Legal Profession Act 2008

Solicitors Costs Determination 2009

 

Solicitors Costs Determination 2009

Contents

Part 1 — Preliminary

1.Citation2

Part 2 — Notice and enquiries

2.Notice under section 278 of the Act3

3.Enquiries and submission under section 277 of the Act3

Part 3 — Report of Committee’s conclusions

4.Maximum hourly rates changed — scale of costs amended4

Schedule

1.Citation6

2.Commencement6

3.The Solicitors Costs Determination 20036

4.Interpretation6

5.Application7

6Costs7

7.Instruction fee when acting for both parties to a transaction8

8.Instruction fees for related transactions8

9.Instruction fees for leases9

10.Limitations on instruction fee in item 310

11.Uncompleted business10

12.Services related to item 510

13.Preparing documents and copies for execution, photocopying, facsimile and electronic transmissions (item 6)11

14.Complex matters, and matters involving a high degree of skill or urgency12

15.Effect on costs of Goods and Services Tax (GST)12

Notes

Compilation table16

 

Legal Profession Act 2008

Solicitors Costs Determination 2009

Part 1 — Preliminary

1.Citation

(1)This report may be cited as the Legal Practitioners (Solicitors Costs) Report 2009.

(2)The determination set out in the Schedule to this report is referred to in this report as the Solicitors Costs Determination 9

Part 2 — Notice and enquiries

2.Notice under section 278 of the Act

The Legal Costs Committee has complied with the notice provisions of section 278 of the Act.

3.Enquiries and submission under section 277 of the Act

Before making the Solicitors Costs Determination 2009, the Legal Costs Committee —

(a)reviewed the submission of the Law Society of Western Australia Inc received as a result of the notice given under section 277 of the Act; and

(b)reviewed the impact of movements in the Consumer Price Index and Labour Price Index for the period between June 2007 to June 2009 (inclusive).

Part 3 — Report of Committee’s conclusions

4.Maximum hourly rates changed — scale of costs amended

(1)As a result of its inquiries and the submission described in clause 3, the Legal Costs Committee is satisfied it is appropriate to continue to adopt hourly rates charged by practitioners as the basis for the rates used in the Solicitors Costs Determination 2009 subject to clause 4(2). It is also considered appropriate to retain a system of instruction fees as set out in items 1 to 5 of the Table to clause 6 of the Solicitors Costs Determination 2009 subject to clause 4(3).

(2)The Legal Costs Committee decided that it is no longer necessary to retain the categories of legal services providers described in Items 701 to 704 (inclusive) of the Solicitors Costs Determination 2007, given the provisions of the Legal Profession Act 2008 and the categories of fee earners described in more recent Reports and Determinations published by the Legal Costs Committee and the new legislation governing the legal profession.

This change is not intended to exclude from remuneration the work of any person whose work was remunerated under the Solicitors Costs Determination 2007 and its predecessors.

(3)The Legal Costs Committee has accepted the recommendation of the Law Society of Western Australia that Item 4 of the Table to clause 6 in the Determination should be amended to include references to Sub Leases and Assignments of Lease.

The Legal Costs Committee also considers that the likelihood of transactions under $25,000.00 occurring has diminished significantly and that the first line item in Items 501 and 502 of Item 5 of the Table to clause 6 should now read “1—150,000”.

(4)It is the recommendation of the Legal Costs Committee as a result of the inquiries and submissions described in clause 3 that the hourly rates referred to in subclause 4 (1) are varied from the hourly rates used in the Solicitors Costs Determination 2007 published in the Government Gazette on27 September 2007 pp 4855-4861. Those rates are set out in the Table to clause 6 of the Solicitors Costs Determination 2009.

(5)The recommendations of the Legal Costs Committee are not intended to override the entitlement of a practitioner to make a written agreement as to costs with a client under the Legal Profession Act 2008.

 

Schedule

Legal Profession Act 2008

Solicitors Costs Determination 2009

1.Citation

This determination may be cited as the Solicitors Costs Determination 2009.

2.Commencement

This determination comes into operation on 1 October 2009.

3.The Solicitors Costs Determination 2003

The determination cited as the Solicitors Costs Determination 2007 published in the Government Gazette on 27 September 2007 pp 4855 — 4861 does not apply to business carried out by practitioners after the commencement of this determination.

