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  4. Broadley v Broadbeach Law Group Pty Ltd - [2023] QDC 236

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Broadley v Broadbeach Law Group Pty Ltd[2023] QDC 236

Broadley v Broadbeach Law Group Pty Ltd[2023] QDC 236

DISTRICT COURT OF QUEENSLAND

CITATION:

Broadley v Broadbeach Law Group Pty Ltd [2023] QDC 236

PARTIES:

Carole Margaret Broadley

(Applicant)

v

Broadbeach Law Group Pty Ltd ACN 608 884 233 

(Respondent)

FILE NO:

BD File No. 2794/23

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

14 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2023

JUDGE:

Porter KC DCJ

ORDERS:

  1. The respondent’s invoices no. 9038 dated 1 December 2023, no. 9625 dated 5 October 2021, no. 9634 dated 12 October 2021 and no. 10427 dated 19 October 2022 be assessed.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – where the applicant engaged the respondent solicitors in relation to a family provision application – where the applicant settled the claim and the settlement deed required further work to be carried out – where the respondent performed work to carry out steps required under the settlement agreement – where three invoices were rendered under the costs agreement between the applicant and the respondent prior to the settlement of the family provision application – where a fourth invoice was rendered a year later in relation to the costs of carrying out the settlement agreement – whether the first three invoices were interim bills within the meaning of s 333 of the Legal Profession Act 2007 (Qld)

LEGISLATION:

Legal Profession Act 2007 (Qld)

CASES:

Challen v Golder Associates Pty Ltd [2012] QCA 307

Mishra v Bennett & Philp Pty Ltd (2021) 8 QR 306

Re Lynch and Co Bill of Costs [2000] QSC 3

Seymour v WJ Markwell & Associates [2023] QDC 112

Stevens v HopgoodGanim Lawyers (a Firm) [2023] QDC 96

Tabtill No 2 Pty Ltd v DLA Phillips Fox (a firm) [2012] QSC 115

Turner v Mitchells Solicitors [2011] QDC 61

COUNSEL:

L Gamble for the Applicant

F Chen for the Respondent

SOLICITORS:

Piper Alderman for the Applicant

Broadbeach Law Group for the Respondent

Summary

  1. [1]
    The applicant (Mrs Broadley) applies under s. 335 Legal Profession Act 2007 (LPA) for assessment of four bills for legal costs issued to her by the respondent (Broadbeach).  Section 335(5) requires such a costs application to be brought, within 12 months after a bill is given.  
  2. [2]
    It is uncontentious that the first three bills were given more than 12 months before this application was made.  However, the applicant submits that those three bills were interim bills under s. 333 LPA and that the fourth bill was the final bill in respect of the legal services work that Broadbeach was retained to provide.  On that basis, the applicant submits that this application is brought in time for assessment of all the bills.  The respondent disagrees.
  3. [3]
    For the reasons which follow I find that each of the first three bills were interim bills pursuant to s. 333(1) LPA and the fourth bill was the final bill for the legal services that Broadbeach was retained to provide.  Accordingly, the applicant is entitled to have all four bills assessed.

The Facts

  1. [4]
    Mrs Broadley’s husband died on 16 July 2020.  He left a will made late in his life.  Common form probate was obtained of that will.  Mrs Broadley’s initial contact with Broadbeach occurred on 26 August 2020 when she met with the firm’s Mr Smith.  Either then or soon afterwards, Broadbeach’s Mr Smith advised Mrs Broadley that she could bring a family provision application (the FPA).  Subsequent events confirm that Mrs Broadley took that advice.  Although the evidence is not clear, it seems likely at that time or soon after that Mrs Broadley also expressed concerns about Mr Broadley’s capacity to make the will.
  2. [5]
    On 13 September 2020, the parties entered into a written costs agreement.  The costs agreement relevantly provided:
    1. By clause 3:

3.1 The firm will provide you with current legal advice on any issue of your choice whether relating to the matter referred to in Item 3 of the Schedule or otherwise:

3.2 at your request; and,

3.3 whenever it appears to the firm that our advice would be of assistance to you.

3.4 The firm will act for you and take all necessary action on your behalf to assist you in achieving your goal and in particular the firm will provide legal advice as contemplated in Clause 3.1 above and provide the legal services set out in Item 3 of the Schedule (the “work”).

3.5 Unless the firm’s instructions are terminated, we will continue to act for you in matters incidental to the work.

3.6 For example, if an appeal is filed against any decision relating to your matter, and you continue to instruct us, this agreement will govern the work relating to that appeal, and to all steps reasonably required to give effect to, or implement any award or negotiated settlement.

  1. By clause 7:

Our accounts will be issued to you at such intervals as is most appropriate for the nature of the work done for you, and if no other interval is appropriate, then at monthly intervals. You may request an account at any time. 

  1. By clause 14:

This agreement is a continuing contract and governs all work that we carry out on your behalf from now on, until we enter into a new agreement with you. If we have carried out work for you prior to signing this agreement for which you have not already been billed and have paid and which has not been covered by any other contract we have entered into with you, then that work is also covered by this agreement. The agreement does not come to an end when the matter about which you first sought advice was finalised.

  1. By clause 15:

You can decide at any time that you do not wish us to act for you. If you tell us that you do not wish us to act for you, then we will do all that is required of us to close your file including, where necessary, withdraw on the Court record as your solicitors and thereafter send you a final account.

  1. By the 1st Schedule:

…

Item 3:  The Matter: Family Provision Claims

…

Item 6 Estimate of Fees of the Firm  EXCLUSIVE GST

  Stage 1

  1. To taking your instruction, to attending upon you in conference to take your statement, to undertaking legal research and providing you with our initial advice.

$5,000.00

  1. To drawing application for Family Provision Claim and supporting affidavit in accordance with the Practice Directions.

$4,500.00

  1. Disclosure with the Executor and third parties. 

$5,000.00

  1. Reviewing affidavit material put on by the Executor and to drawing, drafting and engrossing your affidavit in reply.

$3,000.00

  1. Mediation – 2 day – Solicitor’s fees

 (1 day prep and 1 day mediation)  $7,520.00

 2 day – Counsel’s fees

 (1 day prep and 1 day mediation)  $10,000.00

$17,520.00

Disbursements to mediation

  • Travel;     $250.00
  • Standard death certificate (postage included) of the deceased; $48.20
  • Filing for TFM claim in the Supreme Court of Queensland; $1,020.90
  • Court filing agent    $33.00
  • Service on the other side;   $250.00
  • Mediator’s fee (1/2 shared);  $3,000.00
  • Room hire (1/2 shared).   $150.00

$4,752.10

    Total for Stage 1     $39,772.10

   Stage 2

    13. Preparation for trial –

2 days – Solicitor’s fees   $7,520.00

      2 days – Counsel’s fees  $10,000.00

    14. Trial –  

2 days – Solicitor’s fees  $7,520.00

      2 days – Counsel’s fees  $10,000.00

  1. [6]
    On the same day a Costs Disclosure document was provided to Mrs Broadley.  It contains a schedule in the same form as the schedule to the costs agreement.  It provided by clause 3:

3.1 With respect to litigious matters, it is extremely difficult for the firm to estimate your fees in this matter as it will depend on how quickly a resolution of the matter can be reached. If the matter proceeds as per our stages, then the estimate of your fees may be the amount described in Item 6 of the Schedule.

