Paul v Birchgrove Legal Pty Ltd trading as Birchgrove Legal ABN 83161158532

Representation: Counsel:
J Trebeck (Plaintiff)
D Birch (Defendant)
Solicitors:
Harris & Company (Plaintiff)
Birchgrove Legal (Defendant)

File Number(s): 2024/00044790

Publication restriction: Nil

JUDGMENT

1. Ms Esin Paul commenced this action by filing a Summons Commencing an Appeal on 5 February 2024. Ms Paul appeals pursuant to s 89 of the Legal Profession Uniform Law Application Act 2014 from the decision of a Costs Review Panel made on 9 January 2024 in relation to a bill of costs rendered to her by her former solicitors, Birchgrove Legal Pty Ltd, trading as Birchgrove Legal (‘Birchgrove Legal’) which is a legal firm practising in New South Wales.

2. Ms Paul does not appeal in relation to the decision as to the quantum of costs arrived at by the Costs Review Panel. Her appeal seeks a determination that Birchgrove Legal has no entitlement to claim costs from her at all.

3. An affidavit of Ms Paul dated 17 July 2024 and an affidavit of Mr Grant Hansen dated 25 July 2024 were provided in Ms Paul’s case. An affidavit of Mr Alameddine dated 27 September 2024 was provided in Birchgrove Legal’s case.

Facts

4. In about May 2020, Ms Paul engaged Birchgrove Legal to act for her in relation to her claim against the estate of her father, the late Yilmaz Satici (‘the estate’). Ms Paul’s brother, Erkan Satici, was the executor of the estate. Mr Alameddine was the solicitor from Birchgrove Legal with conduct of the matter.

5. On 29 May 2020, Birchgrove Legal provided Ms Paul with a letter setting out the terms of a costs agreement and disclosure (the costs agreement’) under Part 4.3 of the Legal Profession Uniform Law (NSW) (‘the Uniform Law’). This letter has been referred to both as a costs agreement and as a retainer in this appeal.

6. On 19 November 2020, Ms Paul filed an application for a family provision order, under the Succession Act 2006, in the Supreme Court of New South Wales (Paul v Satici [2022] NSWSC 922 (‘the Supreme Court action’)).

7. The trial of the Supreme Court action began on 7 February 2022. On the first day of the trial, the judge, Kunc J, asked that counsel give him an indication of what would constitute an adequate provision for Ms Paul from the estate. This is referred to as ‘a Limberger submission’, which is a reference to the judgment of Hallen J in Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474. In response to the request by Kunc J, Ms Paul’s counsel, Mr Anderson, submitted that an appropriate provision would be $600,000.

8. On the second day of the trial, Ms Paul was being cross-examined by counsel for the estate. The following exchange took place:

Q. And your counsel yesterday said to his Honour a figure of approximately $600,000 would be adequate provision in lieu of what you get under the will. Do you understand what I mean by that?

A. Yes, I do.

Q. So what is being suggested to the Court is that a figure of $600,000 should be adequate provision instead of what you get under the will of $419,433.27.

A. I understand what you’ve said to me, but that is – I’m wanting your Honour to tell me that, not my barrister.

Q. I see.

A. No, I don’t see, because it’s not something that we’ve ever discussed. I’m sorry, Edward [Mr Anderson], but, you know, this is something that needs to be – but this is not why I’m here. I did not ask for 600. I need to buy a house for my children.

9. Immediately after that exchange, Mr Paul’s counsel sought a brief adjournment of 30 minutes. Following the brief adjournment, Mr Anderson sought leave to withdraw as Ms Paul’s counsel. He also sought leave for Birchgrove Legal to withdraw, on Birchgrove Legal’s behalf. In the course of making those applications, Mr Anderson said:

There is evidence that’s been given to the Court of a clear conflict in terms of the advice being given and the instructions being provided. There is also a clear lack of confidence in not only myself but my instructing solicitor’s ability to appear and act on her behalf in prosecuting her claim. It’s put us in a difficult position to the point where I can’t possibly re-examine her with some of the comments that she’s making in terms of her evidence, your Honour.

