Elks v Aitken Whyte Lawyers [2026] QCAT 297

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Elks v Aitken Whyte Lawyers [2026] QCAT 297 PARTIES: ALEXANDER JASON ELKS (applicant) v AITKEN WHYTE LAWYERS (respondent) APPLICATION NO/S: OCL069-22 MATTER TYPE: Other civil dispute matters DELIVERED ON: 29 July 2026 HEARD ON: 26 May 2026 Submissions closed on 10 July 2026 HEARD AT: Brisbane DECISION OF: Judicial Member JR McNamara ORDERS: The application is dismissed CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – GENERALLY – where the applicant entered into a costs agreement with the respondent law firm for the delivery of legal services – where the applicant alleges that the respondent knew or ought to have known the agreement was incapable of being fulfilled, that the costs agreement was invalid, and that the respondent breached duties owed to the applicant – where the applicant seeks to have the costs agreement set aside pursuant to s 328 of the Legal Profession Act 2007 (Qld) – where the s 328(1) persuasive onus is whether the costs agreement was not fair and/or not unreasonable – where s 328(2) lists non-exhaustive matters to consider – where the respondent submits that there was adequate disclosure of costs – where costs flowing from strategic decisions in the conduct of a matter is not evidence of dishonesty or unreasonableness in the original estimate - where the costs agreement is determined to be neither unreasonable nor unfair – whether the applicant was induced into the agreement by fraud or misrepresentation – where it is found that they were not induced Legal Profession Act 2007 s 308, s 309, s 310A, s 315, s 316, s 322, s 328 Queensland Civil and Administrative Tribunal Act 2009 s 32, s 47 -- 1 of 28 -- 2 Ashney v Pippa Coleman & Associates Law Practice Pty Ltd [2022] QCAT 281 Elks v Aitken Whyte Lawyers Pty Ltd [2024] QCAT 123 Elks v Aitken Whyte Lawyers Pty Ltd [2025] QCAT Kasmeridis v McNamara Business & Property Law [2006] SASC 200; (2006) 245 LSJS 31 McLaren v Wiltshire Lawyers Pty Ltd [2019] QSC 305; (2019) 3 QR 158 McNamara Business & Property Law v Kasmeridis & Anor [2007] SASC 90 Re Stuart; ex parte Cathcart [1893] 2 QB 201, 204-5 Simons & Ors v Dowd Lawyers Pty Ltd (No 4) [2021] QCAT 134 Turner v Macrossan & Amiet Pty Ltd [2016] QCAT 5 Waller Family Lawyers Pty Ltd v McAuley [2025] QCA 25 Winn v Boss Lawyers Pty Ltd [2018] QCAT 233 APPEARANCES & REPRESENTATION: This matter was part heard in person and completed and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) Applicant: Mr Alexander Jason Elks (Self-represented) Respondent: Mr S Trewavas of counsel instructed by Aitken Whyte Lawyers REASONS FOR DECISION Claim [1] Mr Elks has applied to the Tribunal to set aside a costs agreement made between Aitken Whyte Lawyers Pty Ltd (AWL) and himself on or about 14 October 2021. [2] He says that the costs agreement was both unfair and unreasonable.1 [3] The outcome sought is that: (a) the costs agreement entered between Mr Elks and AWL be set aside pursuant to s 328 of the Legal Profession Act 2007 (Qld) (LPA); (b) a compensation order be made requiring AWL to repay to Mr Elks the whole amount that they had charged him for legal services; and (c) the Tribunal refer the matter to the Legal Services Commission (LSC) for investigation. [4] An application that had been brought by Mr Elks in the Magistrates Court for costs assessment was discontinued on 17 November 2022. [5] In his 10 November 2022 reasons for claim Mr Elks asserted that:2 1 Legal Profession Act 2007, s 328(1). 2 Applicant’s Claim, filed on 10 November 2022, Hearing Bundle page 4. -- 2 of 28 -- 3 (a) AWL induced Mr Elks to enter into the agreement by the fraud or misrepresentation of the law practice or of any representative of the law practice; (b) AWL failed to make disclosures required by the LPA Chapter 3, Division 3; (c) the circumstances and conduct of the parties before and when the agreement was made being the objectives and information were sufficient for a reasonable and competent practitioner to make a genuine assessment of the matter; (d) AWL knew or ought to have known that within days of the engagement, the basis of the engagement was ill-considered and/or misleading; (e) the agreement was deficient in addressing the effect on costs of matters and changed circumstances that might foreseeably arise and affect the extent and nature of legal services provided under the agreement and the legal practitioner failed to deliver the scope of works provided for; and (f) despite the instruction of Mr Elks and without his consent, AWL sought to change the circumstances affecting the extent and nature of legal services. [6] His 20 February 2026 written submissions3 refined his position to three core allegations: (a) First: that at the time of making the costs agreement and offering the disclosure statement, or alternatively, within a few days of making the agreement, AWL knew or ought to have known the agreement was incapable of being fulfilled. (b) Second: that between the making of the costs agreement (14 October 2021) and 1 December 2021, AWL knew or ought to have known “the existing costs agreement was misleading, irrelevant, contravened the LPA, and was therefore invalid.” (c) Third: in late November 2021, AWL breached “duties and obligations” owed to the applicant, asserting: AWL misled the applicant; breached trust obligations of the law practice; inappropriately billed the applicant; and breached a range of “duties”. [7] AWL say that application should be dismissed, asserting that:4 (a) Mr Elks had failed to identify anything unfair or unreasonable about the costs agreement; (b) There was no legal or factual basis for the application; (c) Mr Elks had applicant acquiesced by continuing to instruct AWL after the updated cost estimates were provided pursuant to s 315 LPA; and/or (d) Mr Elks waived his right to challenge the validity of the costs agreement by applying for an assessment of the bills issued by AWL under the costs agreement. 3 Applicant’s Submissions, filed 20 February 2026, Hearing Bundle pages 19-32. 4 Respondent’s Submissions, filed on 17 March 2026, paragraph 44. -- 3 of 28 -- 4 The Legal Profession Act [8] Under s 328(1) of the LPA, the Tribunal may order that a costs agreement be set aside if satisfied that it is not fair or reasonable.5 [9] In deciding whether an agreement is fair or reasonable, regard can be had, amongst other things, to the matters set out in s 328(2) of the LPA. [10] If the Tribunal orders that a costs agreement be set aside, it may make an order as it considers appropriate in relation to payment of the legal costs which are the subject of the agreement.6 Background [11] On 14 October 2021, following a meeting between the parties, AWL provided to Mr Elks a client agreement (costs agreement) and disclosure notice. [12] On 1 December 2021, AWL terminated the retainer with Mr Elks after the professional relationship broke down, stating that it was due to Mr Elks expressing a lack of trust and confidence in their legal services. [13] On 10 November 2022, Mr Elks filed this application in the Tribunal. [14] On 19 December 2022, AWL filed a response disputing the application. [15] On 5 September 2023, Mr Elks filed an application seeking a direction from the Tribunal that AWL produce various materials relating to the engagement between himself and AWL. That application was heard by the President of the Tribunal on 30 November 2023. A decision ordering AWL to produce some documents or records of communication relating to the engagement of counsel in the matter the subject of the costs agreement, was delivered on 25 March 2024.7 [16] On 10 November 2023, AWL filed an application for miscellaneous matters (strike out) seeking the matter be dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). [17] An “on the papers” decision was delivered on 27 October 2025 dismissing the strike out application.8 [18] The substantive application was part heard by me on 26 May 2026 and, by agreement of the parties, finalised on the papers. The last of the written closing submissions was filed 29 June 2026. [19] To state the obvious: this matter has dragged on; the Tribunal has considered, determined and delivered decisions from 2 interlocutory applications; much ink has been spilled; much time, effort and cost has been expended; the relationship between the parties is acrimonious; and, the material filed is voluminous, sometimes repetitive, and possibly disproportionate (in volume) to the matters to be determined. 5 Legal Profession Act 2007, s 328(1). 6 Legal Profession Act 2007, s 328(4). 7 Elks v Aitken Whyte Lawyers Pty Ltd [2024] QCAT 123. 8 Elks v Aitken Whyte Lawyers Pty Ltd [2025] QCAT; Hearing Bundle pages 2166-2173. -- 4 of 28 -- 5 Material [20] In bringing the oral hearing to a close the parties agreed on a list of documents from the hearing bundle which are to be considered in deciding the application. [21] The agreed documents are: No. Document Name Document Date Hearing Bundle Page No’s. 9 QCAT Application 10/11/2022 59 – 105 11 Affidavit of Alexander J Elks (Elks 1 st Affidavit) 13/10/2023 113 – 382 12 Affidavit of Lachlan James Rieck 10/11/2023 383 – 625 13 Affidavit of Robert Cook Aitken 10/11/2023 626 – 627 16 Second Affidavit of Alexander Jason Elks (Elks 2 nd Affidavit) 25/10/2023 647 – 729 18 Affidavit of Lachlan James Rieck 28/11/2023 735 – 877 23 Affidavit of Lachlan James Rieck 05/04/2024 885 – 1100 24 Third Affidavit of Alexander Jason Elks (Elks 3rd Affidavit) 10/05/2024 1101 – 1119 44 Affidavit of Alexander J Elks 05/01/2026 1554 – 1707 [22] Other relevant documents include the following filed submissions: No. Document Name Hearing Bundle Page No’s. 4 Applicant’s Submissions – 20 February 2026 19 – 32 5 Respondent’s Submissions – 17 March 2026 33 – 44 6 Applicant’s Submissions in Reply – 27 March 2026 45 – 55 N/A Applicant’s Closing Submissions – 26 May 2026 N/A N/A Respondent’s Closing Submissions – 26 June 2026 N/A N/A Applicant’s Closing Submissions in Reply – 29 June 2026 N/A Statutory provisions and authorities [23] Of the 33 case authorities listed in the hearing bundle, only 4 concern the LPA. [24] One case not cited by the parties is the decision of QCAT President Mellifont J in Ashney v Pippa Coleman & Associates Law Practice Pty Ltd (Ashney)9. In that decision Justice Mellifont sets out in great detail and upon consideration of the statute and case law at that time: the relevant statutory provisions; the meaning of “fair or reasonable”; the persuasive onus under s 328(1); and the Powers of the Tribunal. 