Supreme Court Scale Not Available Simply Because There Is No Costs Agreement

In Marbesa Pty Ltd ACN 633 655 213 t/as Queensland Business and Property Lawyers v Renshaw [2026] QMC 19 Magistrate Hay held that the claim for costs fees claimed at a relevant scale in the absence of a cost’s agreement does not automatically justify assessment on a particular court scale. The matter was referred to the Court under r743G(2)(D) (Directions hearing) of the UCPR. However, a Costs Assessor may also refer the matter for the Court under r717 Issue or question arising.

The applicant accepted that there had been no costs agreement and no disclosure as required by the Legal Profession Act 2007 (Qld). Consequently, the statutory regime in ss 316 and 319 applies. The client's liability for costs had not arisen and the costs could only be recovered following assessment.

The Respondent attempted to abandon its original invoices and substitute an itemised costs statement prepared on the Supreme Court scale.

Magistrate Hay held that the applicant had failed to establish any basis for assessment on the Supreme Court scale. The Court found that the assessment should proceed under s319(1)(c), which provides for recovery according to the fair and reasonable value of the legal services provided where there is no enforceable basis for recovery under a cost’s agreement.

Magistrate Hay examined the retainer and the work performed rather than the form of the later costs statement. The work concerned shareholder disputes, access to company records, employment documentation and shareholder arrangements. The Court found there was no demonstrated need to commence proceedings, nor any sufficient basis to treat the work as warranting assessment on a Supreme Court scale. A shareholder’s agreement already existed, information sought by the client was substantially provided, and the agreement contained a dispute resolution mechanism.

The decision is consistent with the structure of the Act. Once disclosure obligations are not met, the focus shifts to ss319 and 341. The question becomes what constitutes the fair and reasonable value of the legal services provided. It is not an exercise in identifying the highest available scale or retrospectively reconstructing the retainer on a different footing.

This decision provides notes that that scale costs is not a default position where there is no Costs Agreement or there is a failure of disclosure obligations. A scale must be supported by the retainer, the nature of the work performed and the applicable statutory framework. Absent such a foundation, assessment will proceed on the basis contemplated by s 319(1)(c), namely the fair and reasonable value of the services supplied.

The matter was ultimately referred to the costs assessor with directions that the original invoices, rather than the subsequently prepared Supreme Court scale costs statement, form the basis of the assessment. The applicant was also ordered to pay the costs of the assessment pursuant to s342(2)(b) of the Act.

Under s319 of the LPA fees are recoverable (a)under a costs agreement made under division 5 or the corresponding provisions of a corresponding law; or (b)if paragraph (a) does not apply—under the applicable scale of costs; or (c)if neither paragraph (a) nor (b) applies—according to the fair and reasonable value of the legal services provided.

It may be open for the Costs Assessor to determine whether the Costs are to be assessed at the Supreme Court Scale. However, that is at the discretion of the Costs Assessor. It is noted that the client provided instructions to access to the information and accounts, draft employment contracts for the employees and draft a shareholders’ agreement for the shareholders of a company. As these matters fall within the jurisdiction of the Federal Court it may be open for the Costs Assessor to determine that the costs are to be assessed per the Federal Court Scale of Costs which is a more generous scale than the Supreme Court.