4.Interpretation

In this determination —

clause means a clause in this determination;

document includes a document in electronic form;

instruction fee means the fee set out in the column headed ‘Amount’ in the Table, in relation to the matter specified next to that fee in the Table;

instructions in relation to items 1 to 5 includes the initial attendance when instructions are taken, and all subsequent attendances at which instructions are taken which ought properly to have been taken at the initial attendance;

item means an item in the Table;

mortgagee includes the grantee of a security and, in relation to a hire-purchase agreement, means the owner;

mortgagor includes the grantor of a security and, in relation to a hire-purchase agreement, means the hirer;

prepare includes considering searches, researching matters of law, negotiating, settling and drafting the provisions of and producing a document;

security includes a mortgage, hire-purchase agreement, debenture or charge or a bill of sale or assignment by way of security, or any other form of security granted by a person;

sheet means one side of a single A4 page, with no less than 25 lines of print with a minimum of a 10 point font;

Table means the Table to this determination.

5.Application

(1)This determination applies to the maximum remuneration of practitioners in respect of any work carried out by a practitioner not being of a contentious nature and which is not governed by any other determination of the Legal Costs Committee under section 275 of the Legal Profession Act 2008.

(2)This determination does not apply to the remuneration of practitioners based on a written agreement as to costs with a client under the Legal Profession Act 2008.

(3)This determination does not apply to the remuneration of practitioners based on costs incurred before the commencement of the determination.6.

6Costs

Unless a practitioner has made a written agreement as to costs with a client under the provisions of the Legal Profession Act 2008, the costs payable by the client to the client’s practitioner shall not exceed an amount that is reasonable in the circumstances, that amount to be calculated on the basis of—

(a)the instruction fees and other fees for specific items set out in items 1 to 6 of the Table; and

(b)the time reasonably taken to perform the work referred to in item 7, charged at an hourly rate that does not exceed the hourly rates set out in that item; or

(c)where clause 14 applies, the skill, urgency or complexity required to perform the work, together with the time reasonably taken to do so.

7.Instruction fee when acting for both parties to a transaction

Subject to clauses 8 and 9, where a practitioner properly acts for both parties to a transaction, the practitioner is entitled to charge each party the relevant instruction fee relating to that transaction.

8.Instruction fees for related transactions

(1)Subject to this clause, where a practitioner acts for either a purchaser-mortgagor or for a vendor-mortgagee, the practitioner may charge either the instruction fee fixed in relation to the sale or the instruction fee fixed in relation to the security, but not both.

(2)Where a practitioner acts for a vendor in circumstances to which item 5 applies, and the consideration or part thereof is secured by a security prepared by the same practitioner and executed by the purchaser in favour of the vendor, the practitioner shall be entitled to charge in respect of the sale the fee set out in item 5 reduced by 20%, and for instructions in respect of the security the instruction fee calculated in accordance with item 3 on the basis of the sum secured.

(3)Where, in respect of one and the same transaction, a practitioner properly acts for both a purchaser-mortgagor and a vendor-mortgagee —

(a)if all the costs are to be paid by only one of the parties, the practitioner is entitled to charge the instruction fee in relation to the sale, calculated on the basis that the practitioner was acting for the purchaser, but is not entitled to charge an instruction fee in relation to the security;

(b)if each party is to pay their own instruction fee, the practitioner is entitled to charge each party such an amount so that the aggregate of the amounts payable by each is no greater than the instruction fee in relation to the sale, calculated on the basis that the practitioner was acting for the purchaser.

(4)Where, in one and the same transaction, a practitioner properly acts for both the vendor and the purchaser or for both the mortgagor and the mortgagee, the practitioner is not entitled to charge in respect of the instructions any amount which is greater in the aggregate than the instruction fee in relation to the sale or the security, calculated on the basis that the practitioner was acting for the purchaser or the mortgagor, as the case may be.

(5)Where a practitioner acts for the mortgagee on instructions to extend the term of the security, the practitioner is entitled to charge, for instructions, an amount not exceeding 40% of the instruction fee that would be payable in relation to an original security for the same amount as that secured by the security as extended.

9.Instruction fees for leases

(1)Where a practitioner properly acts for both the lessor and the lessee in respect of a lease or an extension of lease, the practitioner is entitled to charge for instructions only the instruction fee set out in item 4 in relation to a lessor.

(2)For the purposes of calculating the instructions fees set out in item 4 —

(a)where a term of a lease exceeds 12 years but does not exceed 26 years — the instruction fee shall be calculated on the basis of the rent payable during the first 12 years of the lease;

(b)where the term of the lease exceeds 26 years — the instruction fee shall be calculated on the basis of the rent payable during the first 15 years of the lease,

and for this purpose the term “rent” —

(c)includes any moneys payable as a premium for the granting of the lease;

(d)does not include any moneys payable or reserved under or by the lease in respect of —

(i)rates and taxes whether by way of reimbursement of the lessor or otherwise; or

(ii)expenditure incurred by the lessor in the conduct or management of the lease and premises or of any other property of which the leased premises forms part.