9 [2022] QCAT 281. -- 5 of 28 -- 6 [25] I will not replicate the paragraphs here, but I accept and rely on the analysis in the reasons given.10 [26] In the decision on the strike out application, Judicial Member Rinaudo and Member Brown noted AWL’s reliance on the South Australian case of Kasmeridis v McNamara Business & Property Law (Kasmeridis)11 as cited in Turner v Macrossan & Amiet Pty Ltd (Turner)12 to support their position: “that how the matter unfolded and how the solicitor actually charged for the work done is not directly relevant to the question of whether the agreement is fair and reasonable”. [27] The Tribunal, noting that the findings in Kasmeridis had been more recently considered but not followed in Simons & Ors v Dowd Lawyers Pty Ltd (No 4) (Simons)13 (on the basis that the South Australian legislation did not have a provision similar to s 328 LPA) said: “the facts and legal relevance of the post-agreement circumstances in deciding whether the costs agreement was fair or reasonable are issues in dispute which will need to be determined at the hearing.”14 Persuasive onus [28] In Ashney, having considered the reasoning of Carmody J in Turner, Mellifont P said15 (footnote considered and omitted): I am drawn … to the conclusion that given what section 328(1) requires in order for the discretion to set aside the costs agreement to arise, is satisfaction of a negative – that is, that the costs agreement is not fair and/or reasonable, that the approach I should (and do) take is to ask whether or not there was evidence upon which I could be satisfied that the costs agreement was not fair and/or not reasonable. [29] I adopt that approach. The 14 October 2021 costs agreement and disclosure notice [30] The applicant accepts that there was a costs agreement – but says it was unfair, unreasonable, and unjust. Accompanying the costs agreement was a (s 308) disclosure notice. [31] The costs agreement16 includes certain boilerplate content and contains a number of qualifications. [32] It includes a summary of client instructions; the rates charged for professional fees, other items, disbursements and outlays; information about billing; and information about what happens where another law practice (eg barrister) is engaged to provide specialist advice and associated fee disclosures. [33] The disclosure notice outlines the client’s rights; it sets out the method of charging including hourly rates of practitioners by position, and the estimate of fees to undertake the work broken down into 4 stages; it lists the major factors that will affect 10 Ashney v Pippa Coleman & Associates Law Practice Pty Ltd [2022] QCAT 281, [11]-[37]. 11 [2006] SASC 200. 12 [2016] QCAT 5. 13 [2021] QCAT 134. 14 Elks v Aitken Whyte Lawyers Pty Ltd [2025] QCAT; Hearing Bundle pages 2171, paragraphs 22-24. 15 Ashney v Pippa Coleman & Associates Law Practice Pty Ltd [2022] QCAT 281 [30]. 16 Elks 1 st Affidavit, AJE-007, Hearing Bundle pages 149-153. -- 6 of 28 -- 7 the estimates; it notes that the stages may vary according to complexity; and it repeats some information about law practice charges. [34] Understandably, a costs agreement is entered into before all the facts, circumstances, and consequences relevant to the work are known. The disclosure notice states that “the estimates will probably change when more information is available”. [35] Included in the estimates for each of the four stages is a range of costs for the law practice and for a “senior junior” (barrister) to settle an advice on “prospects” and to appear in Court on an application. [36] The estimated range for all work identified in the 4 stages was between $30,500 and $52,800. Costs and disbursements claimed and recovered [37] In the 10 November 2023 affidavit of the AWL attending lawyer, Mr Rieck, is a table identifying by date and invoice number, amounts AWL billed as fees, and amounts for disbursements (including senior and junior counsel fees).17 The table is replicated here with an additional column regarding payment: Date Invoice no. Amount for fees (incl. GST) Amount for disbursements (including KC and junior counsel) Payment 27/10/21 21473 $5,407.60 $335.42 Paid in full from trust 04/11/21 214732 $6,723.20 $1,037.90 Paid in full from trust 09/11/21 214733 $1,929.40 $333.63 Paid in full from trust 17/11/21 214734 $8,525.00 $14,583.00 Paid in full from trust 25/11/21 214735 $8,672.40 $22,481.25 Paid in full from trust 29/11/21 214736 $1,933.80 $211.64 Paid in full from trust 01/12/21 214737 $1,371.70 $2,860.00 Partially paid from trust and partially written off by AWL ($1,405.94 written off) Totals $34,563.10 $41,842.84 [38] At the time the relationship ended, the total amount invoiced was $76,405.94; the amount that had been paid out of trust funds was $75,000; and the amount AWL wrote off was $1,405.94. Fair or Reasonable (costs agreement) [39] In its decision on the strike out application the Tribunal put it simply18: “Whether a costs agreement is fair will turn upon the circumstances in which it was entered into. Whether it is reasonable will require an objective consideration of its terms, in light of the surrounding circumstances.” 17 Affidavit of Lachlan Rieck, filed 10 November 2023, Hearing Bundle pages 394-395. 18 Elks v Aitken Whyte Lawyers [2025] QCAT at [19], citing Simons & Ors v Dowd Lawyers Pty Ltd [2020] QCAT 348, [38]. Citing Re Stuart; ex parte Cathcart [1893] 2 QB 201, 204-5, cited in McNamara Business & Property Law v Kasmeridis & Anor [2007] SASC 90, [22]. -- 7 of 28 -- 8 [40] In deciding whether a costs agreement is fair or reasonable, regard must be given to the following s 328(2) LPA non-exhaustive list of matters19: (a) whether the client was induced to enter into the agreement by the fraud or misrepresentation of the law practice or of any representative of the law practice; (b) whether any Australian legal practitioner or Australian-registered foreign lawyer acting on behalf of the law practice has been found guilty of unsatisfactory professional conduct or professional misconduct in relation to the provision of legal services to which the agreement relates; (c) whether the law practice failed to make any of the disclosures required under Division 3; (d) the circumstances and conduct of the parties before and when the agreement was made; (e) the circumstances and the conduct of the parties in the matters after the agreement was made; (f) whether and how the agreement addresses the effect on costs of matters and changed circumstances that might foreseeably arise and affect the extent and nature of legal services provided under the agreement; and (g) whether and how billing under the agreement addresses changed circumstances affecting the extent and nature of legal services provided under the agreement. [41] The Reasons for Claim in the applicant’s QCAT application follows this structure.20 [42] There are a number of authorities concerning the term “fair or reasonable” in the context of the LPA. In Ashney21, Mellifont P references the propositions of established law that Judicial Member Lyons drew from a number of cases in Simons in that regard: (a) fairness of the agreement refers to the mode of obtaining the agreement, and whether the client fully understands and appreciates the agreement; (b) the terms of the agreement must be reasonable; (c) the factors to be taken into account when deciding whether an agreement is fair and reasonable will depend on the circumstances of the case, but may vary according to the scope of the retainer, the terms of the agreement, the kind of legal work undertaken, and the client’s knowledge and circumstances; (d) an agreement is unreasonable if it can be shown objectively that the agreement came into being in circumstances which were unreasonable to the client; or that its terms are unreasonable to the client; or that its effect on the client is unreasonable, though these tests are not exhaustive; and (e) the broad position is that a lawyer is not, in his or her relations with the client, to make a gain at the expense of that client, beyond an amount that is just and 19 Ashney v Pippa Colman & Associates Law Practice Pty Ltd [2022] QCAT 281. 20 QCAT Application, filed 10 November 2022, Hearing Bundle pages 2-17. 21 Ashney v Pippa Colman & Associates Law Practice Pty Ltd [2022] QCAT 281 [21]. -- 8 of 28 -- 9 fair for professional remuneration that the lawyer is entitled to receive for the work done. [43] Relevantly, Judicial Member Lyons noted that the question whether a costs agreement is fair or reasonable is to be determined at the time the agreement was struck.22 Post- agreement circumstances are potentially relevant when deciding whether a costs agreement was not fair or reasonable, having regard to the matters in s 328 such as the circumstances and conduct of the parties after the agreement was made, and a failure to make post-agreement disclosure required by s 315 LPA. Costs agreement v’s costs disclosure [44] The Queensland Court of Appeal has made clear that a costs agreement and a costs disclosure notice serve different purposes. In Waller Family Lawyers Pty Ltd v McAuley23 (Waller) the Court said at [43]: … The costs agreement establishes the relationship between the solicitor and the client. It is subject to the ordinary common law and to the specific requirement of the LPA. The costs disclosure notice is a document created under the regime established under Part 3.4 Division 3 of the LPA. Its purpose is to ensure that clients are properly informed of the costs which they are likely to incur or that they are provided with, at least an estimate of those costs. [45] The LPA provisions concerning costs agreements are found in Part 3.4 Division 5. Importantly, the Court of Appeal in Waller notes that s 322(4) sets out what a costs agreement must clearly state, while s 322(5) sets out what it cannot provide, but: “The section does not require that a costs agreement contain a cost disclosure statement”24. [46] There is nothing in Division 5 which requires that a costs agreement contain the same details as a costs disclosure notice.25 The LPA provides for the creation of a costs agreement, the provision of a costs disclosure notice, and the revision of that costs disclosure notice when further work is required. It does not require a new costs agreement whenever instructions are given to perform more work with respect to the subject of the costs agreement.26 [47] A costs agreement that contravenes, or is entered into in contravention of, any provision of Division 5 is void.27 [48] A costs agreement may be enforced in the same way as any other contract.28 Disclosures [49] The applicant is asking for the costs agreement to be set aside. A basis for the application is that the costs agreement did not include necessary disclosures. [50] The LPA provisions concerning costs disclosures are found in Part 3.4 Division 3. 