Blog

Having been registered for the adjudication of payment claims in Queensland and Northern Territory from 2020 (see https://qbmlawyers.demo2.website/mathews-justin-mathews-licensed-to-adjudicate/), we are proud to announce that Justin Mathews is now also also registered in New South Wales. The adjudication process allows for the speedy determination of claims for payment under building contracts, so that owners and contractors can avoid being bogged down in lengthy litigation. The adjudication process allows for a contractor to make a payment claim, and that if it is disputed, then the dispute to be assessed and a determination made within a matter of weeks rather than several months or years. Adjudication decisions are enforceable in courts. Justin Mathews is now also a Registered Adjudicator to the RICSDRS Adjudication Panel under the Building and Construction Industry (Security of Payments) Act 1999 (NSW), putting is wealth of experience in building and construction law to good use. For advice in relation to building and construction matters and litigation, contact Justin at justinm@qbmlaw.com.au

In some kinds of matters, some law firms will conduct litigation on a “No Win – No Fee” basis.  This is usually where the lawyer is very confident of the likely success of the claim, and often where the lawyer would expect to take their fees out of the claim proceeds.  “No Win – No Fee” arrangements are often also referred to as “speculative fee arrangements” (ie where the lawyer is speculating that it will succeed) but less flamboyantly under the Legal Profession Act as “conditional cost agreements”.  While there are obligations on lawyers in respect of cost disclosures for all matters, there are particular obligations on lawyers in respect of disclosures for these kinds of arrangements.  Section 323 Legal Profession Act 2007 regulates these matters (other than matters that involve criminal proceedings or proceedings under the Family Law Act 1975).  It calls the arrangements “conditional cost agreements” which are defined under section 300 of the Act as being a cost agreement that provides that the payment of sum or all of the legal costs is conditional on the successful outcome of the matter to which the costs relate. Under section 325, “contingency fees” are prohibited, that being an amount payable to the law practice calculated with reference to the amount of an award – eg if a lawyer runs a matter on the basis that they receive half of the proceeds, but that doesn’t stop arrangements where the lawyer might get an “uplift” (a premium) of (say) 50% of their costs if they succeed. Returning to the requirements for a conditional cost agreement, it has to: A particularly important matter is to determine what in fact constitutes a successful outcome.  While that might appear to be common sense, in a matter involving court proceedings, would a successful outcome mean: Also, a negotiated settlement might be treated by the lawyer as a successful outcome when the client believes that it is not.  Prior to the Legal Profession Act, it was not unheard of for clients to be charged as much as or more than the amount that they were to receive with the lawyer claiming to be entitled to make those charges because they had been “successful”.  Under section 327 Legal Profession Act, if the conditional cost agreement contravenes or is entered into in contravention of any provision of the division, then it is void.  While there is still an ability to recover some legal costs under void costs agreements (under section 319), there are restrictions to that, both under section 327 and under section 319.  The lesson is to be careful about any agreements with lawyers involving them running matters on a speculative or “No Win – No Fee” basis, and to be comfortable that you have identified clearly the circumstances under which you might have to pay fees. For advice in relation to “No Win – No Fee” arrangements, contact Peter Muller at peterm@qbmlaw.com.au. But don’t ask Peter to do work on a “no win no fee” basis, because he won’t.

Often accountants will order trust documents (superannuation deeds or discretionary/family trusts) from various providers, and the clients will sign these or adopt them without taking legal advice. These widely used documents are not always correct, and the issues with them tend to be legal issues so they are not appreciated by the accountants. A common problem with documents that we see include referenced to “legal personal representatives” in discretionary trusts when that term is appropriate to superannuation law. As a result, a discretionary trust deed saying that if the appointor or principal is made bankrupt, then their “legal personal representative” becomes the appointor in their place (and many trust deeds do have this provision), one interpretation is that the trustee in bankruptcy takes the role. That would essentially be the last person that you would want to become the appointor, as they would then have the power to appoint a new trustee. Another problem that we recently saw came from the incorrect use of capitalised terms in a Superannuation trust deed, which created uncertainty with the operation of the death benefit provisions. Essentially the clause had a different meaning to what was intended. This was a trust deed that was automatically updated by the provider, and put into effect by the various accountants who would not have any idea about the potential issues. A third issue that we have seen is where the binding nomination forms attached to the deed do not strictly follow the superannuation deed itself. The fund deed has to be followed strictly for the nomination to be binding, but where there is a conflict in its terms this can be impossible. The lesson – if there is one – is that trust deeds and fund deeds are legal documents, not financial ones. Accountants generally will not be giving any advice in relation to them, and will often be assuming that they are correct, but this is not always the case. They should still be checked by a lawyer. For advice on trusts and binding nominations contact our commercial Team of Peter Muller, Jessica Murray, and Megan Hanneman – peterm@qbmlaw.com.au

It seems as though this blog page could be entirely populated by recent decisions on home made wills.  Certainly, home made wills are fertile ground for litigation with the resulting benefit flowing to lawyers acting in that litigation.  In this case, the Queensland Supreme Court in Bain v Demarchi [2023] QSC 199 has considered a home made will in which there was no named beneficiary in the event that the named beneficiary died.  Briefly, the facts were that Paulo Demarchi used a will kit to make a will in 2009.  He appointed his mother Rhonda Bain to be his executor and sole beneficiary.  He had no wife or children himself. Paulo died on 21 December 2022, and his mother Rhonda died on 3 January 2023, leaving her husband (Paulo’s stepfather) Desmond surviving her.  This triggered the application of section 33B Succession Act which provides that (absent a contrary intention), if a gift is made in a will to a person who dies within 30 days of the will maker dying, then the will takes effect as though the beneficiary had died immediately before the will maker.  In this case, if there was no beneficiary, then Paulo’s brother would receive the estate under the intestacy rules.  If the gift to Rhonda was valid, then Rhonda’s husband Desmond (ie Paulo’s stepfather) would be entitled to the estate as the beneficiary of Rhonda’s will.  The court found that there was no contrary intention to the operation of section 33B Succession Act, and that as a consequence, the estate would be dealt with according to the rules of intestacy.  This had the result that Paulo’s brother would be entitled to the estate, rather than Paulo’s stepfather.  Of course, reserve beneficiaries are something that lawyers will generally include in their wills when preparing them for a client.  Had Paulo seen a lawyer, then for a relatively modest cost, his estate would have done without the angst and cost of a Supreme Court application which has no doubt left his stepfather and his brother quite unhappy (although his brother would be likely to be quite a bit happier than his stepfather).  It is unlikely that the costs of the exercise would have been less than $50,000. This recent decision is yet another demonstration of the risks associated with people using will kits.  For advice in relation to wills, contact our lawyers Peter Muller at peterm@qbmlaw.com.au or Jessica Murray at jessicam@qbmlaw.com.au