Picamore Pty Ltd v Challen[2013] QDC 258

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the Respondent Hawthorn Cuppaidge and Badgery (“HCB”) pursuant to UCPR r667(2)(a).

2. [2]
   This rule allows a court in its discretion to set aside an order at any time after the order was made if the order was made in the absence of a party.

3. [3]
   It is necessary then to set out the history of the matter to see whether this sub-rule has been engaged.

Background to the order

4. [4]
   On 9 August 2013 a Judge of the District Court in Brisbane ordered that a costs assessor be appointed to carry out an assessment of the legal costs payable by the Applicant (“Picamore”) to HCB pursuant to Chapter17A Part 4 UCPR and s335 of the Legal Profession Act 2007 (Qld) (“LPA”).

5. [5]
   It was further ordered that Robyn Davis a costs assessor carry out the assessment of costs.

6. [6]
   There was further a direction that Picamore make the solicitor’s file (maintained by HCB) available to the costs assessor for the purpose of carrying out the costs assessment.

7. [7]
   The application for the order for the appointment of the costs assessor was filed in the District Court on 9 July 2013.

8. [8]
   The application was for an order for the assessment of legal costs with respect to various tax invoices rendered by HCB to Picamore totalling about $286,000.

9. [9]
   Paragraph 3 proposed that the application be decided without an oral hearing. A draft order was filed.

10. [10]
    At paragraph 4 the Respondent was advised that if it required an oral hearing, within three business days after being served, it had to file and serve a notice in Form 50. If it did not, it had to file and serve any response including written submissions or evidence at least three days before the date set for deciding the application.

11. [11]
    It seems that the application which was given to Picamore by the Registry for service on HCB was irregular.

12. [12]
    The date upon which the application was to be heard was specified to be on 9 July 2013, which was the same date as the filing date.

13. [13]
    On 10 July 2013 HCB was personally served with a copy of the application, a draft order, the consent of the costs assessor, an affidavit of Alan Johnston and submissions (seePLC-2, an exhibit to the affidavit of Peter Challen filed 9 September 2013).

14. [14]
    It was noted in the covering letter, “Once the order issues, we will serve a copy upon you.”

15. [15]
    MrChallen at [8] of his affidavit filed 19 September 2013 states that he reasonably believed that the application had already been heard on 9 July 2013 before the Registrar, an order had been made by the Registrar and accordingly he was being informed he expected to receive in due course a copy of the Registrar’s order.

16. [16]
    That was obviously not the case because the order was made by the District Court on 9 August 2013 – but Mr Challen was not so advised of the date in advance.

17. [17]
    On 13 August 2013 Mr Challen was served with a copy of the order made by the District Court on 9 August 2013 (Exhibit KFS-12, affidavit of Kathleen Smith filed 25 September 2013) by post.

18. [18]
    On 3 September 2013 DGT Costs Lawyers wrote to both Picamore’s lawyers and HCB advising of their appointment (Exhibit KFS-17, affidavit of Kathleen Smith filed 25 September 2013) and enclosing a “draft” assessment for a total of $73,519.00.

19. [19]
    On 13 September 2013 HCB wrote to Picamore’s lawyers, putting them on notice they intended on making application to the court to set aside the order on the basis that HCB were not afforded natural justice. This was because the originating application stated the hearing was to occur on 9 July 2013 and they would be receiving the order of the Registrar (Exhibit KFS 19, affidavit of Kathleen Smith filed 25 September 2013).

20. [20]
    On 19 September 2013 HCB filed an application to set aside the order made by the District Court.

21. [21]
    This was to be heard on 26 September 2013 but the Presiding Judge disqualified himself from hearing the matter and the matter was adjourned until 8 October 2013 for further hearing.

22. [22]
    Hence it falls to this court to make a determination as to whether the order made by the District Court on 9 August 2013 should be “reopened”.

Submissions of the parties

23. [23]
    HCB submits that there are a number of defects such that the order made by the District Court should be set aside.

