Unconscionability in the Fair Trading Act 1999 explored

By reference to the conclusion that certain costs disclosure conduct was “unconscionable”, Mr Butcher knocked 7.5% off a solicitor’s fees: see the two previous posts about Wilkins’s Case [2006] VCAT 2199. What follows is a consideration of the concept of unconscionability in the Fair Trading Act, 1999, its application to this case, and a criticism of the finding of unconscionability by reference exclusively to non-compliance with the costs disclosure regime under a repealed act when the consequences of that non-compliance were specified by the parliament and which were not triggered in this case. Continue reading “Unconscionability in the Fair Trading Act 1999 explored”

Fees reduced for unconscionability where Legal Practice Act costs provisions did not apply

In Wilkins’s Case [2006] VCAT 2199, Mr Butcher was faced with an application under the Fair Trading Act, 1999 by a client who sought to avoid payment of two accounts in circumstances described in the previous post. The application was brought under the Fair Trading Act, 1999, though which provisions is not clear from the very brief reasons. The reasons are especially brief considering this is the first time to my knowledge that unconscionability provisions have been relied on to diminish legal fees payable by a solicitor because of a costs disclosure default. The solicitor sent a letter to the prospective client which set out the solicitor’s hourly rate but did not give an estimate of total fees. Mr Butcher found at [17]:

“The document … does not comply with s 86 of the Legal Practice Act 1996, which applied at the time. This dispute is not brought under that Act and the situation is that in relation to a dispute under that Act, I am empowered to reduce bills of costs where there has been a failure to comply with s 86 having regard to the seriousness of the failure to provide information. However, this dispute is brought under the Fair Trading Act 1999. I do, however, consider that an examination of whether the appropriate regulatory regime has been complied with is appropriate in deciding whether under the Fair Trading Act 1999 a determination should be made in favour of the applicant. There should have been more extensive advice given by [the solicitor] in relation to legal fees. It was practicable to do so . The failure to give this advice is unsonscionable.”

He knocked about 7.5% off the bill, rounding it down from $3,874 down to $3,000. The justification for this course is explained in the next post.

Unrepresented woman jumps off Legal Practice Act conveyor belt into Fair Trading Act jurisdiction

It has to be said that De Sarro’s Case [2006] VCAT 1924 is about as boring as they come, a costs dispute about whether a quote of $400 plus GST was for the whole conveyance or only for preparation of the vendor’s statement. Apart, that is, from the unusual feature that Ms De Sarro apparently went through the Professional Standards costs dispute process, got her permission to refer the matter to VCAT, but then decided to proceed to VCAT not on the basis set out in her permission letter under s. 128 of the Legal Practice Act, 1996 (or its correlate in the Legal Profession Act, 2004) but by instituting a proceeding in VCAT’s civil jurisdiction under the Fair Trading Act, 1999.

The solicitor won this contest on the facts, and it seems no one raised the question of whether the solicitor’s services were prepared in trade or commerce.

It seems from the catchphrases noted in Austlii, that the application was pursuant to s. 108 of the Fair Trading Act, 1999. That says VCAT may hear and determine a “consumer-trader dispute”, defined to include a claim in negligence arising between a purchaser (being the person to whom the services are supplied) and a supplier of services, including the performance in trade or commerce of work of a professional nature. VCAT’s powers include ordering in-house mediation, ordering compensation, exemplary damages and interest, ordering payments by way of restitution, rescinding, rewriting, rectifying, or declaring void contracts or terms of contracts, granting injunctions, and ordering specific performance. Continue reading “Unrepresented woman jumps off Legal Practice Act conveyor belt into Fair Trading Act jurisdiction”