Hughes v Geraldine Daley trading as Colin Daley Quinn, Solicitors And Barristers [2013] NSWSC 806

Hughes v Geraldine Daley trading as Colin Daley Quinn, Solicitors And Barristers [2013] NSWSC 806

The appeal was competent as it attacked a preliminary decision on a matter of law. Clause 11 of the Motor Accidents Compensation Regulation was not complied with because the Defendant failed to disclose an estimate of the barrister's fees as required by s 177(2) Legal Profession Act 1987; therefore, the solicitor did not validly contract out and capped regulated costs apply for the whole retainer period except for matters relating to unregulated disbursements. The costs assessor's preliminary ruling on contracting out was set aside and costs ordered to be assessed on capped basis.

Jurisdiction
Australia
Judgment Date
25 July 2013
Procedural Posture
Appeal From Costs Assessment / Judgment on Appeal and Cross Summons
Outcome
Appeal upheld; cross-appeal dismissed
Legal Topics
['costs Assessment' 'contracting Out of Regulated Costs' 'compliance With Disclosure Requirements' 'solicitor Client Agreements' 'motor Accidents Compensation']
['costs Law' 'legal Profession'] ['costs Assessment' 'contracting Out of Regulated Costs' 'compliance With Disclosure Requirements' 'solicitor Client Agreements' 'motor Accidents Compensation']

Case Brief

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Procedural Posture

Appeal From Costs Assessment / Judgment on Appeal and Cross Summons

Legal Issues

  1. 1 ['Whether appeal is competent under s 208L Legal Profession Act 1987 from preliminary decision of costs assessor' 'Whether solicitor successfully contracted out of Motor Accidents Compensation Regulation via clause 11' 'Whether strict compliance with disclosure requirements in Division 2 of Part 11 Legal Profession Act 1987 is necessary' "Impact of failure to disclose barrister's fees estimate on operation of costs agreement"]

Ratio Decidendi

The appeal was competent as it attacked a preliminary decision on a matter of law. Clause 11 of the Motor Accidents Compensation Regulation was not complied with because the Defendant failed to disclose an estimate of the barrister's fees as required by s 177(2) Legal Profession Act 1987; therefore, the solicitor did not validly contract out and capped regulated costs apply for the whole retainer period except for matters relating to unregulated disbursements. The costs assessor's preliminary ruling on contracting out was set aside and costs ordered to be assessed on capped basis.

Court Disposition

Appeal upheld; cross-appeal dismissed

Orders

  • ["Parties to bring in Short Minutes to reflect the reasons within 28 days and to negotiate on the Furzer Crestani fees; if agreement not reached, matter to be remitted to costs assessor for re-determination in accordance with this judgment; if agreement reached, re-determination to be effected as per s.208L(2)(a);...