24. [24]
    HCB submits:

1. (a)
   The form of order does not comply with the rules;

2. (b)
   The order does not accord with the powers of the court under s335 of the LPA as it does not identify the specific bills which are the subject of the assessment;

3. (c)
   There was no affidavit of service filed by Picamore prior to the exparte determination on 9 August 2013, indeed s339 of the Act provides for notice of the costs application to be given to various persons including the law practice;

4. (d)
   HCB was never informed of any hearing date other than 9 July 2013;

5. (e)
   The application was not in the approved form pursuant to r743A UCPR as Form 60 requires the Applicant to provide details for a directions hearing which were omitted from the originating application;

6. (f)
   The appointment of Robin Davis as costs assessor was not agreed to by HCB.

25. [25]
    On the other hand Picamore submits:

1. (a)
   That r667 UCPR is not engaged.

2. (b)
   It is submitted that the order was not made in the absence of the Respondent.It is submitted the Respondent was given notice that the application would be made before it was filed and it was invited to consent to orders.

3. (c)
   Also, in the application paragraphs 3 and 4 gave the Respondent the opportunity to make submissions or to file a Form 50, which it did not.

4. (d)
   It is submitted that, by analogy in AMA v CDK & Ors [2009] QSC 287 at [20] and Frith v Schubert [2010] QSC 444 at [32], it was held that physical absence is not established if the party’s legal representative is physically present even if the party themself is not present.By analogy it is submitted that these principles apply here.The Respondent was given an opportunity to have an oral hearing, which it declined.

5. (e)
   Even if r667(2)(a) is fulfilled, it is submitted that the court should exercise its discretion against making the order.

6. (f)
   It is submitted that delay is a relevant feature (AMA v CDK & Ors [2009] QSC 287).

7. (g)
   It is submitted the Respondent’s material contains no explanation of its delay.

8. (h)
   In supplementary submissions filed by Picamore, it is submitted that UCPR r490 and Form 49 apply.

1. (i)
   It is submitted that the application was compliant with these provisions and therefore the application was filed in an approved form.

10. (j)
    It is finally submitted that HCB well knew the application was being made and led the Applicant to believe it would not be opposed.

11. (k)
    It had opportunities before the application was filed to object. It did not do this.

Analysis

26. [26]
    There is no doubt that at common law once an order is finalised there are very limited circumstances in which it may be the subject of re-opening.

27. [27]
    In Bailey v Marinoff (1971) 125 CLR 529 it was held that there is no inherent power to deal further with [an appeal] which had already been dismissed by formal order.

28. [28]
    In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 the High Court examined the situation where an order was made but where an application to set aside the order was made prior to the formal entry of judgment.

29. [29]
    At [4] Mason CJ noted:

“… the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law.…  What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.”

30. [30]
    In De L v Director-General of Community Services (NSW) (1997) 190 CLR 207 the judgment of Toohey, Gaudron, McHugh, Gummow and Kirby JJ reaffirmed this principle noting also there must be exceptional circumstances to permit a re-opening.

31. [31]
    Whilst the above cases provide important guidance this court must examine the terms of the legislative provision applicable here.

32. [32]
    In Sproule v Long [2001] 2 Qd R 335 (applied in Stubberfield v Lippiat & Co [2002] QCA 541) McKenzieJ referred to the meaning of the word “absence” in r667(2)(a).

33. [33]
    His Honour applied that which was stated in Wilkinson v Wilkinson [1963] P 1 and found that “absence” meant “physical absence”.

34. [34]
    In AMA v CDK & Ors [2009] QSC 287 Applegarth J at [15] noted that r667(2) confers a discretionary power to set aside an order at any time if one or more of the circumstances listed is established:

“The discretion to exercise the power may be influenced by the applicant’s delay in bringing the application.A delay which prejudices the interests of a party, for example a party which has acted to its detriment on the basis of the order by taking steps to enforce it and incurred costs in doing so, is a matter which should be taken into account in the discretion to extend time under UCPR r 667.The adequacy or otherwise of the applicant’s explanation for the delay is another factor.”

35. [35]
    His Honour also noted that whilst the Applicant was present in court earlier in the day before Lyons J, she absented herself by the time the order was made and reasons given. However she was represented throughout by lawyers. In that circumstance she was not absent.

36. [36]
    In Frith v Schubert [2010] QSC 444 at [35] and [36] Peter Lyons J accepted that when MsFrith was not present when the order was pronounced (even though she was during argument) this meant literally the condition set out in r667(2)(a) was satisfied, although discretionary factors were then relevant.

