Pott v Clayton Utz[2021] QDC 147

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This litigation involves a protracted dispute about costs.   It has a somewhat complicated history.  It must have been productive of significant and disproportionate expense and inconvenience to both parties. 
2. [2]
   The applicant is the executor of her husband’s estate. He, and then she in that capacity, instructed the respondent to act in legal proceedings from 2004.  The fees incurred were substantial and covered a significant period of time. The respondent delivered bills from time to time. On occasions there was some dispute about them. These were, it seemed, resolved.
3. [3]
   Ultimately the applicant filed an originating application in the Supreme Court on 30 March 2012.  She sought orders in relation to the assessment of various legal costs totalling approximately $788,000 as invoiced by the respondent in acting for the applicant’s late husband and the applicant, as executor of his estate, in the legal proceedings.  The amount of costs in dispute subsequently came to be within the District Court and the matter was transferred to this court by consent in December 2014.  Ultimately approximately $196,000 in costs was referred for assessment in July 2018.   The net liability from the assessment process was that the applicant pay the respondent $3,915.72.  This has now been paid.   
4. [4]
   By its application filed 31 May 2021, the respondent seeks various orders resolving outstanding costs issues and finally bringing the proceeding to an end.  By paragraph 1 of the application, the respondent seeks an order that pursuant to rule 743H of the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”) there be judgment for the respondent in the sum of $3,915.72.  If the order is made, the respondent submits that it is unnecessary to make the order sought in paragraph 6 of the application, namely that the proceedings be otherwise dismissed.  I agree.
5. [5]
   There was one hearing in 2012 in the Supreme Court and two hearings in 2015 in the District Court which left the question of costs reserved. By paragraphs 2, 3 and 4 of its application, the respondent seeks orders:

   1. (i)
      that the applicant pay its costs of those interlocutory hearings, limited to the costs incurred by the respondent on counsel’s fees; and
   2. (ii)
      that the amount of those costs and a further costs order made in favour of the respondent in November 2012, be fixed pursuant to rule 687 of the UCPR.
6. [6]
   Paragraph 2 of the application relates to an order made by Douglas J on 22 November 2012 that the applicant pay the respondent’s costs of the application.  Paragraph 3 relates to an order made by Boddice J on 5 June 2012 that the costs of the application be reserved.   Paragraph 4 relates to orders made by Reid DCJ on 28 January 2015 and 15 December 2015.  On both occasions costs were reserved.
7. [7]
   In paragraph 5 of the application, the respondent has sought an order that there be no order as to reserved costs in relation to an order made by the Deputy Registrar on 18 December 2014 and by Bowskill QC DCJ (as she then was) on 15 July 2015.  In oral submissions Mr Dickson for the applicant conceded that these orders were appropriate. 
8. [8]
   Finally, the respondent seeks the costs of the application and that they be fixed by the Court.  
9. [9]
   At the commencement of the hearing, the respondent sought leave to read and file an affidavit of Anthony John Deane dated 7 May 2021 (although it appears that this is a mistake and the date should read 7 July 2021).  Mr Dickson objected to paragraphs 1 to 6 of the affidavit. This is addressed below.

Order for judgment for the respondent for $3,915.72

10. [10]
    In July 2018 approximately $195,000 in costs were referred to Glenn Walter for a costs assessment.   It was determined by Mr Walter that the costs should be reduced by approximately $48,000 inclusive of GST.   Mr Walter also determined that the sum of $33,202.56 was payable by the respondent to the applicant for the costs of his assessment. Mr Walter’s certificate of assessment was filed on 6 August 2020.  Another costs assessor, Mr Gregory Ryan assessed the costs of some of the interlocutory steps in the proceeding (which were the subject of costs orders in the applicant’s favour), as being $56,042.65, which sum was payable by the respondent to the applicant. Mr Ryan’s certificate of assessment was filed on 5 June 2020.
11. [11]
    It is common ground between the parties that the net liabilities from the assessment process was a payment of $3,915.72 from the applicant to the respondent.  This amount has been paid.  
12. [12]
    Given that the certificates of assessments have been filed by the costs assessors, the respondent applies for an order pursuant to rule 743H of the UCPR for judgment in this sum.   Counsel for the applicant opposes such an order. This is because it is said that the order is not required in circumstances where the applicant has already paid the sum.  It is further said that the court does not have the power to make such an order.   
13. [13]
    I am not persuaded by the submission made by counsel for the applicant.  The power to make such an order is expressly provided for in rule 743H(4) of the UCPR and I consider it is appropriate to make this order. 