3.2 With respect to non-litigious matters, the firm estimates your fee to be the amount described in Item 6 of the Schedule.

3.3 With respect to non-litigious matters, the fee estimate applies only to the scope of the matter described in Item 3 of the Schedule and provided that the matter as described therein can be completed in the normal course of business. If for any reason the matter cannot be completed within the normal course of business, or the scope of the matter is expanded, for example, additional factors or issues arise which are not contemplated at the time of you giving the firm initial instructions and/or negotiations become protracted, and/or the firm is put to additional work because of the fault of other persons and/or your failure to honour your obligations under this Agreement, then the firm will be entitled to charge you for such additional work. In such circumstances the fee for work done over and above the scope of the matter as described shall be charged in accordance with the provisions set out in paragraph 2 of this Notice.

  1. [7]
    Work got underway on the FPA from about 10 September 2020.  On or about 1 December 2020, the first invoice was given to Mrs Broadley by Broadbeach (the first FPA invoice).  It covered professional work seemingly in the preparation of the FPA from 10 September 2020 to 30 November 2020 along with disbursements for searches.  The December 2020 invoice was for $2,607.61.  It recorded that the bill had (already) been paid, with no balance owing.  
  2. [8]
    No further invoices were delivered claiming payment for work done on the FPA until October 2021.  The catalyst for the invoices was a mediation which occurred on 5 October 2021.  I will return to the mediation later. However, the particulars of the later invoice show that work continued in preparation of the FPA after the December 2020 invoice.  On 15 April 2021, the FPA was filed.
  3. [9]
    At some stage in early 2021, however, attention was turned to the validity of the will.  Mrs Broadley’s material does not deal with this issue specifically.  However, there was no challenge to the account given by Mr Smith in relation to this issue and it is generally consistent with the other material. 
  4. [10]
    Mr Smith said that “there was considerable suspicion that [Mr Broadley] did not have capacity when he made his last Will and there was evidence of possible undue influence”.  On about 22 April 2021, Mr Smith advised Mrs Broadley in conference to instruct Mr Matthews KC in probate proceedings.  Mr Matthews and his junior provided costs agreements to Broadbeach.  Subsequently, on 21 July 2021, an originating application seeking revocation of the common form grant and for the executors to prove the will in solemn form proceedings was filed (the probate proceedings).  The court documents in the probate proceedings were not in evidence, though it seems the matter did not go to pleadings.
  5. [11]
    There is no evidence that any written costs agreement or costs disclosure were provided by Broadbeach in relation to the probate proceedings specifically.  The only evidence of any costs disclosure before the Court is from Mr Smith who says that he took Mrs Broadley though the barristers’ costs agreements and estimates for the probate proceedings and told her that her costs moving forward would be considerable.
  6. [12]
    Broadbeach opened a new file for the probate proceedings, file number 213280.  Charges were made to that file presumably for work in the probate proceedings for the period 8 July 2021 to 31 August 2021.  No other work was billed to that file after that date, even though the 5 October mediation dealt with both the FPA and the probate proceedings.  However, the mediator’s fee and an invoice seemingly related to superannuation issues in the probate proceedings were charged to that file on 5 October 2021.
  7. [13]
    It is common for a party to obtain a figure for current costs when preparing for a mediation.  I accept, for present purposes, that that occurred in this case.  Mr Smith says he prepared draft invoices before the mediation and informed Mrs Broadley that his firm’s fees totalled $98,862.20 including GST but not including counsel’s fees (which were being carried by counsel).  Based on the two invoices subsequently issued, that figure appears correct.  As will be seen, Counsels’ fees and other disbursements were about the same amount as the professional fees to that date incurred by Broadbeach.
  8. [14]
    The mediation resulted in a written settlement deed dated 6 October 2021 (the deed).   The deed discloses that the affairs of two superannuation funds related to Mr Broadley were involved in the terms of the settlement.  Presumably they relate to the FPA.  I cannot see how they would have anything to do with solemn form proceedings, but one cannot be sure.
  9. [15]
    The deed relevantly provided:
    1. For the discontinuance of both the FPA and the probate proceedings;
    2. For certain rather detailed steps to be taken in the administration of each of the superannuation funds and the process to be followed in selling a home unit held by the estate; and
    3. For payment of Mrs Broadley’s costs of the FPA and probate proceedings in the amount of $195,000 within 7 days.
  10. [16]
    The clauses dealing with the super funds provided in effect for the construction and letting of premises on land in Gunnedah as a joint venture between the two super funds.  It was self-evidently going to require some supervision and involvement of Mrs Broadley in carrying out all the settlement terms, from attending to filing of notices of discontinuance to involvement in the steps for the Gunnedah property and the sale of the unit.
  11. [17]
    On or about 5 October 2021, Broadbeach gave Mrs Broadley an invoice for fees and disbursements in the probate proceedings file for $24,982.61 (the probate proceedings invoice), of which some $12,496 was fees and some $10,000 was disbursements including the cost of the mediation.  There are no charges for Broadbeach’s professional fees after 31 August 2021.  It appears Broadbeach’s fees for preparation for the mediation was charged entirely to the FPA file.  No criticism is intended by that observation.  However, it does reflect in my view that the FPA raised most of the substantive issues to be resolved at the mediation, a view which tends to be supported by the principal terms of the settlement.
  12. [18]
    On 12 October 2021, Broadbeach gave Mrs Broadley an invoice for fees and disbursements in the FPA for $168,274.95 (the second FPA invoice) of which about half was professional fees and half was disbursements.  Most of the disbursements were counsels’ fees evenly divided between Mr Matthews and his junior.
  13. [19]
    The probate proceedings and second FPA invoices were paid by the executors of the estate as provided for in the deed on about 15 October 2021. 
  14. [20]
    Central to resolution of this matter is the work done by Broadbeach following the mediation.  Mrs Broadley does not deal with this issue in her affidavits.  Mr Smith deals with it only briefly.  He states:

After the mediation, Broadbeach was required to undertake some further work as it was a term of the settlement deed that Lanley Pty Ltd and B & C Broadley transfer interests in the property situated at 90/108 Kamilaroi Highway, Gunnedah in the State of New South Wales to the beneficiary, being the B & C Broadley Super Fund (“B & C Broadley SF”).

In order to effect the transfer it was necessary to obtain a certificate of compliance from the Australian Tax Office (“ATO”) stating that the B & C Broadly SF is a complying fund.

As this is an accounting issue, Broadbeach corresponded and worked with Sandy to ensure that the B & C Broadley SF was compliant and asked him to obtain the ATO certificate.

