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LEGAL PROFESSION ACT 2007 - SECT 328
Setting aside costs agreements
328 Setting aside costs agreements
(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.
(1A) An application under subsection (1) to the tribunal must be
made as provided under the QCAT Act .
(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— (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.
(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.
(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.
(5) Without limiting subsection (4)
, in making an order under that subsection, the Supreme Court or tribunal
may— (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.
(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.
(7) For subsection (5) (b) , the
Supreme Court or tribunal 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 , 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;
(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.
(8) The Supreme Court or tribunal
may decide whether or not a costs agreement exists.
(9) The Supreme Court may
order the payment of the costs of and incidental to a hearing under this
section.
(9A) The tribunal may make a costs order under the QCAT Act in
relation to a hearing under this section.
(10) In this section—
"client" means a person to whom or for whom legal services are or have been
provided. Note— See also section 322 (6) which extends the application of
this section to associated third parties.
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