Orders for reserved costs

14. [14]
    Orders for reserved costs were made in relation to the Supreme Court application heard by Boddice J on 5 June 2012 and in relation to the District Court applications heard by Reid DCJ on 28 January and 15 December 2015.
15. [15]
    The respondent seeks orders for the applicant to pay the costs of each of these applications.  The applicant opposes these orders and contends that the respondent should pay her costs in relation to each of them.  The principal reason for this is that there is a statutory right to an itemised invoice under the Legal Profession Act 2007 (Qld).  While this is correct in relation to some of the respondent’s invoices, it of course does not automatically justify awards of costs in the applicant’s favour. 
16. [16]
    The starting point is rule 681 of the UCPR, which provides that costs of an application in a proceeding are in the discretion of the court, but follow the event, unless the court orders otherwise.  The discretion is broad and must be exercised judicially, grounded in reasons of fairness and policy.^[1]  The court is entitled to approach the task of determining the real issues in the litigation in an impressionistic and pragmatic way.^[2]
17. [17]
    There are limited exceptions to this general rule.  These include special or exceptional circumstances or disentitling conduct on the part of the successful party.^[3]
18. [18]
    Rule 684 provides another exception to this and enables the court to make an order for costs of a particular question in, or a particular part of, a proceeding.  By rule 684(2), a court may declare what percentage of the costs of the proceeding is attributable to that question or part. 
19. [19]
    Ordinarily, the fact that a successful party fails on particular issues does not have the consequence that the party is inevitably, or even, perhaps, normally deprived of some of its costs.^[4]  In other words, the general rule remains that costs should follow the event.  A relevant factor is whether an issue on which the successful party was unsuccessful occupied a significant part of the hearing or whether the issue is definable and severable.^[5]  
20. [20]
    I have addressed each application below.  

Hearing on 5 June 2012

21. [21]
    By an originating application filed 30 March 2012, the applicant relevantly sought the following orders:

    1. (i)
       a declaration that the costs agreement was void;
    2. (ii)
       that the respondent prepare and deliver to the applicant itemised bills in relation to  66 tax invoices set out in the schedule to the application and that those itemised bills be referred for assessment.
22. [22]
    The application was listed to be heard on 14 May 2012 but was adjourned by consent to 5 June 2012.  It was heard on this day by Boddice J with reasons delivered on 19 June 2012.  The respondent was represented by senior counsel.   The applicant’s claim for the declaration in accordance with subparagraph (i) above was dismissed.   His Honour also dismissed the applicant’s application in relation to eight of the 66 invoices, being numbers 51, 53-55 and 59-62 and his reasons for this were published.  These were the only invoices in contention at the hearing.  
23. [23]
    As to the remaining 58 invoices, the first 45 of them were dated between 28 May 2004 and 31 July 2007.  The retainer relevant to them came to an end when the applicant’s husband died in 2008 and therefore the application for their itemisation was out of time.  Of the remaining 21 invoices, the respondent conceded that 13 of them ought to be itemised.  The respondent also proposed a series of orders by which that process could be progressed and the applicant agreed with the orders. 
24. [24]
    In opposing the respondent’s application for costs, counsel for the applicant points to the fact that the respondent had not applied for its costs when the judgment was delivered in July 2012.  The relevance of this is marginal at best.  There may have been any number of reasons why the respondent may have adopted this course which do not require any detailed consideration.  This is because they are in no way determinative of the resolution of this application for costs. 
25. [25]
    Counsel for the applicant further contends that the application was required because the applicant was entitled to request further details regarding the invoices and the respondent was refusing to provide them.   This overlooks the fact that the applicant was in fact not entitled to further details in relation to 53 of the invoices.  Further, on the day prior to the hearing, the respondent forwarded an email to the applicant enclosing draft orders to which it would be prepared to consent.  This proposal for resolving the application was rejected by the applicant.  However, it was adopted by Boddice J as the basis for the orders his Honour made.  
26. [26]
    In my view the respondent ought to be granted the costs of this application that were reserved.   The applicant was unsuccessful in relation to those aspects of the originating application that were the subject of the contested hearing on 5 June 2012.   There are no special or exceptional circumstances or disentitling conduct on the part of the respondent that would justify the departure from the general rule provided for in rule 681 of the UCPR.