22 Simons v Dowd Lawyers Pty Ltd (No 4) [2021] QCAT 134, citing Carmody J in Winn v Boss Lawyers Pty Ltd [2018] QCAT 233, [24] referring to Lunn J in Kasmeridis & Anor v McNamara Business and Property Law (2006) 245 LSJS 31, [4] which was brought under s 42(7) Legal Practitioners Act 1981 (SA). 23 [2025] QCA 25. 24 Waller Family Lawyers Pty Ltd v McAuley [2025] QCA 25 [23]. 25 Waller Family Lawyers Pty Ltd v McAuley [2025] QCA 25 [36]. 26 Waller Family Lawyers Pty Ltd v McAuley [2025] QCA 25 [44]. 27 Legal Profession Act, s 327(1). 28 Legal Profession Act, s326. -- 9 of 28 -- 10 [51] The s 308(4) requirements for disclosure include: (a) the basis on which legal costs will be calculated and be given an estimate29 of the total legal costs if reasonably practicable; (b) the client’s right to be notified under s 315 of any substantial change to matters disclosed under s 308; and (c) an estimate of the total legal costs if reasonably practicable, or, if not, a range of estimates and an explanation of the major variables to the calculation of those costs. [52] Waller at [45] relevantly says: … Section 310A sets out how disclosure must be made and provides that where detailed disclosure is given, it must be given in writing. Neither section (s 308 nor s 310A) requires that such disclosure be incorporated into the CSA. It is open to a solicitor to incorporate the disclosure into a costs agreement but there is no compulsion to do it that way. The circumstances of the individual case will usually dictate the most efficient way in which the information required by the LPA is conveyed to the client. [53] In this matter both a client agreement (costs agreement) and a disclosure notice were provided to Mr Elks on 14 October 2021. Both contained an outline of fees and charges, and the disclosure notice providing a qualified estimate for costs and disbursements for work to be undertaken in the four stages. [54] A law practice must, in writing, disclose to a client any substantial change to anything included in a costs disclosure already made, as soon as is reasonably practicable after the law practice becomes aware of that change.30 [55] In apparent compliance with Clause 5 of the costs agreement, email correspondence detailing and updating information concerning counsels’ fee disclosures, counsels’ estimates, counsels’ fees, progress in the matter, and trust account fund status, were provided to Mr Elks by AWL on 21 October 2021 (twice), 27 October 2021, 28 October 2021, 17 November 2021, 21 November 2021, and 23 November 2021. Correspondence following the 23 November 2021 disclosure is discussed in detail at [95]. The following table summarises the relevant updates and disclosure: Date Time Content 21/10/21 10.42am31 Attached SC’s costs disclosure for work up to and including proposed conference on 25/10/21; advised AWL’s “work in progress” costs incurred to date; requested transfer of $25,000 to trust account “towards our fees and disbursements” 27/10/21 11.17am32 Advised that junior counsel that was recommended by senior counsel has been contacted; noted that junior counsel suggested it should not take more than approximately 2 days to settle the material, prepare and appear with Nick; AWL noted junior counsel’s daily and hourly rates. 27/10/21 2.09pm33 Advised that the total costs for the initial stages should be similar to what is in the disclosure notice; will advise of an estimate of costs to pursue 29 See [36] below, an estimate is not a quotation. 30 Legal Profession Act 2007, s 315. 31 Affidavit of Lachlan Rieck, filed 10 November 2023, Hearing Bundle page 415. 32 Affidavit of Lachlan Rieck, filed 10 November 2023, Hearing Bundle pages 423-424. 33 Affidavit of Lachlan Rieck, filed 10 November 2023, Hearing Bundle pages 422-423. -- 10 of 28 -- 11 the final relief; informed that whether or not the relief is granted, the Court will make directions for the future conduct of the matter; informed of the possibility of a trial and the consequences that it wouldn’t be for several months and would involve more work and further costs 28/10/21 10.39am34 Attached junior counsel’s costs estimate for 2-3 days for the initial application; stated that AWL would ask junior counsel to limit his time to 2 days if possible as discussed with Elks; set out plan to finalise and send the letters in relation to matter; set out that AWL planned to settle the draft originating application and Elks Affidavit with both counsel by end of day; attached email from junior counsel says that the costs letter is for the first phase, being an interim injunction and directions for the dispute proper, and he notes that he will provide another estimate once he knows more about the matter. 17/11/21 6.12pm35 Attached junior counsel’s updated costs estimate; advised would send senior counsel’s once they had it; asked for Elks transfer of $10,000 towards ongoing fees and disbursements noting that he would prefer to pay incrementally. 23/11/21 7.14pm36 Advised SC invoice for work to date and estimate of a further 3-4 days required and activities; estimate of senior and junior counsel fees for further work; set out costs incurred to date and AWL’s estimated fees to the end of the hearing; identified amount remaining in trust account and a tally of invoiced amount and further estimates against funds in trust to estimate shortfall. [56] Following is a list of relevant email correspondence between AWL and Mr Elks in the period 14 October 2021 to 3 December 2021. The list may not be complete, and the description of content is minimal, but, as a sample, it demonstrates the level of communication between AWL and Mr Elks during the relevant period. Date Time To/from Content 14/10/21 3.29pm AWL to Elks Attaching a disclosure notice and costs agreement; notes staff who may work on matter; requesting trust funds 18/10/21 2.39pm AWL to Elks In relation to application 18/10/21 6.34pm Elks to AWL In relation to application 21/10/21 10.42am AWL to Elks Attaching costs disclosure of senior counsel; noting $5,000 in trust; asking for $25,000 additionally 21/10/21 1.09pm Elks to AWL Notes content with meeting senior counsel; notes will make further $5,000 before meeting 27/10/21 11.17am AWL to Elks Awaiting senior counsel to settle; contacting junior 27/10/21 1.16pm Elks to AWL Says that funds will be transferred; asks for confirmation that junior counsel will settle rather than senior 34 Affidavit of Lachlan Rieck, filed 10 November 2023, Hearing Bundle page 425. 35 Affidavit of Lachlan Rieck, filed 10 November 2023, Hearing Bundle page 428-430. 36 Affidavit of Lachlan Rieck, filed 10 November 2023, Hearing Bundle page 431-432. -- 11 of 28 -- 12 27/10/21 2.09pm AWL to Elks Confirmation of documents to be settled by junior counsel rather than senior to reduce costs; notes will provide estimate of costs for final relief 27/10/21 3.07pm AWL to Elks Attaches invoice 27/10/21 9.33pm Elks to AWL Attaches documents for statements and positions 28/10/21 10.39am AWL to Elks Attaching a costs letter from junior counsel; notes will confirm engagement but will ask to limit to 2 days 01/11/21 5.26pm AWL to Elks In relation to application 01/11/21 5.43pm Elks to AWL In relation to application 04/11/21 4.47pm AWL to Elks Attaches invoice 09/11/21 4.57pm AWL to Elks Attaches invoice 10/11/21 5.17pm AWL to Elks Attaches documents in relation to application; notes that extra funds will be required for counsel’s fees and the progression of the matter 10/11/21 5.38pm Elks to AWL Elks notes that he takes issue with fees relating to counsel 11/11/21 9.48am AWL to Elks Notes that circumstances have changed which has increased costs beyond what was initially anticipated 11/11/21 10.39am Elks to AWL Raises issues with counsel 11/11/21 4.05pm Elks to AWL In relation to application 11/11/21 5.25pm Elks to AWL In relation to application 15/11/21 12.05pm Elks to AWL In relation to application 17/11/21 12.17pm Elks to AWL In relation to application 17/11/21 12.19pm Elks to AWL In relation to application 17/11/21 4.46pm AWL to Elks Attaches invoice 17/11/21 6.12pm AWL to Elks Attaching junior counsel’s updated costs information; notes that since incremental payments, asks for $10,000 18/11/21 1.43pm Elks to AWL In relation to application 23/11/21 1.35pm AWL to Elks In relation to application 23/11/21 2.10pm Elks to AWL In relation to application 23/11/21 3.37pm AWL to Elks In relation to application 23/11/21 7.13pm AWL to Elks Providing an update on invoices, how much work left; an estimate on what the proceeding could potentially cost 24/11/21 3.50pm Elks to AWL In relation to application 25/11/21 10.05am Elks to AWL In relation to application 25/11/21 11.24am AWL to Elks In relation to application; asks for further $30,000 -- 12 of 