.
  1. [19]
    There is a provision in s 338(b) that a law practice must not start any proceedings to recover legal costs if an application for assessment is made and the costs assessment has not been completed, without the leave of the court.[14]  This provision does not however in terms prevent a law practice continuing a proceeding which has already been started before a costs application has been made.  There is, so far as I can see, no other provision in the 2007 Act which affects the conduct of a proceeding to recover legal costs.  In particular, there is no equivalent to the power formerly in the 1952 Act for a court dealing with such a proceeding to refer the bill to a costs assessor under the 2007 Act.  It may also be noted that Division 5, dealing with costs agreements, does not make such agreements mandatory, in the way that the disclosure obligations on a law practice are made mandatory under Division 3.  Indeed, s 319(1) contemplates that legal costs can be recoverable even though there is no costs agreement made under Division 5 or the corresponding provisions of a corresponding law, though there are consequences provided by that section for the amount of costs that are recoverable in such circumstances. 
  1. [20]
    If there is a costs agreement, s 326 provides expressly that “subject to this Division and Division 7, a costs agreement may be enforced in the same way as any other contract”. It was submitted for the plaintiff that the effect of this was that the entitlement at common law to sue in respect of a costs agreement had been expressly made subject to Division 7, and in that way Division 7 contained a mechanism for resolving disputes between the parties in relation to the quantum of legal costs payable pursuant to a costs agreement which was exclusive of the rights which would have otherwise existed under contract law. With respect, I do not consider that that is the correct interpretation of s 326.
  1. [21]
    Division 5 contains certain requirements which have to be followed before a costs agreement will be valid, and if they are not followed, or if the costs agreement is set aside under s 328, then the costs agreement is not enforceable in the same way as any other contract. Division 7 provides a mechanism for the assessment of costs payable under a costs agreement, and to that extent modifies the enforceability of the costs agreement as a contract, but there is nothing to indicate that it goes further and excludes any other rights arising under contract law, such as a right to pursue a cause of action for damages for breach of contract.
  1. [22]
    The defendant relied on the decision of the New South Wales Court of Appeal in Branson v Tucker [2012] NSWCA 310.  In that case the plaintiff, a barrister, had sued a firm of solicitors for unpaid fees.  The solicitors paid the fees under protest and filed a counter-claim for recovery of part of the fees on the basis that the hours charged were in excess of what was reasonably and necessarily required, and the plaintiff was in breach of an implied term of the retainer that he would exercise reasonable care and skill in performing it, as a result of which the defendant had suffered loss which could be set off against the plaintiff’s claim: [23].  The plaintiff sought to strike out this defence on the basis that the only way in which the fees could be validly challenged was under the provisions of the Legal Profession Act 2004 (NSW).
  1. [23]
    The court held that the mechanism for costs assessment provided under that Act was not exclusive, and that the application to strike out the defence had been rightly dismissed. In arriving at that conclusion the court referred to the various English authorities which had established that there were three sources of jurisdiction to ascertain the costs, charges and disbursements claimed by a solicitor, namely the jurisdiction founded on the position of a solicitor as an officer of the court,[15] the statutory jurisdiction under the relevant Act in force at the time, and the ordinary jurisdiction to determine an issue brought before the court in the course of litigation.  That threefold jurisdiction was adopted in Woolf v Snipe (1933) 48 CLR 677 at 678-9 by Dixon J.  More recently, in Harrison v Tew [1990] 2 AC 523 it has been held in England that the first basis of jurisdiction has been superseded by the then current statutory provision for the second basis of jurisdiction, but the continued existence of the third jurisdiction was confirmed at p 538. 
  1. [24]
    The New South Wales Court of Appeal had previously, in Attard v James Legal Pty Ltd [2010] NSWCA 311, rejected a submission that the provisions of the then Legal Profession Act 1987 (NSW) provided an exclusive code for the assessment of the costs of a legal practitioner for professional legal services.  The court in Branson referred to a number of provisions of the Legal Profession Act 2004, including s 301(d), which is in virtually the same terms as s 299(d) of the 2007 Act, noting that it referred to providing “a mechanism” rather than “the mechanism”. 
  1. [25]
    Reference was also made to s 319 and s 326, which are essentially the same as s 319 and s 326 of the 2007 Act. Reference was also made to s 83, and the plaintiff submitted that there was no equivalent provision in the 2007 Act; but s 322 authorises a costs agreement between various people, including one law practice and another law practice, and if one digs into the definitions that includes an agreement with by solicitor with a barrister with a practicing certificate as such. That covers the first part of s 83, and the second part is covered by s 326. Reference was also made at [86] to the Civil Procedure Act 2005 (NSW) s 98, which has no analogue in the 2007 Act, but there are provisions to the same effect in the UCPR Chapter 17A. 
  1. [26]
    Finally, reference was made to s 366, which does not have an analogue in the 2007 Act, and which provided expressly:

“This division does not limit any power of a court or a tribunal to determine in any particular case the amount of costs payable or that the amount of the costs is to be determined on an indemnity basis.”