37. [37]
    In this case, I find that r667(2)(a) has been engaged.

38. [38]
    Clearly, HCB was not present at the time the order was made.

39. [39]
    I also find that the letter sent by Picamore’s lawyers enclosing the application was apt to mislead him (not deliberately, I hasten to add) when one couples it with the date of hearing specified on the application.

40. [40]
    The enclosed application had indicated the hearing date was 9 July 2013 and the letter in its terms referred to the fact that an order would be issued.

41. [41]
    I accept MrChallen’s evidence (paragraph 8, affidavit filed 19 September 2013) that he thought the application had been heard and expected to receive a copy of the Registrar’s order.

42. [42]
    Having determined that the rule is engaged, this leads to a consideration of the exercise of the discretion.

43. [43]
    The first issue is the issue of delay.

44. [44]
    Mr Challen has sworn in an affidavit filed by leave that his mother-in-law died on 23 August 2013 and his ex-partner Robert Badgery was buried on 26 August 2013, which matters were significant to him.

45. [45]
    It is true that it was not until the 13 September 2013 that he said he was going to apply to set aside the order, but this should be considered in the context of the whole case. The fact is that the bills in dispute date from 2011 and 2012. The bills have been paid. Picamore itself has engaged in delay in challenging the bills.

46. [46]
    In the context of the whole dispute the one month or so before the application was filed is not great.

47. [47]
    Counsel for Picamore submitted that Mr Challen checked the court file on the website on 10 July 2013. However it was conceded that if the order was made on 9 July 2013, then it might not have appeared on the website by then.

48. [48]
    The next issue is the question of prejudice to Picamore. Whilst it is true that the costs assessor was appointed and conducted the assessment, it seems to me that this issue is outweighed by the issue in dispute i.e. did Picamore have a right to challenge the 2011 and 2012 bills (with the exception of the bill rendered in August 2012)?

49. [49]
    Again in the context of the whole dispute I do not see there is any significant prejudice occasioned to Picamore.

50. [50]
    In the circumstances, in the exercise of my discretion I set aside the order made by the District Court on 9 August 2013 pursuant to r667(2)(a).

51. [51]
    I have not yet dealt with the submissions concerning the validity of the application. I do not consider it necessary to do so in light of the findings I have made.

52. [52]
    In case it is necessary my determination is that rules 743 to 743W are specific rules dealing with the assessment of legal costs. It appears then to me that if one makes application for the appointment of a costs assessor under these rules then Form 60 must be used (see r743A(2)(a)).There must then be compliance with r743D.

53. [53]
    These specific provisions override the more general provisions set out in r490.

54. [54]
    The approved Form 60 requires a date to be set for a directions hearing. Whilst it is true a court “may” hold the hearing (see r743G), this does not obviate the need for such a date to be set.

55. [55]
    It must be appreciated that Chapter 17A Part 4 was introduced on a July 2007 (SL 196 of 2007). The rules were introduced no doubt to harmonise with the LPA.

56. [56]
    My view that the rules must be complied with is strengthened by r743E. This provides that if there is a consent order agreed then the registrar may vacate the directions hearing date. To my mind this contemplates that a directions hearing is required when the court is concerned with the appointment of a costs assessor.

57. [57]
    While the rules are intended to assist in the just resolution of disputes, there must be procedural certainty in the process. (see Gillies v Dibbetts [2001] 1 Qd R 596 at [28]).  

What order should now be made?

58. [58]
    I now consider what order should be made. Both parties were in a position to argue as to the substantive merits of the application at the hearing of this matter on 8 October 2013.

59. [59]
    Alan Johnston, a director of Picamore, has sworn an affidavit dated 9 July 2013. He swears that in about 2004 John O'Donoghue Solicitors acted for Picamore with respect to a dispute with a former business associate of Picamore regarding the termination of a joint venture.

60. [60]
    In about early 2011 the former business associate sued Picamore in the Supreme Court of New South Wales regarding the development of land which had been the subject of the joint venture.

61. [61]
    Shortly after these proceedings had been commenced, John O'Donoghue Solicitors was bought by HCB which saw its principal take carriage of these proceedings.