10. Directly after Mr Anderson made those applications, Kunc J said (transcript, Supreme Court action, pages 59-60):

Mr Anderson, there are two issues here, it seems to me. I don’t need you to go any further. I would, however, like to place on record, at least as far as I’m concerned and on the basis of what I presently know, yesterday I asked counsel to indicate to me what they were going to advocate as their client’s position as the appropriate amount of provision.

When I ask that of counsel, I expect counsel to answer as counsel; that is to say, conscious of their duty to the Court and not merely as mouthpieces for their client. At least sitting here as I do at the moment, I’m entirely satisfied, Mr Anderson, that you responded to my question as counsel, exercising your obligations entirely properly. So I wish to assure you, at least as far as I’m concerned on the basis of my present state of knowledge, that is what I think.

I think it’s appropriate for the Court to give that indication irrespective of what now happens in terms of an application. I’m not sure that I need to grant you leave to withdraw. You can correct me on that. It’s ultimately, it seems to me, a matter of whether you wish to return your brief. That’s entirely a matter for you having regard to the ethical constraints under which counsel operate. It wouldn’t be the first time that counsel have simply had to tell the Court that without more they have had to return their brief.

Insofar as your solicitor wishes to withdraw, that’s a slightly different question because I think I would have to grant leave to your solicitor, in effect, to potentially cease to act and waive the requirement of having to give a notice of ceasing to act. I think that’s the correct analysis but I’m open to submissions otherwise, Mr Anderson.

11. The logistics of the situation were complicated by Ms Paul appearing via audio-visual link. The Court adjourned for 20 minutes to give Mr Anderson and Mr Alameddine an opportunity to speak to Ms Paul in relation to the question of whether they should continue to act. Mr Salama, counsel for the estate, consented to this course.

12. Following the brief adjournment, Mr Anderson made the following submissions:

Anderson: Your Honour, I can indicate to the Court that I am instructed to make that application for the same reasons that were outlined to you earlier. I can also indicate that Ms Paul has been advised as to the repercussions in the event that such an application is granted.

[His Honour had an exchange with Ms Paul to ensure that she understood what was happening]

His Honour: Very well. That’s all I need to know for the moment. Mr Anderson, I take it, then, you wish to inform me that you are returning your brief.

Anderson: That’s correct, your Honour (not transcribable) and application.

His Honour: Then, in relation to your solicitor, before you return your brief, you make an application on his behalf, and what is that application, Mr Anderson?

Anderson: That they be granted leave to, effectively, cease acting for Ms Paul immediately and that leave be granted…(not transcribable).

13. Kunc J dealt with the issue immediately in the following way:

I’m satisfied on the basis of the explanation that’s been given to me by Mr Anderson that it is appropriate in this case that I …make the following orders in relation to Mr Hamza Alameddine of Birchgrove Legal, currently the solicitor on record for the plaintiff:

1. I dispense with the requirement that Mr Alameddine file under the rules a notice of intention of ceasing to act, and I grant leave to Mr Alameddine to cease to act forthwith.

..

14. The Uniform Civil Procedure R**ules 2005 address the withdrawal of a solicitor in r 7.29, which provides:

7.29 Withdrawal of solicitor

(1) A solicitor who ceases to act for a party in any proceedings may file notice of the change and serve the notice on the parties.

(2) Except by leave of the court, a solicitor may not file or serve notice of the change unless he or she has filed and served on the client a notice of intention to file and serve the notice of change—

(a) in the case of proceedings for which a date for trial has been fixed, at least 28 days before doing so, or

(b) in any other case, at least 7 days before doing so.

(3) Unless notice of the change is filed with the leave of the court, a solicitor filing such a notice must include in the notice a statement as to the date on which service of the notice of intention required by subrule (2) was effected.

