Queensland Building Services Authority v Mahony
[2012] QDC 226
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- Unreported Judgment
- Queensland Building Services Authority v Mahony[2012] QDC 226
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Queensland Building Services Authority v Mahony[2012] QDC 226
Queensland Building Services Authority v Mahony[2012] QDC 226
DISTRICT COURT OF QUEENSLAND
CITATION: | Queensland Building Services Authority v Mahony [2012] QDC 226 |
PARTIES: | QUEENSLAND BUILDING SERVICES AUTHORITY (Plaintiff) v GERARD WILLIAM MAHONY (Defendant) |
FILE NO: | D1996/09 |
DIVISION: |
|
PROCEEDING: | Review of costs assessment |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 28 August 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 August 2012 |
JUDGE: | McGill SC DCJ |
ORDER: | Assessment of the costs assessor varied by substituting $13,463.30 as the costs assessed in place of $38,654.08. Order of the Deputy Registrar of 16 July 2012 varied by deleting $38,654.08 and substituting $13,463.30. |
CATCHWORDS: | COSTS – Assessment – costs “of and incidental to” an application – does not include wasted costs – what covered – reassessment. UCPR rr 733, 734, 742. Casey v Quabba [2006] QCA 187 – cited. Chongherr Investments Ltd v Titan Sandstone Pty Ltd [2007] QCA 278 – considered. Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 – cited. Di Carlo v Dubois [2002] QCA 225 – cited. Re Gibson [1981] Ch 179 – followed. Re Hudson, Ex parte Citicorp Australia Ltd (1986) 11 FCR 141 – considered. King v King [2012] QCA 81 – cited. Latoudis v Casey (1990) 170 CLR 534 – cited. Myer v Myer [1932] VLR 322 – considered. |
COUNSEL: | M J Morgan (solicitor) for the plaintiff The defendant appeared in person |
SOLICITORS: | Rostron Carlyle solicitors for the plaintiff The defendant was not represented |
- [1]This is a review of a costs assessment under UCPR r 742. On 29 November 2011 another judge made an order dealing with two applications, an application filed by the plaintiff on 21 November 2011 and an application filed by the defendant on 24 November 2011. Her Honour dismissed the defendant’s application, made various orders on the plaintiff’s application, and finally ordered that:
“The defendant pay the plaintiff’s costs of and incidental to the application on an indemnity basis pursuant to r 171 of the UCPR.”
- [2]Pursuant to that order the plaintiff filed on 14 March 2012 a costs statement claiming the sum of $38,434.08. On 21 March 2012 another judge ordered that a particular costs assessor be appointed to assess the costs statement, and extended the time for the defendant to file a notice of objection to the costs statement to the date on which such a notice had in fact been filed.
- [3]The costs assessor filed a certificate on 20 June 2012 certifying that he had assessed the costs payable under the order at $38,654.08, including (as disbursements) his fees for the assessment and the plaintiff’s costs of the assessment. On 16 July 2012 the registrar made an order on the basis of that certificate for the payment of the costs so assessed, under r 740. The costs assessor provided reasons for the assessment, a copy of which he filed on 27 July 2012. On 30 July 2012 the defendant filed an application seeking to review the decision of the costs assessor, which is the application before me. On 8 August 2012 the plaintiff undertook to another judge not to enforce the registrar’s order pending the determination of this review.
Reasons of the costs assessor
- [4]The notice of objection was apparently drawn by the defendant without the benefit of legal advice, and is not very clearly expressed. It was however understood by the costs assessor, and I think appropriately, as taking the point that the costs claimed in Items 1 to 189 were costs of the proceeding generally and not covered by the order made on 29 November 2011. The costs assessor disallowed four items within this bracket, but said that otherwise he regarded them as covering costs of and incidental to the application, either because they related specifically to the application or they were costs “associated with and caused by the strike-out of the pleadings, which were struck out and thus wasted costs.” The costs assessor also disallowed or reduced a further 21 items, so that overall the reductions came to $2,550 plus GST. This however failed to offset the costs of the assessment assessed at $550 and the assessor’s fees of $2,475.