62. [62]
    On 6 October 2011 HCB provided Picamore with a disclosure notice and costs agreement pursuant to the LPA (ATJ01). Clause 4 of the costs agreement stated:

“We are unable to give you a binding assessment of the total legal costs you may incur in this matter.However, our experience of similar matters suggests that the legal costs for investigating this matter (including both professional fees and expenses) and advising of our views are likely to come within the range of 70,000 to 90,000 (excluding GST) … I will let you know if our estimate of your total legal costs needs revising.”

63. [63]
    MrJohnston alleges that after signing the costs agreement he asked MrChallen for further estimates but Mr Challen was quite vague about this.

64. [64]
    ATJ02 are true copies of the seven invoices totalling $286,923.55 delivered which invoices have been paid. They are as follows:

1. (a)
   6 October 2011 - $77,923.10

2. (b)
   10 November 2011 - $20,092.80

3. (c)
   8 February 2012 - $25,852.34

4. (d)
   5 April 2012 - $8,753.87

5. (e)
   30 April 2012 - $40,759.42

6. (f)
   21 June 2012- $81,569.96

7. (g)
   22 August 2012 - $31,972.06

65. [65]
    Picamore terminated HCB’s retainer in about September 2012 and transferred conduct of the New South Wales proceeding to Sydney solicitors.

66. [66]
    On 8 April 2013 Mr Johnston on behalf of Picamore wrote to HCB, questioning what it alleged was overcharging for the work done. One particular example was the charge of $25,000 excluding GST for the preparation of one affidavit on 10 May 2012. An itemised bill was requested.

67. [67]
    On 12 April 2013 Mr Challen replied to this email, requesting the return of documents and file material collected on 8 March 2013 (ATJ04). There was further correspondence about various documents.

68. [68]
    Mr Challen, in a letter to Mr Johnston dated 19 April 2013 (ATJ06), suggested that there be a short-form costs assessment and proposed three costs assessors.

69. [69]
    By way of reply on 22 April 2013 (ATJ07) Mr Johnston requested an assessment pursuant to s335 of the LPA.

70. [70]
    On 24 May 2013 Plastiras Lawyers on behalf of Picamore wrote to HCB (ATJ08). Plastiras noted that Picamore had instructed them to make an application to the District Court of Queensland to have the legal costs assessed pursuant to s335 of the LPA. It was noted that ideally a costs assessor would be appointed by consent. Two costs assessors were suggested. A reply within seven days was sought.

71. [71]
    Ms Smith deposes that after that correspondence, on Friday 31 May 2013 at about 3.30 p.m. Mr Challen telephoned her and said that a response would be forthcoming by 4 June 2013. On that date Mr Challen telephoned her again and it was agreed that steps would be deferred until 4 p.m. on Friday 7 June 2013.

72. [72]
    On 11 June 2013 Ms Smith by email wished to know what Mr Challen’s proposal was (KFS02). There was no response, and on 13 June 2013 Ms Smith again emailed Mr Challen, putting him on notice that they required a return of the file and further instructions would be sought as to the application (KFS03).

73. [73]
    On 21 June 2013 Ms Smith further wrote to Mr Challen, noting there was no reply, noting that Picamore had little option but to make the application for a costs assessment (KFS04).

74. [74]
    On 24 June 2013 Mr Challen replied, stating the file would not be available for collection by 10 a.m. that day but Plastiras would be advised when the file was ready for collection.

75. [75]
    KFS05 indicates that boxes were collected at around 10 a.m. on 25 June 2013. On 25 June 2013 Ms Smith wrote to Mr Challen, noting that Picamore was in the process of finalising its application for an assessment of costs and it would be to the benefit of both parties for a directions hearing to be avoided. Accordingly a request for a consent order for the appointment of a costs assessor was sent (KFS06). It was noted, “Please let us know if you have any difficulties with our proposed cause of action.”

76. [76]
    On 1 July 2013 another email was sent by Ms Smith to Mr Challen asking whether “… you intended to execute the consent order and return it to us.” 

77. [77]
    On 1 July 2013 Ms Smith wrote to the costs assessor, noting that they had not yet been able to obtain a consent order.

78. [78]
    As noted earlier in the judgment, the order of the District Court was served on 13 August 2013 on Mr Challen.

