Ryan v Vizovitis

[2017] ACTCA 3

ACT Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › Agreement as to costs between solicitor and client
3. › Whether costs agreement unfair and unreasonable
4. › Retrospective application of increased fees
5. › Failure to explain terms of costs agreement
6. › Onus on solicitor to establish fairness
7. › Legal Practitioners Act 1970 (ACT), ss 190, 191
1. Practice and Procedure
2. › Conduct of civil trial
3. › Re-opening of case
4. › Admission of expert evidence in reply
5. › Refusal of leave to lead further evidence in response
6. › Whether denial of procedural fairness
1. Practice and Procedure
2. › Apprehended bias
3. › Whether intervention of trial judge gave rise to apprehension of bias
4. › Application for recusal
1. Appeal
2. › Standard of appellate review
3. › Findings of fact based on conflicting oral evidence
4. › Circumstances in which appellate court may set aside factual findings
5. › Whether findings glaringly improbable or contrary to compelling inferences

Quick Take

A solicitor seeking to enforce a costs agreement bears the onus of establishing that the agreement was fair and reasonable. Fairness requires that the solicitor affirmatively establish that the client entered the agreement freely, with an independent and informed understanding of its terms and consequences, including any retrospective application, the difference between solicitor-client and party-party costs, and the loss of the right to taxation at scale. A costs agreement intended to apply retrospectively to increase fees for work already performed is unreasonable where the retrospectivity is not clearly explained to the client.