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- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
Wallace v Byres  QSC 391
BYRES, Martin David
SC No 1015 of 2020
Supreme Court at Townsville
15 December 2020
15 December 2020
PROCEDURE – COSTS – ASSESSMENT OF COSTS – ITEMISED BILL – where the applicant was in dispute and in related litigation with a bank – where applicant was obligated to pay the bank all costs, charges and expenses incurred in connection with enforcement of the bank’s rights – where the applicant seeks an order that the respondent produce an itemised bill of legal fees to enable a costs assessment to be undertaken – where the applicant submits that the respondent has not complied with the act in not providing an itemised bill within 28 days of the applicant’s request – where the respondent submits that first the respondent is not a law practice within the meaning of the act, that second the act did not give the applicant a right to the remedy of an order for the provision of an itemised bill as submitted by the applicant and that third the applicant would in any event be out of time to apply for the appropriate relief under the act and substantial delay in making a request remains unexplained – whether the applicant as a third party payer within the act was entitled to an itemised bill as requested from the respondent
Legal Profession Act 2007 (Qld), s 329, s 300, s 332, s 335
G Skelton (solicitor) for the applicant
D Chesterman for the respondent
Allaw Lawyers for the applicant
Corrs Chambers Westgarth for the respondent
- NORTH J: The applicant seeks an order that the respondent produce an itemised account of legal fees claimed against the applicant over the period 2012 to 2020. It’s said to be mandated by section 332 of the Legal Profession Act 2007 (the Act), (see relevantly the originating application filed 15 October 2020). In his outline of argument (exhibit1), the itemised account for legal work was specified for the period between 1 August 2011 to 30 June 2015 relating to legal work on matters “between the applicant and the respondent’s Rural Bank client”, the application being brought under section 332 of the Act.
- In the context of the application and the submissions, I understand the application to be for an “itemised bill” within the meaning of that term (see the definition at section 300) as used in section 332 and related sections of the Act. This order was sought so that, ultimately, a costs assessment could be undertaken (see the outline, exhibit 1, at paragraph 1) under section 335 of the Act. It is plain from the affidavits and outlines (exhibits 1 and 2) that for a number of years, commencing in or about 2011 and up to at least mid to late 2015, the applicant was in dispute with a then Rural Bank Limited which involved the appointment of receivers and in related litigation between the two. In fact, there are references in the materials to circumstances that suggest litigation has been ongoing and is much more recent than 2015.
- As I understood the affidavits, under the terms of certain loan facilities between the bank as lender and the applicant as borrower, the applicant was obliged to pay the bank all costs, charges and expenses incurred, inter alia in connection with the enforcement of its rights (see the respondent’s affidavit at paragraphs 16 and 17 where the actual provisions are quoted more accurately).
- According to the respondent, during a period from 1 April 2012 to 31 March 2015, some $430,566.71 in legal fees were charged to the bank by its solicitors. The bank paid the solicitor’s accounts. In turn, the legal fees and costs were debited by the bank to the applicant’s accounts (see paragraphs 52 and 54 of the respondent’s affidavit).
- In submissions, the solicitor for the applicant was inclined to dispute the respondent’s evidence of the amounts charged by legal fees, costs and expenses which was on-charged by the bank to its customer, the applicant. He contended that the total charge was $441,448.78 from April 2012 to April 2015 (see paragraph 10 of the applicant’s affidavit).
- For the purposes of this application I do not have to decide this inconsistency. There may well be a simple explanation, but for now nothing turns on the resolution of this issue in the context of the application and orders sought. But I shall address one issue agitated by the applicant’s solicitor. In submissions, he contended that the source documents for the detail table in paragraph 10 of his client’s affidavit, being the bank’s ledger report (exhibit CW1) and the bank’s reconciliation report (exhibit CW2), demonstrated that Corrs Chambers Westgarth was charging his client for legal work done for the bank.
