DELTA LEGAL PTY LTD -v- WOOD [2025] WASCA 162 (6 November 2025)

(a) Delta Legal's professional fees would be charged in accordance with cl 3(c) of the Costs Agreement and that the costs are not fixed;

(b) costs estimates would be updated as the matter developed and she would be notified about it;

(c) she was welcome to approach him at any time with respect to Delta Legal's fees or any other matter as per annexure A1 of the Costs Agreement;

(d) she was free to terminate the Costs Agreement at any time;

(e) of Delta Legal's right to withhold her documents if her legal bill was not paid, and/or to lodge a caveat on her property; and

(f) she had the right to question Delta Legal's fees and would have one year, from the date of the last invoice, to ask for costs to be taxed by the court.

1. The trial judge accepted that, at the meeting on 27 September 2018, Mr Strbac gave the respondent an initial estimate of costs and discussed the estimate of $5,000 to more than $100,000, as set out in cl 25 of annexure A1 of the Costs Agreement.[6] The trial judge appears to have accepted Mr Strbac's evidence to the effect that he told the respondent on 27 September 2018 that:[7]

I estimated the costs for Family Law Matter between $5,000, if the parties resolve [the] matter by way of Binding Financial Agreement, or Form 11 Consent Orders and likely more than $100,000 if parties go for trial.

1. The trial judge also appears to have accepted Mr Strbac's evidence that, on 27 September 2018, he told the respondent that usually, in the Family Court, there are no winners and losers and that the court very rarely awards costs against another party. Mr Strbac told the respondent, 'I can't tell you whether there is going to be a situation in which the costs may be awarded. If that happens, then I will alert you to the facts'.[8]
2. At the meeting on 27 September 2018, the respondent told Mr Strbac she had read the agreement and signed the Costs Agreement.[9]
3. The respondent paid $20,000 into Delta Legal's trust account on 27 September 2018, and a further $5,000 on 28 September 2018.[10]
4. A payment of $27,000 was made by the respondent's former husband into Delta Legal's trust account on 30 October 2018, pursuant to an agreement between her and her former husband. On 7 November 2018, Delta Legal paid $20,000 of that sum to the respondent.[11] The respondent was aware that Delta Legal was going to retain $7,000 from the payment made by her former husband and at least outwardly acquiesced to Delta Legal retaining that money for costs.[12]
5. Delta Legal billed the respondent a total of $87,593.20 under the Costs Agreement. Invoices were issued as follows:[13]

The August 2019 invoice covered work done between 4 March 2019 and 1 August 2019.[14]

1. The invoices issued by Delta Legal included entries for 'DMS', which stood for the legal practice's document management system. The evidence did not enable the trial judge to satisfactorily resolve what individual charges were for. Some of the work stated to involve the DMS appeared to be no more than administrative, done out of a preference on the part of Mr Strbac to use the DMS. However, it also appeared that some of the work involved legal analysis and reference to other documents by use of the DMS.[15]
2. The invoices issued by Delta Legal charged exclusively on the basis of time spent as provided in cl 3(c) of the Costs Agreement.[16] The invoices did not set out how many units of time were spent on any particular task, who performed them, or what hourly rate had been applied; they set out the date, the task(s) carried out, the applicable GST for the task(s), and the total charge for the task(s). It was therefore not possible to discern from the invoices whether the fees had been calculated on the basis provided for in cl 3(a) or cl 3(c) of the Costs Agreement.[17]
3. After the initial estimate as to costs was provided on 27 September 2018, Mr Strbac had conversations about costs with the respondent, and at times he referred to the amount of costs which was accruing and how they might be limited.[18]
4. On 29 April 2019, Delta Legal lodged a caveat on the certificate of title of a property jointly owned by the respondent and her former husband (Property). That caveat prohibited any dealings with the Property absolutely and the nature of the interest claimed by Delta Legal was as chargee.[19]
5. On 22 May 2019, Mr Strbac had a conversation with the respondent in which he verbally updated her as to the accrued costs and provided an estimate of future costs.[20]
6. On 2 August 2019, Delta Legal terminated the Costs Agreement and its retainer with the respondent.[21] Also on that date, Delta Legal wrote to the respondent advising that she had incurred $86,918.80 in legal costs. She was also advised that her estimated costs up to and including an upcoming 'pre-hearing conference' would be approximately a further $20,000 ‑ $30,000, and her likely trial costs approximately a further $50,000. This was the only evidence of any written update as to the estimate of costs after 27 September 2018.[22]
7. On 9 August 2019, Delta Legal lodged a further caveat on the certificate of title for the Property, and the certificate of title of a further property, as to the respondent's interest only. That caveat prevented dealing with the Property and the further property unless expressed to be subject to the caveator's claim.[23]
8. In June 2020, the respondent engaged Metaxas Legal to act for her in the family law proceedings.[24]