(4) A solicitor may serve a notice of change or notice of intention under this rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor.

15. The matter was adjourned shortly after the order set out in [13], above, was made. Ms Paul obtained alternative legal representation, and the trial resumed on 14 June 2022. As I have said, judgment was delivered on 8 July 2022.

16. On 14 October 2021, Birchgrove Legal issued a Memorandum of Costs and Disbursements in relation to the Supreme Court action in the sum of $58,317.09, including GST, to Ms Paul. The itemised bill of costs listed items from 29 May 2020 to 14 October 2021 (see Court Book p 3009 - 3024).

17. On 24 March 2022, Birchgrove Legal issued a Memorandum of Costs and Disbursements in relation to the Supreme Court action in the sum of $30,552.36, including GST, to Ms Paul. The itemised bill of costs listed items from 25 October 2021 to 7 March 2022 (see Court Book p 3025 – 3032).

18. On 22 March 2023, Birchgrove Legal sent Ms Paul further copies of the invoices and a statement of account for the sum of $88,839.45 (the sum total of the two invoices was actually $88,869.45). No payment was received in relation to the invoices.

19. Birchgrove Legal filed an Application for Assessment of Costs on 24 March 2024 in the Supreme Court of New South Wales under the Legal Profession Uniform Law (NSW) s 198.

20. In his reasons for decision, dated 3 July 2023 (Court Book p 3093), the costs assessor rejected Ms Paul’s argument that the costs agreement was for a lump sum. The costs assessor pointed out that the costs agreement stated that the lump sum mentioned was expressly characterised as an estimate, and that hourly rates, to be charged in six minute increments, were specifically provided for. The costs assessor also rejected the argument that the costs agreement was “an entire agreement”.

21. The costs assessor said:

34. While the Costs Respondent submits that the agreement was wrongfully terminated, this is not a matter that I can determine. Any factual dispute whether the Costs Applicant was entitled to terminate the costs agreement must be ventilated elsewhere.

22. Ms Paul argued that Birchgrove Legal did not update its costs disclosure in accordance with the Act. The costs assessor determined that Birchgrove Legal was required by s 174(b) of the Uniform Law to update the costs disclosure following the failure of the informal settlement conference conducted between the parties. The Uniform Law provides, in ss 174(1), 178(1)(a) and (b) and 185(1):

174 Disclosure obligations of law practice regarding clients

(1) Main disclosure requirement A law practice—

(a) must, when or as soon as practicable after instructions are initially given in a matter, provide the client with information disclosing the basis on which legal costs will be calculated in the matter and an estimate of the total legal costs; and

(b) must, when or as soon as practicable after there is any significant change to anything previously disclosed under this subsection, provide the client with information disclosing the change, including information about any significant change to the legal costs that will be payable by the client—

together with the information referred to in subsection (2).

178 Non-compliance with disclosure obligations

(1) If a law practice contravenes the disclosure obligations of this Part—

(a) the costs agreement concerned (if any) is void; and

(b) the client or an associated third party payer is not required to pay the legal costs until they have been assessed or any costs dispute has been determined by the designated local regulatory authority; and

…

185 Certain costs agreements are void

(1) A costs agreement that contravenes, or is entered into in contravention of, any provision of this Division is void.

Note

If a costs agreement is void due to a failure to comply with the disclosure obligations of this Part, the costs must be assessed before the law practice can seek to recover them (see section 178(1)).

23. The costs assessor found that Birchgrove Legal failed, on an ongoing basis after the settlement conference, to disclose the changing estimate of total legal costs as required under s 174(1) of the Uniform Law. The consequence, the costs assessor determined, was that the costs agreement was void. The costs assessor said “It follows that my role is to assess costs pursuant to s 178(b)” of the Uniform Law.