  1. [21]
    He does not deal with any instructions to undertake this work or discussions about how or if it would be charged.  Some evidence of what was done and when, appears in the schedule of professional fees contained in the final invoice given by Broadbeach to Mrs Broadley.
  2. [22]
    The final invoice was dated 19 October 2022 (the 2022 invoice).  It was not given to Mrs Broadley until 15 December 2022.  That step was seemingly precipitated by an inquiry sent to Broadbeach by Mrs Broadley’s new solicitors, Piper Alderman.  Mrs Broadley retained Piper Alderman because of her concerns that steps required to be taken under the deed were incomplete.  It was in response to a letter from that firm in December 2022 that the final invoice was given to Mrs Broadley.  Mr Smith said that the bill had previously been prepared but not sent as an administrative oversight.
  3. [23]
    The final invoice shows that modest amounts of professional work was done by Broadbeach from the day after the mediation.  It shows that that work continued, sometimes intensively, sometimes not, right up until 19 October 2022.  The narrative in the schedule appears from the descriptions of the work done to confirm that the work was carried out to give effect to the deed.  The inference is confirmed by two other matters:
    1. There is no suggestion that Broadbeach was involved in any other matter for Mrs Broadley; and
    2. There are frequent references to Mrs Broadley’s accountant, Mr Constantine in the narrative, and it appears uncontentious that he was involved in acting for Mrs Broadley in respect of accounting issues arising from the deed terms. 
  4. [24]
    I find that the work the subject of the final invoice was carried out to give effect to the terms of the deed.  There is no evidence from either party of any specific instructions from Mrs Broadley to carry out that work.  However, I think it right for a Court to assume that work done by a solicitor and claimed for in a bill has been done on instructions, unless the contrary is alleged. 

The Law

  1. [25]
    The LPA relevantly provides:
    1. By s. 333:

Interim bills

  1. A law practice may give a person an interim bill covering part only of the legal services the law practice was retained to provide.
  1. Legal services that are the subject of an interim bill may be assessed under division 7, either at the time of the interim bill or at the time of the final bill, whether or not the interim bill has been previously assessed or paid.
  1. By s. 335:
  1. A client may apply for an assessment of the whole or any part of legal costs.

 … 

  1. A costs application by a client or a third party payer must be made within 12 months after––
  1. the bill was given, or the request for payment was made to the client or the third party payer; or
  1. the costs were paid if neither a bill was given nor a request made.
  1. However, a costs application made out of time, otherwise than by any of the following may be dealt with by a costs assessor or a court if, under the Uniform Civil Procedure Rules, the assessor or the court decides to deal with it after considering the reasons for delay––
  1. a sophisticated client;
  1. a third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned. 
  1. [26]
    No application for an extension of time under s. 335(6) is before the Court.
  2. [27]
    Reading clause 335(5) alone, one might be forgiven for assuming that Mrs Broadley is out of time to apply for assessment of any of the bills apart from the final invoice, the other three having been given more than 12 months prior to the filing of the application on 27 September 2023.  However, that is where s. 333 becomes relevant.  That section contemplates a distinction between an interim bill and a final bill.  Neither is defined in the LPA but two points can be made on a reading of the sections 333 and 335(4) together:
    1. A final bill relates to “the legal services the law practice was retained to provide” and the interim bill to part only of those legal services; and
    2. An interim bill can be assessed more than a year after it is issued so long the final bill was issued less than 12 months before the application for assessment.

Turner v Mitchells Solicitors

  1. [28]
    Section 333 has been authoritatively construed consistent with these textual indicators.  Turner v Mitchells Solicitors [2011] QDC 61 was argued by one of the leaders at the Bar in costs matters and decided by one of the leaders in the Court on costs matters.  It provides considerable assistance in resolution of this case.
  2. [29]
    In Turner, the solicitors had given 44 bills over the period 10 May 2002 to 10 February 2010.  The legal work done over that period covered three areas: the provision of advice in relation to the dispute in question, the making of an application to set aside a default judgment and the conduct of proceedings in QCAT (and partly in its predecessor tribunal).  The 44 bills issued over this period were charged pursuant to a single costs agreement dated 10 May 2002.  Notably, the costs agreement defined the work to be done as “to advise with respect to a building contract dispute, including options and remedies”. Most of the bills were given more than 12 months before the application for assessment.  The question was whether any bill given in that period were able to be assessed without leave under s. 335.  His Honour began by setting out s. 333(1) and observing:

[3] The term “interim bill” is not defined either in s 300 or in the Schedule of the Act, but it seems to me that the terms of subsection 333(1) provided an effective definition: it is a bill covering part only of the legal services the law practice was retained to provide. That contemplates that there was a retainer in place, and that under it the law practice was to provide particular legal services. Obviously the question of what legal services the law practice was retained to provide is a question of fact. The matter may be quite straightforward, or there may be some complexity about it. For example, there may be a costs agreement which contemplates that certain work will be done, but the client may subsequently request the law practice to undertake further legal services. The matter may be defined with considerable precision or very vaguely.

  1. [30]
    After reviewing the circumstances of the various periods in the relationship between the solicitor and the applicant, his Honour turned to a consideration of the concept of a retainer.  He held:

[12] The Act does not define the concept of “retainer”; at common law this was simply the term for a contract for the employment of the solicitor by the client. The concept implies that the retainer will be one to do something, commonly to do something fairly specific. If a client has retained a solicitor, the solicitor becomes the agent of the client and so able to bind the client as against third parties within the limits of his authority. Hence, if a client retains a solicitor to engage in litigation, steps taken by the solicitor in the litigation are treated as taken by the client; but if a client has not retained a solicitor to undertake litigation and the solicitor does do so on behalf of the client, the proceedings will be unauthorised unless subsequently ratified by the party on whose behalf the solicitor was apparently acting. It follows that one way of testing whether there was a retainer to take proceedings against the other party to the dispute is to consider whether the solicitor would have been entitled to commence a proceeding in a court or tribunal without further instructions to that effect from the client.

…

[14] At common law such a retainer was regarded as an entire contract, so that there was no right to remuneration until the particular legal services had been completed. At common law whether a contract was entire was a matter of construction of the contract, so that even a contract which would be prima facie entire could make provision for interim payment of consideration, and it is commonplace for agreements between solicitors and clients to make such provision, at least when those agreements are in writing. For practical purposes, therefore, an interim bill is one that could not be given at common law unless there was an express provision to that effect in the contract of retainer. It follows that it was not necessary for there to be legislation to permit a lawyer to charge an interim bill, that is to say a bill for part only of the legal services the lawyer was retained to provide; that could be achieved by an express agreement to that effect.