79. [79]
    The material discloses that the costs assessor, Ms Robin Davis, has progressed significantly in the assessment in this case.

80. [80]
    On 13 August 2013 Ms Smith wrote to Ms Davis enclosing relevant material. It seems though that Ms Davis was missing some material (see for example email from Ms Davis to Ms Smith dated 21 August 2013 – KFS14 and email from Ms Smith to Ms Davis – KFS15). Indeed, Ms Davis indicated in an email dated 22 August 2013 (KFS16) she would have to disallow outlay amounts where there was no proof of payment.

81. [81]
    On 3 September 2013 Ms Davis forwarded to Ms Smith and Mr Challen a draft costs assessment. She noted that if she did not hear from either party by 16 September 2013 she would finalise the figures. The total was said to be some $73,519.

82. [82]
    It was after this that HCB wrote on 13 September 2013, advising that it intended to make application to set aside the order (KFS19).

83. [83]
    Interestingly, on 19 September 2013 Mr Challen on behalf of HCB rendered a further account for $4,725.91 purportedly for work between 4 September 2012 and 3 April 2013.

84. [84]
    On 24 September 2013 Plastiras Lawyers wrote to Mr Challen, noting that it was his intention to seek orders that the assessment made on 9 August 2013 be set aside, noting they were instructed to oppose the application. A draft order was proposed which would permit a finalisation of the costs assessment.

85. [85]
    Mr Challen, in his affidavit filed 19 September 2013, alleges at [14] that the invoice dated 22 August 2012 was not a “final invoice” and all of the previous invoices were not “interim invoices”.

86. [86]
    The reason no doubt Mr Challen raises this issue is because of the provisions of the LPA.

87. [87]
    Section 335(5) of the LPA provides:

“(5)  A costs application by a client or a third party payer must be made within 12 months after—

1. (a)
   the bill was given, or the request for payment was made, to the client or third party payer; or

2. (b)
   the costs were paid if neither a bill was given nor a request was made.

3. (6)
   However, a costs application made out of time, otherwise than by any of the following, may be dealt with by a costs assessor or a court if, under the Uniform Civil Procedure Rules, the assessor or the court decides to deal with it after considering the reasons for delay—

1. (a)
   a sophisticated client;

2. (b)
   a third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned.”

88. [88]
    If the invoice of 22 August 2012 was a final invoice and the previous invoices were interim invoices, then all invoices could be the subject of a challenge. On the other hand if each invoice was a final one, then the 12 month rule would apply (see Challen v Golder Associates Pty Ltd [2012] QCA 307).

89. [89]
    Mr Challen in his affidavit filed 19 September 2013 at [14] alleges that the invoice of 22 August 2012 was not a final invoice nor were the other previous invoices interim invoices because:

1. (a)
   The disclosure statement and the costs agreement indicate that there were a number of matters to be advised upon.

2. (b)
   The initial tax invoice dated 6 October 2013 (sic - should be 2011) and the work it related to predated the commencement of the New South Wales Supreme Court proceedings. At no stage was his practice solicitors on the record in such proceedings.

3. (c)
   He then alleges that each invoice related to separate items of work and separate items of instruction.

4. (d)
   He alleges there were a number of telephone conversations with Mr Johnston whereby Mr Challen was requested to “pause” the matter.

5. (e)
   At [15] he says, “I say that each of the subsequent invoices issued by the HCB practice were ‘final’ invoices with respect to the work to which the relevant invoice relates as each invoice was issued in relation to the advices given to the Respondent in accordance with the scope of work under the costs agreement. The advices given did not amount to conduct in the proceedings.”

90. [90]
    He then states in his affidavit that the file provided to Plastiras Lawyers did not constitute a full copy of all correspondence and documentation on the file and therefore the assessment by Ms Davis is not a true reflection of the entirety of work carried out on behalf of Picamore.

91. [91]
    He alleges that in or about March 2013 Mr Johnston was allowed to take away from his possession a substantial number of documents. No copies were retained by him of these documents. The file handed to Plastiras Lawyers in not a complete file and the costs assessor would not be able to carry out a true and accurate costs assessment.

