A costs agreement that makes the client's liability to pay contingent solely upon obtaining a costs order creates a circularity that may preclude the making of such an order. A variation to a pro bono costs agreement made immediately before judgment, purporting to create a retrospective contingent liability, is likely to be treated as artificial and may be refused effect in the exercise of the court's costs discretion. The question whether such contingent agreements satisfy the indemnity principle remains not fully resolved in Queensland, as only two of three judges addressed it and it was not necessary to the result.
The full text is available to signed-in members, including the 12 later cases that cite this judgment.
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