- [5]The only other matters to be mentioned in relation to the reasons of the assessor are that in paragraph 4 he said he had regard to r 702, which is the rule for assessing costs on the standard basis. Given that the order in the present case was for costs assessed on the indemnity basis, and given that no attempt was made in the costs statement to relate the costs claimed to the scale of costs which would be the basis of assessing costs on the standard basis under r 691, the reference to r 702 is puzzling, and does not encourage confidence in the assessment process.
- [6]The assessor went on to quote a passage from a judgment of the Court of Appeal in Chongherr Investments Ltd v Titan Sandstone Pty Ltd [2007] QCA 278 at [11], which I need not set out. That passage needs to be understood in its context. The court there was fixing costs, in circumstances where it had the benefit of a statement prepared by a costs assessor in accordance with the appropriate scale, and where there was little dispute before it that the amount claimed in that statement reflected the amount payable by way of costs assessed on the standard basis. The court in this passage was dealing with an argument, on behalf of the party liable to pay the costs, to the effect that the costs as fixed by the court should nevertheless be significantly lower than the amount notionally assessed on the standard basis. In the event, the court rounded the amount claimed down, but only by $174.69, an insignificant proportion of the total amount allowed.
- [7]Although it is correct to say that costs operate on the indemnity principle,[1] it has always been recognised that the “indemnity” offered by costs assessed in accordance with the scale, which must have been the case in that matter, will commonly provide less than a full indemnity to the party with the benefit of the order,[2] unless perhaps for one reason or another that party’s solicitors are themselves confined to charging an amount to be assessed in accordance with the scale.[3] I do not understand that there was anything in the court’s remarks intending to detract from the force of that proposition, or to lead to some modification of the rules applicable to the assessment of costs on the standard basis. The point that was being made by the court was that, in making such assessments, the rules should be applied on a fair and reasonable basis. As well, the passage has nothing to do with the scope of a specific order as to costs, which is the issue here, where the plaintiff is entitled under the order to recover only those costs which fall within the terms of the order. This was not a case where the order made covered all the costs of a proceeding, or of and incidental to a proceeding. The passage was therefore not obviously relevant to any issue which the costs assessor in the present case actually had to decide, another matter which does not inspire confidence in his decision.
Analysis
- [8]The reasons given for rejecting the general objection to Items 1 to 189 are also unclear. Items relating specifically to the application were obviously covered by the order, but referring to costs associated with and caused by the strike-out of the pleading, and identifying these as wasted costs, is unclear and confusing. Costs could not be caused by the strike-out of the pleading until after the pleading had been struck out, so that necessarily would apply only to costs incurred consequent upon the strike-out of the pleading and resulting from it. None of these fall within the Items 1 to 189. There is furthermore a natural dichotomy between “costs caused by an order” and wasted costs, in that the latter are costs which have already been incurred which as a result of the order will have been wasted.
- [9]The way in which the rules proceed in relation to costs is that, where a party is put to additional costs as a result of something done by the other party which indicates that something which was done previously has not been done properly, the rules provide that the additional costs incurred as a result of the other party’s actions are to be paid by that party. The best example of this is the consequence of an amendment. If a party having delivered a pleading then delivers an amended pleading, it could be said either that some of the costs associated with responding to the earlier pleading have been wasted because things would have been done differently if the pleading in its amended form had originally been delivered, or that as a result of the amendment the other party has been put to additional costs in responding to the amendment. The former refers to “wasted costs”, the latter to “costs caused by the amendment”.
- [10]In the case of an amendment this point is dealt with twice in the rules: r 386 provides that “the costs of and resulting from an amendment made under r 378 are to be paid by the party making the amendment unless the court orders otherwise.” Rule 378 is concerned with making amendments for which leave of the court is not required prior to the filing of a request for trial date. Rule 692, which is more general, is to similar effect, and provides that the party who amends a document must pay the costs of and caused by the amendment unless the court orders otherwise, although it does not apply to a party who amends because of another party’s amendment or default.
- [11]The logic of these rules is that, where one party puts the other party to additional cost as a result of not having done things properly the first time, the additional costs are payable by that party. Obviously it follows that the costs associated with responding to the document in its unamended form remain part of the costs of the proceeding, and would be covered by whatever order was ultimately made dealing with those costs.
