Marminta Pty Ltd v Robert Harris Co
[2006] QSC 273
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- Marminta Pty Ltd v Robert Harris Co[2006] QSC 273
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Marminta Pty Ltd v Robert Harris Co[2006] QSC 273
Marminta Pty Ltd v Robert Harris Co[2006] QSC 273
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
FRYBERG J
No 7559 of 2006
MARMINTA PTY LTD (ACN 060 701 626), QUEENSLAND PREMIER MINES PTY LTD (ACN 010 614 552) and CASELGO PTY LTD (ACN 010 885 613) |
Applicants |
and | |
ROBERT HARRIS CO (a firm) | Respondent |
BRISBANE
DATE 22/09/2006
ORDER
HIS HONOUR: This is an application by three clients being companies which are connected for a declaration that no client agreement within the meaning of the Queensland Law Society Act 1952 exists between the applicants and the respondent and for an order that the respondent deliver a costs statement for work carried out. The respondent accepts that it must deliver a costs statement and is willing to do so. The question is whether or not there is a client agreement sufficient to satisfy the requirements of Part 4A of the Act.
The solicitor seeks to find the client agreement in two letters. One is a letter dated 2 June 2003 from the solicitor to the client. The other is a response by the client to that letter. The former letter sets out a number of items of work done and to be done and in relation to some of them sets out lump sum charges and sometimes rates. It demands payment of the total of the amount set out by a date less than two months in the future and boldly - that is to say in bold type - asserts that under no circumstances could the deadline be extended.
The clients' response accepts that there had been an oral agreement for all work to be charged on the time basis at $250 per hour plus normal outgoings but disputes a number of the items in the solicitor's letter. On the other hand it also accepts some of the items. The applicants submit that the agreement, at least in some respects, does not comply with section 48 of the Act in that it does not specify a lump sum amount or the basis on which fees and costs will be calculated, at least in respect of some items, and further and alternatively that it is inconsistent with the notice in the schedule to the Act in a number of ways.
First, they submit that it is inconsistent by reason of the omission of 23 of the 29 items in the schedule; second, that there is an inconsistency in the demand between the demand for payment and the requirement in Item 3 that the notice specify a right to negotiate; third, that the specification in the solicitor's letter to the extent that it has been accepted by the clients or in the clients' letter to the extent that it has been accepted by conduct of the rates does not comply with item 11 in the schedule and, finally, that the reference to recoverable costs in the solicitor's letter does not comply with Item 18 in the schedule.
It seems to me that the three inconsistencies specifically identified by the applicants are made out. I do not think that the references identified by the solicitors are sufficient to prevent the existence of inconsistencies between the respective items, 3, 11 and 18, and so much of the solicitor's letter as can be characterised as being an agreement by reference to the client's letter or the client's letter as can be characterised as an agreement by reference to subsequent conduct.
In addition it seems to me that there is a non-compliance with section 48 subsection (3) in some respects and I identify particularly the references in both letters to Item (a). It is therefore unnecessary for me to decide whether the omission of 23 of 29 items renders the letters inconsistent with the notice in the schedule. That is a question which may better be answered on a more specific basis than has been argued before me.
I would also add that it is unsatisfactory for solicitors, after the event, to go back to correspondence which was plainly not written with section 48 in mind and try to spell out of that correspondence a section 48 agreement. The need for such agreements is by now, and was in 2003, well known and it is regrettable that specific attention was not paid to that.
For the clients, Mr Peden also submitted that there was a failure to comply with the specifications of section 48 by reason of a failure to make the agreement within a reasonable time and by reason of the practitioner's failure to give the notice required under subsection (4).
As to the first of those points, the submission is inconsistent with the decision in Jezer Construction Group Proprietary Limited and others v. Conomos [2004] QSC 440.
In that case I held that while failure to sign an agreement within a reasonable time may put a solicitor in breach of the requirements of section 48(2), it did not produce the result that the client agreement did not comply with the section.
I adhere to what I there decided. It seems to me that the same reasoning applies in relation to subsection (4) which is another action which must be performed by the practioner but not something which goes to the question of whether the agreement is or is not inconsistent with the notice in the schedule or whether the client agreement fails to comply with the section, within the meaning of section 48F(1).
Mr Peden submitted that this view was inconsistent with what was said by the Court of Appeal in Casey v. Quabba [2006] QCA 187. I recognise that there is an obiter dictum in the second last sentence of paragraph 15 of that judgment, with which that conclusion is inconsistent.
However, it is quite plain that in that case the Court of Appeal was not considering whether the steps under sections 48(2) and (4) rendered the agreement a non-complying agreement.
The matter was obiter not only in the technical sense but plainly in the sense that it was neither argued nor a matter which would have attracted attention from the members of the Court. That is because in the Court of Appeal it was unchallenged that the agreement in question did not comply with the provisions of the statute.
For that reason, I would not be prepared to make findings in the applicant's favour on that basis. However, given my earlier findings, it follows, in my judgment, that there should be a declaration as sought in paragraph 1 of the application.
I note that it was not argued that the correspondence could not amount to a written agreement within the meaning of the section.
...
HIS HONOUR: I will make an order that it be done by the 13th of December, whatever day of the week that is, and perhaps that will be an extra incentive for the assessor and costs on the indemnity basis.