1. The primary proceedings commenced on 15 November 2023 as the respondent's application for pre-action discovery of the Costs Agreement. On 5 December 2023, Delta Legal instituted a general procedure claim in the Magistrates Court of Western Australia seeking $56,280.60 in unpaid legal fees plus interest.[25] The primary proceedings were then converted into the respondent's claim, relevantly, for an order setting aside the Costs Agreement under s 288(2) of the LP Act. On 18 June 2024, the trial judge ordered that the Costs Agreement be set aside.
2. On 8 July 2024, the appellants instituted the current appeal to this court. Ground 1 of the appeal contends that the trial judge erred in finding that the Costs Agreement was not fair or reasonable within the meaning of s 288 of the LP Act. Ground 2 contends that the trial judge erred in setting aside the Costs Agreement upon finding that the Costs Agreement was not fair or reasonable, without also considering whether to exercise the discretion to grant that remedy was in the interests of justice in all of the circumstances.

1. At all material times, s 271 of the LP Act generally provided for the basis on which legal costs were recoverable, being either:

(a) under a costs agreement made in accordance with pt 10 div 6 of that Act (div 6);

(b) an applicable costs determination if there was no costs agreement; or

(c) according to the fair and reasonable value of the legal services provided if there was no costs agreement or applicable determination.

1. Section 280(1) of the LP Act relevantly provided that, subject to any costs agreement made in accordance with div 6, the taxation of bills of law practices, and any other aspect of the costs charged by law practices, was regulated by an applicable costs determination.
2. At all material times, the Legal Profession (Family Court of Western Australia) Determination 2018 (Family Court Determination) applied to the remuneration of legal practitioners, clerks and paralegals in respect of proceedings in the Family Court of Western Australia. That determination provided for the following hourly rates in relation to practitioners other than counsel:

Senior Practitioner (permitted to practise on his or her own account for 5 years or more)

Junior Practitioner (permitted to practise on his or her own account for less than 5 years)

1. In contrast to the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018 (Supreme Court Determination), the Family Court Determination did not provide for maximum allowances in terms of particular steps taken in the relevant litigation.
2. Section 282 of the LP Act, in div 6, provided for a costs agreement, which must be written or evidenced in writing, to be made between a client and a law practice. Section 286 of the LP Act provided that generally a costs agreement may be enforced in the same way as any other contract. Under s 287, a costs agreement that contravened, or was entered into in contravention of, any provision of div 6, was void.
3. Section 288(2) of the LP Act provided for the power of the Supreme Court to set aside a costs agreement in the following terms:

On application by a client, the Supreme Court may order that a costs agreement be set aside if satisfied that the agreement is not fair or reasonable.

1. Section 288(3) of the LP Act provided for a non-exclusive list of matters to which the court may have regard in determining whether or not a costs agreement is fair or reasonable. Those matters relevantly include:

(c) whether the law practice has failed to make any of the disclosures required under Division 3;

(d) the circumstances and the conduct of the parties before and when the agreement was made;

(e) the circumstances and the conduct of the parties in the matters after the agreement was made[.]

1. Section 260(1), in pt 10 div 3 of the LP Act (div 3), relevantly required a law practice to disclose to a client:

(a) the basis on which legal costs will be calculated, including whether a costs determination applies to any of the legal costs; and

(c) an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable -

(i) a range of estimates of the total legal costs; and

(ii) an explanation of the major variables that will affect the calculation of those costs;

(f) if the matter is a litigious matter, an estimate of -

(i) the range of costs that may be recovered if the client is successful in the litigation; and

(ii) the range of costs the client may be ordered to pay if the client is unsuccessful[.]

1. Section 262(1) of the LP Act required disclosure under s 260 to be made in writing before, or as soon as practicable after, the law practice is retained in the matter. Further, s 267 of the LP Act required continuing disclosure in the following terms:

A law practice must, in writing, disclose to a client any substantial change to anything included in a disclosure already made under this Division as soon as is reasonably practicable after the law practice becomes aware of that change.

1. Section 268(3) of the LP Act relevantly provided that, if a law practice does not disclose to a client anything required by div 3 to be disclosed, the client may apply under s 288 for the costs agreement to be set aside.