It is true that the court did rely to some extent on this section, [101]-[104], but there were many other factors raised by the Court of Appeal and relied on, including consideration given at [107]-[111] to various particular situations where it was suggested that exclusivity of the costs assessment mechanism would produce anomalous or unsatisfactory results. 

  1. [27]
    There is no express provision taking away the right, in a case like this, of a client to sue the solicitor for damages for breach of contract, which is in substance what is being alleged by the plaintiff in the reply. Accepting that the argument is confined to a situation where the client is not a sophisticated client, and where the matters sought to be raised in the action for breach of contract are matters which could have been raised in an assessment conducted under the provisions of the 2007 Act, it still seems to me that there is no implication able to be drawn clearly from the Act that a parallel common law right is excluded.
  1. [28]
    The existence of a statutory scheme is not readily characterised as impliedly repealing a common law right, even if the situation where the two apply may well overlap. The court in Branson also referred at [86] to a passage in Harrison v Tew (supra) at p 536, where the proposition was stated that the common law can co-exist with a statutory provision with which it is not inconsistent, and that a statute made in the affirmative, without any negative expressed or implied, does not take away the common law. This is illustrated by the decision of the Court of Appeal in Queensland that the existence in the Domestic Building Contracts Act 2000 s 55 of a provision for a form of statutory quantum meruit in certain circumstances where a builder had not complied with the requirements of the section did not impliedly exclude the builder’s common law right to recover on a quantum meruit in respect of the work done.[16]  That decision illustrates the general proposition referred to in the statements in Harrison, and supports the view that a court would not readily imply the exclusion of what has been referred to as the ordinary jurisdiction of the court to deal with a dispute over the quantum of a lawyer’s costs. 
  1. [29]
    It may be noted that there is no express statutory jurisdiction, if a law practice sues to recover costs and no application is made for assessment under the 2007 Act, for any dispute in that proceeding to be referred to a costs assessor. Nevertheless, a court would have power to do that, either on the basis of the statements about the ordinary jurisdiction of the court referred to in the authorities considered in Branson (supra), or on the basis that the costs assessor could be appointed in the capacity of a special referee under the UCPR.  Courts for a long time have had power to refer matters of detailed calculation to a registrar or other officer,[17] and while the quantification of costs was ordinarily dealt with by a taxing officer within the court structure, it was logical and convenient to refer aspects of a dispute to which turned simply on matters of quantum to such an officer under that power.  Indeed, there is still power in UCPR r 501 to appoint a special referee, and that power can be utilised to appoint a costs assessor to undertake an assessment, but in the capacity of special referee.[18]  This power has been exercised to provide a mechanism for having costs quantified in circumstances where a statutory mechanism for determining the costs of proceedings in a tribunal had become impossible to apply because of amendment to the Act, but the power could be utilised in any court proceeding if it became appropriate. 
  1. [30]
    One of the difficulties with the plaintiff’s argument is that it leaves the boundaries of what can be determined in litigation and what can only be determined by a costs assessor not clearly defined. Presumably a client sued for fees could argue about the retainer, and the terms of the retainer, and whether or not the retainer had been withdrawn, but what if, for example, a particular step had not been taken in a timely way, and as a result an expensive application had to be made to the court to enable the client’s position to be retrieved. If the client alleges that on the facts it was the solicitor’s failure which led to the step not being taken in a timely way, that would have to be able to be litigated, because if made out it would mean that the extra costs incurred because of the solicitor’s failure to undertake the work with due care and skill would not be recoverable.[19] 
  1. [31]
    It is very difficult to see how conceptually there is a difference between that situation and the present claim for damages for breach of contract, particularly where this turns on an express term in the contract that the law practice will charge fair and reasonable fees. What if it is possible to show, for example, that the hourly rates charged in the various bills did not correspond with the hourly rates specified in the client agreement? That would be the sort of issue which could easily be resolved in the course of a trial without the necessity to resort to any expert assistance.
  1. [32]
    It was submitted that the provisions of the relevant English legislation were somewhat different from those in Australia, and that is true, although the real significance of the decision of the House of Lords in Harrison is the recognition of what was described as the ordinary jurisdiction of the court to deal with issues of costs if that issue arose in the course of ordinary litigation.  Ultimately however, the question is not what the correct interpretation of the English Act, or for that matter the New South Wales Act, is, but what the correct interpretation of the Queensland Act is.  The decisions in other jurisdictions are really only useful to the extent that they throw light on the sort of considerations which are relevant in answering that question. 
  1. [33]
    Overall, I am not persuaded that the provisions of Division 7 of the 2007 Act on their true construction exclude the jurisdiction of the court to determine whether there has been a breach by the plaintiff of the costs agreement under which it claims remuneration, or indeed, whether the amount of remuneration claimed has been properly claimed in accordance with the terms of that agreement. It follows that Question 3 for determination prior to trial should be answered “No”. I expect it also follows that the relevant provision of the plaintiff’s reply should be struck out, but that has not been the subject of specific argument.
  1. [34]
    I will invite submissions as to costs, and as to further directions, when this judgment is delivered.