10.Limitations on instruction fee in item 3

In relation to an instruction fee set out in item 3 —

(a)any amount secured by an existing collateral security prepared by the same practitioner within one year prior to the instructions shall be deducted from the amount to be secured before calculating the instruction fee; and

(b)where the security is for an annuity and the term during which the annuity is to be paid is a period exceeding 12 years or for life—the instruction fee shall be calculated on the basis that the amount secured is 12 times either the annual payment or the average of the first 12 payments.

11.Uncompleted business

Where any business is not completed the instruction fee payable shall be such proportion of the relevant instruction fee payable under this determination as is reasonable in the circumstances.

12.Services related to item 5

(1)The fees set out in item 5 are the remuneration payable in respect of acting on instructions for the completion by transfer of an executed contract for the sale of land registered under the Transfer of Land Act 1893 and include the fees for all services usually performed in respect of the transaction and in particular—

(a)the investigation of title;

(b)enquiries of and advice to all rating and taxing authorities of change of ownership;

(c)the adjustment of rates and taxes;

(d)preparation, execution, stamping and the registration of the transfer; and

(e)the arrangements for and attendances on settlement including the discharge of encumbrances,

but the remuneration does not include the fees for —

(f)any service performed or rendered in respect of an amendment to the contract of sale;

(g)the perusal of any document other than the contract of sale;

(h)the preparation of any document other than the transfer;

(i)requisitions on title or answers thereto;

(j)correspondence or attendances as may be rendered necessary by the amendment to, or the preparation of, any document other than the transfer;

(k)correspondence or attendances not usually involved in respect of completion of the contract of sale including interpretation of or enforcement of the contract of sale; or

(l)any costs or expenses properly incurred due to the distance of the practitioner from the place of settlement or from an office of the Western Australian Land Administration.

(2)Where a practitioner acting on instructions to which item 4 applies is obliged to perform additional services which are not services to which item 4 applies, the practitioner is entitled to charge for those additional services at the rate set out in item 7.

13.Preparing documents and copies for execution, photocopying, facsimile and electronic transmissions (item 6)

The fees set out in items 601 and 602 are fees in addition to time taken to prepare documents (including amendments to drafts or standard documents) and —

(a)In the case of item 601—’Documents which could economically be a standard precedent’—the fee is intended to recognize the cost to, and time taken by, a practitioner in the preparation and maintenance of standard precedents—by way of example, a standard office lease, shop lease, assignment of lease, extension of lease and mortgage;

(b)in the case of item 602, the fee is intended to recognize the cost to, and time taken by, a practitioner in the preparation, availability and maintenance of a document which is not a standard precedent within item 601, and the skill, cost of preparation and maintenance of having such a document available.

14.Complex matters, and matters involving a high degree of skill or urgency

Where a practitioner acts on instructions or performs a service in respect of a matter —

(a)in relation to which a fee or rate of remuneration is set out under items 1 to 6, that is complex, or involves a high degree of skill or urgency; or

(b)that is not referred to in any of items 1 to 6,

then, notwithstanding the rates in item 7, the practitioner is entitled to charge a fee, or charge at a rate (as the case requires) that is greater than one that is set out in an item, if it is reasonable in the circumstances.

15.Effect on costs of Goods and Services Tax (GST)

The hourly rates and the calculation of fees under each of the items in the Table are intended to be inclusive of GST.

Table (Clause 6)

ITEM 1 — INSTRUCTION TO ACT ON A SALE OR OTHER DISPOSITION FOR VALUABLE CONSIDERATION OF PROPERTY

Ref

Party

Consideration ($)

Maximum
Amount
(as a %)

101

Purchaser

1 – 100,000
100,001 – 7,500,000
7,500,001 or more

0.45%
0.25%
0.03%

102

Vendor

1 – 100,000
100,001 – 7,500,000
7,500,001 or more

0.35%
0.17%

0.02%

ITEM 2 — INSTRUCTIONS TO ACT ON A GIFT OF REAL OR PERSONAL PROPERTY OR BOTH WHERE VALUE ASCERTAINABLE

Ref

Party

Value ($)

Maximum
Amount
(as a %)