Hearing on 28 January 2015

27. [27]
    The proceeding was remitted to the District Court by consent on 9 December 2014.  This is because the amount that remained in dispute with respect to the invoices had reduced to a sum within the monetary limit of this Court.
28. [28]
    On 5 January 2015, the applicant filed an application seeking directions as to the further conduct of the proceedings.  The application did not specify the directions that were being sought and this detail was not provided until the afternoon of the day before the hearing.  
29. [29]
    Reid DCJ heard the application on 28 January 2015 and delivered his reasons and decision on 2 April 2015.   The applicant had sought orders for an assessment and the appointment of an assessor.  The respondent opposed the making of such orders.  This is because in the applicant’s affidavit sworn on 12 December 2012, she raised issues as to whether the services provided by employees of the respondent were authorised and the necessity for or usefulness of such work.  The affidavit also asserted that the applicant was subject to unfair pressure to engage junior counsel and/or did not agree with respect to a fixed fee for a junior counsel’s work.   The respondent contended that such issues needed to be determined by the court so that factual findings could be made for the purposes of the assessment.  It was further submitted that the subject counsel should be served as pursuant to section 339(2) of the Legal Profession Act counsel are taken to be a party to the assessment and are bound by the assessment if the assessor so decides.   Reid DCJ made orders in accordance with the draft provided by the respondent.  In doing so, the directions suggested by the applicant were not accepted.    
30. [30]
    The general rule that costs follow the event should apply. 

Hearing on 15 December 2015

31. [31]
    The applicant filed an application on 30 April 2015 seeking further itemisation of the same eight invoices that she had identified in a letter of 18 July 2012. The application also sought orders that a senior counsel and a junior counsel provide itemisation of their invoices.  This was eventually listed for hearing on 15 December 2015.
32. [32]
    On the afternoon of the day before the hearing, the applicant gave notice that she would be amending the application to seek orders requiring the respondent to procure the proper itemisation of counsels’ invoices rather than requiring the counsel to provide them, as had previously been sought.  The respondent opposed this application to amend and it was the principal issue before Reid DCJ.  
33. [33]
    On 4 March 2016, Reid DCJ delivered his judgment dismissing the applicant’s application to amend that was heard on 15 December 2015.  His Honour also made further directions as to the progress of the matter, with dates to be agreed by the parties.   Those directions were substantially in the form proposed by the respondent at the hearing on 15 December 2015. 
34. [34]
    Counsel for the applicant contends that despite the respondent being largely successful in relation to this application, it should not be awarded costs.  This is because it is asserted that the blame for the late application to amend rests with the respondent. It is said that the basis for this can be found in paragraph 26 of the earlier judgment of Reid DCJ dated 2 April 2015.  In that paragraph his Honour referred to the respondent’s draft order appropriately providing for affidavit material to be served on counsel who would then be a party.  It was submitted on behalf of the applicant that she understood this to mean that senior and junior counsel would become parties to the litigation.   This is misconceived when paragraph 26 is read in the context of earlier paragraphs in the judgment, in particular paragraphs 17 to 21.   Further, over the months following the delivery of the judgment in April 2015 and prior to the hearing on 15 December 2015, correspondence was forwarded to the applicant which ought to have alerted her legal representatives to the fact that their understanding of Reid DCJ’s orders was misconceived and that there was no basis to be seeking orders against counsel.^[6]  
35. [35]
    It is further submitted by the applicant that another reason why the respondent should not be awarded the costs of this application is because McGill SC DCJ made some unfavourable observations regarding the respondent’s conduct in the litigation in a later judgment on 10 June 2016.  This is the occasion on which the applicant’s application  filed on 30 April 2015 was heard and dismissed.   I am unpersuaded by the applicant’s submissions in this regard.   There are a few points to be made.  First, the judgment had the effect of dismissing the applicant’s application.  Second, McGill SC DCJ also made some unfavourable observations regarding the applicant’s conduct of the litigation.  For example, his Honour observed that the applicant’s letter of 18 July 2012 that was purportedly in compliance with paragraph 4 of Boddice J’s order of 19 June 2012, did not in fact comply with that order.   Third, his Honour’s views in relation to the conduct of both parties in the litigation was reflected in the order for costs he made on that occasion, namely that there be no costs of that application.  
36. [36]
    In my view there are no special or exceptional circumstances or disentitling conduct on the part of the respondent to justify a departure from the ordinary rule under rule 681 of the UCPR, that costs follow the event.  