Footnotes

[1]  The precise effect of what happened is in issue on the pleading, but it is not disputed that there was an agreement to which the plaintiff and the defendant were parties. 

[2]  At one time this was also pleaded as a counterclaim, but following the filing of an amended defence and counterclaim on 9 January 2017, it is relied on solely as a set-off.

[3]  For example, that two solicitors were involved in a conference when one would have been sufficient.  It is alleged that the agreement provided expressly that the charges would be fair and reasonable. 

[4]  There was a point about whether the cause of action arose on breach or when the plaintiff first charged for the relevant work, which for present purposes does not matter.  In any case, the relevant date is 28 June 2016: Limitation of Actions Act 1974 s 42. 

[5]  Derham, “The Law of Set-Off” (4th Ed, 2010) para 2.47, 2.48; Smith v Betty [1903] 2 K B 317 at 323. 

[6]  Derham op cit para 4.51. 

[7] Esso Petroleum Co Ltd v Milton [1997] 1 WLR 938 at 950; Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439 at 465. 

[8]  Endorsed in Young v National Australia Bank Ltd [2004] WASCA 298 at [32]. 

[9]  Some idea of the attitude of legislators towards lawyers can be obtained by comparing the Legal Profession Act 2007, with 780 sections and 580 pages (reprint current as at 1.12.14), with the Drugs Misuse Act 1986, with 146 sections and 150 pages (reprint current as at 30.3.17).

[10]  Friston M “Civil Costs Law and Practice” (2d Edition 2012) p 6. 

[11]  McPherson BH, “Supreme Court of Queensland” (1989) p 72.  In time a deputy registrar who specialised in taxing costs was appointed.

[12]  This was done by the Statute Law Revision Act (No.2) 1995, and involved so little revision that the anachronistic references to prothonotary and master in equity remained. 

[13]  Queensland Acts Explanatory Notes 2007 Vol 1 p 654.  One of its elements was described as “a costs assessment process”: p 655.  There is nothing in the notes to indicate that the intention was to make the assessment process exclusive. 

[14]  I assume leave was obtained to start this proceeding. 

[15]  This jurisdiction preceded any statutory jurisdiction: Friston, op cit, p 8.

[16] CMF Projects Pty Ltd v Riggall [2016] 1 Qd R 187; see in particular the statements of principle at [34]. 

[17]  See for example Common Law Practice Act 1867 s 63; Woolf v Snipe (supra) p 679. 

[18] Jezer Construction Group Pty Ltd v Lilischkies [2005] 1 Qd R 125. 

[19]  Indeed, in the limiting case, if the solicitor’s work as a whole was conducted so unskilfully as to be of no value to the client, the solicitor cannot recover at all: Cordery on Solicitors (6th Ed 1968) p 203. 

Close

Editorial Notes

  • Published Case Name:

    David Robert Walter Tucker & Richard Terrick Cowen v Geoffrey John Murphy

  • Shortened Case Name:

    Tucker v Murphy

  • MNC:

    [2018] QDC 264

  • Court:

    QDC

  • Judge(s):

    McGill SC DCJ

  • Date:

    14 Dec 2018

Appeal Status

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