The Legal Practice Act, 1996 still governs costs agreements in matters where instructions were first given prior to 12 December 2005 and bills rendered pursuant to them, even after that date, which was the commencement date for the Legal Profession Act, 2004: see cl. 3.1(1) of the second schedule to the Legal Profession Act, 2004. A curiosity of the old Act is that bills rendered pursuant to costs agreements which provided for fees to be charged at hourly rates were not amenable to solicitor-client taxations by the Taxing Master. Disputes in relation to fees where the total fees (rather than the disputed fees) did not exceed $15,000 could be dealt with by VCAT, but otherwise, clients were left to dispute the bills in a suit for fees. Though all competent costs lawyers are aware of this proposition, authority published online for it is surprisingly scant. Only last year did VCAT’s Legal Practice List say squarely (but in respect of the old Act):
‘the Taxing Master cannot assess costs that have been charged pursuant to a costs agreement with time-based charges.’
It was Senior Member Vassie who said so in Leong v Sesto [2009] VCAT 99 in that part of his decision headed ‘The Law: What Costs Agreements are Subject to Assessment’ at [105]ff, drawing support from Justice Beach’s decision in Gaweda v Shaw [1999] VSC 474.