- [12]I have not investigated whether the effect of rules such as this is that the costs are payable without any specific order, or whether they provide a prima facie rule pursuant to which orders for costs should be made. If they operate without an order, they would only carry costs on the standard basis, but in any case no attempt has been made in relation to this costs statement to rely on either of these rules in relation to any costs associated with amended defences filed and served by the defendant. Their other significance is that they suggest that the costs incurred in responding to the various defences, and in particular the initial notice of intention to defend and defence, are properly characterised as costs of the proceeding, even though the defence was subsequently amended.
- [13]The term “thrown away” is often used to describe wasted costs, for example where an adjournment of a trial is granted on the basis that the costs thrown away will be paid by the party seeking the adjournment. Such an order carries the costs of doing by way of preparation for trial those things which will have to be done again as a result of the trial date having changed. An example is arrangements made with witnesses to attend to give evidence on a particular day, but any item of preparation which will have to be repeated, or would ordinarily be repeated, if the trial is put off to a later date will be covered by such an order. On the other hand, preparation which will be able to be used at the new trial date as well as at the original trial date will not be: a good example is the cost of preparing a bundle of agreed documents to be put before the trial judge. There is no doubt that costs “thrown away” or wasted costs will be referenced to costs already incurred, but the difficulty here is that the order for costs did not expressly include costs “thrown away” or wasted as a result of the striking out of the defence.
- [14]Treating any costs associated with the pleadings which have already been delivered, and, as it appears, costs of doing anything based on the pleadings, such as disclosure, prior to the time when the order was made striking out the pleadings as wasted assumes that the “costs of and incidental to the application” include such wasted costs, although not expressly included in her Honour’s order. Clearly, they are not costs “of” the application.
Costs “of and incidental to”
- [15]The addition of the words “and incidental to” in the order for costs expands the scope of the order, but they still require some connection between the application and the costs. In Myer v Myer [1932] VLR 322 Cussen ACJ said at p 327 that these words “might be of importance possibly in regard to preliminary investigations and expenses and other matters”. He added that in that case he had not attached any consequence to the absence of them in relation to the costs of a petition for divorce. In Re Gibson [1981] Ch 179 Megarry VC cited without disapproval an earlier decision[4] where it was said that something incidental to the application was something “in subordinate conjunction with” the application: p 185. He added:
“Costs which are neither costs ‘of’ the proceedings nor costs ‘incidental to’ them cannot be awarded under the order for costs. It is thus important to identify the proceedings. This involves not only taking the correct stage of the proceedings, … but also determining the nature of those proceedings. Only when it is seen what is being claimed can it be seen what the proceedings are to which the costs relate.” (p 186)
- [16]In Re Hudson, Ex parte Citicorp Australia Ltd (1986) 11 FCR 141 Pincus J referred to this decision, but at p 144 doubted whether the addition of the words “and incidental to” often made much difference. He added:
“The taxing officer must consider, with respect to each item in the bill, whether it is reasonably connected with that proceeding or hearing; he should disallow it if no sufficient connection appears. Preparations for the proceeding or hearing are likely to be sufficiently connected, as is taking out the order resulting from the hearing.”
- [17]There is nothing in these authorities to suggest that costs “of and incidental to” an application extended to the costs of taking steps in the proceeding which related to or were consequent upon the delivery of a pleading which was the subject of the application to strike out. There was nothing to suggest that that expression ordinarily carried anything in the way of “wasted costs”, and the solicitor for the plaintiff was unable to refer me to any authority in support of that proposition, nor was any cited by the costs assessor. In my opinion that approach was wrong in principle.
- [18]I expect it would have been open to her Honour to have ordered that the defendant pay the costs incurred by the plaintiff as a result of the delivery of the defences which were subsequently struck out, and perhaps even costs of doing other steps which were related to those pleadings, such as disclosure, but no such express order was made. In my opinion the order made did not extend to such costs. What was covered by the order made were costs which were related either directly or indirectly to the application which was made by the plaintiff, including costs of preparation and costs of preliminaries, such as correspondence threatening such an application. It follows that in my opinion the approach of the costs assessor was wrong, and that as a result the way he dealt with the objection to Items 1 to 189 was wrong.