28 -- 13 25/11/21 12.10pm Elks to AWL Notes will not require the $78,000 but will provide $20,000 into account; notes issues with counsel’s fees 25/11/21 12.38pm AWL to Elks Attaching counsels’ invoices; asks whether Elks would like them to stop due to negotiations; notes if hearing goes ahead, they can brief to 1 barrister if Elks preferred 25/11/21 12.44pm Elks to AWL In relation to application 25/11/21 4.08pm AWL to Elks Attaches invoice 25/11/21 5.05pm AWL to Elks In relation to application 25/11/21 7.04pm Elks to AWL In relation to application 30/11/21 9.31pm AWL to Elks Discusses getting a new counsel and provides rates 30/11/21 10.11am Elks to AWL In relation to application 30/11/21 12.33pm Elks to AWL In relation to application 30/11/21 1.04pm Elks to AWL In relation to application 30/11/21 2.15pm AWL to Elks In relation to application 30/11/21 4.34pm AWL to Elks Attaches invoice 01/12/21 6.44am Elks to AWL Issues with counsel and how matter is progressing 01/12/21 9.46am AWL to Elks Notes Elks calling counsel is not appropriate; refute not acting in interests; terminating agreement; encourages alternative lawyers 01/12/21 10.38am Elks to AWL Requesting $20,000 trust return and collection of materials; notes there will be an LSC complaint 02/12/21 10.44am Elks to AWL Following up return of trust and file collection 02/12/21 10.57am AWL to Elks Attaches invoice 02/12/21 11.42am AWL to Elks Attaching statement of account and noting balance owed 03/12/21 6.46am AWL to Elks Hard copy material ready for collection 03/12/21 12.09pm AWL to Elks Returning of documents and material What the applicant alleges [57] Mr Elks makes 3 core allegations concerning the costs agreement which are set out at [6] above. Briefly they are: that when the costs agreement was made, or within a few days of making it, AWL knew or should have known it was incapable of being fulfilled; that between 14 October 2021 and 1 December 2021, AWL knew or ought to have known the costs agreement contravened the LPA and was therefore invalid; and, that in late November 2021 AWL misled Mr Elks, inappropriately billed, and breached a range of duties. [58] Mr Elks also says the Division 3 s 308 costs disclosure was unfair. [59] He says: that there has been “no statutory update”; and that there has been “no s 315 ongoing disclosure”. Mr Elks says that the effect of the (alleged) failure to disclose is that the costs agreement should be set aside pursuant to Division 3 s 316(3). -- 13 of 28 -- 14 [60] Mr Elks points to “statutory failures” to meet s 308 and/or s 315 obligations as set out in a “matrix table” attached to his closing submissions.37 [61] AWL says the matrix table is a self-serving characterisation of the disclosure obligations which does not engage with the contents of the agreement or the applicant’s contemporaneous understanding of the engagement. [62] I do not find the matrix table helpful. I prefer to rely on the narrative. [63] Mr Elks also points to obligations under s 309 LPA, in particular s 309(1)(b) and s 309(1A), which concern disclosures that must be made to a client when a Law Practice proposes to engage another Law Practice (here, counsel). What the respondent says [64] AWL say the onus of establishing unfairness or unreasonableness lies upon the applicant, and that that onus is not discharged by proof of costs overrun alone. [65] They say that the applicant has not pointed to any part of the agreement that is unfair or unreasonable. [66] AWL accept that post-agreement circumstances are potentially relevant when deciding whether a costs agreement was not fair or reasonable. [67] However, they submit that events after the formation of a costs agreement are relevant only if they reveal that AWL knew, or ought to have known at the time of formation, that the estimate was unachievable. The evidence of AWL Director, Mr Aitken38, was that the estimates of fees contained in the disclosure notice were fair and reasonable. [68] The s 328(2) matters the Tribunal may have regard to are not exhaustive. [69] AWL say that while s 328(2)(d)-(e) permit consideration of post-agreement conduct, it allows, but does not require, the Tribunal to treat subsequent events as illuminating the state of affairs at formation. Those provisions do not convert a lawful and appropriate estimate honestly made on the information then available into an unfair agreement by reason of later developments in a complex matter. [70] AWL say that on or about 14 October 2021, when the agreement was made, the engagement of two counsel was not contemplated nor agreed. The engagement of senior and junior counsel, and the associated costs, “arose from developments in the conduct of the matter and the requirements of the litigation not from any defect in the original Agreement”.39 Costs flowing from subsequent strategic decisions is not evidence that the original estimate was dishonest or unreasonable. [71] I accept that the engagement of two counsel was not contemplated nor agreed when the costs agreement was made. There is no evidence to satisfy me otherwise. [72] As to what Mr Elks says is a s 308 “statutory failure”, AWL says s 308(4) requires disclosure of ‘total legal costs’ or an estimate including a ‘range of costs’. The disclosure notice outlined a cost estimate for each of the anticipated four stages, consistent with the information available at formation, the scope of work then understood, and the level of representation then contemplated. 37 Applicant’s Closing Submissions, filed 12 June 2026, page 11. 38 Affidavit of Robert Cook Aitken, filed 10 November 2023, Hearing Bundle pages 626-627. 39 Respondent’s Closing Submissions, filed 26 June 2026 at paragraph 14. -- 14 of 28 -- 15 [73] In regard to the alleged failure to provide ongoing s 315 disclosure, AWL say that on 27 October 2021, they expressly communicated the engagement of junior counsel and provided an updated estimate, including the $3,200 daily rate.40 [74] AWL say that s 315 requires disclosure of substantial changes as soon as reasonably practicable.41 They say that this was done on 23 November 2021 – when the full picture of likely costs had become clearer.42 [75] In regard to s 309 disclosures, AWL say that Mr Elks was present at a meeting with senior counsel when the engagement of junior counsel was discussed – and raised no issue at the time. Further, the 27 October 2021 correspondence specifically identified the junior counsel, including fee rates, sufficient to satisfy the requirements of s 309.43 Further, AWL says that any obligation imposed by s 309(1A) must be assessed having regard to the circumstances then existing and the information then available. Circumstances and conduct [76] Mr Elks contacted AWL on 12 October 2021 and spoke to the lawyer who subsequently had carriage of the matter for 20-30 minutes. Mr Elks then sent 4 separate emails, containing significant briefing material to the lawyer to familiarise him in preparation for a meeting between them on 14 October 2021. A fifth email was sent 13 October 2021 “in an attempt to narrow the issues” for discussion at the meeting. [77] The meeting was held at 9.00 am on 14 October 2021. A disclosure notice and a Client Agreement were sent to Mr Elks later that day. [78] In an email on 14 October 2021 at 6.38 pm from Mr Elks to AWL he says44: “I appreciate the outlined correspondence and cost agreements. This will be a very price sensitive claim as this is just the start of what will be a long road, however I am confirming engagement and will get you signed documents once I can get those printed and signed off.” He goes on to say that “I would like to speak regularly as to costs in an effort to keep them as low as possible”; and “… I am keen to have this lodged before the Court urgently as I do believe there will be issue as to where the money is and how we protect it”. [79] Numerous other emails and “reference documents” … along with some “extensive narrative between the parties to further define the documents to support our position” were forwarded by Mr Elks over subsequent days.45 [80] Correspondence between the parties in and around this time demonstrate that by 18 October 2021, AWL had undertaken a detailed consideration of the material provided, which raised a number of questions for Mr Elks to address. Clarification of certain matters in the material was sought and documentation was requested to support certain assertions made by Mr Elks.46 Correspondence dated 18 October 2021 from AWL to Mr Elks concluded by saying that when the further documentation is received “we 40 Affidavit of Lachlan Rieck, filed 10 November 2023, LJR5, Hearing Bundle pages 422-423. 41 Respondent’s Closing Submissions, filed 26 June 2026 at paragraph 22(b). 42 Affidavit of Lachlan Rieck, filed 10 November 2023, LJR8, Hearing Bundle pages 431-432. 43 Affidavit of Lachlan Rieck, filed 10 November 2023, LJR6, Hearing Bundle page 427. 44 Elks 1 st Affidavit, AJE-027, Hearing Bundle page 159. 45 Elks 1 st Affidavit, AJE-012, AJE-013, AJE-014, AJE-015, AJE-016, AJE-017, Hearing Bundle pages 181-239. 46 See for example email correspondence in Elks 1 st Affidavit, Hearing Bundle pages 225-227. -- 15 of 28 -- 16 then propose to brief a barrister and arrange a meeting as soon as possible” with a view to taking the action proposed. [81] On 21 October 202147, before senior counsel was formally engaged, a costs disclosure letter from senior counsel was forwarded to Mr Elks by email. The email advised Mr Elks that a brief had been delivered to senior counsel and sought Mr Elks’ availability for a meeting with senior counsel on 25 October 2025. The email also provided an update on costs, noting that $3,500 (of $5,000 held in trust) had so far been incurred. An estimate of senior counsel’s fees for the proposed meeting ($4,950 incl GST) was given, and a request made for $25,000 to be transferred to the AWL trust account. [82] The meeting with senior counsel proceeded on 25 October 2021. Mr Elks was in attendance. Follow-up correspondence confirmed what was discussed in that meeting regarding the availability of senior counsel and the need for junior counsel to assist senior counsel. In his first affidavit, Mr Elks says: “the need to use a junior barrister [was] to ensure the timelines were met, and it was purported that this would also work to keep costs low and in check with the current agreement”.48 [83] Correspondence around this time49 between Mr Elks, AWL and senior counsel indicate the involvement of Mr Elks directly in discussions and in the provision of instructions, and to some extent input into the content of correspondence. The output included the preparation and settling of correspondence with the legal representatives of the party against whom Mr Elks wished to proceed. [84] Things seemed to be moving quite quickly in the last days of October 2021. Mr Elks had wanted proceedings to be filed on or by Friday 29 October 2021. Apart from the issue mentioned at [78] above about “protecting the money”, the relevance or importance of that date is not clear to me – but regardless, that was Mr Elks’ instructions, and the timeframe appeared to drive the workload. [85] Following an email request on 27 October 2021 for funds to be placed in the AWL trust account, Mr Elks responded saying that he could transfer the funds noting:50 That said my understanding is we are still to settle the affidavit and lodge the Court Doc’s with majority of the prep to be undertaken by yourself, and then additional oversight from (junior Counsel). This should keep the estimates in check with the previous guidance if not a bit lower now we have Hamish reviewing. Can you please confirm same, hence funds will be transferred day but I would assume you still have funds allocated to your drafting tasks etc? [86] In a response email a short time later on 27 October 2021, AWL said that: “The total costs for the initial stages should be similar to what’s in our disclosure notice”. However, the email goes on to say: We will need to let you know an estimate of costs to pursue the final relief discussed with the QC on Monday (such as declarations that you are the majority beneficiary and entitle to certain amounts). Whether or not the injunctive relief is granted on your Originating Application, the Court will make directions for the future conduct of the matter. If it occurs at all, a trial probably 47 Affidavit of Lachlan Rieck, filed 10 November 2023, Hearing Bundle page 415, paragraph 28. 48 Elks 1 st Affidavit, Hearing Bundle page 116, paragraph 18. 49 Elks 1 st Affidavit, AJE-021, Hearing Bundle pages 249-258. 50 Elks 1 st Affidavit, AJE-022, Hearing Bundle pages 259-261. -- 16 of 28 -- 17 won’t be for several months at least and will obviously involve more work and further costs.” [87] On 28 October 2021, AWL forwarded to Mr Elks a ‘costs letter’ from junior counsel regarding his estimate for the initial application – noting that AWL said they would ask junior counsel “to limit his time to 2 days if possible as discussed”.51 The email also says that AWL proposed to have the draft originating application and Mr Elks’ affidavit to senior and junior counsel that day. [88] The draft originating application, settled by counsel, was provided to Mr Elks on 1 November 2021. The outcome Mr Elks had advanced or advocated was to seek the removal of a particular party as security trustee. AWL informed Mr Elks that that outcome had now been removed from the application in favour of an alternative strategy which counsel had advised would, in summary, be more strategic and time and cost effective.52 It was later clarified that the only change was to move the order sought from under the heading “final relief” to the heading “interim relief”. [89] Mr Elks says in his first Affidavit that:53 As of this date, there had never been an alteration to the cost agreement in place, nor an alternate cost agreement requested or supplied, nor at this time was any such provided or requested. [90] It is not clear which “this date” this refers to, but in the chronological layout of the affidavit it would seem to be 1 November 2021. [91] An email from Mr Elks to AWL dated 10 November 2021 at 5.38 pm, directly raises Mr Elks’ concerns regarding fees as follows:54 I do have an issue with the fees from (junior counsel), as (senior counsel) suggested he was used to reduce costs and hence that is what we did and it was for the prep and grunt work. I would not be happy with both of them attending Court on the day, the reason we used (senior counsel) was you indicated he was good and available. On the first meeting half way through he then stated he was away for several days and we should use (junior counsel) to do the grunt work and it would be more cost effective. We did not agree to have a Jnr and a QC run this case. I am perplexed as to how the costs from (junior counsel) could be so high, and as such I think we need a billing meeting with both (senior and junior counsel) and understand why we have both potentially doubling up. Keeping in mind to date – (Senior counsel) was to do the entire thing but then was unavailable so requested (junior counsel) to keep costs low We had a meeting to question my instructions, which did not change and (junior counsel) did not follow We have had some issues with the filing, with the mix up and I note that Second Originating Application lodgement costs has made it into the billing 51 Elks 1 st Affidavit, AJE-023, Hearing Bundle page 262. 52 Elks 1 st Affidavit, AJE-024, Hearing Bundle page 265. 53 Elks 1 st Affidavit, Hearing Bundle page 117, paragraph 25. 54 Elks 1 st Affidavit, AJE-025, Hearing Bundle page 270. -- 17 of 28 -- 18 I am very upfront guys, I am undertaking a lot of legal work and I will and do watch every bill and every hour or minute. So we need to sort something out at this is not going to work out with increased such as that this early on into proceedings. Also I note from the invoices the costs for the email and the back and forth, and I do understand you need to get paid however that can largely be circumvented by, I need every email pertaining to my matter to be CC’d to me, with will significantly reduce time and costs. Happy to get your thoughts? [92] AWL replied on 11 November 2021 at 9.48 am.55 In response to the suggestion that counsel “did not follow instructions” AWL said that they did not understand that comment as the only change was a reordering of the application.56 [93] AWL also said in that correspondence that “some things have increased your costs/the time spent on your matter beyond what was initially anticipated, such as deciding to seek an injunction and an order for documents, rather than the application to remove a trustee as initially discussed with you and as included in our disclosure notice”. [94] That correspondence also addressed the engagement of junior counsel which AWL said had been discussed in the initial meeting with senior counsel, and that senior counsel was not willing to appear without a junior. They set out the following options for Mr Elks: to keep both senior and junior counsel; or, find alternative counsel and withdraw the current briefs. AWL recommended keeping current senior and junior counsel “at least until your application for interim relief is heard”. The matter was listed for 16 November 2021. [95] The most detailed disclosure came on 23 November 2021. It included an invoice for work undertaken by senior counsel and an estimate for the further work to be done; an update on the estimate for junior counsel; it acknowledged that fees were higher than expected; it summarised fees “to date”; it provided further estimates to the “end of the hearing”; and identified the “shortfall” in respect of monies then held in trust. [96] By 30 November 2021, it was agreed that a consent order would be presented to the Supreme Court, which amongst other things, provided for mediation. An email from AWL to Mr Elks said that if Mr Elks wished to not continue with the counsel briefed, alternative counsel should be briefed quickly to meet certain court deadlines. AWL provided the names and rates of recommended junior counsel. Consideration S 328(2)(a) – was Mr Elks induced to enter into the agreement by the fraud or misrepresentation of AWL or any representative of AWL? [97] Mr Elks asserts that the AWL’s practitioner “knowingly misled” him; had no intention of keeping to the costs agreement; was “undertaking conversations, agreements and terms and withholding that from the client” which he says was an indication of his “deceptive and misleading conduct at the time of the engagement”.57 [98] There is no evidence to support these assertions. They are, at best, suspicions. Mr Elks’ perception appears to be based on the speed with which senior counsel was 55 Elks 1 st Affidavit, AJE-026, Hearing Bundle page 273. 56 As discussed in [88] above. 