Whether the costs should be fixed

37. [37]
    Given that the respondent has been successful in obtaining the costs orders sought in 3(a) and 4(a) of the application, the respondent submits that those costs, and the costs awarded by Douglas J on 22 November 2012, ought to be fixed to avoid any further delay and expense.  The applicant contends that the cost should not be fixed but should be assessed by a costs assessor.  
38. [38]
    The general rule reflected in rule 687(1) of the UCPR is that the costs to which a party is entitled under the rules or court order will be assessed costs. However, rule 687(2)(c) provides that “instead of assessed costs” the court may order a party to pay another party “an amount for costs fixed by the court”.  There is no limitation on the power conferred to award lump sum costs, apart from the requirement that it be exercised judicially.
39. [39]
    Practice Direction Number 3 of 2007 (amended), concerns rule 687(2). Relevantly, paragraph 3 states that:

    1. (a)
       The court has a broad discretion to fix costs, and will do so where that will avoid undue delay and expense, but only provided the court is confident to fix costs on a reliable basis.
    2. (b)
       Parties should therefore, at all relevant times in the course of the hearing of a matter be in a position to inform the court of their realistic estimate of the amount of recoverable costs, on a standard or indemnity basis, should that party be the beneficiary of a costs order.  Where practicable, the estimate should be verified on affidavit.
    3. (c)
       Preferably parties should not, for this purpose, be put to the expense, and suffer the delay, of preparing a costs statement complying with the UCPR. Any estimate must nevertheless be carefully formulated and realistic.        
40. [40]
    In Aquilina Holdings Pty Ltd v Lynndell Pty Ltd & Anor; Lynndell Pty Ltd & Anor v Capital Finance Australia Limited & Ors (No.2)^[7] Daubney J at [6] said:

“This rule is particularly useful, and apposite for use, in situations such as the determination of costs on interlocutory applications on procedural matters, in which the quantum of costs is typically modest and there is clearly a cost benefit for the parties in having an immediate fixing of the costs rather than requiring them to expend further, perhaps greater, costs on an assessment. In such a case, which will usually arise when a judge is sitting in the Applications jurisdiction, the avoidance of delay and the achievement of an appropriately just resolution at a minimum of expense to the parties may warrant a judge adopting a robust approach to the fixing of costs. It must be borne in mind, however, that the primary position under the UCPR is that costs are to be assessed – rule 687(1). The Court, of course, has a discretion to depart from that primary position, but in my view should only do so in appropriate cases, such as those I have mentioned. In particular, the availability of a discretion to depart from the assessment regime provided for under the rules of court ought not be seen as a licence for judges to be asked to act as costs assessors.”