Reassessment
- [19]Turning to the costs statement therefore it is necessary to deal with the various items seriatim. Items 1 and 2 were perusing the notice of intention to defend and defence and the covering letter, which for the reasons stated above were not costs of and incidental to the application even though ultimately one of the orders made involved striking out that document. They are properly characterised as costs of the proceeding. With them were served an affidavit and quantities of exhibits which were also perused or examined: Items 3-5. Even if Item 2 had been properly allowed, the affidavit was not struck out, and however inappropriate it might have been the costs of perusing it were plainly costs of the proceeding, not costs of or incidental to the application. Item 6 related to a file search to ascertain if any documents had been filed; there were a large number of these[5], which may have been appropriate as costs of the proceeding, but in my opinion only the one shortly before the application was made to ascertain the state of the file at that time can properly be seen to be sufficiently connected with the making of the application.
- [20]Items 7 and 8 were letters to the plaintiff forwarding some of this material for its consideration, advising of the need to file a reply and identifying some errors in what the defendant had done. There was then a follow-up phone call (Item 9), and the reply was drafted, filed and served: Items 10, 11 and 12. None of these were costs of or incidental to the application. They were all costs of the proceeding. The defendant wrote proposing changes to the defence (Item 13), and forwarding a copy of a letter to the registrar (Item 14), and then sent a letter enclosing two further affidavits (Items 15, 16), which again were not connected with the application. The plaintiff was advised that there had been an amended defence which added a counter-claim, and it was suggested that counsel be engaged: Item 17. This was not connected with the application.
- [21]Items 18, 19, 21 and 29 were for to the preparation of a list of documents by way of disclosure.[6] These have nothing to do with the application to strike out the defence. Indeed, they were not obviously wasted costs, since the defences were struck out with liberty to re-plead, and an amended defence was filed and served within the time limited by her Honour’s order. It was not shown that anything disclosed on this occasion would not have been disclosable anyway under the defence as it existed following that further re-pleading, and therefore it was not shown that the costs of this disclosure had been wasted. Even if her Honour’s order carried wasted costs, it should not have carried these costs.
- [22]There were then costs associated with the preparation and delivery of a brief to counsel (Items 22-27), discussion with counsel by telephone (Items 20, 30), and receipt of a letter of advice from counsel (Item 31), for which a fee was paid (Items 32, 33, 34). Details of the advice were not provided, and in particular it was not disclosed that counsel advised an application to strike out the defence; given that one was not made at that stage, or for a long time thereafter, I assume that counsel’s advice did not extend to that. In any event, there is nothing in the costs statement to demonstrate any connection, even incidental, between the briefing of counsel and the application to strike out the defence. None of these costs were properly allowed. In amongst these was Item 28, a letter to the plaintiff advising of the progress of the matter, which obviously had nothing to do with the application.
- [23]Item 35 involved examining the four contracts the subject of the proceeding, Item 36 reviewing documents relevant to the first property,[7] there were title searches obtained on three properties the subject of the proceeding (Items 44, 45), and other searches at Items 60, 61; all these were just gathering evidence. Then there followed some items associated with amendments to the statement of claim, apparently in response to the amended defence: Items 37, 38, 39, 42, 47, 59, 68, 70. It appears that the amended statement of claim was also discussed with counsel who was then briefed to settle it: Items 40, 41, 43, 46, 65, 66, 67. I cannot see any connection between amending the statement of claim and the application to strike out the defence; these were at best costs of the proceeding.
- [24]A notice requiring disclosure was drafted and served by letter: Items 48 and 50, and the plaintiff’s list of documents served: Item 49.[8] These were costs of the proceeding. Item 51 related to a rule 444 letter, but did not disclose the subject matter of the letter. Part 8 of Ch 11, which deals with r 444 letters, does not apply to an application under r 171 to strike out a defence: r 443. It may be that some prior warning of the application in correspondence was appropriate, but even so there was nothing in the costs statement to demonstrate that this was in effect a letter prior to making the application to strike out the pleading, which was not filed until about six months later. It ought not to have been allowed on that basis, and otherwise it was not a cost of or incidental to the application.
- [25]Items 52 and 53 involved two conversations with the defendant which either related to matters other than the adequacy of this pleading, or where the subject matter of the conversation, and hence any connection with the application, was not disclosed. Both of these should have been disallowed. Item 54 was perusing a letter from counsel advising on the issues arising in the case, item 55 perusing a letter from the defendant requesting certain things, and item 56 perusing another letter requesting copies of certain disclosed documents. There was further correspondence and other work associated with the disclosure at Items 57, 58, 62, 69, 71, 72, 73, 74 and 75.[9] None of these items related to the application.