24. The costs assessor allowed professional fees of $56,106.00 plus GST, totalling $61,716.60. The disbursements allowed, including GST, totalled $3,032.44. The filing fee of $888.39 in respect of the Application for Assessment of Costs was also allowed. Interest on the current rate was awarded to Birchgrove Legal.

25. The costs assessor ordered Birchgrove Legal to pay the costs of the assessment.

26. On 28 September 2023, Ms Paul filed an Application for Review of Determination of a Costs Assessor under s 83 of the Legal Profession Uniform Law Application Act 2014 (‘the Application for Review’).

27. The grounds for the review stated in the Application for Review were as follows:

a. Birchgrove Legal’s retainer was an entire agreement.

b. Birchgrove Legal ceased to act for her [ie, Ms Paul] without just cause.

c. In consequence, Birchgrove Legal is not entitled to any professional costs.

d. The learned Costs Assessor erred in holding Birchgrove Legal’s retainer was not an entire agreement.

e. The Costs Assessor did not determine whether Birchgrove Legal ceased to act and terminated their retainer without just cause. He ought to have done so.

28. The Review Panel delivered its reasons for decision on 1 December 2023.

29. The Review Panel dismissed the Application for Review for reasons set out in detail but conveniently summarised at paragraphs 6.45 – 6.46 of the reasons:

6.45 In the end, whether because of the May 2020 disclosure document being part of the contract between the parties or whether there was an entire contract that could only be terminated for “just cause” because of the panel’s findings later set out in these reason, the panel finds Birchgrove Legal was permitted on a factual basis to terminate the contract and claim its fees from Ms Paul.

6.46 For reasons set out later, the panel finds on the facts that there was just cause, or that there were matters falling within the terms of section 33 of the May 2020 document.

30. The Review Panel made a series of factual findings, including that Ms Paul had been advised that $600,000 constituted adequate provision for her, that Ms Paul had failed to accept legal advice and that Ms Paul had lost confidence in her solicitors.

31. The Review Panel’s conclusion was set out in paragraph 11 of its reasons as follows:

11.1 The panel affirms the assessor’s C3 Certificate of Determination of Manager’s Assessment Costs requiring Birchgrove Legal to pay the assessor’s costs.

11.2 The panel sets aside the assessor’s C1 Certificate and issues a C7 Certificate calculated as follows:

11.2.1 Amount of costs allowed

(fees, expenses and GST) $64,749.04

11.2.2 Interest on costs allowed Nil

11.2.3 Total payable by Ms Paul to Birchgrove Legal $64,749.04

11.3 Birchgrove Legal paid the original filing fee. Thus the panel makes no deduction for it, the result of which is that Birchgrove Legal bear that filing fee.

32. Ms Paul was ordered to pay the panel’s costs of the Application for Review on the basis that the panel reduced the costs by less than 15%. Ms Paul was not required to pay Birchgrove Legal’s costs because the firm was self-represented.

Consideration

The Nature of an appeal under s 89 of the Legal Profession Uniform Law Application Act 2014

33. The Legal Profession Uniform Law Application Act 2014, in s 89, provides:

89 Appeal on matters of law and fact

(1) A party to a costs assessment that has been the subject of a review under this Part may appeal against a decision of the review panel concerned to—

(a) the District Court, in accordance with the rules of the District Court, but only with the leave of the Court if the amount of costs in dispute is less than $25,000, or

(b) the Supreme Court, in accordance with the rules of the Supreme Court, but only with the leave of the Court if the amount of costs in dispute is less than $100,000.

(2) The District Court or the Supreme Court (as the case requires) has all the functions of the review panel.

(3) The Supreme Court may, on the hearing of an appeal or application for leave to appeal under this section, remit the matter to the District Court for determination by that Court in accordance with any decision of the Supreme Court and may make such other order in relation to the appeal as the Supreme Court thinks fit.

(3A) The Supreme Court may, before the conclusion of any appeal or application for leave to appeal under this section in the District Court, order that the proceedings be removed into the Supreme Court.

