Case Note - what is the final bill?

Challen v Golder Associates
Pty Ltd [2012] QCA 307

QICS is fully conversant with the law around legal costs and the ways they are administered. In this case profile, we examine how long clients have to seek assessment under a retainer agreement and what actually constitutes a final bill of a retainer.

Background
The recent decision of the Queensland Court of Appeal in Challen v Golder Associates Pty Ltd [2012] QCA 307 has confirmed that clients have 12 months from the date of the final bill in which to seek taxation.

Facts
The appellant was a solicitor and had been formerly retained by the respondent. The retainer was in writing and comprised a client agreement dated 19 May 2006. After the agreement was signed and in place, between 5 July 2006 and 9 December 2010, the appellant delivered 27 bills of costs to the respondent. All bills were paid in full except for the bill dated 14 October 2010 and the two bills dated 9 December 2010.

Is s.333(2) subject to the time restriction imposed by s.335(5)?
Mullins J agreed with the primary judge’s conclusion that s.333(2) allows an additional time period for the assessment of an interim bill which is within 12 months after the final bill was given. Her Honour’s conclusion is consistent with the reasoning of McGill DCJ in Turner v Mitchells Solicitors [2011] QDC 61:

If there is an interim bill, the legal costs which it covers may be assessed at the time of the interim bill or at the time of the final bill. If an application is made within 12 months of the final bill, the legal cost which may be assessed under s 335(1) includes all of the legal costs subject to any interim bill which was part only of the legal services the law practice was retained to provide, even though those costs are not included in the “final bill” [at 27)].

What is the final bill?
The primary judge decided that the final bill is the last in time. Mullins J concluded that the final bill must be the last bill for the legal services that the law practice was retained to provide. The primary judge’s approach would lead to the unsatisfactory consequence that over the course of the retainer the delivery of another bill would give rise to a new right of assessment of an interim bill under s.333(2).

Comment
The decision adds to the range of authorities which are ironing out some of the inconsistencies in the Legal Profession Act 2007 (Qld). It appears that the Queensland position regarding the interpretation of s 333 and 335 is now settled. The definition of ‘final bill’ is also clearer.

We have Mullins J’s definition that the final bill must be the last bill for the legal services that the law practice was retained to provide, but what if there is no retainer? If there is no Costs Agreement or if the agreement is set aside what is the ‘final bill’?
 

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