- [26]The defendant filed an application on 24 June 2010 which was served under cover of a letter: Items 63 and 64. Item 76 was for a further r 444 letter which again was not shown to be related to the application to strike out the pleading, or indeed anything else. It was passed on to the plaintiff (Item 79) and a rule 445 letter sent: Items 84, 85. There were then some further items[10] relating to the defendant’s application including a proposal which ultimately led to a consent order on 19 July 2010 that the application be dismissed with (expressly) no order as to costs. So the plaintiff included in this costs statement costs which related to a different application, and one which was resolved on the basis of a consent order that there be no order as to the costs of that application. That was surprising enough; that the costs assessor allowed such costs is more than surprising. Obviously all these items should have been disallowed.
- [27]Items 101 and 104 related to receipt of an amended defence, foreshadowed by a letter: Item 86. These costs are not related to the application. Item 106 was a letter to the defendant proposing a mediation and attaching a consent order (Item: 103), and Item 107 was for a letter from the defendant when he disagreed with the mediation request. Part of what was ordered by her Honour was a mediation, which was held and was unsuccessful, but the plaintiff’s application filed 21 November 2011 did not seek an order for mediation, merely that the court give directions for the further conduct of the proceeding and that the defendant’s defence be struck out under r 171. Minds may perhaps differ as to whether in these circumstances the correspondence relating to mediation was “of or incidental to” the plaintiff’s application. Given that I have concluded that the approach of the costs assessor to the objection to this group of items was wrong in law, what I am doing is reassessing this group of items, which involves my exercising independently any discretion vested in the cost assessor: r 742(6)(a). In my opinion there is not a sufficient connection between this correspondence and the plaintiff’s application and I disallow these items.
- [28]There were then a number of items which seemed to be associated with attempts by the plaintiff’s solicitors to obtain a sealed copy of the amended defence[11], a letter to the plaintiff advising on the progress in the matter, and on evidence for the trial (Item 117), and items relating to a reply to the amended defence: Items 118, 119, 121. The solicitor then received (Item 122) from the defendant an amended list of documents which seems to have been quite extensive and which was perused (Items 123-125), a copy of the reply was forwarded to the plaintiff (Item 126) and the reply was served on the defendant: Item 127. The defendant then served a further amended defence, which was perused: Items 129, 130. There was a conversation with the plaintiff about identifying a suitable expert witness (Item 133), correspondence in relation to a request for further and better particulars (Items 134, 135, 136, 137, 138) and letters to the plaintiff passing on the defendant’s latest documents: Items 139, 140. None of these are costs of and incidental to the application. They are costs of the proceeding.
- [29]Item 142 was a phone-call to the defendant concerning the progress of the proceeding, a cost of the proceeding There was then some correspondence concerning disclosure (Item 143) and a request by the plaintiff for further and better particulars from the defendant (Items 144, 146, 147, 149, 150, 151, 157, 158, 161 and 162) which are obviously costs of the proceeding. There was a letter from the defendant, Item 145, the function of which may have been obscure; the entry in the cost statement certainly is, but it was not shown to be related to the application. There were items where the defendant seems to have been seeking documents from the plaintiff: Items 147, 159. There was a letter from the defendant concerning the plaintiff’s reply (Item 148), and a letter attaching a defence and counterclaim filed 31 August 2011: Items 152, 153. The plaintiff was provided with an update on the progress of the matter (Item 156), a letter discussing the matter (Item 160) and a letter attaching a letter from the defendant with the amended defence and counterclaim: Item 165. The solicitor received and perused an amended defence and counterclaim: Items 163, 164. All of these are just costs of the proceeding.
- [30]Item 166 was receiving instructions from the plaintiff to apply to strike out the defendant’s defence and counterclaim, and is therefore properly a cost of the application. There was then a letter to the defendant which however does not appear to have done more than simply acknowledge receipt of the defence and counterclaim (Item 167), and the same day another letter to the defendant purportedly pursuant to r 444, which may well have been a letter before application in relation to the application to strike out, though the cost statement does not say so: Item 168. Given that the solicitors had just received instructions to make such an application, it may well have been appropriate to write a letter before application, even if r 444 did not apply, but given that Item 172 is another “r 444” letter and the wording of the items are essentially identical except for a different response time, it is difficult to conclude that either letter was the appropriate letter. Even on the indemnity basis, I do not consider that two such letters are properly allowable; a second letter covering the same ground in my opinion is unreasonable. In the circumstances I will allow Item 168 but will not allow Item 172.