- That is not how I read these documents. The respondent’s unchallenged evidence (refer again to paragraphs 51 to 54, inclusive) establishes to my satisfaction that the charges were made by the bank to the applicant for legal fees and costs incurred by the bank and paid by the bank to the solicitors. Relevantly, the applicant did not pay the bank’s solicitors nor have I been pointed to any document or agreement obliging the applicant to pay Corrs Chambers Westgarth for work done by it for the bank.
- On behalf of the applicant the entitlement to an itemised bill, it was submitted, arose under section 332 of the Act on the basis that the applicant, being a “third party payer” (within section 301 of the Act) was entitled to itemised bills from the respondent.
- On behalf of the respondent, Mr Chesterman of counsel disputed the applicant’s entitlement to an order. The first basis is that the respondent is not a proper respondent to an application under section 332 (assuming such an application is competent). The respondent is a solicitor employed by Corrs Chambers Westgarth. His background and experience is sworn to in his affidavit. He is not and has not been a partner of Corrs Chambers Westgarth. He is not a “law practice” within the meaning of that term used in section 332. He does not come within the definition of the term found in schedule 2 of the Act. The “request” section 332 (1) speaks of, to give an itemised bill, is made of “a law practice” not an employed solicitor.
- When confronted with this submission at the hearing the applicant’s solicitor sought an adjournment to prepare and file an amended proceeding, joining the firm of solicitors as a respondent. I reserved the application. As I said at the hearing, providing any prejudice occasioned by an amendment could be addressed by any reasonable adjournment and possibly payment of costs. I would be minded to give leave and make appropriate orders. But if the amendment would be futile because of some fundamental defect in the application, then the discretionary considerations might suggest that the application not be allowed.
- The second ground of opposition was that section 332, both on its terms and in the context of the act, did not give the applicant a right to the remedy of an order for the provision of an itemised bill. The submission was that section 329 prohibited, relevantly, a law practice from starting proceedings to recover legal costs until 30 days after the giving of a bill under section 300. Relevantly, section 300(1) provided that a bill may be in the form of a lump sum or an itemised bill. It is in this context that if the bill given is a lump sum bill, then under section 332(1), any person entitled to apply for assessment of legal costs (see section 335) may request the legal practice to give an itemised bill. If that request is made within 30 days after receiving a lump sum bill, then section 332(5) provides that legal proceedings to recover the legal costs must not be commenced until 30 days after the itemised bill is given.
- The combined effect of section 329, section 330 and section 332 is to prevent the commencement of proceedings to recover legal costs until at least 30 days after a bill has been given, and in the case of a lump sum bill, following a request duly made, the provision of an itemised bill and the passing of 30 days. Thus, the commencement of proceedings is controlled by the Act. A right to an itemised bill is not mandated by the Act.
- The respondent correctly pointed to section 332(1) and the opening clause, conditional upon the giving of a lump sum bill, and submitted that the entitlement to request an itemised bill was predicated upon the occurrence of that condition. In this context the respondent correctly submitted that there was no evidence of a lump sum bill having been given at any time. The respondent’s second basis for opposing the application should be upheld.
- The third ground can be briefly stated. Pointing to paragraph 1 of the applicant’s outline (exhibit 1), and to the statement of intent to permit a cost assessment to be undertaken (relevantly see section 335 of the Act), the respondent submitted that as the evidence pointed to the charging of costs between 2011 and 2015, the applicant should have addressed the reasons for delay section 335(6) speaks of. Whether an explanation for delay under section 335(6) is a prerequisite for an order under section 332 for delivery of an itemised bill (assuming section 332 contemplates such orders) may be doubted, but I do not have to decide that discrete point.
- The respondent has persuaded me that the application is unsupported by the Act, and for that reason the amendment to the proceedings to add the firm of solicitors as a respondent is futile. The application should be dismissed. I shall hear submissions as to costs.
- Published Case Name:
Wallace v Byres
- Shortened Case Name:
Wallace v Byres
 QSC 391
15 Dec 2020
- White Star Case: