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County Court costs – VIC

6 January 2025 by By Lawyers

New rules provide for County Court costs to be taxed in the Costs Court under the Supreme Court Scale of Costs that operates by reference to hourly rates from 1 January 2025.

Costs in the County Court are dealt with under Order 63 of the County Court Civil Procedure Rules 2018, which now adopts the Scale of Costs in Schedule 1 of Appendix A to the Supreme Court (General Civil Procedure) Rules 2015.

In most cases, the parties will agree on the amount of costs to be paid. If they do not agree, the dispute is referred to the Costs Court.

The scale is based principally on time costing. If a client has been charged on the basis of hourly rates for work done, Section 1 of the Scale applies and provides that the costs payable to the entitled party are to be allowed on the basis of reasonable hourly rates, up to the maximum hourly rate set out in the scale. There are 3 tiers of maximum rates according to a practitioner’s years of post-admission experience. There are no minimum rates.

Section 1 also sets out maximum hourly rates for work done by employees of a law practice who are not legal practitioners. The maximum rates for those employees depend on whether their work required legal skill or knowledge.

All claims must be reasonable. In setting rates to be charged to clients, and in making costs claims, practitioners must observe their overarching obligation to ensure that costs are reasonable and proportionate under s 24 of the Civil Procedure Act 2010.

The time-based model does not mean that a law practice must charge their clients on an hourly basis. The scale also provides for assessment of costs where the entitled party has not been charged on the basis of hourly rates. In such a case, the Costs Court will allow a reasonable amount for the work.

See the By Lawyers County Court (VIC) and Supreme Court (VIC) publications for more information.

Filed Under: Legal Alerts, Litigation, Publication Updates, Victoria Tagged With: costs, costs orders, County Court, Litigation | Victoria, scale of costs

Uniform Legal Profession Law – WA

28 October 2021 by By Lawyers

By Lawyers are preparing for the Legal Profession Uniform Law in Western Australia

Legal Profession Uniform Law (LPUL) is due to commence in Western Australia on 1 July 2022.

By Lawyers guides and precedents will be updated in due course.

Overview

The WA provisions are contained in the Legal Profession Uniform Law Application Bill 2021 (WA) which will replace the Legal Profession Act 2008 and the Law Society Public Purposes Trust Act 1985 on commencement.

Simplified and standardised regulations for WA legal practitioners will align with those in New South Wales and Victoria. The Uniform Law is governed by the Legal Services Council and the office of the Commissioner for Uniform Legal Services Regulation. Each participating jurisdiction has a representative on the council which sets the rules and policy underpinning the Uniform Law. The Commissioner oversees dispute resolution and compliance functions.

The WA Legal Services and Complaints Committee and the Legal Practice Board will continue to carry out complaint and investigation functions, the granting of practising certificates, and professional development.

Costs disclosure and billing under the LPUL

While the Uniform Law makes sweeping changes, those which impact day-to-day practice the most relate to costs disclosure and billing.

Costs disclosure

Written costs disclosure must be given when instructions are taken or as soon as reasonably practical after. It must include the basis on which costs will be calculated and an estimate of the total costs. It must be updated if there is any significant change.

The client must be informed of their rights to negotiate a costs agreement, receive a bill, request an itemised bill, negotiate the billing method and the availability of costs determination.

If a law practice fails to meet its disclosure obligations, then any cost agreement with the client is void and the client is not required to pay the legal costs. The firm cannot commence or maintain any proceedings for recovery of legal costs until they have been assessed, or the dispute is determined by the Legal Practice Board. A contravention can also result in disciplinary action.

Firms must take all reasonable steps to ensure the client has understood and given consent to the proposed conduct of the matter and the proposed costs.

Disclosure obligations vary depending on the estimated costs in a matter. Disclosure is not required if costs are not expected to exceed $750 excluding GST and disbursements. Where costs are not expected to exceed $3000 excluding GST and disbursements, the prescribed uniform standard disclosure form can be used.

Billing under the LPUL

A bill may be lump sum or itemised. A client who receives a lump sum bill may request an itemised bill. The request must be made within 30 days after the date on which the legal costs became payable and must be complied with within 21 days after receiving the request.

If the costs in an itemised bill are higher than the a lump sum bill, the additional costs will only be recoverable where the client was told that the costs in any itemised bill may be higher – and the additional costs are determined to be payable after a costs assessment or binding determination.

Each bill or a covering letter accompanying each bill must be signed by a principal of the firm, or nominate a principal as responsible for the bill.

A law practice must not charge for the preparation or delivery of a bill.

Each bill must include or be accompanied by a written statement setting out the options available to the client in the event of a dispute about the costs and any time limits which may apply.

Interest can be charged on costs unpaid 30 days or more after a complying bill has been given. Interest can only be charged where the bill contains a statement that interest will be payable and the rate chargeable. The maximum rate is prescribed; currently it is 2% above the cash rate target specified by the Reserve Bank of Australia at the time the bill was given.

The billing provisions of the Uniform Law do not apply if the client is a commercial or government authority

Cost assessment procedure

The Uniform Law does not change the procedure for party / party cost assessments in Western Australia. The procedure and form for an assessment of costs is set out at rule 4.7 of the Consolidated Practice Directions of the Supreme Court.

By Lawyers guides:

All WA specific By Lawyers guides will be amended to cover the Legal Profession Uniform Law. So too will the relevant WA commentary and precedents in Federal guides and reference materials.

The main changes will include:

  • New LPUL compliant costs agreements and short form costs disclosure for all WA guides, Federal guides including Family Law, Employment Law, Companies, Trusts, Joint Ventures and Superannuation.
  • Updates to the 101 Costs Answers reference manual, which will also include the LPUL compliant costs agreements.
  • Updates to the ‘Example invoice incorporating notification of client’s rights’ and the stand-alone ‘Notification of client’s rights’ precedents available on all WA and Federal matter plans.
  • Updates to the commentary on professional executor regulations in the Probate and Letters of Administration guides.
  • Updates to the costs section in the Wills commentary including the ‘Conflicts concerning practitioner’s own interests’ section and the ‘Solicitors as executors’ section.
  • Updates to the WA trust accounting section in the By Lawyers Practice Management guide.
  • Updates to 101 Costs Answers.
  • Updates to the ‘Solicitor mortgages’ section in the Mortgages commentary.

Filed Under: Articles, Legal Alerts, Publication Updates, Western Australia Tagged With: 101 Costs Answers, costs, costs disclosure, Legal Profession Uniform Law, LPUL, practice management, western australia

New succession cases – QLD

30 November 2020 by By Lawyers

New succession cases have been added to the By Lawyers 101 Succession Answers (QLD) reference manual. These helpful recent cases fall under the Estates and Family provision claims sections of the publication.

Costs in Family provision claims

Shelly v Prager (No 2) [2020] NSWSC 1553 concerned the court assessing the overall justice of a case when determining whether special provision for costs should be made in a family provision claim. Williams J at [18] stated the following factors may be relevant:

– whether one party has engaged in unreasonable conduct in the commencement or maintenance of the proceedings which has resulted in the other party (or parties) to the proceeding incurring unnecessary costs;

– whether an applicant’s claim for provision out of an estate is frivolous, vexatious or made without reasonable prospects of success;

– whether an applicant’s claim, although unsuccessful, was otherwise reasonable, meritorious or borderline; and

– the relative size of the deceased estate.

Judicial advice for trustees

Re Perpetual Trustee Company Limited as a trustee for the Joseph Banington Davis Settlement [2020] NSWSC 1574 concerned the dual purpose of an application for judicial advice by an executor/ trustee. Robb J at [72] noted that:

It is…not right to see a trustee’s application for judicial advice about whether to sue or defend proceedings as directed only to the personal protection of the trustee. Proceedings for judicial advice have another and no less important purpose of protecting the interests of the trust.

The addition of these recent cases to 101 Succession Answers (QLD) is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Filed Under: Miscellaneous, Publication Updates, Queensland, Wills and Estates Tagged With: costs, estates, family provision claims, judicial advice, overall justice of the case, trustees

New succession cases – VIC

30 November 2020 by By Lawyers

New succession cases have been added to the By Lawyers 101 Succession Answers (VIC) reference manual. These helpful recent cases fall under the Estates and Family provisions claims sections of the publication.

Costs in Family provision claims

Shelly v Prager (No 2) [2020] NSWSC 1553 concerned the court assessing the overall justice of a case when determining whether special provision for costs should be made in a family provision claim. Williams J at [18] stated the following factors may be relevant:

– whether one party has engaged in unreasonable conduct in the commencement or maintenance of the proceedings which has resulted in the other party (or parties) to the proceeding incurring unnecessary costs;

– whether an applicant’s claim for provision out of an estate is frivolous, vexatious or made without reasonable prospects of success;

– whether an applicant’s claim, although unsuccessful, was otherwise reasonable, meritorious or borderline; and

– the relative size of the deceased estate.

