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Gold Coast firm fails in retainer challenge

A Gold Coast law firm’s billing will be subject to a costs assessment after a failed challenge to a client’s application.

Broadbeach Law Group (BBLG) opposed an application by Carole Margaret Broadley for a review of four invoices issued by the firm between October 2021 and December this year, arguing the third invoice was the final bill and therefore the application did not comply with Section 335 of the Legal Profession Act 2007 (Qld) (LPA), which requires an application to be made within 12 months after a bill is given.

In a decision delivered last Thursday, Brisbane District Court Judge Porter KC found the first three invoices were interim bills within the meaning of s 333 of the LPA, and the fourth bill was the final for legal services and so Mrs Broadley was entitled to apply for a costs assessment.

Mrs Broadley engaged BBLG in September 2020 to act in a Family Provision Application (FPA) in relation to her late husband’s will. Probate proceedings and mediation produced a settlement deed, which then required further work, which BBLG carried out.

The retainer promised “to act for Mrs Broadley and provide current legal advice on any issue relating to the FPC; and to take all necessary action to achieve Mrs Broadley’s goals for the FPC”.

BBLG issued three invoices to Mrs Broadley before settlement – on 5 October 2021, 12 October 2021 and 19 October 2022 – and one invoice a year after settlement, on 1 December 2023.

Mrs Broadley contended that the instructions to give effect to the settlement were given as part of a continuation of the existing retainer with no natural break.

BBLG contended that the end of the mediation represented a natural break in the instructions such that the bill to that point was the final bill under the retainer.

Judge Porter said the critical point for the application was whether the retainer extended to giving effect to a negotiated settlement.

He determined the retainer was extended twice within the scope of the legal services contemplated by the costs agreement: when instructions were given to pursue the probate proceedings, and again to give effect to the settlement terms encapsulated in the deed.

The result was that the last bill was the final bill for the retainer and earlier bills were interim bills.

In conclusion, Judge Porter stated the identification of a specific retainer would vary from case to case.

“What is clear from the authorities in my respectful view is that where there is a costs agreement of the kind in this case (with a specific retainer and provision for further instructions on the terms of the agreement), where there is continuity in instructions within the scope of the initial specific retainer, or instructions given varying of the scope of that initial specific retainer without any material period of cessation of instructions, then the last bill given for that extended or varied work will be the final bill for the purposes of the LPA in respect of the whole of the work,”  he said.

Judge Porter said he would hear the parties as to costs and make orders to facilitate the costs assessment.

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