  1. [31]
    His Honour then referred to other authorities and issues of construction arising in the LPA and concluded as follows:

[27] In my opinion s 333(2) means what it says: if there is an interim bill, then the legal costs which it covers may be assessed at the time of the interim bill or at the time of the final bill. Accordingly, the client may apply under s 335 for an assessment at either time, and will be subject to the applicable limitation at either time. An application in respect of the legal costs covered only by the interim bill will have to be made within 12 months after that bill was given or request for payment made or the costs were paid, but if the legal costs are to be assessed at the time of the final bill, then the application must be made within 12 months of the final bill. It follows that if an application is made within 12 months of the final bill, the legal cost which may be assessed under s 335(1) include (or at least may include) all of the legal costs subject to any interim bill which was part only of the legal services the law practice was retained to provide, even though those costs are not included in the “final bill”. For practical purposes, the section preserves the rights that would have been available to obtain assessment if the lawyer could only charge on the basis that the retainer was an entire contract. I agree with and follow the reasoning in Retemu Pty Ltd v Ryan, but not the reasoning in Dromana Estate Ltd.

  1. [32]
    Relevant to this application, during analysis of the facts before his Honour he observed:

[28] The applicants deposed to not terminating or breaking the retainer of the respondent after the consent order was made in the Magistrates Court, but this I think is not the point: if there is a retainer to do further work, the issue may be whether it was terminated or broken, but if the work the solicitors have been retained to perform has been completed, the issue is whether there is a retainer to do further work. There is no evidence that after the consent order was obtained in the Magistrates Court there was a retainer to do any further work until February 2004. There is in the letter of 14 April 2004 some discussion of what had happened previously, which is consistent with my analysis, except that it speaks of the retainer being suspended or modified. In a sense, perhaps, that may be appropriate if one uses the term “retainer” in a broader sense of the relationship between the client and the solicitor, but what matters for the purposes of the Legal Profession Act, and particularly s 333, is a retainer to provide legal services. This letter confirms that there were significant periods prior to the letter when there were no legal services that the respondent was retained to provide, and indeed that that was the situation at the time when that letter was written.

[29] There can be a situation where a costs agreement can be entered into to cover particular legal work, and any other legal work which the solicitor is instructed to carry out. If the particular legal work is then completed, and there have been no further instructions, then the legal services the solicitor is retained to provide have been performed. If a bill is sent at that point it is a final bill, and it does not become an interim bill simply because at some later stage further instructions are given for additional legal services to be provided to which the earlier costs agreement also applies. In my opinion it is important to apply s 333 according to its terms, and not by reference to extraneous considerations, such as whether the legal work is undertaken under a single costs agreement or multiple costs agreements. In any case, it may be a nice point whether in the circumstances I have outlined the later instructions to perform additional legal services amount to a variation of the earlier costs agreement, or a new agreement which incorporates the terms of the earlier costs agreement. Section 333 operates by reference to the legal services the law practice is retained to provide. It is possible for the scope of those services to be expanded before the services previously sought have been all provided, in which case the opportunity to deliver a final bill will have been postponed; but if the legal services sought have been provided, the fact that later additional legal services are sought does not in my opinion produce the same result.

[underlining added]

  1. [33]
    It is instructive to observe how his Honour applied his analysis to the facts of that case.  He construed the retainer described under the costs agreement as being to give the advice identified.  He found that a bill for that retainer was given when that advice had been given in May 2002 and at that time there was no further extant instructions.  So his Honour concluded that was a final bill in relation to the retainer to advise described in the costs agreement.  There was no further instructions until June 2003 when the applicant’s gave instructions to set aside the default judgment. That was done and no further instructions were given until February 2004.  His Honour found that this involved a second retainer which ended when that work was completed.  From March 2004, Mitchells acted in the QCAT proceedings, with instructions being terminated before the end of those proceedings.  His Honour found that there was a third retainer on instructions being given to prepare and appear at mediation or trial. 
  2. [34]
    It is important to note the underlined passage from paragraph [29] of the judgment set out above.  As I read the judgment, His Honour’s view is that where a retainer refers to specific legal services as well as such further work as might be instructed, there will be an end to the work a solicitor is retained to provide for the purposes of ss 333 and 335 if the specific work is completed and no further instructions are given before the end of the specific work.  In my opinion, the case provides no authority for the proposition that a break in instructions (or “natural break”) in the performance of a specific retainer (short of a termination of the retainer) means that a bill given at that time is a final bill, even though the specific retainer remains on foot and incomplete. 

Tabtill No 2 v DLA Phillips Fox

  1. [35]
    McGill DCJ’s construction of s. 333 was adopted by Applegarth J in Tabtill No 2 Pty Ltd v DLA Phillips Fox (a firm) [2012] QSC 115.   In that case, Phillips Fox had provided 115 bills over a three-year period in relation to legal work concerned with related disputes between the Creswick family members over the period 2008 to 2011.  The disputes included various separate proceedings.  In March 2012, Tabtill sought assessment of certain of the tax invoices.  There was again a single costs agreement dated 28 February 2008 which described the legal services to be provided as:

I confirm that we will provide legal services in relation to the dispute between John Creswick, William Creswick, Shayne Creswick, and Jayne Creswick and all the other parties to the litigation and their estranged father/father-in-law, Felix Creswick. Legal services include acting in relation to the Supreme Court of Queensland Proceedings No 10963 of 2007 and No 1927 of 2005, and associated disputes between the parties.

If there are any areas which you wish us to cover and which are not detailed above, please let me know as soon as possible.

  1. [36]
    I note that the costs agreement described two specific proceedings in the Supreme Court.  Phillips Fox kept separate files for separate specific litigious instructions.  Most relevant (and costly) was the trial of the Supreme Court proceedings specifically identified in the costs agreement.  The trial finished on 9 November 2009.  Judgment was delivered on 13 September 2010.  Invoices were issued after the end of the trial but only in relation to trial work.  The day after judgment, some 11 months after the end of the trial, Phillips Fox were instructed to act in relation to costs of the trial.  At about the same time they were retained to act in an appeal.  Bills were issued for the legal services provided in relation to the instructions relating to costs and in the appeal.  Tabtill relevantly contended that all the bills for the trial, the costs issue and the appeal were out of time.  Applegarth J considered that turned on when a final bill was given in relation to the legal services the subject of those bills.
  2. [37]
    In addressing this issue, Applegarth J cited with approval the principles articulated in paragraph [27] and [28] of Turner and cited with approval paragraph [29] as quoted above.[1]
  3. [38]
    His Honour also referred to the decision of Chesterman J in Re Lynch and Co Bill of Costs [2000] QSC 3 at [12].  There Chesterman J was concerned with application of s. 9 Legal Practitioners Act 1995 (Qld).  That case was not referred to by McGill DCJ in Turner. It and arose in unusual circumstances.  Chesterman J had referred three bills for taxation.  An appeal from that order referring the bills for taxation ultimately failed.  However, before judgment in the appeal, the applicant proceeded with the taxation.  At taxation, there was more than a 1/6 reduction in two smaller bills and just less than a 1/6 reduction in the third, larger, bill.  The taxing officer sought directions from Chesterman J as to what order for costs should be made in the taxation.  His Honour determined that that question should be resolved by reference to s. 9 (rather than the previous Supreme Court Rule).  Section 9 relevantly provided that if a “bill when taxed be less by a sixth part than the bill delivered” the solicitor whose bill it was should pay the costs of the taxation.[2] 
  4. [39]
    The relevant issue here was stated in [9] as follows:

The next question is how the section should be applied in the particular circumstances. The applicant submits that the bills, though three in form, are one in substance because their contents represent work done in the performance of one, entire, indivisible retainer. On that basis it is said that the respondent could submit only one bill when the retainer had been completed though, by agreement, the applicant might have accepted and paid interim bills. In fact that is what happened but the relevant question is whether, as a matter of law, the bills are several, separate bills or part of the one bill.