(4) An appeal is to be by way of a rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the review panel or costs assessor may, with the leave of the Court, be given on the appeal.

34. The characteristics of an appeal by way of a rehearing were explained in the context of a dispute about a costs assessment in Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 by Meagher JA, with whom Macfarlan JA and White JA agreed, at [7] – [9]:

7. The nature of an appeal by way of rehearing is described in Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23] (Gaudron, Gummow, McHugh and Hayne JJ) by reference to the characteristics which distinguish it from a hearing de novo and an appeal in the strict sense:

For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the

appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.

8. The following passage from the judgment of Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [31] makes clear that while it remains necessary to identify an error in the decision appealed from, in an appeal by way of rehearing that requirement may be satisfied by reason of further evidence adduced in the appeal or a change in the law which has the result that looked at in retrospect the decision appealed from was in one or more respects incorrect:

For practical purposes, the difference between correction of error on an appeal in the strict sense and correction of error on an appeal by way of rehearing lies in the temporal perspective that the appellate court is required to adopt in examining the correctness of the judgment under appeal. An appellate court determining an appeal in the strict sense is required to determine the correctness of the judgment under appeal at the time that judgment was given: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial and on the law as it then stood. An appellate court determining an appeal by way of rehearing, in contrast, is required to determine the correctness of the judgment under appeal in retrospect: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial supplemented by any further evidence that the appellate court may allow to be adduced on the appeal, and on the law as it stands when the appellate court gives judgment on the appeal.

9. As Basten JA recently observed in Gazecki v McCabes Lawyers Pty Ltd [2020] NSWCA 98 at [42] by s 89(2) the Court determining the appeal by way of rehearing is said to have “all the functions of the Review Panel”. By s 85(2) the Review Panel in turn had “all the functions of a costs assessor in relation to the assessment concerned and is to determine the application, subject to Pt 7 of the Act and the costs assessment rules, in the manner that a costs assessor would be required to determine an application for costs assessment.” It was not submitted by either party that the effect of this provision is that the powers of the appellate court may be exercised whether or not there was error (in either of the senses referred to above) on the part of the Review Panel.

35. The Uniform Law provides, in s 198(1):

198 Applications for costs assessment

(1) Applications for an assessment of the whole or any part of legal costs payable to a law practice may be made by any of the following—

(a) a client who has paid or is liable to pay them to the law practice;

(b) a third party payer who has paid or is liable to pay them to the law practice or the client;

(c) the law practice;

(d) another law practice, where the other law practice retained the law practice to act on behalf of a client and the law practice has given the other law practice a bill for doing so.

36. The process leading to this appeal began with an application on 24 March 2024 by Birchgrove Legal for an assessment of costs under s 198(1)(c). Birchgrove Legal’s entitlement to apply for an assessment of costs under s 198(1)(c) depends upon there being in existence “legal costs payable to a law practice” within the meaning of s 198(1) of the Uniform Law. The issue of whether, on 24 March 2024, there were in existence “legal costs payable” to Birchgrove Legal by Ms Paul is a jurisdictional question in relation to the costs assessor, the Review Panel and the District Court. Ms Paul has raised this issue at every stage of the process.

37. I will consider each of the grounds raised by Ms Paul in support of her contention that there are no legal costs payable by her to Birchgrove Legal in turn.

Ground 1: Was Birchgrove Legal’s retainer an entire contract?

38. Ms Paul acknowledged that the “retainer”, being the letter from Birchgrove Legal to Ms Paul of 29 May 2020, was found, by the costs assessor, to be void under s 178(1)(a) of the Uniform Law. This was because of the failure by Birchgrove Legal to comply with its disclosure obligation under s 174(1)(b) of the Uniform Law by omitting to provide an updated estimate of costs after the failed settlement conference when it became clear that the matter would proceed to trial.

