Legal Profession Act 2006

(1) On application by a client, the costs assessor may order that a costs agreement be set aside if satisfied the agreement is not fair or reasonable.

(2) In determining whether or not a costs agreement is fair or reasonable, and without limiting the matters to which the assessor can have regard, the assessor 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 the time at which the agreement was made.

(3) The assessor may adjourn the hearing of an application under this section pending the completion of any investigation of or determination on any charge in relation to the conduct of any Australian legal practitioner or Australian-registered foreign lawyer.

(4) If the assessor orders that a costs agreement be set aside, the assessor may make an order in relation to the payment of legal costs the subject of the agreement.

(5) In making an order under subsection (4), the assessor must determine the fair and reasonable legal costs in relation to the work to which the agreement related, taking into account:

(a) the seriousness of the conduct of the law practice or any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf; and

(6) In making an order under subsection (4), the assessor may not order the payment of an amount in excess of the amount that the law practice would have been entitled to recover if the costs agreement had not been set aside.

(7) For subsection (5), the assessor 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 any relevant legislation or legal profession rules;

(b) any disclosures made by the law practice under Division 3, or the failure to make any disclosures required under that Division;

(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;

(8) The assessor may determine whether or not a costs agreement exists.

(9) The assessor may order the payment of the costs of and incidental to determining an application under this section.

(10) A costs assessor must ensure an order or determination under this section is accompanied by a statement of the reasons for the order or determination.

Note

Under section 352, a party to a costs agreement may apply to a reviewer for a review of an order or determination made under this section.

client means a person to whom or for whom legal services are or have been provided.