  1. [40]
    In addressing that question, Chesterman J made the observations quoted by Applegarth J at [68] as follows:

[10] The principle is explained by Halsbury’s Laws of England, 4th edition, volume 44, par 97:

“The general rule is that when retained by a client a solicitor undertakes to finish the business for which he is retained. Thus, a retainer is, speaking generally, an entire contract … to do certain business, to finish that business, and to be remunerated at the completion of the business … This general rule applies to retainers to conduct or defend ordinary actions .. but it is not an absolute one and yields to special circumstances”.

   It is said in par 170:

“The whole bill of costs need not be delivered at once; there is no objection to a delivery in parts … if there is an entire contract, successive bills which are intended to be separately enforceable may not be delivered unless the client consents, or the matter is completed, or a natural break has occurred …”.

Speaking of the principle Jessel MR said, in Re Hall and Barker [1878] 9 Ch D 538 at 543:

“It has undoubtedly been decided that the retainer of a solicitor at common law to bring an action is a retainer to do one single thing, to bring the action to an end. Actions at common law did not, in former days, occupy a very long time, and were comparatively simple matters.”

[11] Equity maintained its superiority over the common law by the assertion of the Chancery judges that their jurisdiction was complicated, diverse and tended to protraction, thus making it unreasonable to expect a solicitor to bring litigation to a complete finality before an entitlement to deliver a bill arose. Equity therefore developed the principle that distinctly identifiable parts of the retainer would constitute a separate retainer for the purposes of billing and if a “natural break” occurred in the conduct of the litigation a bill could be delivered up to the time of the break. In Hall and Barker the solicitor had been retained to obtain the winding up of an insolvent debtor and then to act for the creditor in the winding up. Obtaining the appointment of the trustee in bankruptcy was held to be a “break” for the purposes of allowing a bill to be delivered. The Master of the Rolls spoke of the performance of a “series of services” each one of which easily identifiable, would justify the delivery of a bill.

[12] The principle was extended by In Re Nelson, Son & Hastings [1885] 30 Ch D 1 which held that the delivery of bills annually in respect of various services provided was not part of a continuous retainer but constituted separate bills which could not be reopened after the expiration of 12 months. The last word on the subject appears to have been expressed in Re Romer & Haslem [1893] 2 QB 286. According to the headnote:

“While a solicitor is retained to conduct litigation, other than an ordinary action at common law, which may extend over a considerable period of time, and in which breaks may occur of such a kind as to be equivalent to the conclusion of a definite and distinct part of the proceedings, he may deliver to his client a bill of costs for business done up to the occurrence of any such breaks in the litigation, and demand payment. Where, however, in the course of the proceedings several bills of costs have been sent in at different times by the solicitor, it is always a question of fact whether they were sent in as final bills for work done up to the occurrence of any such break in the litigation, so as to be separate bills … or whether they were merely statements of accounts or portions of one entire bill, so as to make the whole liable to taxation …”.

  1. [41]
    Applegarth J then concluded that he would follow Turner and also apply the principles in Re Lynch.  His Honour concluded:

[70] This is a situation in which the costs agreement covered certain legal work, namely the work that had been the subject of specific instructions in relation to preparation for trial and representation at trial, and also governed other legal work which the first respondent might be instructed to carry out in relation to the conduct of the nominated proceedings. The particular legal work involving preparation for the trial and appearance at the trial was completed on 9 November 2009. Nothing more was to be performed at that point. There is no suggestion that once the trial concluded existing instructions required further work to be carried out at that stage. Further disputes might have been in contemplation once judgment was delivered. There was at least a break in hostilities, even if no-one expected an outbreak of peace.

[71] To adopt the expression used by Chesterman J, there was a “natural break” in the litigation at the conclusion of the trial. The first respondent had performed the work it was retained to perform in connection with the proceedings. No further instructions were given at that stage in connection with the proceedings. A bill sent at that point in relation to the conduct of the trial was a final bill for the purposes of s 333. The fact that the costs agreement continued to apply does not alter this conclusion and the bill that the first respondent was entitled to deliver upon the conclusion of the trial did not become an interim bill because the costs agreement contemplated that further legal work might be required at some later stage after the break in the proceedings.

[72] I accept the respondents’ submission that as the final bill in respect of the legal services that the first respondent was retained to provide in relation to preparation for and representation at the trial was delivered in 2010, the applicants are time-barred from seeking an assessment of the invoices that are identified as Items 1 to 25, 29, 32 and 37.

  1. [42]
    I respectfully observe that the reasoning in [70] involves application of the approach in Turner, but the reasoning in [71] appears to apply the approach in Re Lynch.  There might be some tension between Turner and Re Lynch. 
  2. [43]
    In my respectful view, Re Lynch is authority for the proposition that there can be a natural break in the performance of legal work, regardless of whether that break occurs during or at the end of the performance of a specific retainer of the kind identified in Turner.  That follows in my respectful opinion from paragraphs [11] and [12] of Re Lynch set out above.  However, as I have noted at paragraph [34] above, such a proposition is inconsistent in my respectful opinion with the construction of ss. 333 and 335 adopted in Turner.  Although McGill DCJ did cite Re Romer & Haslem in footnote 25, he cited it as authority for the specific proposition he stated being that a bill is sent at the end of particular legal work and there are then no further instructions, a final bill is not an interim bill just because subsequently, further instructions are given pursuant to the same costs agreement.  Insofar as Re Lynch does hold that there can be a natural break at a point other than at the end of a specific retainer, I think it inconsistent with Turner.
  3. [44]
    However this may be, I also consider that Justice Applegarth was not relying on Re Lynch in that aspect.  His Honour was adopting the expression natural break as a descriptor of the circumstance when the specific legal services that the solicitor was retainer to provide have been provided and not further instructions are given.  This is in my view communicated by the underlined passage in paragraph [71] of his Honour’s reasons.  

