Application for Costs Assessment allowed after determination as to interim or final bills

Seymour & Anor v WJ Markwell & Associates [2023] QDC 112

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – TAXATION AND ASSESSMENT OF

COSTS – APPLICATIONS – where the applicants applied pursuant to s 335(1) of the Legal Profession Act 2007 for an assessment of costs charged in a number of bills delivered to them by the first respondent for proceedings – where s 335(5) of the Act requires that an application for assessment of costs be made within 12 months after the final bill was given to the client – where the first respondent contends that the applicant is out of time to seek an assessment of those costs – whether, if the applicant is out of time, the court should exercise the 2 discretion conferred on it by s 335(6) of the Act in deciding to deal with the application for assessment of costs

The Applicant applied for an assessment of the Respondent’s and Applicant’s Barristers invoices and for the appointment of Glen Walter as Costs Assessor. The Respondent and the Barrister rendered on the Respondent Invoices in respect to litigation upon which the Applicant was unsuccessful.

Final or interim Invoices.

Jarro DCJ considered Turner v Mitchells Solicitors [2011] QDC 61, Challen v Golder Associates Pty Ltd [2012] QCA 307, Mishra v Bennett & Philp Pty Ltd (2021) 8 QR 306 and Stevens v HopgoodGanim Lawyers (a Firm) [2023] QDC 96 and Law of Costs’, when considering whether the final bill rendered on the Applicant were within the 12 months under s335 (1) .

His Honour determined that bills were able to be assessed as the “final bill” was within the 12 months for the purpose of s335(5). His Honour determined that there was not a “natural Break” as in Challan (at [41]) accordingly all the invoices were interim bills. However, His Honour did not state the reasons why he came to this conclusion. It is noted that Stevens came to a different conclusion on similar facts.

Assessment of Barristers fees.

Following the determination that the Respondent’s invoices are to be assessed His Honour followed Cupo & Anor v Anderssen Lawyers [2015] QSC 202(at [44]-[46]) when holding that Barristers fees can be assessed. [19]

Cost Assessor

The Applicant initially applied for the appointment of Glen Walter as Costs Assessor, however consented to the Respondent’s preference of Paul Cameron at the hearing. [30] His Honour followed Lessbrook Pty Ltd (in liq) v Whap [2014] QCA 63 when determining that Mr Cameron’s hourly rate was cheaper, was available and had the necessary skill and experience to undertake the assessment. [31]