No win no fee - no lien and no costs

In Lupker v Shine Lawyers Pty Ltd [2015] QSC 278 Bond J considered the implications for a law practice in relation to its entitlement to recovery of its professional fees when the client terminates a no win no fee retainer.

Accounting for costs

In Golder Associates Pty Ltd v Challen [2012] QDC 11 Samios DCJ recognised a solicitor’s lien over the file for unpaid fees and confirmed that a lien should not be lightly set aside. The decision, which is under appeal, adds to the range of authorities which are now grappling with some of the provisions of the Legal Profession Act 2007 (Qld) (the LPA) relating to costs billing and assessment. These would appear to have been drafted without a great deal of intellectual rigour (cf. Turner v Mitchells Solicitors [2011] QDC 61 at [26]).

Practice and procedure - solicitor's retaining lien

The judgment of Daubney J in Magnamain Investments Pty Ltd v Baker Johnson Lawyers [2008] QSC 245 provides guidance on a number of aspects concerning the scope and maintenance of a solicitor’s retaining lien for costs.

Principles on assessment of costs on standard basis – necessary or proper

The judgement in Hennessey Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd [2007] QDC 57 McGill DCJ provides valuable guidance for practitioners as to whether a range of particular costs items should be permitted on an assessment on the standard basis, and the amounts which should be allowed for such items. The items in issue included counsel’s fees and fees paid to expert witnesses. The decision also examined GST implications for the recovery of legal costs.

What health problems overcrowd hospital emergency departments in Queensland and has this changed over time? A case study of two hospitals in Queensland 2001 - 2009

Aim: to describe what health problems patients attending emergency department with and whether this changed over time. Methods: Electronic data was retrieved from EDIS (Emergency Department Information System) and HBCIS (Hospital Based Clinical Information System) in two hospitals in Queensland in the period 2001-2009. The ICD-10 code of patient's diagnosis was then extrapolated and then group into ICD-10 chapters, such that the health problem can be presented. Results: Among the specific health problems, Chapter XIX 'Injury and poisoning' ranked number one consistently (ranging from 22.1% to 31.2% of the total presentations) in both the urban and remote hospitals in Queensland. The top ten specific presenting health problems in both the urban and remote hospital include Chapter XI 'Digestive system', Chapter XIV 'Genitourinary system', Chapter IX 'Circulatory system', and Chapter XIII 'Musculoskeletal system and connective tissue'. Chapter X 'Respiratory system' made the top ten presenting Chapters in both hospitals, but ranked much higher (number four consistently for the eight years, ranging from 6.8% to 8.3%) in the remote hospital. Chapter XV 'Pregnancy childbirth and puerperium' made to the top ten in the urban hospital only while Chapter XII 'Skin and subcutaneous tissue', Chapter I 'Infectious and parasitic diseases' made the top ten in the remote hospital only. Conclusion: The number one health problem presenting to both the urban and remote hospitals in Queensland is Chapter XIX 'Injury and poisoning', and it did not change in the period 211 - 2009.

Fair value accounting for non-current assets and audit fees: Evidence from Australian companies

We investigate the association between asset revaluations of non-current assets and audit fees, using a sample of ASX 300 companies from the years 2003–2007.We report that there is a significant increase in the audit fees paid when non-financial assets (PPEs, investment properties and intangible assets) are measured at fair values. Moreover, we provide evidence that an independent valuer or appraiser significantly weakens the positive association between asset revaluations and audit fees. Furthermore, companies whose noncurrent assets are revalued upwards and those that revalue their non-current assets upwards every year have significantly higher audit fees. Additional tests provide empirical evidence that the strength of corporate governance has a moderating effect on the level of audit fees. This study contributes to the ongoing debate on the role of fair value accounting. The findings suggest agency costs associated with fair value estimates may offset the benefits from the use of fair value accounting.