- [31]Item 169 is a curious letter to the plaintiff; it says it attaches a letter from the defendant of 15 September 2011 which is not referred to in the cost statement, and otherwise appears to be an advice relevant to the application to strike out the defence; this is curious because the costs statement indicates that the plaintiff had already given instructions to make such an application, almost two weeks earlier. It would be reasonable for the solicitors to be advising whether such an application should be made before such instructions were given; the reasonableness of such advice after such instructions were given is more doubtful, but on the whole I think that one such advice could properly be allowed, particularly when costs are being assessed on the indemnity basis. I will therefore allow Item 169. However Item 170, where the plaintiff gave instructions to draw an r 444 letter, was inappropriate given that one had already been sent, and r 444 does not apply anyway to an application to strike out a defence under r 171. This is going too far even on the indemnity basis, and was not reasonable and is disallowed. The same applies to the letter to the defendant Item 171, which appears to duplicate the (useless) letter Item 167, and is therefore disallowed.
- [32]Items 173 and 174 are perusing a letter from the defendant enclosing further particulars of the amended defence and those particulars, which are costs of the proceeding, as are the following Items 175-180, which appear to be the same thing. Presumably the defendant sent several letters and enclosures, but they were all providing the particulars and they would all have been costs of the proceeding. The defendant then seems to have sent the same lot of documents by email (Item 181) which was acknowledged (Item 182), which would also be costs of the proceeding. The defendant then sent a letter seeking disclosure of certain documents (Item 183) which was forwarded to the plaintiff (Item 184). There was a further letter which the costs statement describes as “difficult to understand” and which is not shown to be a cost of the application rather than a cost of the proceeding (Item 185), and a telephone attendance on the defendant in an attempt to clarify the matter: Item 186. There was then a letter sent to the defendant explaining why he was not entitled to what he was seeking: Item 187. The defendant wrote back acknowledging receipt of the letter: Item 188. Again none of these items are shown to be costs to the application rather than costs of the proceeding. The final item (Item 189) is drafting the application to strike out the defence; this obviously is part of the costs of the application and I will allow that item.
- [33]It follows therefore that within the bracket of Items 1 to 189 I would allow only four items, 166 at $25.00, 168 - $125.00, 169 - $100.00 and 189 - $125.00, total $375.00. The costs statement claimed an amount of $21,511.67 as professional costs and $2,710.44 as outlays for these items, a total of $24,222.11, but the costs assessor disallowed items 29, 35, 36 and 71, which total $700.00, so the amount allowed totalled $23,522.11. It follows that I am disallowing a further $23,147.11, by way of professional fees of $20,436.67 and outlays $2,710.44.
- [34]It does not necessarily follow that these Items will never be recoverable; if the plaintiff ultimately obtains an order that the defendant pay the costs of and incidental to the proceeding, I expect most of these items would be properly recoverable, though there are a number of Items which as I have pointed out would clearly not be recoverable on the standard basis, and some which are not recoverable even on the indemnity basis.
- [35]Items in the bracket 1 to 189 were the Items raised in the objections to the costs statement, the focus of the costs assessor’s reasons, and the focus of the argument before me. I have had a quick look at the balance of the costs statement, but the only thing that struck me is that whoever drew it has fallen to the modern tendency to describe almost anything which is done by a solicitor or anyone else as an attendance, which is not correct usage.
- [36]Originally the term “attending” was a reference to the solicitor’s physically going somewhere in order to meet and have some dealing with a person, although the term has been legitimately extended to encompass attending a person who calls at a solicitor’s office, or attending a person by telephone. On the other hand, it is not correct to describe a solicitor’s conducting research as “attendance thereto by solicitor conducting research for …”. A correct, and more compact, description is “solicitor researching…”. Other examples of incorrect use are in Item 192 “attendance thereto by solicitor locating exhibits, reviewing the same and collating them…” and Item 193 “attendance thereto by associate settling the application and supporting affidavit…”. Apart from being incorrect, this modern tendency to describe everything as an attendance is inefficient. Costs statements are notoriously wordy, and they often need to contain a certain amount of explanation to demonstrate that the amount claimed is properly recoverable, or at least to provide proper notice of the basis upon which the amount in question is claimed. With a number of items in this costs statement, what was stated was unhelpful in this regard, because it did not achieve this objective. Wordiness in itself is not a virtue; a costs statement should say what it needs to say, but no more. There is no reason to make any other adjustment to the assessment.
