Firm on hook for $323k cancellation fee, leading silk claims

William Roberts Lawyers retained O’Donnell on 15 July 2025 for a 13-week September trial, signed and returned a costs agreement two days later, and then instructed him to pause work on 18 July.

The proceedings were settled, and O’Donnell was informed on 6 August.

A clause in the costs agreement held that if, for any reason, the trial did not commence in September and proceed for at least 20 days, “I would be paid a cancellation fee equal to the daily rate for each of 20 days, less the number of days for which the trial does proceed”.

William Roberts Lawyers only paid a $15,400 fee billed for O’Donnell to commence reading material briefed over one day.

The firm has defended the balance of O’Donnell’s claim on the grounds that the clause only entitled him to charge the fee in circumstances where he attended the precincts of the court but the trial did not commence; or the trial concluded, was adjourned, or otherwise abandoned on or after 15 September but before 10 October.

In the alternative, William Roberts Lawyers argued that if it became liable to pay the amount if it terminated the retainer any time after entry into it in July 2025, “it is a penalty and therefore unenforceable”.

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“That is because the amount of the fee did not represent any genuine pre-estimate of loss or of any implied stipulation that the trial would proceed,” the firm said, according to the District Court’s reasons.

LCM filed an application for assessment of the costs and applied orally for an order that the proceedings be stayed.

Counsel for the firm submitted the questions concerning its liability to pay the fee “are likely to be argued on the assessment, and there will be a risk that, in the one proceeding, the same questions will be considered in parallel by the court and the assessor”.

LCM supported this application.

O’Donnell opposed the stay, submitting that the application was premature as the principal question in the assessment was whether the firm was liable to O’Donnell for the fee it seeks to charge LCM.

He said it was open to William Roberts Lawyers to seek an order for assessment of his costs within 60 days of the invoice being received but made “no such application”. Therefore, O’Donnell submitted that his own costs “cannot be the subject of an assessment”.

The silk added that the only question is whether the cancellation fee is payable by William Roberts Lawyers, and this question can only be determined in the District Court proceedings. This would then be relevant to the assessment of costs between the firm and LCM.

Further, O’Donnell stressed the questions of law raised in the proceedings are matters for judicial determination.

Judge Ken Barlow KC said it was appropriate for the court to determine the issues before a costs assessment between the firm and LCM.

“The grounds on which the assessment is sought coincide substantially, if not entirely, with the issues raised in this proceeding.

“Even if an assessor retains a residual discretion to disallow as unreasonable part or all of the amount of the disbursement subject of the assessment, such a discretion could only properly be exercised having regard to the questions whether the disbursement is in fact payable by WRL to O’Donnell, either on the proper construction of the agreement or depending on whether or not it is a penalty,” he said.

Judge Barlow added that the issues “would likely come before this court in any event”, and it was more efficient, less costly, and likely to be quicker to have the issues determined first by the court.

The case: O'Donnell v William Roberts Lawyers [2026] QDC 9.