Williamson v Pay[2021] QCA 182

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  I agree with Boddice J.
2. [2]
   BOND JA:  I agree with the reasons for judgment of Boddice J and with the orders proposed by his Honour.
3. [3]
   BODDICE J:  By Notice of Appeal, filed 24 November 2020, the third appellant, a barrister, appealed the dismissal of an application by him for orders that his professional costs in estate proceedings be declared the subject of a lien and that the estate bear the substantial burden of those costs.
4. [4]
   On 4 March 2021, Morrison JA, by consent, dismissed the third appellant’s appeal, insofar as it related to the second respondent; and ordered that the third appellant pay the second respondent’s costs of the appeal, fixed in the sum of $23,000.
5. [5]
   On the same date, Morrison JA ordered that the third appellant pay the third respondent’s costs of an adjournment on 1 March 2021 and of the hearing on 4 March 2021, fixed in the sum of $12,000.
6. [6]
   In written submissions, filed on 12 May 2021, the third appellant sought leave to discontinue the appeal against the third respondent.  Leave is not opposed by the third respondent.  At issue is whether the third appellant ought to be ordered to pay the third respondent’s costs of that appeal.

Background

7. [7]
   The estate proceeding concerned an application to revoke probate.  The third appellant, instructed by the third respondent, represented the first and second appellants, being the applicants in the estate proceeding.
8. [8]
   The estate proceeding was ultimately finalised by orders revoking probate.  Orders were also made requiring the estate to pay the costs of the successful applicants, on the indemnity basis.
9. [9]
   The application the subject of this appeal was brought by the third appellant following non-payment of fees rendered by him for his representation of the first and second appellants in the estate proceeding.  That non-payment had been the subject of a default judgment, entered in the third appellant’s favour, against the third respondent.  Notwithstanding that default judgment, the third appellant sought by claim a lien and orders that the estate pay his outstanding costs.

Decision

10. [10]
    The primary Judge found the appellant was not entitled to the claim of lien, as he had rights to enforce his claim against the third respondent and there was evidence that the administrator of the estate had obtained orders facilitating the payment of the outstanding costs directly to the third appellant.^[1]

Appeal

11. [11]
    The appeal, although instituted promptly, was not prosecuted diligently.  Further, the third appellant was in breach of a number of orders made in relation to a timely disposition of the appeal.  Consequently, the second and third respondents filed an application to dismiss the appeal for want of prosecution.  It was in that context that orders were made for the dismissal of the appeal insofar as it related to the second appellant.
12. [12]
    Those orders were made by consent, after the second respondent and the third appellant reached agreement on the disposition of the appeal insofar as it concerned the second respondent.
13. [13]
    Prior to the making of those orders, the hearing of the application to dismiss the appeal for want of prosecution was the subject of a successful adjournment application by the third appellant.  The costs incurred by the second respondent, as a consequence of that adjournment and for preparation for the hearing of the dismissal application, were the subject of the balance of the orders made by Morrison JA on 4 March 2021.

Submissions

14. [14]
    Whilst the third appellant does not intend to proceed with the appeal against the third respondent, he submits the appeal had merit and was reasonably instituted by him.  Its non-continuance is due to personal health issues and a recognition that success in the appeal will not result in recovery of his fees, the third respondent having indicated an intention to apply for bankruptcy in the event of any enforcement of a judgment in the third appellant’s favour.
15. [15]
    The third respondent submits that the third appellant ought to be ordered to pay the third respondent’s costs of the appeal, assessed on the standard basis.  The third appellant chose to institute an appeal, which was not prosecuted diligently, and which was subsequently discontinued against the third respondent.  Costs should follow the event.

Consideration

16. [16]
    A Court may depart from the general rule that costs follow the event if the circumstances support a conclusion that a different order is appropriate in the exercise of the Court’s discretion.  Factors relevant to the exercise of that discretion include the stage the proceeding had reached, the reasons for not continuing with the proceeding, any wilful failure to comply with Court rules and the reasonableness of the decision not to pursue the proceeding.
17. [17]
    The third appellant, having been unsuccessful in a proceeding instituted by him at first instance, chose to appeal that decision.  As a consequence, the third respondent was put to further expense.  The third appellant, for personal reasons, was not able to pursue the appeal diligently.  Thereafter, he chose not to continue with the appeal.
18. [18]
    Whilst a reason for non-continuation of that appeal is a recognition of the futility of any success in the appeal, in the sense of recovering his outstanding fees, that futility ought to have been apparent to a reasonable litigant at the time of institution of the appeal.  That is particularly so having regard to the existence of a default judgment in his favour, and steps taken by the administrator of the estate to pay a proportion of those fees directly to the third appellant.
19. [19]
    Once that conclusion is reached, there is no good reason why the third respondent ought to be deprived of an order for costs in his favour, on the appeal.
20. [20]
    I would order:

3. (1)
   The appeal be dismissed.

3. (2)
   The third appellant pay the third respondent’s costs of the appeal to be assessed on the standard basis.