1. The trial judge quoted[26] the following passages of this court's decision in Stevenson v Zafra Pty Ltd:[27]

The current provision, s 288 of the LP Act, uses the language of 'fair or reasonable' ... It is unnecessary and inappropriate to attempt an exhaustive analysis of the denotation of that phrase. It is sufficient, for present purposes, to observe that:

1. the word 'fair' in that disjunctive phrase is principally (albeit not necessarily exclusively) directed to a consideration of the circumstances relating to the formation of the costs agreement in the context of the solicitor's position as a fiduciary and officer of the court;
2. in determining whether a costs agreement is not 'reasonable', regard should ordinarily be had to (1) whether its terms are unreasonable, and (2) whether its effect on the client is unreasonable;
3. ultimately, however, the court is not confined to closed categories, and in determining whether an agreement is not fair or not reasonable, the circumstances must be considered as a whole, and, in that regard, the circumstances and conduct of the parties before, when and after the costs agreement is made may be considered; and
4. in determining whether a costs agreement is not fair or not reasonable, the court, at least as a starting point, would ordinarily have regard to the factors listed in s 288(3) of the LP Act.

If a court concludes that a costs agreement is not fair or not reasonable, the court may, but is not obliged under s 288 of the LP Act, to set aside the agreement. In considering whether to exercise the power conferred under s 288, the court will have regard to whether, within the context of the administration of justice, it is in the interests of justice in the particular circumstances of the case to set aside the unfair or unreasonable costs agreement. (citations omitted)

1. The trial judge found that Delta Legal failed to sufficiently comply with the disclosure obligation in s 260(1)(a) of the LP Act. This was in essence because the Costs Agreement did not make it clear which of the three alternative bases identified in cl 3 formed the basis on which legal costs would be calculated. The Costs Agreement also referred to the Supreme Court Determination rather than the applicable Family Court Determination. This highlighted the lack of attention which was given to fully explaining the difference between the manner in which costs would be calculated under the relevant determination and the Costs Agreement.[28]
2. The trial judge also found that Delta Legal failed to sufficiently comply with the disclosure obligation in s 260(1)(f) of the LP Act. This was on the basis that the effect of the Costs Agreement was to inform the respondent that she may be entitled to recover some of her legal costs, or may be liable to pay some of her former husband's legal costs, when there was no evidence Mr Strbac or anyone else at Delta Legal considered this a likely, or even possible, scenario in the matter.[29]
3. While the trial judge had regard to the fact that verbal disclosure was provided to the respondent, her Honour was not satisfied that it was capable of being an effective substitute, to any meaningful extent, for the written disclosure required by the LP Act.[30]
4. After quoting from an authority dealing with a solicitor's fiduciary position in relation to their client,[31] the trial judge observed:[32]

In this case, apart from the potential for a conflict of interest, there were factors which highlighted the need for Mr Strbac to pay additional attention to meeting his fiduciary duty to [the respondent]. He was aware the matter was very complex. Further, to Mr Strbac's knowledge, [the respondent] had had two previous lawyers with whose representation she was very unhappy, and she was already liable for legal costs to her previous legal representatives which had not been paid.

The Costs Agreement specified that fees would be determined only by applying the hourly rates to the units of time recorded by each staff member on the matter. The calculation of legal costs in such a manner means that the time recorded may not have even been time actually spent, having regard to the fact that time spent was rounded up, to be recorded in six-minute intervals only.

There is no evidence that any verbal explanation was given to [the respondent] as to the effect of the scale, the fact that the Costs Agreement removed the limits imposed by it, or that charging fees calculated on the third basis had the potential to be advantageous to Delta Legal when compared to the relevant determination.

1. The trial judge held that, even if a lesser hourly rate was charged under the Costs Agreement than was allowed under the relevant costs determination, the respondent could be disadvantaged by being charged under the third basis provided in cl 3 of the Costs Agreement. This was because of the rounding up allowed for on the third basis and that 'there is no acknowledgement in the third basis or on the invoices that any attention was to be, or was, directed to only charging for the reasonable amount of time required to be spent on a task'.[33] The trial judge then observed:[34]

In addition, the hourly rates outlined in the Costs Agreement were stated to apply on the basis of the person performing the task, not the nature of the task being performed. The potential for unfairness in the operation of the Costs Agreement as a result is obvious, and was highlighted in this case by the charging of fees for the use of the DMS. Given the invoices do not indicate who performed the work charged for, or the hourly rate which the work was charged, it is impossible to ascertain whether there was any discretion exercised in charging on the basis of the nature of the task performed. That impossibility in itself supports the proposition that the Costs Agreement is not fair or reasonable.

