Central to this dispute was the work carried out by the firm following a mediation, including transferring interests in a property and obtaining a certificate of compliance from the Taxation Office.

While the firm claimed there was a “natural break” in the work between the mediation and the work carried out afterwards, the client submitted the instructions to give effect to the settlement were part of the legal services the firm was retained to provide.

The client added the settlement instructions were given “as part of a continuation of the existing retainer with no natural break”.

To determine whether it was a natural break or a continuation of instructions, Judge Bernard Porter examined the costs agreement, which included a “wide array of promises, articulated in somewhat obscure language, even when one tries clearly to state them all”.

In the agreement, the firm promised to provide legal advice on issues relating to the family provision application at the client’s request and when it appear to the firm that advice would be of assistance.

The firm also set out that it would provide legal advice at the client’s request and when deemed appropriate for “other issues”.

Judge Porter also examined the timing of the last bill, which records work being commenced the day after the mediation.

VIEW ALL

Given the client’s evidence of exhaustion from the mediation process, Judge Porter said it would be correct to infer work was done early the day after because instructions had been given to do so.

He added a “far more likely inference” is that instructions were received on the day of the mediation, possibly when the mediation was being finalised and the kind of work required to give effect became clear.

Following this, if such instructions were given on the day of the mediation, “then the specific retainer was extended again to include giving effect to the terms of the settlement … and was extended before the end of the extant specific retainer”.

“On the best case for [the firm], that retainer did not end until after the mediation agreement was executed,” Judge Porter determined.

“The result is that the specific retainer was extended to include giving effect to the deed prior to the work under that retainer being compelled or soon after as to effectively extend the specific retainer.”

The firm argued that even if there was a “continuation of instructions” that extended the initial scope of work, there was a “natural break” in the work that remained after the mediation “in that the litigious stage of the work was complete”.

Judge Porter did not accept this submission, determining that it is not correct to find a natural break in circumstances where a solicitor is given continuing instructions that fall within the retainer’s scope.

“The result is that the last bill was the final bill in respect of that retainer, and the earlier bills were interim bills,” Judge Porter said.

The client was permitted to have all four bills assessed.