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[2020] QCAT 475
plaintiff. The Application for Miscellaneous Matters filed by the respondent on about 13 October 2020 is dismissed.
Maddock applied to QCAT under s 328 of the Legal Profession Act to set aside a costs agreement with IALPG, alleging it was induced by representations and was not fair or reasonable. IALPG sought to dismiss the application on the basis that the written agreement complied with the formal legislative requirements. The Tribunal held that the amended application, supported by affidavits, raised a prima facie case that warranted investigation into the fairness and reasonableness of the agreement; formal compliance did not displace that enquiry. The respondent's dismissal application was therefore dismissed and the s 328 claim remains to be investigated or heard.
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1,692 words · generated 18/06/2026
Aston Maddock commenced proceedings in the Queensland Civil and Administrative Tribunal under s 328 of the Legal Profession Act 2007 (Qld), seeking to have a costs agreement he entered into with IALPG Pty Ltd set aside. The Tribunal was asked, in the interlocutory proceeding before President Daubney, to determine an application brought by IALPG to have Maddock's primary s 328 application dismissed or struck out. IALPG's argument was essentially limited: the costs agreement complied, in form, with the technical requirements imposed by the Legal Profession Act, and therefore there was no basis for setting it aside. Maddock had initially filed an application that was described as lacking in detail; following Tribunal directions he filed an amended application which explicitly pleaded that he (and his mother, who had been advising him) had been induced to enter the costs agreement by representations made by or on behalf of the law practice, in particular representations published on the law practice's website, and other related allegations. Affidavits by Maddock and his mother were filed and deposed to facts supporting those allegations.
No linked legislation citations have been extracted yet.
President Daubney examined the amended pleading and the supporting affidavit material and concluded that the material on its face raised a prima facie case that the costs agreement might not have been 'fair or reasonable', as that concept is understood in the authorities. Because the inquiry under s 328 properly looks to the circumstances in which the agreement was made, technical compliance alone with the Act's formal requirements could not provide a summary answer. The Tribunal therefore dismissed IALPG's application to strike out or dismiss the s 328 claim, leaving the substantive application to proceed.
Two core strands controlled the decision.
First, the procedural principle governing dismissals and strike outs: a claim should not be summarily dismissed where there is an arguable case supported by material that, if uncontradicted at interlocutory stage, warrants investigation. The Tribunal accepted that although the initial pleading was deficient, the amended application and the affidavit evidence created a non‑fanciful, arguable foundation for the s 328 claim. President Daubney described that material as raising "a prima facie case for investigation as to whether the circumstances of the costs agreement being entered into were fair or reasonable."
Second, the substantive scope of s 328: the Tribunal relied on established authorities such as Re Stuart and the South Australian Full Court decision in McNamara Business & Property Law v Kasmeridis (both cited through Martin J's treatment in McLaren). Those authorities draw a distinction between two elements: fairness (in essence whether the client had an adequate understanding such that the agreement was entered into fairly) and the reasonableness of the terms. The President emphasised that whether an agreement is fair or reasonable often requires consideration of surrounding circumstances, who was advising the client, what representations were made, and the context in which consent was given. That enquiry cannot be resolved by reference only to formal compliance steps taken by the law practice. Hence IALPG's singular reliance on technical compliance did not meet the legal test for summary dismissal.
Finally, the Tribunal rejected the respondent's suggestion that the hearing might be circumvented by ordering an assessment of the costs now, noting there was no clarity about how such an assessment would be conducted or what legal basis would govern it in the face of an outstanding s 328 claim. That point was not necessary to the principal decision but it was used to expose the inadequacy of the respondent's alternative proposal.
Before this decision the legal landscape was already controlled by s 328 and the authorities explaining the 'fair or reasonable' threshold. Key precedents include:
Maddock v IALPG does not alter the statutory test, but it applies those principles at the interlocutory stage in QCAT, reinforcing two practical points:
Thus the decision confirms the pre-existing approach rather than forging new principle. It is a practical application that underlines how summary disposal interacts with the substantive s 328 enquiry.
"the amended application (supported as it is by affidavit material) raises a prima facie case for investigation as to whether the circumstances of the costs agreement being entered into were fair or reasonable."
Plain English: The amended documents and sworn statements are enough, at this stage, to justify looking into whether the agreement was created fairly and had reasonable terms. The claim is not so weak that it should be struck out immediately.