201

Donor

1 – 100,000
100,001 – 7,500,000
7,500,001 or more

0.45%
0.25%
0.03%

202

Donee

1 – 100,000
100,001 – 7,500,000
7,500,001 or more

0.35%
0.17%
0.02%

ITEM 3 — INSTRUCTIONS TO ACT ON SECURITY

Ref

Party

Consideration ($)

Maximum
Amount
(as a %)

301
302

Mortgagee
Mortgagor

1 – 100,000
100,001 – 7,500,000
7,500,001 or more

0.45%
0.25%
0.03%

 

 

1 – 100,000
100,001 – 7,500,000
7,500,001 or more

0.23%
0.13%
0.013%

ITEM 4 — INSTRUCTIONS TO ACT ON A LEASE, SUB-LEASE, ASSIGNMENT OF LEASE OR EXTENSION OF LEASE OF PROPERTY (REAL OR PERSONAL OR BOTH)

Ref

Party

Consideration ($)

Maximum
Amount
(as a %)

401

Lessor/Sub‑Lessor

1—20,000
20,001 or more

0.80%
0.40%

402

Lessee/Sub Lessee

1—20,000
20,001 or more

0.40%
0.20%

403

Assignor/Assignee

1-20,000
20,001 or more

0.40%
0.20%

ITEM 5 — THE SETTLEMENT OF A CONTRACT FOR THE SALE OF LAND UNDER THE TRANSFER OF LAND ACT 1893

Ref

Party

Consideration ($)

Maximum
Amount or %

501

Purchaser*

1-150,000
150,001—500,000


500,001—1,000,000


1,000,001 or more

$847
$847 plus 0.22% of any amount in excess of $150,000
$1617 plus 0.165% of any amount in excess of $500,000
$2442 plus 0.11% of any amount in excess of $1,000,000

502

Vendor*

1-150,000
150,001—500,000


500,001—1,000,000


1,000,001 or more

$572
$572 plus 0.143% of any amount in excess of $150,000
$1023 plus 0.11% of any amount in excess of $500,000
$1628 plus 0.077% of any amount in excess of $1,000,000

*If the contract for sale is for a Strata Title, add $55.00 if acting for the Vendor, and $110.00 if acting for the Purchaser.

ITEM 6 — PREPARE DOCUMENTS AND COPIES FOR EXECUTION, PHOTOCOPYING, FACSIMILE AND ELECTRONIC TRANSMISSIONS

Ref

Description of task

Maximum
Amount

Preparation of documents

601

Documents which could economically be a standard precedent


$11.00 per sheet

602

Documents which could not economically be a standard precedent


$44.00 per sheet

All copies for execution and cost of binding

603

Each document for execution

$3.00 per page

Photocopying (other than item 503)

604

Each page

$1.00 per page

Facsimile and Electronic Transmissions

605

Each page sent

$3.00 per page

ITEM 7 — ATTENDANCES AND PERFORMANCE OF WORK WHERE ITEMS 1-6 DO NOT APPLY, AND TRAVEL

Ref

Practitioner

Maximum Rate

701

Practitioner (admitted 5 years or more)

$418 per hour

702

Practitioner (admitted less than 5 years)

$297 per hour

703

Clerk/Paralegal

$198 per hour

Note: The reference to practitioner in this determination includes all legal practitioners even if the services were rendered in another State or Territory. Where a local legal practitioner has held an interstate practice certificate, the length of admission in that other jurisdiction is to be counted in assessing that practitioner’s years of admission for the purposes of this Determination.

 

Travel

 

704

Travel is to be calculated in the same manner as items 701 to 703, with a maximum of 8 hours in any one day

 

Attendances and performance work where items 1–6 do not apply, and travel, and including time otherwise necessarily spent where no other charges apply

 

 

Notes

1This is a compilation of the Legal Practitioners (Solicitors Costs) Determination 2009. The following table contains information about that regulation.

Compilation table

Citation

Gazettal

Commencement

Legal Practitioners (Solicitors Costs) Determination 2009

30 Sep 2009 p. 3883‑90 (correction 24 Dec 2009 p. 5301)

1 Oct 2009 (see cl. 2)

 

 

Defined terms

 

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined termProvision(s)

clauseSch. cl. 4

documentSch. cl. 4

instruction feeSch. cl. 4

instructionsSch. cl. 4

itemSch. cl. 4

mortgageeSch. cl. 4

mortgagorSch. cl. 4

prepareSch. cl. 4

securitySch. cl. 4

sheetSch. cl. 4

TableSch. cl. 4