92. [92]
    He then alleges that Ms Davis has proceeded in a manner which involves substantial, unnecessary work and alleges that he would be prejudiced if she is appointed as costs assessor in this matter.

93. [93]
    I do not find any evidence in the material of any bias on Ms Davis’ part and reject any such contention made by Mr Challen.

94. [94]
    Counsel for Picamore submits that regardless of whether the court reopens the proceedings under r667 the order would still be the same.

95. [95]
    MrChallen, in his submissions, submits to the contrary.

96. [96]
    It seems to me in the circumstances that there is an issue of fact as to whether Picamore is time-barred from seeking a costs assessment.

97. [97]
    In my view it is appropriate to reopen the order made by the District Court on 9 August 2013 to the extent that the appointment of the costs assessor should be stayed until this factual issue is determined or further earlier order.

98. [98]
    It seems to me that in the circumstances, bearing in mind I made a determination to reopen the case, directions concerning this matter should be made under r743G UCPR as follows:

1. (a)
   That the matter be listed for trial on 12 December 2013 on the following issue: whether the application of ss335(5) and (6) of the LPA to this case i.e. whether Picamore is time-barred from seeking a costs assessment;

2. (b)
   The parties exchange points of claim relative to the trial;

3. (c)
   The parties exchange affidavit material of their evidence-in-chief;

4. (d)
   Prior to the trial a mediation be conducted between the parties before a mediator as agreed to between the parties;

99. [99]
    Needless to say I have not expressed any concluded view as to the merits or otherwise of the matters raised, but it seems to me that there is an important issue to be determined prior to the continuation of the costs assessment process.

Costs

100. [100]
     With the agreement of the parties, the issue of costs was discussed between the parties and the court on 8 October 2013.

101. [101]
     Both parties made submissions on this question and I have taken into account their submissions on this question.

102. [102]
     Ordinarily costs follow the event (see r681) but the court may otherwise order.

103. [103]
     Where a party seeks an indulgence of the court or there is delay by the successful Applicant there may be a departure from the usual rule. The conduct of the parties may also be examined.

104. [104]
     In this case, in the exercise of my discretion I have determined that the Respondent, HCB, should pay Picamore’s, costs of and incidental to this application on the standard basis.

105. [105]
     The reason for my decision is that the issue of the 12 month rule raised by HCB in this court was never raised in correspondence with Picamore previously.

106. [106]
     Picamore was forced into a position, it seems to me on the material, of having to make the application for the appointment.

107. [107]
     Bearing in mind (and taking into account his personal situation) it seems to me that HCB has been tardy in its response to this matter.

108. [108]
     In those circumstances it seems to me that the usual rule should not apply and that HCB ought pay the costs as indicated.

Orders

109. [109]
     The orders are as follows:

1. Application allowed.

2. The order of the District Court in this matter dated 9 August 2013 is set aside to the extent that the appointment of the costs assessor is stayed until further or earlier order.

3. The Respondent, HCB, is to pay the Applicant’s costs of and incidental to this application on the standard basis as agreed or assessed.

4. Liberty to apply.

110. [110]
     The proposed directions are:

1. The matter is listed for trial on 12 December 2013 on the issue of the status of the bills under s 335(5) and (6) of the Legal Profession Act 2007 (Q).

2. The Respondent is to deliver an indexed and paginated bundle of all documents it contends were not taken into account by the costs assessor to Respondent no later than 5 p.m. on 23 October 2013.

3. The Applicant is to file and serve its points of claim by 5 p.m. on 30 October 2013.

4. The Respondent is to file and serve its points of claim by 5 p.m. on 6 November 2013.

5. The Applicant is to file and serve the affidavits of its witnesses by 5 p.m. on 13 November 2013.

6. The Respondent is to file and serve the affidavits of its witnesses by 5 p.m. on 20 November 2013.

7. That the parties engage in a mediation prior to 29 November 2013 before a mediator as agreed from a panel of three to be nominated by the Applicant to the Respondent.

8. Each of the parties is to pay 50% of the mediator’s fee in advance of the mediation.

9. The costs of the mediation are reserved to the trial judge.

111. [111]
     I am prepared to hear the parties on the terms of the order.

112. [112]
     I propose the parties prepare an order which reflects the reasons I have expressed in this case.