57 Elks 1 st Affidavit, Hearing Bundle page 118, paragraph 30. -- 18 of 28 -- 19 engaged – 2 business days after the costs agreement was made58, and just 4 days since Mr Elks made first contact with AWL. [99] The urgency was driven by Mr Elks. There are no specific submissions addressing the relevance of the 29 October 2021 deadline that Mr Elks instructed for launching proceedings in the Supreme Court. Nevertheless, I accept that there must have been a reason and I accept, and the material supports my view, that AWL was focused on and working towards meeting that timeframe. That timeframe is likely to have had an impact on workload and the dedicated resources. In the event proceedings were not launched on 29 October 2021. There is, however, no evidence that would allow me to conclude that AWL simply disregarded Mr Elks instructions and were not working in order to achieve the best outcome for Mr Elks. [100] The 14 October 2021 disclosure notice provided a contingency for counsel at certain stages, albeit at the time the agreement was made the proposal was for a “senior junior”. [101] There is evidence of enquiries being made by AWL with other counsel concerning availability, noting the tight timeframe. [102] I have already recounted at [76]-[82] above, the work undertaken by AWL leading up to their formal engagement, and in the first few days following their engagement. There is no suggestion in the material that the facts, circumstance, and basis for the proposed litigation was not complex. The instruction from Mr Elks that this is “just the start of what will be a long road” suggest as much. [103] At the time the agreement was made, the costs agreement provided appropriate and necessary information, and an adequate estimation of costs, based on the information then held and understood by AWL. [104] There is no evidence to lead me to a conclusion that the agreement came into being in circumstances that were unreasonable to Mr Elks. Nor do I consider Mr Elks to be in a situation of power imbalance given his experience in business and his evident awareness to legal process.59 The evidence does not support Mr Elks’ assertion that at the time of making the costs agreement and providing the disclosure statement (14 October 2021), or within a few days of making the agreement, AWL knew or ought to have known the estimates in the disclosure notice could not be achieved. [105] The assertion made by Mr Elks that between the making of the costs agreement (14 October 2021) and 1 December 2021, AWL knew or ought to have known “the existing costs agreement was misleading, irrelevant, contravened the LPA, and was therefore invalid” as a collective phrase is not established. [106] In regard to the alleged failure to provide ongoing s 315 disclosure, AWL say that on 27 October 2021, they expressly communicated the engagement of junior counsel and provided an updated estimate, including the $3,200 daily rate.60 [107] There was ongoing and continuous engagement between AWL and Mr Elks as the matter progressed, including counsel’s fee disclosures, estimates, invoices, progress and trust fund updates in accordance with the terms of the costs agreement and 58 Elks 1 st Affidavit, Hearing Bundle page 118, paragraph 32. 59 Affidavit of Lachlan Rieck, filed 10 November 2023, LJR32, Hearing Bundle pages 596-607; Affidavit of Lachlan Rieck, filed 28 November 2023, 2-LJR-43, Hearing Bundle pages 737-859. 60 Affidavit of Lachlan Rieck, filed 10 November 2023, LJR5, Hearing Bundle pages 422-423. -- 19 of 28 -- 20 disclosure notice, including a s 315 updated disclosure of substantial changes “when the full picture of likely costs had become clearer” on 23 November 2021. S 328(2)(b) – unsatisfactory professional conduct or professional misconduct [108] There is no evidence that the attending lawyer has been found guilty of any unsatisfactory professional conduct or professional misconduct in relation to the provision of legal services to which the agreement relates. [109] Mr Elks, in his application to the Tribunal, asked for the matter to be referred to the LSC for investigation. That is a matter for Mr Elks. It is not something the Tribunal will direct. [110] Mr Elks made assertions that, if supported by evidence, might amount to unsatisfactory professional misconduct or professional misconduct.61 The assertions were to the effect that the attending lawyer was dishonest in that he had no intention of sticking to or honouring the costs agreement. AWL described the allegations as scandalous. [111] The costs agreement is clear that counsel would be engaged at certain stages. Litigation strategy, advocacy, and the settling of applications and pleadings are the specialist skills of counsel. [112] The 14 October 2021 disclosure notice, apart from the fact that it references s 308, certainly qualifies as a s 308 disclosure. It includes at section 4, a table outlining the anticipated stages the matter was, at that time, expected to follow. It clearly provides for the engagement of counsel and a range of fees. Following the table and the estimates is a list of 17 major factors “which will affect the estimates”. [113] Clause 5.1 of the 14 October 2021 client agreement (costs agreement) says: 5.1 In the event that this legal practice engages on your behalf another law practice to provide specialist advice (eg a barrister) or services you will be advised. If the advocate provides us with fee disclosures or the basis of fee calculation we will pass this information on to you. If we become liable to pay interest on any advocate’s fees as a consequence of delay on your part we will pass that charge on to you. [114] In accordance with Clause 5.1 a number of both junior and senior counsels’ fee disclosures and the basis for fee calculation were passed on to Mr Elks as expected, and in a timely way. These are listed in the table at [55] above. [115] The availability of experienced counsel in a particular field, either senior or junior counsel, on short notice can be difficult to secure. Consideration was given to suitable counsel and enquiries made before AWL provided the updated disclosure concerning senior counsel. The engagement of junior counsel was discussed in conference on 25 October 2021 which was followed up with further disclosure on 27 October 2021. [116] I accept that costs flowing from strategic decisions in the conduct of a matter is not evidence of dishonesty or unreasonableness in the original estimate. [117] There is no evidence to support the allegations of unsatisfactory professional misconduct or professional misconduct, and only the assertion of Mr Elks that the 61 Elks 1 st Affidavit, Hearing Bundle pages 118-120, paragraphs 30, 32, 41, 44, 47 and 48. -- 20 of 28 -- 21 attending solicitor was not competent and capable in the area of law the subject of the engagement. S 328(2)(c) - failure to make Division 3 disclosures [118] I outlined the key disclosure requirements at [51] above; the fact that a Client Agreement (costs agreement) and disclosure notice were provided on 14 October 2021 at [53]; and the updates pursuant to Clause 5.1 of the costs agreement as listed at [55]. [119] I consider the disclosure contained in the 23 November 2021 email from AWL to Mr Elks, coupled with the ongoing disclosures regarding counsel fees and progress in the matter provided by AWL, satisfy the requirement of s 315 to provide ongoing disclosure. [120] The 14 October 2021 disclosure notice which accompanied the costs agreement contained cost “estimates”. [121] An estimate is not a quotation. Martin J in McLaren v Wiltshire Lawyers Pty Ltd62 said: … It is an approximation which is based upon a number of matters which will change according to the type of legal issue involved but will usually include: a) The general nature of the matter; b) The practitioner’s knowledge of the client’s circumstances; and c) The practitioner’s reasonable expectation (informed by experience and knowledge of the law and the practical problems associated with the area) of what might be required to undertake the work which the client instructs be undertaken. [122] I accept that at the time of making the costs agreement, the attending lawyer and AWL based the estimates on: the general nature of the matter as presented by Mr Elks; AWL’s knowledge of Mr Elks’ circumstances as represented by him at that time, including his statement to the effect that the matter was “cost sensitive”; AWL’s reasonable expectation of what might be required to undertake Mr Elks’ matter as instructed. AWL Director, Mr Aitken, gave sworn evidence that in his opinion the estimates were fair and reasonable. [123] The estimates contained in the 14 October 2021 disclosure notice were ultimately exceeded. The agreement, in a generic way, foreshadows that possibility. Mr Elks says the fact the estimates would be exceeded was known or ought to have been known within a few days, submitting that there had been no statutory update. [124] As noted earlier, a number of fee disclosures were passed on to Mr Elks in accordance with Clause 5.1 of the Client Agreement. [125] I have outlined some of the engagement and correspondence between Mr Elks and AWL from first contact on 12 October 2021. They met in person on 14 October 2021. In the intervening 2 days there had been a 20-minute telephone conversation, 4 emails from Mr Elks containing “significant briefing material” and a fifth email “to narrow the issues”. In hindsight, this might have been seen as a harbinger for how the matter might proceed. I stress, in hindsight, however after the costs agreement and disclosure notice was provided and before meeting with senior counsel on 25 October 2021 as I 62 [2019] QSC 305; (2019) 3 QR 158. -- 21 of 28 -- 22 point out at [79], numerous other email and reference documents along with some “extensive narrative …. to further define the documents to support our position” were forwarded by Mr Elks over subsequent days, and until the relationship was terminated. [126] The submission made by Mr Elks that AWL should have known within days that the estimates contained in the 14 October 2021 disclosure notice would be exceeded, is in some ways an odd submission. Mr Elks was providing instructions and was in control of the ongoing material being provided AWL. [127] Consideration of the circumstances and conduct around the costs agreement are not restricted to the circumstances and conduct of AWL. They also apply to Mr Elks. It is not disclosed whether Mr Elks informed AWL, or whether it was reasonably apparent, that Mr Elks would be providing ongoing and voluminous material: that might, after analysis and consideration of the legal implications, fundamentally affect or alter the way the matter is handled; that conceivably might require unanticipated additional legal research; which might require greater demand on the services of counsel; which might lead AWL and/or counsel to advise an alternative strategic direction; and/or which would require further instructions. Such contingencies are captured in Section 4 of the 14 October 2021 disclosure notice where 17 major factors affecting estimates are listed. The factors include: the complexity and urgency; the volume of documents and the need to review those; the time required to take instructions etc. [128] In my view, the cost estimates in the 14 October 2021 disclosure notice were acceptable in the circumstances. They were estimates, not a quote. Mr Elks’ expectation of the time necessary (and cost) for AWL and counsel to “get across” the material might be influenced by his deep, current and personal knowledge of all the facts and circumstances, and, by his own description, his “bush lawyer” understanding of the legal circumstances and approach. [129] Mr Elks expressed surprise at the fees charged by junior counsel.63 AWL acknowledge at one point that senior and junior counsel fees are higher than expected. At that time, AWL offered suggestions to minimise or reduce costs. Mr Elks expressed the view that given the number of barristers on the roll, “there was no attempt to find a lower cost barrister”.64 [130] On 10 November 2021 at 5.30pm Mr Elks said by email that he did “have an issue with counsel’s fees”.65 [131] In response by email on 11 November 2021at 9.45 am, AWL say: “Some things have increased your costs/the time spent on your matter beyond what was initially interpreted”, including advice about how the matter might proceed. [132] Mr Elks says that in “mid to late November 2021” he gave “clear and direct instructions as to limit and stop Counsel and the solicitor working on matters that were not relevant to the proceedings and in the mind of the client were simply an effort to run up costs”.66 [133] While counsel have ethical duties to their client, their highest obligation is to the law and the administration of justice. 