"It is simply not to the point that the law practice says that all of the technical requirements were observed when the costs agreement was entered into."
Plain English: Just because the written agreement ticks the statutory boxes does not answer the question whether the client was induced or whether the arrangement was fair and reasonable when it was formed.
The operative order: "The Application for Miscellaneous Matters filed by the respondent on about 13 October 2020 is dismissed."
Plain English: The Tribunal refused the law practice's request to throw out the s 328 case and the respondent's procedural application fails.
Observations on assessment as a 'shortcut' (paraphrase): The Tribunal highlighted that ordering an immediate costs assessment without first resolving how such an assessment should be conducted, whether the agreement terms would be ignored, whether assessment would be on a scale, and how assessed costs would be recoverable, is premature.
Plain English: You cannot bypass the s 328 dispute by ordering assessment unless you first decide the rules that would govern assessment; those questions were not addressed by the respondent.
This decision is directly relevant where:
In short, where a claimant has credible affidavit material alleging unfair inducement or lack of informed consent, this case supports the proposition that the matter should proceed beyond interlocutory dismissal and be investigated on its merits.
This decision is a Tribunal-level, ex tempore determination applying settled authorities. It cites McLaren, McNamara, and Re Stuart as authoritative background; it does not purport to displace or expand those authorities. Later courts and tribunals assessing similar interlocutory dismissal applications under s 328 will find Maddock v IALPG a useful, practical illustration that:
Practitioners should expect courts and tribunals to follow the same approach: if a plausible factual basis is supported by affidavit, summary dismissal is unlikely. Given the decision’s level, higher courts would look first to the underlying authorities (McLaren, McNamara, Re Stuart) for doctrinal guidance; Maddock v IALPG functions as an application of those authorities in QCAT rather than a source of novel law.
A few matters remain open or unsettled by this decision:
The substantive determinations under s 328 remain to be made: The Tribunal did not decide whether the costs agreement in question is in fact unfair or unreasonable. The standard and weight to be given to particular types of representations (for example promotional website statements) in proving inducement or unfairness remains to be developed on the facts.
The role of affidavit evidence versus viva voce evidence: While affidavit material can prevent summary dismissal, the decision leaves open how conflicting affidavit evidence (or a later evidentiary contest) will be resolved on the merits at hearing.
Practical consequences of a successful s 328 claim: The President rejected a shortcut by costs assessment, observing lack of clarity about the basis of any assessment. The appropriate remedy, and how costs are to be assessed or recalibrated if a costs agreement is set aside, remain matters to be decided in future proceedings and may require consideration of whether assessment is on a scale or on quantum.
Interaction with professional conduct obligations and potential disciplinary consequences: Maddock v IALPG focuses on civil remedial relief under s 328 and does not address whether the conduct alleged might attract separate disciplinary or professional regulation proceedings.
The threshold for "prima facie" at interlocutory stage: While the Tribunal found the amended application and affidavits sufficient here, exact contours of what constitutes a sufficient prima facie case to survive strike out under these facts are case specific; further cases will be needed to clarify borderline situations.
Practitioners advising clients or law practices should therefore treat Maddock v IALPG as a strong practical reminder that pleadings and affidavit evidence matter, and that formal compliance alone is not a talisman. However, the final answers on fairness, reasonableness, and remedies will be shaped by fuller evidentiary hearings and future decisions.
The applicant for today's purposes is the respondent in the substantive proceeding. It is an incorporated legal practice, IALPG Pty Ltd ("IALPG"). In the principal application, an erstwhile client, Aston Maddock, has made an application pursuant to s 328 of the Legal Profession Act 2007 (Qld) ("LPA") for a costs agreement that he entered into with IALPG to be set aside. IALPG has now applied for that principal application to be dismissed.
In effect, the basis for today's application is that the application to have the costs agreement set aside has no prospect of success. As was noted in the course of argument - and in fairness to IALPG - the application to set aside the costs agreement, as originally formulated when the proceeding was commenced, was manifestly lacking in appropriate detail. Consequent upon directions made by this Tribunal for the delivery of an amended application, however, Mr Maddock has filed an amended application which makes clear the basis on which he seeks to have the costs agreement set aside. In particular, the amended application articulates a case to the effect that Mr Maddock and his mother, from whom he was taking advice at the time, were induced to enter into the costs agreement on the basis of certain representations made by or on behalf of the law practice, particularly as set out on its website. There are other similar factual bases advanced in the amended application for the pursuit of relief that the costs agreement be set aside.