Judicial advice for trustees

Re Perpetual Trustee Company Limited as a trustee for the Joseph Banington Davis Settlement [2020] NSWSC 1574 concerned the dual purpose of an application for judicial advice by an executor/trustee. Robb J at [72] noted that:

It is…not right to see a trustee’s application for judicial advice about whether to sue or defend proceedings as directed only to the personal protection of the trustee. Proceedings for judicial advice have another and no less important purpose of protecting the interests of the trust.

The addition of these recent cases to 101 Succession Answers (VIC) is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Filed Under: Miscellaneous, Publication Updates, Victoria, Wills and Estates Tagged With: costs, estates, family provision claims, judicial advice, overall justice of the case, trustees

New succession cases – NSW

30 November 2020 by By Lawyers

New succession cases have been added to the By Lawyers 101 Succession Answers (NSW) reference manual. These helpful recent cases fall under the Estates and Family provision claims sections of the publication.

Proof of death by inference

The Estate of Alan Bruce Beeby [2020] NSWSC 1512 concerned proof of death by inference. A court may declare a missing person dead, without a death certificate and before the seven-year period relating to the presumption of death is met. At [53] Hallen J explained:

…an inferred death is one where, although a body is not found or recovered, the death can be inferred from the surrounding circumstances, and where it can be inferred that it is more probable that the person has died, rather than that he, or she, is living.

Judicial advice for trustees

Re Perpetual Trustee Company Limited as a trustee for the Joseph Banington Davis Settlement [2020] NSWSC 1574 concerned the dual purpose of an application for judicial advice by an executor/trustee. Robb J at [72] noted that:

It is…not right to see a trustee’s application for judicial advice about whether to sue or defend proceedings as directed only to the personal protection of the trustee. Proceedings for judicial advice have another and no less important purpose of protecting the interests of the trust.

Intermeddling by executors

The Victorian case of Re Abat [2020] VSC 560 contains a discussion of when intermeddling in an estate might deprive an executor of the right to renounce. It should be read in conjunction with the NSW case of Mulray v Ogilvie [1987] 9 NSWLR 1 which is already in 101 Succession Answers.

Costs in Family provision claims

Shelly v Prager (No 2) [2020] NSWSC 1553 concerned the court assessing the overall justice of a case when determining whether special provision for costs should be made in a family provision claim. Williams J at [18] stated the following factors may be relevant:

– whether one party has engaged in unreasonable conduct in the commencement or maintenance of the proceedings which has resulted in the other party (or parties) to the proceeding incurring unnecessary costs;

– whether an applicant’s claim for provision out of an estate is frivolous, vexatious or made without reasonable prospects of success;

– whether an applicant’s claim, although unsuccessful, was otherwise reasonable, meritorious or borderline; and

– the relative size of the deceased estate.

The addition of these recent cases to 101 Succession Answers (NSW) is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Filed Under: New South Wales, Publication Updates, Wills and Estates Tagged With: costs, estates, family provision claims, intermeddling, proof of death, trustees, Wills

101 Costs Answers – ALL STATES

6 November 2020 by By Lawyers

101 Costs Answers is the latest addition to the By Lawyers ‘101’ series of helpful reference materials.

Located in the Reference materials folder on every By Lawyers matter plan, this publication contains valuable commentary and precedents on all aspects of legal costs.

The precedents include all of the By Lawyers costs agreements/client services agreements and costs disclosures, drawn together from all By Lawyers publications into a convenient single publication.

The By Lawyers costs agreements are compliant with the strict requirements of the various state laws. They cater for all areas of law, with detailed recitals of the scope of work usually undertaken in each type of matter. This not only defines the retainer but makes it easy for practitioners to produce documents quickly upon engagement.

The 101 Costs Answers commentary includes:

Disclosure requirements

The commentary helps practitioners to navigate some of the more complicated disclosure requirements including regulated costs and the specific obligations for different types of litigation matters. The effect of non-disclosure is also covered.

Disbursements

Commentary on defining and recovering disbursements includes relevant case law and examples. The By Lawyers costs agreements are drafted to clearly identify usual disbursements.

Counsel’s fees

The commentary deals with the contractual relationship between solicitors and barristers as well as disclosure requirements. With the solicitor responsible for payment of counsel’s fees regardless of the solicitor’s agreement with the client, the By Lawyers costs agreements include counsel’s fees as specific disbursements which the client is obliged to pay.