In my view, there was every prospect that a calculation of fees based on the third basis would result in fees greater than the fees to which [the respondent] would have been liable under the relevant determination.

Having regard to the potential conflict of interest which arose if Delta Legal were able to charge on the third basis, and the fiduciary relationship between it and [the respondent], in my view it would have been appropriate for those matters to have been explained to [the respondent] as part of the costs disclosure. There is no evidence that was done.

1. The trial judge expressed her conclusion in the following terms:[35]

For the following reasons, I am satisfied that the Costs Agreement was not fair or reasonable:

(a) the failure on the part of [the appellants] to comply with the disclosure obligations of s 260(1) of the [LP Act];

(b) the fact that the failure to comply with s 260(1) included a failure to clearly disclose a matter of particular significance, namely the manner in which [the respondent's] legal costs were to be calculated;

(c) the fact that the failure to comply with s 260(1) of the [LP Act] involved not only non-disclosure, but misleading disclosure, namely as to:

(i) the otherwise applicable determination; and

(ii) the prospect of recovery of costs in the event of either a successful or adverse outcome having regard to the jurisdiction in which the proceedings were being conducted;

(d) the lack of explanation on the part of the defendants as to the consequences of [the respondent] entering into a costs agreement which enabled legal costs to be charged other than according to scale, and particularly that that arrangement was likely to be disadvantageous to [the respondent];

(e) the fact that [the respondent] was potentially vulnerable as a client seeking assistance in a complicated family law dispute, which must have been obvious to Mr Strbac, at least to some extent;

(f) the lack of information contained on the invoices, which meant that [the respondent] was unable to ascertain who performed the work charged for, how long it was said to have taken, or the hourly rate which had been applied to the work;

(g) the lack of regular invoicing between March 2019 and August 2019, notwithstanding that work was being regularly performed and billed during that period; and

(h) the lack of any other written update as to [the respondent's] legal costs during that period.

Accordingly, the Costs Agreement should be set aside.

The evidence available to me is not sufficient to enable me to make an order pursuant to s 288(5) of the [LP Act]. Accordingly, [Delta Legal] will need to re-issue bills in accordance with the applicable scale, and if [the respondent] seeks a costs assessment, that can be done in the ordinary way.

1. In Steven Moore (a pseudonym) v The King,[36] the High Court described the distinction between the standards of appellate review in the following terms:

Two standards of appellate review of first instance judicial determinations are of present relevance, namely what has come to be referred to as the correctness standard and a 'House v The King' standard involving judicial restraint affording latitude to a trial judge. Under the correctness standard, the appellate court determines for itself the correct outcome while making due allowance for such 'advantages' as may have been enjoyed by the judge who conducted the trial or hearing [Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 552; see also Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23]]. With House v The King, appellate intervention is limited to circumstances where the trial judge: acted upon a wrong principle, or allowed extraneous or irrelevant matters to affect the decision; mistook the facts; failed to take into account some material consideration; or made a decision that was unreasonable or plainly unjust [House v The King (1936) 55 CLR 499 at 505]. These grounds for intervention contemplate the appellate court accepting that intervention is not warranted even though the members of the appellate court may have decided the matter differently to the judge at first instance, a circumstance that is reflected in the language adopted by the Court of Appeal in this case when it described the trial judge's conclusion as 'open' to his Honour. (some citations omitted)

1. In an appeal from an order, or refusal to make an order, under s 288(2) of the LP Act, the correctness standard rather than the House v The King standard of appellate review applies to the question of whether the Costs Agreement is not fair or reasonable. What is fair and reasonable is a matter, albeit of an evaluative character, which is to be determined objectively. However, once it is concluded that the Costs Agreement is not fair or reasonable, the standard identified in House v The King applies to an appellate review as to how the discretion conferred by s 288(2) should be exercised.[37]