39. Ms Paul submitted that, although void under the Uniform Law, the costs agreement was not “non-existent’ and elements of it which govern the relationship between the parties continued to have operation (see Court Book p 3146 – 3150, adopted in the plaintiff’s submissions in this matter).

40. In Bingham v Bevan [2023] NSWCA 86 at [34] – [55] (‘Bingham’) Basten AJA, with whom Meagher JA and White JA agreed, said the following, relevant to the present matter (in brief summary):

41. “In principle there is no doubt that the costs assessor, like any tribunal, has power to determine whether a criterion of engagement of a statutory power has been fulfilled. However, it does not follow that the view formed by the costs assessor will be determinative for other purposes” (at [36]).

42. The Legal Profession Uniform Law Application Act 2014, in s 93C(3) says:

(3) For the purpose of determining an application for assessment or exercising any other function as a costs assessor, a costs assessor may determine any anterior or incidental question of fact or law, but not so as to establish an issue estoppel for that question for the purpose of any other proceedings.

1. “Terms such as “void”, “invalid” and “null” do not deny the existence of something, whether it be a thing, an agreement or a decision. Rather, they deny the legal effect or consequences of the thing, the agreement or the decision, but usually for a purpose consistent with the statutory context. The immediate question is, therefore, whether such a characterisation denies all legal consequences, or whether the statute itself gives effect to what would otherwise have been contractual rights and obligations” (at [40]).

2. The legislative provisions concerning a failure to make the required costs disclosure “invite a purposive approach to the understanding of the consequence of a contravention of the disclosure obligations” (at [45]).

3. “… the effect of inadequate disclosure is not to terminate the retainer, but to allow that the services may yet be provided (or have been provided) on the basis that the practitioner can only recover fair and reasonable costs of those services” (at [46]).

4. “Finally, with respect to the text, s 178(1) is engaged in circumstances where “a law practice contravenes the disclosure obligations of this Part”. That may have an effect on a costs agreement, but the costs agreement itself does not contravene any provision of Div 3 by reason of a failure by the law practice to make proper disclosure. Section 185 identifies the costs agreement itself as that which contravenes a provision of Div 4, but, in the remainder of the section, identifies the consequences for the law practice and its entitlements including where the amount of costs recoverable exceeds the amount which would have been recoverable if “the costs agreement had not been void” (at [57]).

5. The principles set out in Bingham, applied in this matter, mean that aspects of the costs agreement remain in operation between the parties, however, the solicitors may recover fair and reasonable costs only after the costs have been assessed and any dispute determined in accordance with s 178(1)(c) of the Uniform Law.

6. Ms Paul argues that the costs agreement is an entire contract; a contract for a single task, payment for which does not fall due unless or until the task is completed. Ms Paul’s argument on this point in this Court was the same as her argument to the Review Panel and was based upon those parts of the costs agreement which speak of the proceedings as a whole and are set out in detail in Ms Paul’s submissions at p 3146 to 3148.

7. The Review Panel rejected the argument that the retainer was an entire contract. The Review Panel cited Kartal & Dutsanee [2016] FamCA 1158 at [56] and [69], per Loughnan J, who said that it is no longer the practice for solicitor’s contracts to be entire and that rates and timing of payments are set out in solicitor’s contracts in “all but a vanishingly small number of cases”.

8. The costs agreement sets out hourly rates and provides that the solicitors will furnish to Ms Paul a memorandum of costs and expenses “on a regular basis”. In the case of the solicitor’s fees, the fees were payable upon judgment or assessment. In the case of barrister’s fees and disbursements generally, these were to be paid within 30 days of invoice.