Challen v Golder & Associates

  1. [45]
    The next decision to consider is the Court of Appeal in Challen v Golder Associates Pty Ltd [2012] QCA 307.  That case again concerned the situation where 27 bills were issued over the period 5 July 2006 to 9 December 2010 in respect of a single proceeding which the solicitor had been retained to act in by written costs agreements.  There was further unbilled work up to termination of the retainer on 25 January 2011.  Many of the bills were given more than 12 months before the application for assessment.  The question again was whether those bills were interim or final bills for the purposes of s. 333 and 335(5).  The appeal squarely raised the issue determined in Turner. 
  2. [46]
    Mullins J (as the President was then), with whom McMurdo P and Fraser JA agreed, reviewed the authorities and preferred the approach in Turner as to the construction of those provisions.  Her Honour observed:

[41] There is good reason, as recognised in Retemu and Turner, for conferring the opportunity for the client to have the interim bill assessed after the retainer has ended and the final bill has issued, as that avoids prejudice to the relationship of the client and the solicitor during the course of the retainer. It also enables consideration of the reasonableness of the work that is the subject of the interim bill, the way in which that work was carried out and the costs for that work to be undertaken in  the  context  of  the completed  work  and  the costs  claimed  by  the solicitor for the whole retainer.

  1. [47]
    Her Honour then turned to the question which is contentious in this case: how is the final bill to be identified?  Her Honour held:

[45] The appellant now seeks to characterise each of the bills he rendered as a final bill, on the basis that it applied to a finite period of time in respect of which he was entitled to charge under the costs agreement for the legal services undertaken during the period to which the bill applied. The appellant relies on the terms of the costs agreement to characterise each of the bills as a final bill which was the approach in BC Transit. For the purpose of the application of the LPA, however, it is relevant what the LPA designates as the final bill. As the term “interim bill” is defined in s 333(1) as “covering part only of the legal services the law practice was retained to provide,” the term “final bill” must be the last bill rendered by the law practice for the legal services the law practice was retained to provide. The terms “interim” and “final” are used in s 333 of the LPA to describe the bills in relation to the legal services the subject of the retainer, rather than the costs rendered by the law practice. The relevance of the costs agreement in determining what is the final bill is that it specifies the extent of the retainer.

  1. [48]
    Her Honour then went on to conclude that the last bill delivered prior to termination of the retainer was, in the circumstances, the final bill because no subsequent bill was delivered for over a year.
  2. [49]
    Challen does not directly address the question of whether there can be a final bill in relation to part only of a specific retainer where there is a natural break in the provision of the legal services which the solicitor was retained to provide in respect of a specific retainer set out in a costs agreement.  In my view, however, the underlined passage in paragraph [45] supports the conclusion that there cannot be such a final bill.  As her Honour says, it is the LPA which defines a final bill, and that is the last bill issued for the legal services that the law practice is retained to provide.  There cannot be a last bill where there is a natural break in the performance of those legal services, unless the break amounts to a termination of the retainer to perform those services.

Mishra v Bennett & Philp

  1. [50]
    The next case to consider is Mishra v Bennett & Philp Pty Ltd (2021) 8 QR 306.  In that case Holmes CJ was dealing yet again with the situation where a solicitor was retained to act in a specific Supreme Court proceeding.  The solicitor prepared the matter and appeared and later issued bills for that work.  The last such bill was given on 31 May 2019.  As in Tabtill, there was a break in instructions pending delivery of judgment of some five months later.  Soon after judgment was delivered instructions were given to prepare and appear on the costs issues. That work was done (final order were made on 17 January 2019) and a bill was given for that work much later on 17 October 2019.  
  2. [51]
    Overlapping with that work, instructions were given to act in an appeal on 31 January 2019.  The last invoice for that work was also given on 17 October 2019.
  3. [52]
    As in Tabtill, one issue which arose was whether the 31 May 2019 bill was a final bill under s. 333 LPA or whether the final bill in relation to the work was the 17 October 2019 bill (for work done on costs following delivery of judgment).
  4. [53]
    Her Honour referred to Turner and Challen and then observed:

[17] Judge McGill’s construction of s 333(2) was considered and endorsed by the Court of Appeal in Challen v Golder Associates Pty Ltd. The Court also considered in that case an argument that every bill a solicitor had issued for work undertaken in a proceeding over a number of years was a final bill. In that context, it was said that:

“… the term ‘final bill’ must be the last bill rendered by the law practice for the legal services the law practice was retained to provide.”

That, of course, leads to the question of what were the legal services that the respondent was retained to provide.

[18] In Challen, the observation was made that the costs agreement was relevant in identifying the final bill because it specified the extent of the retainer. At first blush, that would seem in the present case to suggest that one should regard the entirety of the work in the trial division proceeding as the subject of the relevant retainer, since the costs agreement described the work as acting in the proceeding. However, a number of judges sitting at first instance have taken the approach that the existence of a costs agreement containing a broad description of work to be undertaken in a proceeding does not preclude the existence of specific retainers in relation to distinct services to be provided within the larger retainer.

  1. [54]
    Her Honour then referred to Re Lynch, Tabtill and decisions in the Victorian Supreme Court and the Federal Court and concluded:

[22] In the interests of comity, it seems to me that I should accept that instructions to prepare for, and represent clients at, trial may constitute a specific retainer within a larger retainer to act in the proceedings and that a bill given for that work at a natural break in the proceeding, in the absence of further instructions, should be regarded as final. Here, as at 31 May 2018, the specific retainer to prepare for and provide representation at the trial was complete and the respondent had no instructions to perform further work in that regard. Nothing more was required or done until 2 October 2018, when delivery of judgment was imminent. The bill rendered in May 2018 was a final bill.

Subsequent decisions  

  1. [55]
    The approach in Mishra and the other cases cited above was noted in two recent judgments in this Court.[3]  Only Stevens v HopgoodGanim Lawyers (a Firm) is somewhat similar to this case.   There, however, the costs agreement did not identify a specific retainer with a general undertaking to carry out further work to the extent instructed.  Rather Judge Rosengren concluded that it only contained a general retainer, with specific retainers to be entered into if instructions were given.  That is not this case. 

Analysis

What was the specific retainer under the costs agreement?