1. In our view, the trial judge was correct to find that the Costs Agreement was not fair or reasonable for the purposes of s 288(2) of the LP Act, having regard (in combination) to the following features of the agreement and the manner in which it was implemented.[38]
2. First, the Costs Agreement did not in its terms indicate the basis on which costs were to be charged under the agreement. The Costs Agreement did not on its face indicate whether fees were to be charged on the basis indicated in cl 3(a) or the basis indicated in cl 3(c) of the agreement. Contrary to the appellants' submissions, that ambiguity in the Costs Agreement was not resolved by annexure A1 to the agreement. While cl 1 - cl 3 of annexure A1 refer to how time charges are calculated under cl 3(c), annexure A1 does not clearly indicate that the respondent will be charged under cl 3(c), as opposed to cl 3(a), of the Costs Agreement. While the basis on which costs were to be billed was verbally explained to the respondent, there was a failure to give written disclosure of the basis on which legal costs would be calculated under the Costs Agreement, as required by s 260(1)(a) read with s 262 of the LP Act. There was also a failure in the Costs Agreement itself to properly state the basis on which costs were charged.
3. Secondly, there was no proper written disclosure of whether a costs determination applied to the legal costs to which the Costs Agreement related. The Costs Agreement itself referred to the Supreme Court Determination rather than the applicable Family Court Determination and was positively misleading in that respect. The fact that the rates charged by Delta Legal may have been lower than the maximum scale rates did not necessarily mean that the respondent was better off under the terms of the Costs Agreement. The Costs Agreement provided for a rounding up of time spent while the Family Court Determination did not. Depending on how the rounding up was done, the respondent may have been worse off than if costs were assessed under the Family Court Determination despite the rates being less than the maximum permitted by the determination. This was never explained to the respondent, either orally or in writing.
4. Thirdly, the invoices issued by Delta Legal did not enable the respondent to ascertain the basis on which costs had actually been charged, who had done the work, how long had actually been taken or the rate which had been applied. Given that, it cannot be concluded that charging under the Family Court Determination would not have been to the respondent's advantage. Without that detail, and in the absence of any direct evidence as to how time was actually charged, the appellants' submissions as to the limited effect of charging in six-minute blocks in the circumstances of the present case are speculative.
5. Fourthly, cl 6 of annexure A1 to the Costs Agreement left the invoicing periods to the discretion of Delta Legal. Clause 7 of annexure A1 created an expectation of monthly invoicing unless justified by the nature of the work performed. However, that expectation was not met when no invoices were issued between 3 March 2019 and 1 August 2019 despite over $32,000 in costs being incurred over that period. The attachment to the invoice issued on 1 August 2019 indicates that it related to work which was consistently performed from the beginning of March to the end of July 2019. The effect of this hiatus in the issuing of invoices was to make it difficult for the respondent to keep track of the costs which were being incurred.
6. Fifthly, there was a failure to provide any written update of the range of estimates of the total legal costs as required by s 267 read with s 260(1)(c) and s 262 of the LP Act. Given the limited information in the possession of Delta Legal at the time the Costs Agreement was made, the broad range of $5,000 - $100,000 or more may have been the best that could reasonably be done at that time. However, a more precise estimate range could have been given as the information provided, and Delta Legal's understanding of the case, improved over time. However, no written update was provided until the Costs Agreement was terminated on 2 August 2019. By that time, the estimate of taking the matter to a 'pre-hearing conference' had increased to about $117,000 and the estimated costs of taking the matter to trial had increased to about $167,000. This was in the context where Mr Strbac had verbally advised the respondent that the cost of resolving the matter by agreement could be as low as $5,000. Mr Strbac's evidence of subsequent verbal discussions about costs was vague,[39] and in our view those verbal discussions were not a proper substitute for the revised written estimate required by the LP Act.
7. Sixthly, the respondent was not a sophisticated or experienced litigant. She was an individual involved in a family law dispute. While the respondent had previously engaged lawyers in relation to that dispute, it was apparent to Mr Strbac that her relationships with those previous lawyers had broken down.[40] As the trial judge found, she was in a potentially vulnerable position, and this must have been apparent to Mr Strbac at least to some extent. There was a particular need to exercise care in ensuring that the terms of the Costs Agreement were clear and clearly understood.
8. The net effect of these circumstances was that, in early August 2019, the originally estimated costs range had substantially blown out without the respondent being given any updated written estimate until the termination of the retainer. Although the original estimate was between $5,000 - $100,000 or more, the upper end of that range was based on the matter going to trial. By August 2019 the costs had reached over $87,000 and the matter had not yet gone to trial. No invoices had been issued since March 2019, so as to assist the respondent in keeping track of the costs which had been incurred. The basis on which costs were being charged was not apparent either from the terms of the Costs Agreement or the issued invoices. There had been no proper verbal or written explanation of the differences between the costs chargeable under the Family Court Determination and cl 3(c) of the Costs Agreement, which were not necessarily favourable to the respondent.
9. This combination of circumstances leads us to the conclusion on the unchallenged primary facts found by the trial judge that the Costs Agreement is not fair or reasonable within the meaning of s 288(2) of the LP Act. The trial judge was correct to reach that conclusion as to whether the discretion conferred by s 288(2) was activated. Ground 1 of the appeal to this court is not established for that reason. It is not necessary to address each of the particulars alleging specific errors in the trial judge's reasoning. Even if one or more of those errors were established, they could not lead to the appeal being allowed given our conclusion that the Costs Agreement is not fair or reasonable for the reasons explained above. It is also unnecessary to deal with the respondent's notice of contention.

