Solicitor acting in person not allowed to recover costs but can as instructed by incorporated entity

Equititrust Limited(Receivers and Managers Appointed) (In Liquidation) v Tucker & ors [ 2019] QSC308

This matter is the first consideration of the of the recent high court decision in Bell Lawyers Pty Ltd v Pentelow(2019) 93 ALJR 1007; [2019] HCA 29 (Pentelow) where it was held that a Solicitor acting for oneself cannot claim costs of the proceedings. The matter involved a review of the Costs Assessors decisions in respect to Costs of the Application noting that the First Defendant and Solicitor was a defendant and was also acting as Solicitor for the Second to Sixth Defendants and as trustee/director.

It was noted Mr Tucker a Solicitor appears for all of the Defendant’s on the hearing of the Applications. The Defendants/Respondent submitted that Pentelow had no bearing in respect to the proceedings and instead relied upon s15 of the Civil Proceedings Act 2011. It is noted that there was a valid Costs Agreement between the Second to Sixth Defendants and David Tucker Solicitors to provide legal services to the Defendant’s/ Respondents. It was also submitted that the Uniform Civil Procedure Rules 1999 do not mention that a Solicitor acting for themselves can not recover costs.

It is noted that the Costs Assessor stated that in his reasons “The High Court simply abolished a common law rule, being the Chorley exception. The High Court did not deal with the Queensland legislation, which does not disentitle a duly admitted practitioner from the right to recover legal costs when the Costs Assessor allowed the Costs of the Assessment”. [15] His Honour held that this was an error of law. [16]

Bradley J determined that the statutory provisions in the Civil Proceedings Act and the Legal Profession Act do not alter the common law position that a Solicitor acting for themselves cannot recover costs[20].

The Plaintiff/Applicant submitted that the apportionment of between Mr Tucker personally and that on behalf of the Second Defendant should be to the extent that recovery should be 5% of the Solicitors attendances [26]. In response the Defendant’s/ Respondents relied on a clause in the Costs Agreement where the Respondent’s are jointly and severally liable for all costs incurred on behalf the First Defendant.[31] However His Honour determined that this is a question for the Respondents and has no relevance to the Costs Order and as such is not an interparties cost [32].

As this was a review of the Costs Assessors decision, His Honour effectively referred the question as to the apportionment of the costs claimed as between Mr Tucker as First Defendant and as Solicitor for the Second to Sixth Defendant’s back to the Costs Assessor. His Honour confirmed that Mr Tucker Solicitor as First Defendant could not recover personally.