For the purposes of today's application, affidavits have been filed, sworn by Mr Maddock and his mother, in which they depose to facts which on their face support the factual allegations made in the amended application. Despite the filing of the amended application, the law practice has persisted with the application to have the proceeding dismissed or struck out. The only argument advanced on behalf of the law practice was that the costs agreement should stand because it was, in form, compliant with the technical requirements of the LPA. That argument, however, completely ignores the basis upon which the principal application is brought. The principal application, which is for the setting aside of a costs agreement, necessarily assumes that a costs agreement has been entered into. There is no relevant argument with respect to compliance or otherwise with the technical requirements of the legislation in relation to the agreement having been entered into. Relevantly, what is sought to be pursued is an argument that the costs agreement in formation was neither fair nor reasonable.
There is a well-established body of law concerning the setting aside of solicitors' costs agreements on the basis that they are not fair or reasonable. The authorities relevant to that issue were recently collected by Martin J in McLaren v Wiltshire Lawyers Pty Ltd.1 In that case, amongst other things, his Honour explained the meaning of the
words "fair or reasonable" in s 328 by reference to English and Australian authorities. Those authorities include the 19th century decision of Lord Esher in _Re Stuart; Ex parte Cathcart_2 in which his Lordship referred to the distinction between the fairness of an agreement and whether the terms of the agreement are reasonable. With regard to fairness, his Lordship said that if a solicitor makes an agreement with a client who fully understands and appreciates the agreement, then that satisfies the requirement as to fairness.3 His Lordship also noted the additional requirement that the terms of the agreement be reasonable.4
Martin J also noted the decision of the Full Court of the Supreme Court of South Australia in McNamara Business & Property Law v Kasmeridis in which Doyle CJ said, amongst other things:5
The factors to be taken into account when deciding whether an agreement is fair and reasonable will depend upon the circumstances of the case. It is neither practical nor desirable to try to set out a standard list of relevant matters. The relevant matters will vary according to the scope of the retainer; the terms of the agreement; the kind of legal work undertaken; the client's knowledge and circumstances, and, no doubt, other circumstances.
It is not necessary for me to delve further into the authorities gathered by Martin J in that case. It is sufficient to note that, on its face, the amended application (supported as it is by affidavit material) raises a prima facie case for investigation as to whether the circumstances of the costs agreement being entered into were fair or reasonable. It is simply not to the point that the law practice says that all of the technical requirements were observed when the costs agreement was entered into. The present case concerns the fairness and reasonableness of the agreement itself, and that necessarily provokes an enquiry into the circumstances in which the agreement was made. In those circumstances, it clearly cannot be said that the application under s 328 by Maddock is so bereft of prospects as to warrant an order that it be struck out or dismissed. The application will therefore be dismissed.
Before concluding these reasons, I should note that the law practice separately submitted that this Tribunal should somehow circumvent the application by simply ordering that there be an assessment of the costs to be paid by Maddock to the law practice. It was not made clear on what proper basis that order could or should be made, and in any event, the assertion that there should be such a shortcut does not in any way grapple with the necessary preliminary question which would arise; namely, the basis on which the assessment would be undertaken. It is not at all clear, for example, whether it was proposed that the terms of the costs agreement would be ignored for the purposes of that assessment, whether there would be assessment on a scale, or whether there would just be some general assessment on the basis of the value of the work rendered; and if such an assessment were to occur, on what basis any such assessed costs would be recoverable. In any event, it is not necessary for me to investigate that question further.
2 [1893] UKLawRpKQB 119; [1893] 2 QB 201 ("Re Stuart").
5 [2007] SASC 90; (2007) 97 SASR 129, [27].
Maddock
IALPG Pty Ltd [2020] QCAT 475
McLaren v Wiltshire Lawyers Pty Ltd [2019] QSC 305 McNamara Business & Property Law v Kasmeridis [2007] SASC 90; (2007) 97 SASR 129
(2007) 97 SASR 129
The Application for Miscellaneous Matters filed by the respondent on about 13 October 2020 is dismissed.