1. Ground 2 of the appeal to this court contends that the trial judge erred by setting aside the Costs Agreement upon finding the Costs Agreement was not fair or reasonable, without also considering whether to exercise the discretion to grant that remedy was in the interests of justice in all the circumstances. This ground of appeal is based on the trial judge's statement in the passage quoted at the end of [41] above, after the summary of why her Honour was of the view that the Costs Agreement is not fair or reasonable, that, 'Accordingly, the Costs Agreement should be set aside'.
2. Taken in isolation, this last statement might support a conclusion that the trial judge erred in principle by failing to appreciate that the court had a discretion once it was satisfied that the Costs Agreement was not fair or reasonable. However, the context in which the statement was made is inconsistent with such a conclusion. As noted at [35] above, the trial judge quoted the statement of general principles in Stevenson, which included the discretionary aspect of the power. In that context, the trial judge could not have failed to appreciate that the court had a discretion. The fact that her Honour did not expressly consider its exercise is explicable by the way the case was argued before her. Neither party advanced any discretionary reason why the Costs Agreement should not be set aside once it was concluded that the agreement was not fair or reasonable. While citing the passage from Stevenson quoted at [35] above, counsel for the appellants did not in his oral closing submissions before the trial judge, nor in his written submissions filed on 14 February 2024 or 15 May 2024 in the primary proceedings, contend that the discretion should be exercised in the appellants' favour if the Costs Agreement was found not to be fair or reasonable.
3. Therefore, when the trial judge's reasons are considered as a whole in the context of the arguments presented to the primary court, it can be seen that her Honour did not act on a wrong principle. The outcome of the exercise of the power under s 288(2) of the LP Act was not unreasonable or plainly unjust in the circumstances, and no other error of the kind described in House v The King is established. Ground 2 of the appeal to this court is without merit.

1. For these reasons, the appeal should be dismissed. We would hear from the parties on questions of costs, which prima facie should follow the event.

Schedule: Costs Agreement between Delta Legal and the respondent

[Underlined text represents handwritten parts of the costs agreement]

This Agreement is between:

DELTA LEGAL Law Practice,

of L7, 524 Hay Street, Perth in the State of Western Australia ('us', 'we', 'our')

and

[The respondent]

of [respondent's address] in the State of Western Australia ('you')

and sets out the terms and conditions upon which we will represent you and which you have accepted and retained us on.

This document is an offer to enter into a Cost Agreement with you and by accepting it you will be regarded as having entered into a Costs Agreement. This means you will be bound by the terms and conditions set out in this document.

Acceptance must be made by signing and returning a copy of this document.

ANNEXED to this agreement and marked 'A1' is the Statutory Disclosure to Clients

TERMS AND CONDITIONS

Application of this Agreement

1. This Agreement applies to all work we do in relation to your matter from the time you first retained us until your matter is concluded or this Agreement is terminated, whichever occurs earlier.

(a) In accordance with scale (Table A) published in the most recent Legal Profession (Supreme Court) (Contentious Business) Report. A copy of this scale is attached and it is inclusive of GST. ('T1')

(c) Those members of the firm that work on your matter will record the time they spend and charge according to the following rates.

Senior Practitioner Hourly rate of $450 inclusive of GST

Senior Associate Hourly rate of $400 inclusive of GST

Lawyer Hourly rate of $350 inclusive of GST

Junior Lawyer Hourly rate of $300 inclusive of GST

Paralegal / Clerk Hourly rate of $220 inclusive of GST

Junior Clerk Hourly rate of $110 inclusive of GST

The firm's fees are determined by applying these hourly rates to the units of time recorded by each staff member on your matter. Time is recorded in 6 minute intervals units. Each interval or part of it represents 1 unit. Thus 6 minutes equals 1 unit; also 3 minutes equals 1 unit. For example: the time charged for a phone call of up to 6 minutes will be 1 unit and the time charged for an attendance between 6 and 12 minutes, say 8 minutes will be 2 units.

Disbursements

1. In the course of your matter it will be necessary to incur fees expenses and charges which are called disbursements such as court filing fees, bank charges, courier fees, barrister's fees, title searching and property enquiries, agency fees for law stationers and process serving. These are payable as and when they fall due for payment. We will not incur any substantial expense without first obtaining your permission.