  1. [56]
    The costs agreement is the starting point for determining the scope of the retainer and whether there is any specific retainer identified.     The directly relevant clauses are 3.1 to 3.6, read with item 3 of the schedule.  Also relevant is clauses 6.6, and 6.7 read with Item 6.  The costs agreement does not provide a simple statement of the scope of the retainer.  It is useful, first, to try accurately to determine the promises made in the costs agreement by Broadbeach, reading the various definitions. 
  2. [57]
    As to the Family Provision Claims:
  1. Broadbeach promised to provide current legal advice on any issue relating to Mrs Broadley’s Family Provision Claims:
  1. At Mrs Broadley’s request; and
  2. Whenever it appeared to Broadbeach that advice would be of assistance;
  1. Broadbeach promised to act for Mrs Broadley, take all necessary action “to achieve her goals” and provide legal services for Mrs Broadley’s Family Provision Claims;
  2. Broadbeach promised to continue to act for Mrs Broadley in matters incidental to her Family Provision Claims until instructions are terminated including, where Mrs Broadley continues to instruct Broadbeach:
  1. Broadbeach promised to act in the appeal on the terms of the costs agreement; and
  2. Broadbeach promised to act in giving effect to or implementing any negotiated settlement.
  1. [58]
    As to other “issues”:
  1. Broadbeach promised to provide current legal advice on any other issue:
  1. At Mrs Broadley’s request; and
  2. Whenever it appeared to Broadbeach that advice would be of assistance;
  1. Broadbeach promised to act for Mrs Broadley and take all necessary action “to achieve her goals” in relation to other issues.
  1. [59]
    Also relevant to construction of the costs agreement are clauses 6.6 and 6.7 read with Item 6.  Read together, those clauses provide that if the “matter” (read the FPA) is litigious it is difficult to estimate fees, but if it proceeds by way of preparing material and proceeding to a mediation, then the estimate “may” be $39,772 but if it proceeds to trial it may be a further $38,828.40. Clause 6.7 is meaningless in relation to the FPA, at least if the work contemplated falls within the scope of the two stages identified, which are litigious.
  2. [60]
    The costs disclosure document can in my view be used to construe the costs agreement.  However for relevant purposes it tracks the promises made in the costs agreement.  It is relevant, however, that it also provides disclosure only for conducting the Family Provision Claims up to mediation then trial.
  3. [61]
    The costs agreement contains a wide array of promises, articulated in somewhat obscure language, even when one tries clearly to state them all.  Thankfully, it seems to me reasonably clear how to articulate the retainer for the purposes of ss. 333 and 335 by analogy with the analysis of the retainer in Turner.
  4. [62]
    Like in that case, the costs agreement undertakes to provide legal services specifically in relation to the Family Provision Claims and also in respect of other “issues” about which Mrs Broadley might choose to instruct Broadbeach. 
  5. [63]
    The next question is the scope of the specific retainer in relation to the Family Provision Claims.  The critical point for this application is whether that specific retainer extended to giving effect to a negotiated settlement.  There is no question that if Broadbeach in fact provided such legal services, it would have been on the terms of the costs agreement.  But as was explained in Turner, that does not mean that the specific retainer includes that extended work.
  6. [64]
    It is arguable that the specific retainer does so extend.
  7. [65]
    First, there is an argument that, without more, the specific retainer in relation to the Family Provision Claims extends to the implementation of a settlement arising from a mediation.  The promises in relation to the services to be provided in relation to the Family Provision Claims are plenary in nature, being to:
    1. To act for Mrs Broadley and provide current legal advice on any issue relating to the FPC; and 
    2. To take all necessary action to achieve Mrs Broadley’s goals for the FPC.
  8. [66]
    Second, such plenary promises must be construed in the context of the fact that it is common knowledge in that area of law that nearly all Family Provision applications end in settlements, many of which require applications to Court for final orders, being orders in the court proceedings.
  9. [67]
    Third, clause 3.5 (applied to the FPA) provides that unless the firm’s instruction are terminated Broadbeach will continue to act in giving effect to or implementing any negotiated settlement.  That plainly covers the work done after the mediation. 
  10. [68]
    However, on balance, I do not think that the specific retainer so extends.  Reading clauses 3.6 and 3.7 together, I think they provide an obligation to provide legal services for an appeal or to give effect to a settlement if instructions are given to do so.  In that sense, the reference to giving effect to settlement is an example of a provision which contemplates an extension to a specific retainer but only if instructed.  Its purpose is to promise to apply the terms of the costs agreement to such further instructions, if provided.  That construction tends to be supported by the costs disclosure statement.  In my view that statement can inform the construction of the retainer in the costs agreement as a document prepared together with and referring to the costs agreement.  It provides estimate for costs up to the end of the mediation.  That is consistent with the construction that the retainer to act in and advise on the FPA extended to the end of the trial or mediation.
  11. [69]
    Construed in that way, the costs agreement creates a specific retainer to advise on and act in the FPA to the end of trial or settlement in mediation, with an extension available on further instruction to act in an appeal or to give effect to a settlement.  

Was the specific retainer extended?

  1. [70]
    In my view, the retainer was extended on two occasions within the scope of the legal services contemplated by the costs agreement.
  2. [71]
    The first extension was the instructions to pursue the probate proceedings.  Although there is no written evidence of those instructions, it is uncontentious that they were given in or about June 2021.  Once given, the costs agreement on its proper construction extended to apply to those legal services on several bases:
    1. The probate proceedings related to the FPA because they related to the question as to whether the Will was the correct baseline against which provision should be measured under s. 41(1); and/or
    2. The probate proceedings was a separate issue within the meaning of clause 3.1.
  3. [72]
    In my view, once those instructions were given, the effect of the costs agreement was that its charging provisions applied to the probate proceedings.  But what of the scope of the specific retainer?  Notably, the variation of the original specific retainer occurred before the completion of the legal services that Broadbeach was retained to provide in the FPA.  Consistent with the approach in Turner, the consequence was that the specific retainer was extended to include the probate proceedings.  At that point, the scope of the retainer to which s. 333 fell to be applied included acting in both the FPA and the probate proceedings.
  4. [73]
    The more contentious question is the effect of the instructions to give effect to the settlement terms encapsulated in the deed.  This is the area of real contention between the parties on the application.
  5. [74]
    The applicant contends that the instructions to give effect to the settlement was part of the legal services Broadbeach was retained to provide.  The applicant submits that the instructions to give effect to the settlement were given as part of a continuation of the existing retainer with no natural break.  The respondent contends that the end of the mediation represented a natural break in the instructions such that the bill to that point was the final bill in respect of the retainer to act in the FPA.
  6. [75]
    The starting point for analysis is the scope of the specific retainer.  Applying Turner, the specific retainer will be extended to include further instructions where those instructions overlap with the provision of the legal services under the existing retainer.  That requires a factual finding.  There is no direct evidence of when and in what form the instructions were provided to Broadbeach to give effect to the settlement.  However, to my mind the more likely position is that some such instructions were given on the day of the mediation itself.  
  7. [76]
    The last bill records work being done to give effect to the settlement prior to 10.30am on 7 October 2021 (a Thursday).  The deed was signed on 6 October 2021.  We know from Mrs Broadley that the mediation ended very late and that she was tired.  In the absence of evidence to the contrary, it is correct to infer that that work was done early the day after the mediation because instructions had been given to do it.  The far more likely inference is that those instructions were given at some stage on 6 October 2021, probably when the mediation terms were being finalised and the kind of work required to give effect to them became clear.  The alternative, that Mrs Broadley gave instructions promptly the next morning, seems less likely given her evidence (which I find credible and reliable) that she found the mediation very tiring and stressful.
  8. [77]
    If instructions were given on 6 October 2021, then the specific retainer was extended again to include giving effect to the terms of the settlement as contemplated by clauses 3.5 and 3.6 of the costs agreement and was extended before the end of the extant specific retainer to act in the FPA and probate proceedings.  On the best case for Broadbeach, that retainer did not end until after the mediation agreement was executed.
  9. [78]
    But I do not think it would make any difference if the instructions were not given until the next day for two reasons. 
    1. First, the costs agreement does specifically contemplate instructions being given to give effect to a settlement of the FPA.  In those circumstances, it seems to me an unlikely construction of the costs agreement that the specific retainer would be at an end where instructions are given the day after the mediation, not on that day. 
    2. Second, technically the specific retainer to act in the FPA and the probate proceedings was not at an end in any event because the deed in clauses 1 and 2 contained obligations on Mrs Broadley which were part of the conduct of those proceedings i.e. filing of notices of discontinuance.
  10. [79]
    The result is that the specific retainer was extended to include giving effect to the deed prior to the work under that retainer being completed or so soon after as to effectively extend the specific retainer in that manner.  Adopting the approach in Turner, that had the result that the legal services that Broadbeach were retained to provide for the purposes of s. 333 LPA comprise the services in relation to the FPA, the probate proceedings and giving effect to settlement of both proceedings. 