- [37]The amounts claimed in individual items in the costs statement are excluding GST, which amount was added at the end on the professional fees. The total amount claimed in the costs statement prior to GST for professional fees was $32,471.67 from which the total of $2,550 was disallowed by the costs assessor, and from which I disallow a further $20,436.67, leaving a balance of $9,485 to which is to be added GST of $948.50, coming to $10,433.50. The disbursements were allowed as claimed; I would reduce the amount by $2,710.44, leaving disbursements of $4.80. To this is to be added the costs assessor’s fee of $2,475, and the costs of the assessment assessed by the costs assessor at $550, to give a total of $13,463.30.
- [38]I should say something about the costs of the assessment. There is no material to suggest that any offer was ever made by the defendant to pay any particular amount as the costs payable under the order. Rule 734(3) and (4) provides that, where a party liable to pay the costs has made an offer to settle the costs under r 733, if the offer was more than the amount assessed the party entitled to the costs must pay the costs of the assessment of the other party, otherwise the party liable for the costs must pay the costs of the assessment. In the absence of any offer from the defendant, these rules would not apply. Rule 735 provides for a situation where the amount claimed is reduced by more than 15%, but only when there is an assessment of costs payable out of the fund, which is not the situation here.
- [39]It is always open to a party liable to pay costs to agree with the party with the benefit of the costs order on the amount of the costs, or if the party seeking costs is seeking more than a reasonable amount, to protect himself by making an offer to settle under r 733. Subject to that however, the rules proceed on the basis that, if the party with the benefit of the costs order has to have the costs assessed, the party liable to pay the costs will pay the costs of the assessment. I will check to see whether any relevant offer was made by the defendant, but assuming that no offer was made, the consequence is that the defendant appropriately remains liable to pay the costs of the assessment even though the amount claimed was reduced by a large amount. The rules operate in this way in order to encourage parties to resolve costs disputes. I will clarify this point when the reasons are delivered.
- [40]Subject to that, I vary the assessment of the costs assessor and assess the costs payable by the defendant to the plaintiff pursuant to the order of 29 November 2011 in the amount of $13,463.30. It follows that the order of the Deputy Registrar of 16 July 2012 should also be varied by deleting the amount of $38,654.08 and substituting the amount of $13,463.30.
- [41]On face of it the defendant did not have legal assistance in relation to the appeal, but on the hearing of the appeal, where he represented himself, he claimed that he did have legal assistance. I asked him to produce a copy of the costs agreement with the relevant lawyer; what he in fact produced was what purports to be an email from a law firm enclosing an assessment on the indemnity basis of his legal costs with that law firm. This is not what I asked for, and is unlikely to be helpful unless the defendant can show that he should receive his costs of the review assessed on the indemnity basis. I will have to take this matter up further with the defendant when these reasons are delivered.
Footnotes
[1] King v King [2012] QCA 81; Latoudis v Casey (1990) 170 CLR 534.
[2] Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 226-228; Di Carlo v Dubois [2002] QCA 225 at [36].
[3] As in Casey v Quabba [2006] QCA 187.
[4] Department of Health and Social Security v Envoy Farmers Ltd [1976] WLR 1018 at 1021.
[5] Others before Item 190 are Items 77, 102, 105, 108, 120, 128, 131, 132, 141, 154, 155.
[6] Item 29 was disallowed by the assessor.
[7] Both of these Items were disallowed by the assessor.
[8] Even on the indemnity basis, it strikes me as curious and possibly unreasonable to have two separate letters, one to serve the list of documents and one the following day to serve the notice requiring disclosure. But it is unnecessary to consider that point separately.
[9] Item 71 was disallowed by the assessor, although what set it apart from the others escapes me.
[10] Items 78, 80-83, 87-100.
[11] Items 109, 110, 111, 112, 113, 114, 115, 116.