Our disbursements are based on the following rates: [rates specified]

1. Save for the item 3(a) above, we may review our professional fees and disbursements each year in accordance with variations in the Consumer Price Index in the 12 month period immediately preceding the date of review, starting 1 July next after the entering into of this Agreement.

1. We may, from time to time, request you to pay an advance on account of our professional fees and disbursements.
2. You authorise us to apply monies we hold on trust for you towards payment of our professional fees and disbursements charged against you.
3. Within 14 days of any such application of monies, we will issue you with an account showing that trust monies have been applied by us towards payment of our professional fees and disbursements.

1. We may, in our discretion, arrange for work on or connected with your matter to be performed by an appropriately experienced person within our firm (depending upon the importance, urgency, nature and cost involved). The manager of your file and the person you should contact in the first instance regarding your matter is Mario Strbac.

1. Payment of an interim account is required within 7 days of being received by you.
2. Your payment of such interim account will not interfere with your rights for itemisation or taxation of the account.

1. We may charge you interest on any monies outstanding on any of our accounts if payment in full is not received.
2. Interest will be charged on the amounts unpaid after 30 days at the rate prescribed by the Legal Profession Regulation 2009 from time to time.
3. If you default in payment of any invoice when due, you shall indemnify us from and against all costs and disbursements incurred by us in pursuing the debt including legal costs on a solicitor and own client basis and our collection agency costs.

a) receive on your behalf any monies due to you in the course of or as a result of the proceedings;
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> b) deduct from moneys you may receive and transfer to our own account, such amount as is necessary to pay our professional fees and disbursements in accordance with this Agreement.
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> c) within 14 days of any such deduction and transfer, we will issue you with an account showing that monies have been applied by us towards payment of our professional fees and disbursements.

1. We will (even if we have ceased to act for you) retain all files, documents and personal property in our possession or control relating to your matter until all our accounts are paid in full or a Court otherwise orders.

1. You agree to charge all your interest in any real property which you may own solely or jointly with any other person as security for your performance of the terms of this Agreement and the payment of the Fees and Disbursements and you authorise us to lodge a caveat on the title of any such real property for this purpose. The preparation of the caveat and the withdrawal of caveat will be charged per unit or per folio (ie 100 words) whichever is the greater for drafting plus stamp duty on this Costs Agreement, outside clerk fees and Landgate fees for lodging and withdrawal of caveat.

1. If you wish, you may obtain from another solicitor independent advice as to legal and practical nature and effect of this Agreement and as to whether or not it is in your best interest to enter into it. The Law Society of Western Australia may be able to assist with the names of suitable firms that could give that advice.

1. You will be informed as soon as is reasonably practicable, of any substantial changes to anything contained in this document.

a) we have advised you that costs calculated in accordance with this Agreement may exceed the applicable scale which would otherwise apply;
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> b) you may seek independent legal or financial advice concerning this Agreement before entering into it;
>
> c) there may be other solicitors who are willing to act for you at a lower cost or who may not require you to enter into a Cost Agreement;
>
> d) if you request our account(s) to be taxed by a taxing officer of any Court, we have the right to withdraw the account(s) in question and render a substituted account, which may be higher than that already presented to you; and
>
> e) you have read and understood all the terms of this Agreement and agree to be bound by it;
>
> f) you have received a copy of this Agreement including ANNEXURE A1
>
> g) any monies due and owing to you pursuant to the settlement in your case must be transferred through the Trust Account of Delta Legal in order for us to secure and obtain our fees.

...

I [respondent] have read and understood this document

AND

HEREBY INSTRUCT Delta Legal to act on the basis set out herein.

Signature: _____________________Dated:_____________

Signed for and on behalf of Delta Legal:

Solicitor's Signature: ____________ Dated______________

Al

STATUTORY DISCLOSURE TO CLIENTS

In addition to the Costs Agreement entered into by you with us which governs all matters on which you instruct us, we disclose the following matters as required by s260 of the Legal Profession Act 2008 ('Act'):

Basis on which Legal Costs will be Calculated (s260(1)(a))

1. Legal costs will be calculated in accordance with the Costs Agreement.
2. In summary, legal costs are charged on an hourly rate applicable to the lawyer or a person performing the work, calculated in a 6 minutes intervals. Every 6 minutes or part of it represents 1 billable unit.
3. Examples:
   • If a task takes 6 minutes, 1 unit will be charged.
   • If a task takes 2 minutes, 1 unit will be charged.
   • If a task takes 8 minutes, 2 units will be charged.

