288Setting aside costs agreements or provisions of costs

288 Setting aside costs agreements or provisions of costs agreements (1) On application by a client who is a party to a costs agreement with a law practice, the Supreme Court may order that the agreement or a provision of the agreement be set aside if satisfied that the agreement or provision is not fair or reasonable. Note Section 277 (3) also allows a client to apply under this section for an order setting aside a costs agreement if the law practice concerned has failed to disclose to the client anything required by div 3.2.3 to be disclosed. (2) The Supreme Court may set aside— (a) a provision only of a costs agreement even though the client has applied for the whole agreement to be set aside; or (b) the whole of a costs agreement even though the client has applied only to have a provision of the agreement set aside. (3) In deciding whether or not a costs agreement is fair or reasonable, the Supreme Court may have regard to any or all of the following matters: (a) whether the client was induced to enter into the agreement by the fraud or misrepresentation of the law practice or of any representative of the practice; (b) whether any Australian legal practitioner or Australian-registered foreign lawyer acting on behalf of the law practice has been found guilty of unsatisfactory professional conduct or professional misconduct in relation to the provision of legal services to which the agreement relates; (c) whether the law practice failed to make any of the disclosures required under division 3.2.3 (Costs disclosure); (d) the circumstances and conduct of the parties before and when the agreement was made; (e) the circumstances and conduct of the parties in the matter after the agreement was made; (f) whether and how the agreement addresses the effect on costs of matters and changed circumstances that might foreseeably arise and affect the extent and nature of legal services provided under the agreement; (g) whether and how billing under the agreement addresses changed circumstances affecting the extent and nature of legal services provided under the agreement; (h) any other relevant matter. (4) The Supreme Court may adjourn the hearing of an application under this section until the completion of any investigation or determination of any information in relation to the conduct of any Australian legal practitioner or Australian-registered foreign lawyer. (5) If the Supreme Court orders that a costs agreement or a provision of a costs agreement be set aside, it may make an order in relation to the payment of legal costs the subject of the agreement or the provision of the agreement. (6) In making an order under subsection (5), the Supreme Court must decide the fair and reasonable legal costs in relation to the work to which the agreement or the provision of the agreement related, taking into account— (a) the seriousness of the conduct of the law practice or any lawyer acting on its behalf; and (b) whether or not it was reasonable to carry out the work; and (c) whether or not the work was carried out in a reasonable way. (7) In making an order under subsection (5), the Supreme Court must not order the payment of an amount in excess of the amount that the law practice would have been entitled to recover if the costs agreement or the provision of the costs agreement had not been set aside. (8) For subsection (5), the Supreme Court may have regard to any or all of the following matters: (a) whether the law practice and any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf complied with this Act; (b) any disclosures made by the law practice under division 3.2.3 (Costs disclosure), or the failure to make any disclosures required under that division; (c) any relevant advertisement about— (i) the law practice’s costs; or (ii) the skills of the law practice or of any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf; (d) the skill, labour and responsibility displayed on the part of the lawyer responsible for the matter; (e) the retainer and whether the work done was within the scope of the retainer; (f) the complexity, novelty or difficulty of the matter; (g) the quality of the work done; (h) the place where, and circumstances in which, the work was done; (i) the time within which the work was required to be done; (j) any other relevant matter. Example—par (j) a scale of costs (9) The Supreme Court may decide whether or not a costs agreement exists. (10) The Supreme Court may order the payment of the costs of and incidental to a hearing under this section. client means a person to whom or for whom legal services are or have been provided. Note See also s 282 (6) which extends the application of this section to associated third party payers.