Fair values and audit fees: Evidence from asset revaluations in Australia

This paper examines the association between the level of audit fees paid and asset revaluations, one use of fair value accounting. This Australian study also investigates attributes of asset revaluations and the association with the level of audit fees paid. We find that firms choosing the revaluation model incur higher audit fees than those that chose the cost model; asset revaluations made by directors lead to the firm incurring higher audit fees than for those made by external independent appraisers; and revaluation of investment properties leads to lower audit fees. The findings suggest that asset revaluations can result in higher agency costs and audit fees vary with the reliability of the revaluations and the class of assets being revalued.

Weight and weight change following breast cancer : evidence from a prospective, population-based, breast cancer cohort study

Background: While weight gain following breast cancer is considered common, results supporting these findings are dated. This work describes changes in body weight following breast cancer over 72 months, compares weight with normative data and explores whether weight changes over time are associated with personal, diagnostic, treatment or behavioral characteristics. Methods: A population-based sample of 287 Australian women diagnosed with early-stage invasive breast cancer was assessed prospectively at six, 12, 18 and 72 months post-surgery. Weight was clinically measured and linear mixed models were used to explore associations between weight and participant characteristics (collected via self-administered questionnaire). Those with BMI changes of one or more units were considered to have experienced clinically significant changes in weight. Results: More than half (57%) of participants were overweight or obese at 6 months post-surgery, and by 72 months post-surgery 68% of women were overweight or obese. Among those who gained more weight than age-matched norms, clinically significant weight gain between 6 and 18 months and 6 and 72 months post-surgery was observed in 24% and 39% of participants, respectively (median [range] weight gain: 3.9kg [2.0-11.3kg] and 5.2kg [0.6-28.7], respectively). Clinically-significant weight losses were observed in up to 24% of the sample (median [range] weight loss between 6 and 72 months post-surgery: -6.4kg [-1.9--24.6kg]). More extensive lymph node removal, being treated on the non-dominant side, receiving radiation therapy and lower physical activity levels at 6 months was associated with higher body weights post-breast cancer (group differences >3kg; all p<0.05). Conclusions: While average weight gain among breast cancer survivors in the long-term is small, subgroups of women experience greater gains linked with adverse health and above that experienced by age-matched counterparts. Weight change post-breast cancer is a contemporary public health issue and the integration of healthy weight education and support into standard breast cancer care has potential to significantly improve the length and quality of cancer survivorship.

Costs - solicitor's retainer on 'no win, no fee' basis - meaning of 'win' - solicitor not entitled to recover excess of costs over amount paid on settlement - no consideration for variation of oral retainer.

In Baker Johnson Lawyers v Jorgensen [2002] QDC 205 McGill DCJ considered the meaning of a 'no win, no fee' retainer and concluded that, in the absence of qualification by agreement, solicitors retained on that basis were not entitled to recover costs exceeding the amount of any judgment or settlement.

Resident-funded retirement village valuations : complications with the application of the DCF

Retirement village assets are different from traditional residential assets due to their operation in accordance with statutory legislation. Designed for independent living, retirement villages provide either detached or semi-detached residential dwellings with car parking and small private yards with community facilities providing a shared congregational area for village activities and socialising. In essence, the village operator provides the land and buildings to the residents who pay an amount on entry for the right of occupation. On departure from the units an agreed proportion of either the original purchase price or the sale price is paid to the outgoing resident. As ongoing levies are typically offset by ongoing operational expenses the market value of the operator's interest in the retirement village is therefore predominantly based upon the estimated future income from deferred management fees and capital gain upon roll-over receivable by the operator in accordance with the respective residency agreements. Given the lumpiness of these payments, there is general acceptance that the most appropriate approach to valuation is through discounted cash flow (DCF) analysis. There is however inconsistency between valuers across Australia in how they undertake their DCF analysis, leading to differences in reported values and subsequent confusion among users of valuation services. To give guidance to valuers and enhance confidence from users of valuation services this paper investigates the five major elements of DCF methodology, namely cash flows, escalation factors, holding period, terminal value and discount rate.