63 Affidavit of Lachlan Rieck, filed 10 November 2023, Hearing Bundle pages 446-447. 64 Applicant’s Submission, filed 20 February 2026, Hearing Bundle page 25, paragraph 33. 65 Affidavit of Lachlan Rieck, filed 10 November 2023, Hearing Bundle pages 446-447. 66 Application, filed 10 November 2022, Hearing Bundle page 11. -- 22 of 28 -- 23 [134] In my view, there is no evidence to support a conclusion that either AWL or the counsel engaged presented estimates and charged fees to make a gain at the expense of Mr Elks, beyond an amount that is just and fair for professional remuneration that the practitioner is entitled to receive for the work done. [135] A confusing aspect to Mr Elks’ submission is the assertion in closing submissions67 that AWL conceded68 that the costs agreement “did not include the statutorily required s 308(4) disclosures”. Mr Elks submits that pursuant to s 316 the effect of the failure to disclose is that the costs agreement must be set aside. [136] AWL in closing submissions say that the relevant paragraph must be read in context, and that the passage does not constitute an admission that the (costs) agreement was deficient, unfair or capable of being set aside. [137] The full text of Respondent’s Submission69 is as follows: There appears to be a fundamental misunderstanding of the role of solicitors and Counsel, and the basis on which they are both retained. The complaint seems to relate to the solicitor’s costs agreement, which was supplemented by disclosure from Counsel as to their fees, insofar as the solicitor’s costs agreement did not include Counsel’s fees. [138] As I read this paragraph, it is a description of the complaint made by the applicant, not a concession as to its accuracy. That is, the relevant passage begins “The complaint seems to relate to …”. [139] In closing submissions AWL say its not an admission that the costs agreement was deficient. They say, a concession, if any, is “as to the form of disclosure” not as to the fairness or reasonableness of the (costs) agreement in all circumstances. [140] While AWL do not expand upon this – it would suggest a concession that the various supplementary disclosures ought to have been presented to Mr Elks with clarity that they were in fact, disclosures which updated the estimates given in the costs agreement. [141] As stated above in my view the costs agreement and disclosure notice were in the circumstances not unreasonable and were not unfair. A number of ongoing disclosures were made concerning counsel’s fees in accordance with the Client Agreement Clause 5.1. The email on 23 November 2021 from AWL to Mr Elks, in my view, would also satisfy the requirements of s 315. As outlined in the correspondence, the fees and disbursements had exceeded the range of estimated in the 14 October 2021 disclosure notice – mainly due to counsel fees and the engagement of both junior and senior counsel. Detailed information was provided regarding further estimates to see the matter through to “the end of the hearing”. The estimate for AWL’s continuing work was relatively modest. [142] The assertion that AWL failed to provide disclosure pursuant to s 309 LPA regarding the engagement of counsel is hollow. The costs agreement foreshadows the possibility of engaging counsel, and the disclosure notice outlines the likely stages and cost estimates. AWL sought out available counsel; informed Mr Elks; advised him of fees in advance of a meeting with counsel; attended the meeting with Mr Elks where the 67 Applicant’s Closing Submissions, filed 28 June 2026, paragraph 24. 68 In the Respondent’s Closing Submissions, filed 26 June 2026, paragraph 38. 69 Respondent’s Submissions, filed 17 March 2026, paragraph 38. -- 23 of 28 -- 24 engagement of junior counsel was discussed; received no objection from Mr Elks to that course of action; and updated Mr Elks as to fees as the work progressed. The disclosures might not have been perfect in form, but in all the circumstances of the engagement, they were adequate. They were not unfair nor unreasonable. S 328(2)(d) – circumstances and conduct of the parties before and when the agreement was made [143] Mr Elks says that at the time the agreement was made “the objectives and information was sufficient for a reasonable and competent practitioner to make a genuine assessment of the matter”. [144] At [78] above I note the content of the 14 October 2021, 6.38 pm email from Mr Elks to AWL where he says70 that the work will be “very price sensitive”; that this is just the start of … a long road; that he wished to speak regularly as to costs; that he was keen to have the proceedings before the Court urgently because “there will be issue as to where the money is and how we protect it”. [145] This statement, made on the first day of the engagement, is both subjective and somewhat internally inconsistent. It is clear from the material that Mr Elks had concerns about cost and wished to hold a tight rein. At the same time, Mr Elks says he wanted regular direct engagement with AWL in the process, and wanted the matter progressed urgently. I cannot see in the material, other than general statements about control of costs, where the cost limit was or how it might be discerned. To keep costs “as low as possible” is not particularly meaningful. [146] Although not at a time “before and when the agreement was made” but during the conduct of the matter, it was seemingly perceived by Mr Elks that being copied into all correspondence would reduce costs, but it is not apparent how it would reduce costs. It is clear that AWL were conscious of Mr Elks’ concerns and offered advice about reducing the hours of junior counsel, and the possibility of alternative counsel before the Supreme Court application proceeded to a full hearing. [147] I accept the AWL submission that cost escalation in complex, contested litigation is neither unusual nor probative of unfairness: “Litigation costs are inherently contingent upon the conduct of proceedings, the stance of opposing parties, the requirements of retained counsel, and developments which cannot be foreseen at the outset.”71 [148] I have gone into great detail in the preceding section regarding the relationship and interactions between Mr Elks and AWL which is unnecessary to repeat here. [149] In my view, the circumstances of the parties before and when the agreement was made do not establish or support a conclusion that the costs agreement was unfair or unreasonable. S 328(2)(e) – circumstances and conduct of the parties after the agreement was made [150] Much of my understanding of the circumstances and conduct of the parties after 14 October 2021 is outlined in my consideration of s 328(2)(c) above, and in the earlier sections of these reasons which will not be repeated here. I also refer to the table above at [56]. 70 Elks 1 st Affidavit, AJE-027, Hearing Bundle page 159. 71 Respondent’s Closing Submissions, filed 26 June 2026, paragraph 13. -- 24 of 28 -- 25 [151] In closing submissions72 Mr Elks says that the 23 November 2021, 7.14 pm email73 correspondence from AWL to Mr Elks, discloses “a three to four fold increase in the cost estimates and admissions of earlier internal knowledge that counsel fees could not be accommodated within the disclosure range, exposes that the original disclosure was, at inception, incapable of being fair, reasonable or properly understood”. [152] As noted earlier, AWL say that on or about 14 October 2021, when the agreement was made, the engagement of two counsel was not contemplated nor agreed. The engagement of senior and junior counsel, and the associated costs, “arose from developments in the conduct of the matter and the requirements of the litigation not from any defect in the original Agreement”.74 [153] Costs flowing from subsequent strategic decisions is not evidence that the original estimate was dishonest or unreasonable. [154] I note the expression of concern in the 10 November 2021 email from Mr Elks. I also note that Mr Elks says that he was “undertaking a lot of legal work”. He proposed that to “largely circumvent” (presumably costs) he needed every email pertaining to the matter to be copied to him. This, he considered, would “significantly reduce time and cost”. Again, it is not clear how. [155] There is a project management adage that might also be instructive in the provision of legal services, that within the constraints of quality, cost, and time, only two can be prioritised. [156] Again, there is no direct submission by Mr Elks of a power imbalance in his relationship with AWL. Mr Elks was heavily involved in providing information and material to AWL and counsel, and to some extent in the preparation and conduct of the matter. He provided voluminous material. Mr Elks is an experienced businessman having held the position of Vice President with Rio Tinto, CEO of Moreton Resources, a Graduate of the Australian Institute of Company Directors, and at the relevant time he was undertaking a Bachelor of Laws, which he has since completed.75 Any suggestion that Mr Elks was inexperienced, ignorant or naive in commercial matters, including engaging with legal practitioners, would be difficult to accept. [157] On 23 November 2021, at 2.38 pm, in response to an email from Mr Elks expressing concern about the handling of the matter (including an accusation of time being wasted on the approach advanced by senior counsel), senior counsel emailed Mr Elks directly76 seeking confirmation of instructions and noting the seriousness of advancing a certain pleading. Mr Elks’ frustration is apparent in the correspondence, and it is acknowledged by senior counsel. [158] On 24 November 2021, Mr Elks wrote directly to the opposing solicitor in the Supreme Court application saying that AWL “continue to act on my behalf however I am also attending to matters as they arise and as such all future correspondence, can please copy me in”.77 72 Applicant’s Closing Submissions filed 12 June 2026, paragraph 6. 