9. In its submissions to the Review Panel, Birchgrove Legal submitted the following, at [4c] – [5]:

4c. The terms Ms Paul submits to be indicative of an entire contract are standard terms for costs agreements. As there is no longer a presumption of entire contract in standard contracts, standard terms are not indicative of entire contracts. We provide the following comment on the terms of the Costs Agreement:

i. ‘Birchgrove Legal will act for you in the above matter’ in clause 1;

ii. ‘This costs disclosure and agreement informs you of the terms of our engagement and your rights. This costs disclosure and agreement related to the above matter’-…in clause 2;

iii. The phrase ‘your matter will be finalised within 12 months’ in clause 15 is an estimate of the duration of proceedings only;

iv. Clause 13 referring to cost estimates for success or otherwise ‘in the litigation’ and associated heading of ‘costs payable and recoverable on litigation outcome’ is worded as such to indicate the nature of the Costs Agreement and where its natural conclusion would be, not to deny any premature conclusion of the Costs Agreement by termination, frustration, or other lawful means.

v. As Ms Paul submits, the observations in clause 14, including ’[I]f you win at first instance’ do ‘contemplate Birchgrove Legal acting through to judgment’ and even to appeals. This should not be considered to indicate the Costs Agreement is an entire contract with costs and disbursements payable only after judgment or, if sought, after the final appeal. This would run in opposition to Jessel MR in Re Hall & Baker who noted at pages 544 to 545 that, ‘it is not reasonable that a solicitor should engage to act on for an indefinite number of years, winding up estates, without receiving any payment on which he can maintain himself.’

d. The Costs Assessor did not err in finding that:

i. clause 6 of the Agreement requiring payment of costs and expenses upon finalisation of the matter only delayed the client’s ‘obligation to make payment until after the conclusion of the matter’, as stated in paragraph 33; and

ii. that finalisation of the matter included termination of the retainer by either party.

e. In support of this we note the following:

i. Professional fees incurred under Ms Paul’s retainer of Birchgrove Legal are payable ‘upon finalisation of [the] matter’ as set out in clause 6.1 of the Agreement.

ii. Finalisation is defined in clause 7 of the Agreement, ‘[f]inalisation of your matter is defined by judgment being entered by the Court, settling the claim, or the matter otherwise resolving and does not necessarily mean that you have been successful’ should not be construed as stating that professional fees are only payable upon conclusion of the matter in court or dispute resolution.

iii. ‘[T]he matter otherwise resolving’ includes termination of the retainer by either the client or Birchgrove Legal. Clause 36 states that : ‘Notwithstanding paragraph 6 above, if this agreement is terminated, our charges and expenses incurred up to the time of termination will become immediately due and payable…**’,

iv. Were this not the case, the client would be entitled to terminate the agreement in writing pursuant to clause 35 of the Agreement at any stage of the retainer and benefit from Birchgrove Legal’s legal work without being required to pay any professional fees.

5. Walters J of the South Australian Supreme Court discussed interim bills in family provision claims and representation of a beneficiary to a deceased’s estate in Caldwell v Treloar (1982) 30 SASR 202 at 209:

[S]olicitors who undertake business of a general nature, or business involving a variety of matters, such as an investigation into the administration of the estate of a deceased person, should not be held to do a single and entire thing and to be dis**entitled to be paid any remuneration until the whole business has been brought to finality. In matters of that kind, it would not be reasonable that solicitors should engage themselves for a indefinite time without payment…and so where there is a convenient break in the business being undertaken, the solicitors have a right to send a bill of costs of work done up to that point, and in default of payment, they are entitled, upon reasonable notice to the client, to put an end to the retainer … and sue for their costs.

46. The Review Panel determined that the question as to whether “Birchgrove Legal is entitled to be paid before completion of the proceedings, and the issue of whether Birchgrove Legal were entitled to terminate the contract and claim fees earlier than completion of proceedings, are issues that must be determined first by looking at the actual terms of the contract between Birchgrove Legal and Ms Paul, and secondly to the facts, that is the circumstances at the time of termination”.