Parent decisions regarding paid work and care of the child

Australia has witnessed a continual increase in maternal employment over the past two decades, which has placed focus on child care- its effects on the child and on early childhood education and care policy and provision. The engagement of women in the paid workforce contributes to national economic development, and is recognised in government policy incentives such as cash subsidies and tax relief for child care fees. These incentives are targeted towards mothers, to encourage them to engage in paid work. Making a contribution to the family’s economy and to a mother’s economic self sufficiency are two key drivers for women’s engagement in satisfying paid work. Many women also seek to maintain a personal investment in the development of their career, simultaneously ensuring that the child is experiencing suitable care. Policies that support women’s choices for satisfying workforce engagement and care arrangements are prudent for ensuring productivity of the economy as well as for enhancing the wellbeing of parents and children (OECD, 2007). Policies that provide family friendly employment arrangements, paid parental leave, and child care support, directly affect maternal employment decisions. Availability of family friendly employment policies is viewed as one way to not only promote gender equity in employment opportunities but also support the wellbeing of children and families (OECD, 2007). Yet there are not comprehensive and coherent policies on work and family in Australia. Australia is due to implement its first paid parental leave scheme in January, 2011. At the time of the data collection of this research, June 2007 to December 2008, Australia had no statutory provision for paid parental leave. To date, most research has focused on the consequences of paid work and care decisions made by women. Far less is known about the processes of decision-making and reasons underlying women’s choices. Investigation of what is most salient for women as they make decisions regarding engagement in paid work, and care for their child is important in order to inform policy and practices related to parental leave, family friendly employment and care for the child. This prospective longitudinal research was of 124 Australian expectant first-time mothers who completed questionnaires in their third trimester of pregnancy, and again at six and twelve months postpartum. First-time expectant mothers' decisions regarding engaging in paid work and selecting care for their child represent those of a group who are invested in motherhood and have usually had direct experience of engaging in paid work. They therefore provide an important insight into society’s idealised views about motherhood and the emotional and social uncertainty of making personal decisions where the consequences of such decisions are unknown. These decisions reflect public beliefs about the role of women in contributing to the country’s productivity and decisions about providing for the economic and emotional care needs of their family. As so little is known about the reasoning and processes of decision-making of women’s choices regarding paid work and care of the child this research was designed to capture expectant first-time mother’s preferred options for engaging in paid work and the care of their child, and investigate their actual decisions made at six and 12 months postpartum. To capture preferred options, decisions and outcomes of decisions regarding paid work and care of the child a prospective longitudinal research design was utilised. This design had three important components that addressed key limitations in the extant literature. First the research commenced in pregnancy in order to investigate preferences and beliefs about paid work and care and to examine baseline data that may influence decisions made as the women returned to paid work. Second the research involved longitudinal tracking from the antenatal time point to six and 12 months postpartum in order to identify the influences on decisions made. Third the research measured outcomes of the decisions made at each time point. This research examined the intentions, preferences, beliefs, influences, and outcomes of the decisions about engagement in paid work and choice of care. The analyses examined factors predicting return to paid work, the timing of return and extent of engagement in paid work; the care for the child; satisfaction with paid work; satisfaction with care for the child, motherhood and fulfilment; and maternal wellbeing at six and 12 months postpartum. The factors of interest were both rational/economic (availability and extent of paid and unpaid maternity leave; flexible work patterns) and emotional/affective (career satisfaction, investment in motherhood, and concern with quality of care for the child). Results indicated a group preference, and realisation for, return to paid work within the first year after the birth of a child but with reduction in hours to part-time. Most women saw paid work not only as a source of income but also as source of personal satisfaction. There were four key themes arising from this research. First, the women strived to feel emotionally secure when deciding about engaging in paid work and care of the child. To achieve emotional security women made their decisions for paid work and care of the child differently. A woman’s decision for maternal employment is a function of her personal beliefs, preferences and context regarding paid work and care of the child. She adjusts her established work identity with her new identity as a mother. The second key theme from this research is that the women made their decisions for maternal employment in response to their personal context and there were different levels of opportunities between the women’s choices. There is inequity of entitlement regarding work conditions associated with a woman’s education level. This has implications for the woman’s engagement in paid work, and her child’s health and wellbeing. The third key theme is that the quality of the child’s care mattered to the women in the research. They preferred care provided by parents and/or relatives more than any other types of care. The fourth key theme identified that satisfaction and wellbeing outcomes experienced as a result of maternal employment decisions were a complex interaction between multiple factors that change across time with the ongoing development of the mother’s identity, and the development of the child. The implications for policy within Australia are that the employment of mothers in the workforce necessitates that non-parental care becomes a public concern, where there is universal access to good quality affordable care for every child, not just for those who can afford it. This is equitable and represents real choice while supporting the rights of the child (Thorpe, Cloney & Tayler, 2010), protecting and promoting the public interest (Cleveland & Krashinsky, 2010). Children’s health and wellbeing will be supported (Moore & Oberklaid, 2010) while children are in non-parental care, and they will be exposed to environments and experiences that support their learning and development. The significant design of the research enabled the trajectories of first-time expectant women to be tracked from the antenatal point to 12 months postpartum. But there were limitations: the small sample size, the over-representation of the sample being highly educated and the nature of a longitudinal research that is set within the economic, social and political context at that time. These limitations are discussed in relation to suggestions for future research.