1. Refer to attached Schedule 1 Form 2 of the Act: 'Form of Disclosure of Costs to Clients'.

Estimate of Legal Costs (s260(1)(c))

1. See paragraphs 21 to 25 below for our costs estimate.

Intervals at which you will be Billed (s260(1)(d))

1. You will be invoiced at intervals of our discretion.
2. Generally we issue invoices at least once each month, but may issue invoices more regularly or less regularly depending on the nature of the work being performed.

...

Estimate of Costs Recoverable if Litigation Successful (Section 260(1)(i))

1. If you win the case (or part of it) you may be entitled to recover some of your legal costs from the losing party.
2. An order by a Court for payment of costs in favour of you will not necessarily cover the whole of your legal costs.
3. You must pay us the whole of your legal costs by their due dates. You cannot off-set any amount recoverable from the losing party against your indebtedness to us.
4. For our estimate of such costs, see paragraphs 21 to 25 below.

Estimate of Costs Payable by You if Litigation Unsuccessful (Section 260(f)(ii))

1. If you lose the case (or part of it) you may be ordered to pay some of the winning party's legal costs, in addition to having to pay your own legal costs.
2. For our estimate of such costs, see paragraphs 21 to 25 below.

...

Estimate of Legal Costs (s260(1)(b) and (f))

1. Our estimates in paragraph 25 below are made at a time when it is usually very difficult to predict all the work which will be required to be done on your behalf.
2. All estimates are based on information available to us at the time the estimate was prepared.
3. None of the estimates are quotes.
4. The main variables which affect the calculation of costs are:

24.1 The extent of documentary material that we must review and consider.

24.2 The complexity of the legal issues to be considered.

24.3 The complexity of the factual matrix.

24.4 The difficulty in which instructions are able to be obtained.

24.5 Whether independent Counsel is engaged to undertake part of the work.

24.6 The number of contested interlocutory applications.

24.7 The other party's attitude to the matter (e.g. belligerent or cooperative).

24.8 Generally, the nature of the work being performed.

1. Our estimates [the word 'estimates' is circled] are as follows:

Legal Costs payable under Costs Agreement plus GST and disbursements

Legal costs payable by you if you lose (in addition to your own legal fees)

Al

Legal Profession Regulations 2009

Schedule 1

Form 2

Form of disclosure of costs to clients

[r80(1)]

Legal Profession Act 2008 section 260(5)

Legal costs - your right to know

You have the right to -

• negotiate a costs agreement with us
• receive a bill of costs from us
• request an itemised bill of costs after you receive a lump sum bill from us
• request written reports about the progress of your matter and the costs incurred in your matter (at no cost to you)
• apply for costs to be assessed within 12 months if you are unhappy with our costs
• apply for the costs agreement to be set aside
• accept or reject any offer we make for an interstate costs law to apply to your matter
• notify us that you require an interstate costs law to apply to your matter

For more information about your rights, please read the fact sheet titled Legal costs - your right to know. You can ask us for a copy, or obtain it from the Legal Practice Board (or download it from the website of the Legal Practice Board or the Law Society of Western Australia).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Wood v Delta Legal Pty Ltd [2024] WASC 216 (primary decision) [7].

[7] Primary decision [66] - [67], [70] - [71].

[8] Primary decision [57], [125], [135] - [136].

[27] Stevenson v Zafra Pty Ltd [2021] WASCA 181; (2021) 58 WAR 383 [245] - [246].

[28] Primary decision [101] - [104].

[29] Primary decision [127] - [129].

[31] Law Society of New South Wales v Foreman [1994] NSWCA 69; (1994) 34 NSWLR 408, 435 - 437, adopted in Stevenson [239].

[32] Primary decision [142] - [144].

[33] Primary decision [149] - [150].

[34] Primary decision [151] - [153].

[35] Primary decision [165] - [167].

[36] Steven Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 [14].

[37] Stevenson [235] - [236]; Lewis Blyth & Hooper (a firm) v Smith [2015] WASCA 47; (2015) 48 WAR 467 [106] - [109].

[38] The relevance of the manner in which the agreement is implemented is apparent from the terms of s 268(3) and s 288(3)(b) and (e) of the LP Act as well as the passage from Stevenson quoted at [35] above.

[39] Affidavit of Mr Strbac sworn 31 January 2024 pars 15 - 16 and annexures G and H to that affidavit; trial ts 127 - 129.

[40] See Affidavit of Mr Strbac sworn 31 January 2024 pars 7 - 10.