New South Wales Consolidated Acts

LEGAL PROFESSION ACT 2004 - SECT 309

309 Disclosure of costs to clients

(1) A law practice must disclose to a client in accordance with this Division:

(a) the basis on which legal costs will be calculated, including whether a fixed costs provision applies to any of the legal costs, and

(b) the client’s right to:

(i) negotiate a costs agreement with the law practice, and

(ii) receive a bill from the law practice, and

(iii) request an itemised bill after receipt of a lump sum bill, and

(iv) be notified under section 316 of any substantial change to the matters disclosed under this section, and

(c) an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable, a range of estimates of the total legal costs and an explanation of the major variables that will affect the calculation of those costs, and

(d) details of the intervals (if any) at which the client will be billed, and

(e) the rate of interest (if any), whether a specific rate or a benchmark rate, that the law practice charges on overdue legal costs, whether that rate is a specific rate of interest or is a benchmark rate of interest (as referred to in subsection (1A)), and

(f) if the matter is a litigious matter, an estimate of:

(i) the range of costs that may be recovered if the client is successful in the litigation, and

(ii) the range of costs the client may be ordered to pay if the client is unsuccessful, and

(g) the client’s right to progress reports in accordance with section 318, and

(h) details of the person whom the client may contact to discuss the legal costs, and

(i) the following avenues that are open to the client in the event of a dispute in relation to legal costs:

(i) costs assessment under Division 11,

(ii) the setting aside of a costs agreement or a provision of a costs agreement under section 328 (Setting aside costs agreements or provisions of costs agreements),

(iii) mediation under Division 8, and

(j) any time limits that apply to the taking of any action referred to in paragraph (i), and

(k) that the law of this jurisdiction applies to legal costs in relation to the matter, and

(l) information about the client’s right:

(i) to accept under a corresponding law a written offer to enter into an agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter, or

(ii) to notify under a corresponding law (and within the time allowed by the corresponding law) the law practice in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter.

Note: The client’s right to sign an agreement or give a notification as mentioned in paragraph (l) will be under provisions of the law of the other jurisdiction that correspond to section 304 (Part also applies by agreement or at client’s election).

(1A) For the purposes of subsection (1) (e), a benchmark rate of interest is a rate of interest for the time being equal to or calculated by reference to a rate of interest that is specified or determined from time to time by an ADI or another body or organisation, or by or under other legislation, and that is publicly available.

(1B) The regulations may make provision for or with respect to the use of benchmark rates of interest, and in particular for or with respect to permitting, regulating or preventing the use of particular benchmark rates or particular kinds of benchmark rates.

(2) For the purposes of subsection (1) (f), the disclosure must include:

(a) a statement that an order by a court for the payment of costs in favour of the client will not necessarily cover the whole of the client’s legal costs, and

(b) if applicable, a statement that disbursements may be payable by the client even if the client enters a conditional costs agreement.

(3) A law practice may disclose any or all of the details referred to in subsection (1) (b) (i)-(iii), (g), (i), (j) and (l) in or to the effect of a form prescribed by the regulations for the purposes of this subsection, and if it does so at the time the other details are disclosed as required by this section the practice is taken to have complied with this section in relation to the details so disclosed.