73 Elks 1 st Affidavit, AJE-031, Hearing Bundle pages 297-298. 74 Respondent’s Closing Submissions, filed 26 June 2026, paragraph 14. 75 Affidavit of Lachlan Rieck, filed 10 November 2023, LJR32, Hearing Bundle pages 596-607; Affidavit of Lachlan Rieck, filed 28 November 2023, 2-LJR-43, Hearing Bundle pages 737-859. 76 Elks 1 st Affidavit, AJE-031, Hearing Bundle page 292. 77 Elks 1 st Affidavit, AJE-032, Hearing Bundle pages 299-301. -- 25 of 28 -- 26 [159] Mr Elks sought to bring (separate) contempt proceedings personally against the firm representing the opposing party in the Supreme Court application for “breaches of undertakings and commitments given”. [160] Mr Elks was advised by AWL that if he chose to file the contempt application on his own against AWL’s advice, AWL would be unable to continue to act for him in the proceedings (as AWL considered that the contempt proceedings would affect the “current” proceeding). [161] Although the following (paragraphs [162]-[168]) are perhaps not relevant to this criterion, I include it to complete the account of the relationship and engagement between Mr Elks and AWL. [162] A settlement of the Supreme Court application in which AWL were representing Mr Elks was proposed in 25 November 2021 correspondence from AWL to the legal representative of the opposing party. [163] Also, on 25 November 2021, Mr Elks emailed AWL clarifying the settlement offer and addressing legal fees.78 AWL had on 23 November 2021 advised Mr Elks of a need for $78,000 to be deposited into the trust account (for ongoing fees and disbursements), saying it was “not required in trust this week” but requested $30,000 towards anticipated fees and disbursements including barristers’ fees …. “as we owe (senior and junior counsel) money and don’t have sufficient funds in trust to cover it”. In response, Mr Elks said he would have $20,000 “into your account late Monday as that is what I have sold down”. He continued: In regard to the fees of (senior and junior counsel), there is beyond a doubling of fees and yet the appointment of (junior counsel) was supposed to cut fees, this is irreconcilable with what was discussed and put in the fees estimate. My first point of call is a review of the itemised billing from them both, then I can decide upon next steps about those invoices and also who we will use to move things forward as it is just not practical to use Council and Jnr Council on this. … [164] As settlement negotiations were proceeding, in their 25 November 2021 reply79 to Mr Elks, AWL provided the recent invoices from counsel and said that if the matter was to go to hearing the following year, a junior barrister (who they had initially approached but who did not have the capacity to take the matter on at that time) was recommended. [165] The Supreme Court application was still “live” on 30 November 2021, however, pursuant to consent directions further material was to be filed and mediation was proposed. [166] There was a flurry of email on 30 November and 1 December 2021. An email sent at 9.46 am on 1 December80 from AWL to Mr Elks terminating the relationship refers to 5 emails sent by Mr Elks since the afternoon of 30 November. [167] On 1 December 2021 at 10.38 am, Mr Elks demanded the refund of $20,000 that had been placed in the AWL trust account which he said was held without any authority.81 Mr Elks foreshadowed “cost assessment” and a complaint to the LSC. In response, 78 Elks 1 st Affidavit, AJE-034, Hearing Bundle pages 307-309. 79 Elks 1 st Affidavit, AJE-035, Hearing Bundle pages 310-320. 80 Elks 1 st Affidavit, AJE-043, Hearing Bundle pages 348-349. 81 Elks 1 st Affidavit, AJE-043, Hearing Bundle pages 348-349. -- 26 of 28 -- 27 AWL provided a statement of account noting that there was a balance of $1,405.94 owing – which AWL said would, without prejudice, be written off. [168] In my view, the costs agreement and the costs disclosure identified in the table at [37] provide information consistent with AWL’s obligations under the LPA provisions for costs disclosure including ss 308, 315 and 322. S 328(2)(f) – whether and how changed circumstances that might foreseeably arise and affect the extent and nature of legal services are addressed S 328(2)(g) – whether and how billing under the agreement address changed circumstances and affect the extent and nature of legal services are addressed [169] As stated earlier in these reasons, the LPA provides for the creation of a costs agreement, the provision of a costs disclosure notice, and the revision of that costs disclosure notice whenever instructions are given to perform more work with respect to the subject of the costs agreement. [170] At paragraphs [30]-[36] I broadly state the nature and content of the 14 October 2021 costs agreement and disclosure notice. [171] In my consideration of the s 328(2)(c) criteria, I go to some length considering the evidence and submissions concerning the Division 3 disclosures, concluding that although the form might be wanting, the content, taking into account the engagement and understanding of the parties, and the range of exigencies considered, was adequate. [172] The changed circumstances were addressed through email correspondence as set out in the table at [55] with the disclosure described, the invoices for legal fees and disbursements (including counsel fees) at [37], and the involvement of Mr Elks in regular communication and in conference with AWL and counsel described above at [56]. Outcome [173] I have considered the evidence relevant to all the matters referred to in s 328(2). The evidence does not support a finding in respect of any of those matters which lead the Tribunal to be satisfied that the costs agreement should be set aside as unfair or unreasonable. [174] In my view, in addition to my consideration of the statutory criteria, and looking at the matter in its entirety and considered objectively, the conduct of the attending lawyer and AWL, and the circumstances in which the costs agreement and disclosures was made, were not unreasonable. [175] Further, the terms of the costs agreement together with the disclosure notice were in my view not unfair. The disclosure notice informed Mr Elks that the estimates made were provided on the information available at that time and would probably change when more information was available to AWL. Many of those factors came to pass. [176] At [42], I noted the propositions of established law concerning the meaning of “fair or reasonable” that Judicial Member Lyons drew from a number of cases in Simons. I will address them briefly. [177] Fairness of the agreement refers to the mode of obtaining the agreement. In this case, Mr Elks approached AWL based on an online search for lawyers experienced in trust -- 27 of 28 -- 28 disputes. A telephone call followed, extensive material provided, followed by a meeting where the matter was discussed, including the capability of AWL to commence proceedings in the Supreme Court in a short timeframe. The reasons in this matter describe in quite some detail what followed. There is no evidence to substantiate an assertion that AWL misled Mr Elks or was dishonest in their relationship. I am satisfied that there was nothing improper in the mode of obtaining the costs agreement. [178] Given the circumstances as outlined in these reasons, and noting the short timeframe to settle the engagement and to commence work on the matter, I am satisfied that the terms of the agreement, including the use of estimates and stages, was reasonable. [179] Having regard to the specific factors in this matter including the tight timeframe, the legal complexity, and the volume of material, the terms of the agreement met the circumstances and were not unfair and not unreasonable. Mr Elks, as a businessman experienced in commercial matters and at the relevant time having a greater than average awareness of law and the legal system, was not in a position of power imbalance.82 [180] Overall, the evidence does not objectively show unreasonableness. I am not satisfied the costs agreement was not reasonable. [181] I am not satisfied, pursuant to s 328 LPA, that the costs agreement contravened or was entered to in contravention of any provision of Division 5. Therefore, the costs agreement is not void under that provision. [182] I am not satisfied that the costs agreement, as supplemented by the disclosures as set out in the table at [55], was not fair and/or not reasonable to the applicant. Orders The application is dismissed. 82 Affidavit of Lachlan Rieck, filed 10 November 2023, LJR32, Hearing Bundle pages 596-607; Affidavit of Lachlan Rieck, filed 28 November 2023, 2-LJR-43, Hearing Bundle pages 737-859. -- 28 of 28 --