The last bill was the final bill

  1. [80]
    The result is that the last bill was the final bill in respect of that retainer, and the earlier bills were interim bills.  Applying the approach to construction of ss 333 and 335 approved by Mullins J in Challen, the applicant therefore brought this application to assess all four bills within the time allowed under s. 335(6).
  2. [81]
    It remains directly to consider a submission made by Ms Chen for the respondent. She submitted that there was a natural break at the end of the mediation.  She recognised that there was an immediate continuation of work by Broadbeach.  However, she contended, based on Tabtill, that a natural break does not require a temporal break in the work the solicitor was retained to provide.  It can also arise on the solicitor reaching the end of a stage of the work which is in substance a break in the performance of the kind, nature or content of the work the solicitor was retained to provide. 
  3. [82]
    As I apprehend it, she submitted that even if there was a continuation of instructions which extended the initial specific scope of the work Broadbeach was retained to provide, there was a natural break in the work under that extended scope because on completion of the mediation, in that the litigious stage of the work was complete and that comprised a natural break.
  4. [83]
    I do not accept Ms Chen’s submission. 
  5. [84]
    First, I do not consider it is correct that there can be a natural break in circumstances where a solicitor is given continuing instructions which fall within the scope of the specific retainer or which involve the extension of the scope of that retainer.  While that proposition is supported by Re Lynch, I do not think it is supported by Turner, I think it is inconsistent with Challen, and is inconsistent with ss. 333 and 335 LPA on their proper construction.   Indeed to construe the statute as permitting a bill to be the final bill nothwithstanding it is not rendered at the end of the specific retainer would undermine the public policy reasons for construing the s. 333 as it has been construed in Challen and Turner, in that it would require the client to try to determine the reasonableness of costs of part of the work without knowing what would ultimately be charged by the solicitor for the legal services the solicitor was retained to provide: see the passage from Challen at [46] above.
  6. [85]
    Second, I do not consider that Tabtill or Mishra provide authority to support Ms Chen’s submission that there can be a natural break despite the continuation of instructions contemporaneous with the end of the work done under a specific retainer.  On the facts of both cases, there had been a relatively long temporal break: nearly 11 months in the former and 5 months in the latter.  Those periods of delay featured in the reasoning of the learned trial judges in each case. Further, in each case the delay came at the end of the trial.  In both cases, it was possible properly to conclude that a specific retainer had been performed and that no further instructions had been provided.  So much is expressly stated by Applegarth J as explained in [44] above and by Chief Justice Holmes in paragraph [22] of her Honour’s judgment cited in paragraph [54] above.  
  7. [86]
    The identification of a specific retainer will vary from case to case.  It will depend on the terms and factual context of each costs agreement or other retainer agreement or arrangement.  What is clear from the authorities in my respectful view is that where there is a costs agreement of the kind in this case (with a specific retainer and provision for further instructions on the terms of the agreement), where  there is continuity in instructions within the scope of the initial specific retainer, or instructions given varying of the scope of that initial specific retainer without any material period of cessation of instructions, then the last bill given for that extended or varied work will be the final bill for the purposes of the LPA in respect of the whole of the work.  That is what occurred in this case.
  8. [87]
    Accordingly, I make orders in terms of paragraphs one to four of the application.  I will hear the parties as to costs and any other necessary orders to facilitate the assessment.      

Footnotes

[1] Tabtil No 2 Pty Ltd v DLA Phillips Fox (a firm) [2012] QSC 115 [66]–[67].

[2] Re Lynch & Co Bill of Costs [2000] QSC 3 [3].

[3] Seymour v WJ Markwell & Associates [2023] QDC 112; Stevens v HopgoodGanim Lawyers (a Firm) [2023] QDC 96. 

Close

Editorial Notes

  • Published Case Name:

    Broadley v Broadbeach Law Group Pty Ltd

  • Shortened Case Name:

    Broadley v Broadbeach Law Group Pty Ltd

  • MNC:

    [2023] QDC 236

  • Court:

    QDC

  • Judge(s):

    Porter KC DCJ

  • Date:

    14 Dec 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Challen v Golder Associates Pty Ltd [2012] QCA 307
2 citations
Jump To
Cite 1 - [2012] QCA 307
Cite 2 - [2012] QCA 307
Hall v Barker (1878) 9 Ch D 538
1 citation
Jump To
Cite 1 - (1878) 9 Ch D 538
Mishra v Bennett & Philp Pty Ltd(2021) 8 QR 306; [2021] QSC 158
2 citations
Jump To
Cite 1 - (2021) 8 QR 306
Cite 2 - (2021) 8 QR 306
Re Lynch & Co Bill of Costs [2000] QSC 3
3 citations
Jump To
Cite 1 - [2000] QSC 3
Cite 2 - [2000] QSC 3
Cite 3 - [2000] QSC 3
Re Nelson, Son & Hastings (1885) 30 Ch D 1
1 citation
Jump To
Cite 1 - (1885) 30 Ch D 1
Re Romer & Haslam (1893) 2 QB 286
1 citation
Jump To
Cite 1 - (1893) 2 QB 286
Seymour v WJ Markwell & Associates [2023] QDC 112
2 citations
Jump To
Cite 1 - [2023] QDC 112
Cite 2 - [2023] QDC 112
Stevens v HopgoodGanim Lawyers [2023] QDC 96
2 citations
Jump To
Cite 1 - [2023] QDC 96
Cite 2 - [2023] QDC 96
Tabtill No 2 Pty Ltd v DLA Phillips Fox (a firm) [2012] QSC 115
3 citations
Jump To
Cite 1 - [2012] QSC 115
Cite 2 - [2012] QSC 115
Cite 3 - [2012] QSC 115
Turner v Mitchells Solicitors [2011] QDC 61
2 citations
Jump To
Cite 1 - [2011] QDC 61
Cite 2 - [2011] QDC 61

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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