Invoice after “Final hearing” (trial) is “natural break” for the purposes of s335 of LPA

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

PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – TAXATION AND ASSESSMENT OF COSTS – APPLICATIONS – where the applicant 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 her by the respondent, her former solicitor, in respect of a family law matter – where s 335(5) of the Act requires that an application for an assessment of costs be made within 12 months after the final bill was given to the client – where the respondent held a general retainer to act in the proceedings – where the respondent delivered its last bill in respect of its preparation for and representation of the applicant in the family law matter on 31 August 2021 – where the judgment for the trial was delivered some six weeks later and further work was undertaken, including giving effect to the orders – where this application for an assessment of costs was filed on 22 December 2022 – where the respondent contends that the applicant is out of time to seek an assessment of those costs which are the subject of 31 invoices issued between 6 September 2018 and 31 August 2021 – whether the conclusion of the trial hearing represented a ‘natural break’ in the proceedings meaning that the bill delivered on 31 August 2021 was a final bill – whether, if the applicant is out of time, the court should exercise the 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 to the Court pursuant to rule 335 (5) of the Legal Profession Act (QLD) 2007 (the Act) for an assessment of various invoices rendered on the Applicant by the Plaintiff between September 2018 and February 2022. The Respondent conceded that invoices rendered on the Applicant between October 2021 and February 2022 were able to the be assessed. However, disputed that that the invoices rendered before this date were not able to the assessed as the invoice dated August 2021 was the “final Bill”.

The evidence indicates three distinct matters:

1. Filed No 1811447 in respect to Estate Planning advice upon which a Costs Agreement was signed. The

invoice dated March 2019 rendered in respect to same.

2. File No. 1810175 in respect to a Family Law matter upon which a Costs Agreement was signed dated 12

April 2019. Invoices between April 2019 and August 2021 was in respect to this matter.

3. File No. 2194033 in respect to enforcing Judgment and attending on property transfers in respect to

same. The invoices related to this was between September 2021 and February 2022. No new Costs

Agreement was entered into.

In respect to File No. 1810175 the Family Law matter Rosengren DCJ accepted that the Law Firm acted for the client including various instructions relating to same. Importance was placed when the matter went to a final hearing of the matter and the wait for the Judgment following same and on the various tasks incidental to settling orders and complying with the Directions. Her Honour accepted that instructions regarding the Family Court proceedings effectively ended in August 2021.

Her Honour referred to Re Lynch and Co Bill of Cost [2000] QSC 3 at [12] and Turner v Mitchells Solicitors [2011] QDC 61 which considered that that invoices related to the same matter constitute an interim bill until instructions are not forthcoming in relation to the matter that a Costs Agreement refers to. Her Honour also referred to “Tabtill No. 2 Pty Ltd & Ors v DLA Phillips Fox (a firm) [2012] QSC 115 and Mishra v Bennett and Philp Pty Ltd [2021] QSC 158 there was a “natural break” in the matter from when the Trial was concluded and the wait for Judgment when instructions on Submissions as to costs were made. It was noted that similar to “Tabtill” the firm acted in accordance with standard procedures opened a separate file for the enforcing the Judgment and related matters.

Her Honour noted that a Costs Agreement is applicable to discreet legal services in a matter, and that bill does not become an interim bill notwithstanding further instructions might be contemplated. [32] It was noted that the Costs Agreement was not amended, nor was there a new Costs Agreement entered into post-trial. Her Honour accepted the Respondent’s evidence that it was not necessarily a fait accompli that the Applicant would provide further instructions on post hearing work. [33] Also noted was that there were various instructions for various stages of the Family Court litigation, notwithstanding that the matter was operating under the same Costs Agreement including work to enforce the Judgment. [34]

The Applicant also submitted that she was not no advised of the 12-month timeline to apply to the court for an assessment of the invoices. Her Honour rejected these arguments noting same was included in the Costs Disclosure and on the Invoices rendered on her. [36]

The Applicant submitted that the legal services ended in February 2022 noting the broad description in the Costs Agreement contemplating Appeals to the Full Court and the High Court. Her Honour rejected that this proposition as it would be commercially unreal and contrary to the act to encourage reviews of the interim and final invoices within 12 months of the final bill. [38]

Extension of time

The Applicant applied to the Court for under s335(6) of the Act. The Applicant submitted that the reason she did not apply for a review was that she did not want to unduly prejudice her representation; that the she did not have the resources to challenge the costs noting her financial commitments considering the Family Law Proceedings; that related litigation unduly distracted her; and that there was an absence of any file notes in the file provided to make a decision as to proceed with the Assessment.

Her Honour referred to the discounts the Respondent offered regarding costs queries when dismissing that any dispute over costs would unduly prejudice her representation; that the Applicant’s father assisted the Respondent in respect to paying legal fees; that the Divorce Proceedings were relatively simple as compared to the related litigation; [44] and that the Respondent was provided with itemised invoices with sufficient detail to ascertain whether to seek a costs assessment.

Accordingly, Her Honour ordered that the last four Invoices from October 2021 to February 2022 (File No. 2194033) be assessed.