47. The Review Panel undertook an analysis of the terms of the costs agreement and the disclosure statement and concluded that, if Birchgrove Legal had reasonably terminated the costs agreement in accordance with clause 33, which dealt with termination, then it was entitled to be paid its costs under the costs agreement, given that judgment had been given in Ms Paul’s proceedings. The Review Panel found that clause 33 remained operative, even if the costs agreement were “void” for the purposes of s 178(1) of the Uniform Law. Implicitly, the Review Panel found that the costs agreement was not an entire contract.

48. I am also of the view that the costs agreement is not an entire contract. It is clear from its terms that it was not intended that an entitlement in Birchgrove Legal to payment of its fees was to arise only if it continued to act until the proceedings were completed, or a judgment was obtained. Early termination is contemplated specifically and in detail. The rendering of periodic accounts is contemplated. I agree with the reasoning set out in the submissions made to the Review Panel on behalf of Birchgrove Legal, set out at [45], above.

49. The Review Panel did not err in finding that the costs agreement was not an entire agreement. Ground 1 has not been made out.

Ground 2: Was Birchgrove Legal entitled to terminate the costs agreement?

50. The Review Panel found that Birchgrove Legal was entitled to terminate the costs agreement “pursuant to clauses 33.5, perhaps 33.7, 33.8, 33.9 and 33.11, in the alternative, there was “sufficient cause” or “just cause” to terminate that contract if those particular clauses did not apply”.

51. Ms Paul argued that clause 33.5, which allowed termination by Birchgrove Legal “if you fail to accept advice we (or counsel) give you” was not available to Birchgrove Legal. This, it was said, was because written instructions had been given by Ms Paul to make an offer of $750,000 inclusive of legal fees, and by continuing to act, it was argued, Birchgrove Legal waived “any entitlement to terminate on this ground”. I reject the submission that, by continuing to act after the written instructions, Birchgrove Legal waived any entitlement to terminate its retainer on grounds relating to the quantum of the claim. There is simply no basis for imposing that limitation. The response by Mr Anderson to the request for a Limberger submission changed the situation with respect to the issue of quantum. It was clear at the conference between Ms Paul, Mr Anderson and Mr Alameddine, subsequent to the Limberger submission, that Ms Paul was unhappy with what counsel had said.

52. The trial, however, continued the next day on 8 February 2022. Ms Paul had clearly been advised by Mr Alameddine, prior to instituting proceedings, that the best course of action for her was to make a family provision claim, and not to dispute the validity of a codicil to her father’s will. Ms Paul accepted this advice when it was given (see the affidavit of Mr Alameddine of 27 September 2024). However, in cross-examination on 8 February 2022, Ms Paul raised the codicil and said it was in dispute, together with other expenses. Justice Kunc drew her attention to the fact that it was not a dispute which was the subject of proceedings, and she continued to attempt to make statements in relation to it.

53. Later in the hearing on 8 February 2022, the events set out in [8] to [13] above took place.

54. In all of the circumstances, it was clear to the Supreme Court and to Mr Anderson and Mr Alameddine that Ms Paul and Mr Anderson were at odds with respect to quantum. It was also clear that Ms Paul wished to agitate her view of the validity of the codicil, contrary to the advice of Mr Alameddine. The conditions for termination under clause 33.5 of the costs agreement were present, and the costs agreement was properly terminated.

55. Ground 2 of the appeal has not been made out.

Summary and Conclusion

56. No error has been identified in the decision of the Review Panel. I find that there were legal costs payable by Ms Paul to Birchgrove Legal at the time that Birchgrove Legal applied for a costs assessment and Birchgrove Legal was entitled to seek a costs assessment under the Unform Law, as it did.

57. Had an error been established, and had the Court been placed in the position of making the decision on the basis of what was before the Review Panel, together with the affidavits of Ms Paul of 17 July 2024, Mr Grant Hansen of 25 July 2024 and Mr Alameddine of 27 September 2024, the outcome would have been the same as the outcome arrived at by the Review Panel.

58. The following order will issue:

The Summons Commencing an Appeal filed on 5 February 2024 is dismissed.

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