Impact fees and new housing cost: A comparative analysis of the empirical models

Developers and policy makers are consistently at odds over the debate as to whether impact fees increase house prices. This debate continues despite the extensive body of theoretical and empirical international literature that discusses the passing on to home buyers of impact fees, and the corresponding increase to housing prices. In attempting to quantify this impact, over a dozen empirical studies have been carried out in the US and Canada since the 1980’s. However the methodologies used vary greatly, as do the results. Despite similar infrastructure funding policies in numerous developed countries, no such empirical works exist outside of the US/Canada. The purpose of this research is to analyse the existing econometric models in order to identify, compare and contrast the theoretical bases, methodologies, key assumptions and findings of each. This research will assist in identifying if further model development is required and/or whether any of these models have external validity and are readily transferable outside of the US. The findings conclude that there is very little explicit rationale behind the various model selections and that significant model deficiencies appear still to exist.

Open for Inspection? Julstar Pty Ltd v Lynch Morgan Lawyers [2012] QDC 272

In Julstar Pty Ltd v Lynch Morgan Lawyers [2012] QDC 272 Dorney QC DCJ considered whether an applicant for an assessment of all or part of their costs under s 335 of the Legal Profession Act 2007 (Qld) (LPA) must provide grounds on which they dispute the amount of the costs charged or their liability to pay them. His Honour also made an order for inspection of the solicitor’s file, despite a claimed lien for unpaid fees.

Setting aside default judgment - whether applicant must file affidavit providing direct evidence of defence 'on the merits'

In Prus-Butwilowicz v Moxey [2002] QDC 166 the court examined the question whether an applicant for an order setting aside a default judgment was required to file an affidavit providing direct evidence of a defence 'on the merits' and whether the position had changed under the Uniform Civil Procedure Rules 1999 (Qld).

Infrastructure charges and residential land prices in Brisbane, Australia

This paper examines the question of whether the imposition of developer infrastructure charges on housing developers affects the price of residential land. Developer paid fees or charges are a commonly used mechanism for local governments to fund new infrastructure as a “user pays” method of funding new urban infrastructure. Some argue these costs are passed back to the original land owner by way of lower land prices. However, property developers claim these charges are added on to new land prices, with flow on negative impact to housing affordability. This paper presents the findings of a hedonic land price model that provides the first empirical evidence that infrastructure charges do increase residential land prices in Brisbane, Australia. This research is consistent with international findings and supports the proposition that developer paid infrastructure charges are over-passed to home buyers and are a significant contributor to reduced housing affordability.