Debt recovery

Where debt recovery is necessary, 101 Costs Answers contains letters of demand and example pleadings to assist with the recovery of costs. There is also detailed commentary on costs assessment procedures and the relevant forms for each state are available on the matter plan.

Like all By Lawyers publications, 101 Costs Answers contains interactive links to relevant legislation and cases, which are always kept updated.

Filed Under: Australian Capital Territory, Bankruptcy and Liquidation, Business and Franchise, Companies, Trusts, Partnerships and Superannuation, Conveyancing and Property, Criminal Law, Defamation and Protecting Reputation, Domestic Violence Orders, Employment Law, Family Law, Federal, Immigration, Litigation, Motor Vehicle Accidents, Neighbourhood Disputes, New South Wales, Northern Territory, Personal injury, Personal Property Securities, Publication Updates, Queensland, Restraining orders, Security of Payments, South Australia, Tasmania, Trade Marks, Traffic Offences, Victoria, Western Australia, Wills and Estates Tagged With: costs, costs agreements

Indexation of maximum costs – Motor accident injury claims – NSW

29 October 2018 by By Lawyers

Practitioners are reminded that, from 1 October 2018, indexation commenced of the maximum costs for legal services and the maximum fees for medico-legal services recoverable from an insurer in respect of motor vehicle accident claims relating to accidents which occurred on or after 1 December 2017. The maximum costs will be indexed each year in line with inflation.

The maximums for legal costs and medico-legal fees are set out in Schedule 1 to the Motor Accident Injuries Regulation 2017. The maximum amounts recoverable for legal fees depend upon the stage at which the matter is resolved.

The commentary for motor accidents after 1 December 2017 in the By Lawyers NSW Motor Accidents Guide has been updated to note the indexation and provide the relevant links to both the legislation and the costs section of the SIRA website.

Filed Under: Legal Alerts, Litigation, New South Wales, Personal injury Tagged With: costs, indexation, Motor Accident Injuries Act 2017, Motor vehicle accident

Family Law – FCC costs increases

9 August 2018 by By Lawyers

There have been costs increases in the Federal Circuit Court for itemised costs in family law and child support proceedings, pursuant to Schedule 1 of the Federal Circuit Court Rules 2001.

The increases are for initiating applications and other hearing-related costs.

An alert has been added to the By Lawyers Children and Property settlement publications.

Filed Under: Family Law, Federal, Legal Alerts, New South Wales, Northern Territory, Queensland, South Australia, Tasmania, Victoria Tagged With: children, costs, family law, federal circuit court, property settlement

Conveyancing – Conveyancers’ Costs Disclosure precedents

12 July 2018 by By Lawyers

By Lawyers are pleased to announce the addition of Conveyancers’ Costs Disclosure precedents for NSW, VIC, NT, SA and TAS.

These precedents comply with the relevant legislation governing the costs and dispute resolution disclosure requirements for licensed conveyancers.

The Conveyancers Costs Disclosure precedents are now included in the following By Lawyers Guides:

  • Sale of real property
  • Purchase of real property
  • Mortgages
  • Leases

These are important precedents for all licensed conveyancers – if the necessary disclosure is not given before or at the time of the retainer, a client is not required to pay the conveyancer’s costs!

Filed Under: Conveyancing and Property, New South Wales, Northern Territory, Publication Updates, South Australia, Tasmania, Victoria, Western Australia Tagged With: Conveyancers, Conveyancers costs disclosure, costs, NSW, NT, SA, tas, VIC

TAS – Estates – Guidance Note – Itemised bills and beneficiaries

6 July 2018 by By Lawyers

In July 2018 the Legal Profession Board of Tasmania identified an issue with an increasing number of complaints against legal practitioners relating to perceived overcharging and failure to communicate with executors/administrators and beneficiaries regarding costs for estate matters.

As a result, the Legal Profession Board issued a detailed Guidance Note for the profession outlining what it considers to be appropriate standards of conduct, aimed at minimising complaints.

The Guidance Note says that, while there is no legislative requirement to provide beneficiaries with itemised bills, it ‘may be advisable’ to do so. This particularly applies where practitioners are also the executor or administrator of the estate and especially if they are seeking commission or proposing to charge in any way not provided for in the will.

The By Lawyers Probate and Letters of Administration commentaries have been updated accordingly.

Filed Under: Publication Updates, Tasmania, Wills and Estates Tagged With: administrator, beneficiarise, costs, executor, guidance note commission, itemised bills, Legal Profession Board of Tasmania

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