sec.328Setting aside costs agreements

### sec.328 Setting aside costs agreements On application by a client, the Supreme Court or the tribunal may order that a costs agreement be set aside if satisfied the agreement is not fair or reasonable. An application under subsection (1) to the tribunal must be made as provided under the QCAT Act . In deciding whether or not a costs agreement is fair or reasonable, and without limiting the matters to which the Supreme Court or tribunal can have regard, the Supreme Court or tribunal may have regard to any or all of the following matters— 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 law practice; 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; whether the law practice failed to make any of the disclosures required under division 3 ; the circumstances and conduct of the parties before and when the agreement was made; the circumstances and the conduct of the parties in the matters after the agreement was made; 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; whether and how billing under the agreement addresses changed circumstances affecting the extent and nature of legal services provided under the agreement. The Supreme Court or tribunal may adjourn the hearing of an application under this section pending the completion of any investigation or decision concerning a complaint or investigation matter about the conduct of any Australian legal practitioner or Australian-registered foreign lawyer. If the Supreme Court or tribunal orders a costs agreement be set aside, it may make an order as it considers appropriate in relation to the payment of legal costs the subject of the agreement. Without limiting subsection (4) , in making an order under that subsection, the Supreme Court or tribunal may— apply the applicable scale of costs, if any; or decide the fair and reasonable legal costs in relation to the work to which the agreement related, taking into account— the seriousness of the conduct of the law practice or any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf; and whether or not it was reasonable to carry out the work; and whether or not the work was carried out in a reasonable manner. However, in making an order under subsection (4) , the Supreme Court or tribunal may not order the payment of an amount in excess of the amount the law practice would have been entitled to recover if the costs agreement had not been set aside. For subsection (5) (b) , the Supreme Court or tribunal may have regard to any or all of the following matters— whether the law practice and any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf complied with this Act; any disclosures made by the law practice under division 3 , or the failure to make a disclosure required under that division; any relevant advertisement as to— the law practice’s costs; or the skills of the law practice or of any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf; the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter; the retainer and whether the work done was within the scope of the retainer; the complexity, novelty or difficulty of the matter; the quality of the work done; the place where, and circumstances in which, the work was done; the time within which the work was required to be done; any other relevant matter. The Supreme Court or tribunal may decide whether or not a costs agreement exists. The Supreme Court may order the payment of the costs of and incidental to a hearing under this section. The tribunal may make a costs order under the QCAT Act in relation to a hearing under this section. In this section— client means a person to whom or for whom legal services are or have been provided. See also section 322 (6) which extends the application of this section to associated third parties. s 328 amd 2009 No. 24 s 1504 (sec.328-ssec.1) On application by a client, the Supreme Court or the tribunal may order that a costs agreement be set aside if satisfied the agreement is not fair or reasonable. (sec.328-ssec.1A) An application under subsection (1) to the tribunal must be made as provided under the QCAT Act . (sec.328-ssec.2) In deciding whether or not a costs agreement is fair or reasonable, and without limiting the matters to which the Supreme Court or tribunal can have regard, the Supreme Court or tribunal may have regard to any or all of the following matters— 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 law practice; 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; whether the law practice failed to make any of the disclosures required under division 3 ; the circumstances and conduct of the parties before and when the agreement was made; the circumstances and the conduct of the parties in the matters after the agreement was made; 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; whether and how billing under the agreement addresses changed circumstances affecting the extent and nature of legal services provided under the agreement. (sec.328-ssec.3) The Supreme Court or tribunal may adjourn the hearing of an application under this section pending the completion of any investigation or decision concerning a complaint or investigation matter about the conduct of any Australian legal practitioner or Australian-registered foreign lawyer. (sec.328-ssec.4) If the Supreme Court or tribunal orders a costs agreement be set aside, it may make an order as it considers appropriate in relation to the payment of legal costs the subject of the agreement. (sec.328-ssec.5) Without limiting subsection (4) , in making an order under that subsection, the Supreme Court or tribunal may— apply the applicable scale of costs, if any; or decide the fair and reasonable legal costs in relation to the work to which the agreement related, taking into account— the seriousness of the conduct of the law practice or any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf; and whether or not it was reasonable to carry out the work; and whether or not the work was carried out in a reasonable manner. (sec.328-ssec.6) However, in making an order under subsection (4) , the Supreme Court or tribunal may not order the payment of an amount in excess of the amount the law practice would have been entitled to recover if the costs agreement had not been set aside. (sec.328-ssec.7) For subsection (5) (b) , the Supreme Court or tribunal may have regard to any or all of the following matters— whether the law practice and any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf complied with this Act; any disclosures made by the law practice under division 3 , or the failure to make a disclosure required under that division; any relevant advertisement as to— the law practice’s costs; or the skills of the law practice or of any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf; the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter; the retainer and whether the work done was within the scope of the retainer; the complexity, novelty or difficulty of the matter; the quality of the work done; the place where, and circumstances in which, the work was done; the time within which the work was required to be done; any other relevant matter. (sec.328-ssec.8) The Supreme Court or tribunal may decide whether or not a costs agreement exists. (sec.328-ssec.9) The Supreme Court may order the payment of the costs of and incidental to a hearing under this section. (sec.328-ssec.9A) The tribunal may make a costs order under the QCAT Act in relation to a hearing under this section. (sec.328-ssec.10) In this section— client means a person to whom or for whom legal services are or have been provided. See also section 322 (6) which extends the application of this section to associated third parties. - (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 law 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 ; - (d) the circumstances and 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; - (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. - (a) apply the applicable scale of costs, if any; or - (b) decide the fair and reasonable legal costs in relation to the work to which the agreement related, taking into account— (i) the seriousness of the conduct of the law practice or any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf; and (ii) whether or not it was reasonable to carry out the work; and (iii) whether or not the work was carried out in a reasonable manner. - (i) the seriousness of the conduct of the law practice or any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf; and - (ii) whether or not it was reasonable to carry out the work; and - (iii) whether or not the work was carried out in a reasonable manner. - (i) the seriousness of the conduct of the law practice or any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf; and - (ii) whether or not it was reasonable to carry out the work; and - (iii) whether or not the work was carried out in a reasonable manner. - (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 , or the failure to make a disclosure required under that division; - (c) any relevant advertisement as to— (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; - (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 Australian legal practitioner or Australian-registered foreign 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. - (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;