41. [41]
    While the rule contemplates the application of a much broader brush than applied on an assessment, the approach needs to logical, fair and reasonable. ^[8]  It may involve an impressionistic discount of the costs actually incurred or estimated in order to take into account the contingencies that would be relevant in any formal costs assessment.^[9]
42. [42]
    In Beach Petroleum NL & Anor v Johnson & Ors (No 2)^[10] Von Doussa J said as to the necessity for the approach taken to be logical, fair and reasonable:

“On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary “fail safe” discount on the cost estimates submitted to the Court. …”

43. [43]
    I am satisfied that there are a number of factors which dictate that fixing costs here and now is the better course.  These factors are set out below.
44. [44]
    First, it is in the interests of the parties and of the administration of justice that these costs questions be dealt with as expeditiously as reasonably possible.  Insistence upon a formal assessment of costs as the applicant does, increases concern that litigation which has already been unduly complex and protracted, and been disproportionately expensive, will be further blighted by an expensive dispute about these costs. Second, I am concerned that any further assessment process will be approached in the same way as the litigation has been previously and that it may well be difficult for an assessor to determine the reasonableness in the context of the assessment.^[11]  Third, the applicant has known since 26 March 2021 of the specific amounts that the respondent would be seeking as costs for these earlier four applications and has not placed any material before me to dispute the amounts claimed.   Fourth, restraint has been exercised by the respondent in the quantum of costs claimed, in that they are limited to counsel fees and do not include the costs incurred by the solicitors with respect to the subject applications.  Fifth, the costs largely arise out of interlocutory applications, and the quantum involved, particularly in relation to the 2015 applications are undoubtedly modest. 
45. [45]
    In support of its application for counsels’ costs in relation to the applications heard on 5 June and 22 November 2012 and 28 January and 15 December 2015 to be fixed, the respondent relies on the four separate invoices of the counsel forwarded to the respondent.   Two of the invoices are from senior counsel in relation to the hearings in 2012 and the remaining two are from junior counsel in relation to the two hearings in 2015.   It also relies on the affidavit of Mr Deane dated 7 July 2021.  Mr Deane is a solicitor in the employment of the respondent. He has deposed to his significant experience in relation to costs assessments, costs agreements and the law relating to legal costs and his familiarity with prevailing market rates charged for legal services from time to time and in various markets.   He deposes that the fees charged by the senior counsel are at or below prevailing market rates having regard to the seniority of the counsel involved, and that the fees charged by the junior counsel are below prevailing market rates.   It is further deposed that it would be his expectation that he would recover the quantum of the fees of both counsel on a party/party costs assessment on a standard basis.  
46. [46]
    Counsel for the applicant objects to this part of Mr Deane’s affidavit (paragraphs 1 to 6) for the following reasons:

    1. (i)
       Mr Deane is acting as an expert in relation to an assessment which ought to be undertaken by a costs assessor;
    2. (ii)
       Mr Deane is not independent in the sense that he is the alter ego of the respondent;
    3. (iii)
       the affidavit lacks the necessary detail;
    4. (iv)
       McGill SC DCJ was critical of the respondent in his judgments with the consequence that the court should disregard Mr Deane’s evidence on this issue;
    5. (v)
       there is no explanation as to why senior counsel was engaged in relation to the two hearings in 2012;
    6. (vi)
       there are no costs agreements before the court and the scope of the work is not known; and
    7. (vii)
       the applicant is not a sophisticated person.
47. [47]
    I am not persuaded by these objections. The means by which the court may be satisfied as to the appropriate amount for a gross sum costs order will differ according to the circumstances.^[12]  There may be some cases where the court will be prepared to accept an estimate which is not even verified on affidavit.  It is common practice for solicitors in the position of Mr Deane to depose to the reasonableness of the costs in question.   Such evidence is admissible and it becomes a question of weight.   It is worth observing that the costs claimed do not incorporate any sum for those costs incurred by his firm in relation to any of the subject applications.  
48. [48]
    It does not follow that because McGill SC DCJ may have been somewhat critical of the respondent in relation to the subsequent applications before him, that paragraphs 1 to 6 of Mr Deane’s affidavit should be disregarded.  As explained above, that issue is clearly more relevant in respect of the determination of the applications for costs before his Honour. 
49. [49]
    Whether or not the applicant is a sophisticated person assumes little relevance because she has been represented by both an experienced solicitor and experienced barristers.  
50. [50]
    It is true that there is no costs agreement before the court and the invoices of counsel could arguably contain more detail.  However, the process to be undertaken by the court in fixing costs is an alternative to a costs assessment and is not intended to replicate one.  It does not envisage that a process similar to that involved in an assessment of costs should take place.^[13]   The process is intended to fix a gross sum broadly in a speedy and inexpensive way, without the specificity involved in an assessment of costs.  It is for this reason that the decision relied on by the applicant of Clayton Utz Lawyers v P & W Enterprises Pty Ltd^[14] is distinguishable.   In that case the defendant sought orders that the plaintiff, being its former solicitors, deliver an itemised bill in respect of each of six invoices.   The plaintiff had by an earlier application sought an order for an assessment of its legal costs set out in the invoice.  The central issue was whether the invoices constituted a lump sum bill or an itemised bill for the purposes of the assessment.  
51. [51]
    As to whether senior counsel should have been engaged for the applications in 2012, the respondent contends that it was justified given the factual and legal complexities together with the voluminous material.  In determining this issue, the knowledge of the Court about the nature of the matter and the issues involved may be considered.  
52. [52]
    I am persuaded the engagement of senior counsel is defensible and was proper in relation to both applications that were heard and determined in 2012. The reasons for this are set out below.
53. [53]
    Turning to the Supreme Court application heard on 5 June 2012, I have perused the material relied upon by the parties for the purposes of the application.  There was a very lengthy affidavit filed by the applicant on 30 March 2012 and a much shorter affidavit filed by her on 24 May 2012.   I have also seen the written submissions relied on by the parties for the purposes of the application.   This litigation was complex in that it related to retainers between the respondent and the applicant’s husband dating back to 2004.  There were complexities in that there were retainer agreements between the applicant’s husband and the respondent and the applicant and the respondent.  The applicant sought to challenge all invoices issued between 2004 and 2011.
54. [54]
    Paragraph 1 of the originating application sought a declaration to the effect that the costs agreement entered between the applicant’s husband and the respondent in 2004 was void.  The order being sought was one for final relief.   A significant proportion of the written submissions of the respondent was dedicated to addressing this issue.  It was ultimately contended by the respondent that such a declaration should not be made as it lacked utility, in circumstances where the applicant was not even entitled to an assessment of the bills issued under the 2004 costs agreement.  This involved a consideration of numerous issues.  These included the nature of the retainer entered into between the applicant’s husband and the respondent; section 332(1) of the Legal Profession Act; whether the applicant’s retainer with the respondent in September 2008 represented a continuation of the retainer in respect of the applicant’s husband; and the significance of the natural break in the litigation upon the death of the applicant’s husband and whether there had been any other such breaks in the litigation.
55. [55]
    Turning to the Supreme Court application heard on 22 November 2012, there was a dispute about whether the applicant had properly complied with the orders of Boddice J.  The applicant had filed an affidavit in October 2012 setting out objections to the particular invoices.   I have read the material on the file, including the written submissions relevant to this application.   Given the long and complex history of the matter, in my view it was appropriate that the same senior counsel was engaged to appear for this second application.   Substantially less hours were charged for preparation on this occasion.  This was no doubt because she was already familiar with most of the briefed material. 
56. [56]
    I have no reason to question the reasonableness of the time spent by senior counsel in preparing for the two applications in 2012, nor the hourly or daily rates charged by her on each occasion. 
57. [57]
    The various items set out in each of the four invoices of senior and junior counsel are adequately summarised.  This together with the affidavit material and my knowledge about the nature of the matter and the issues involved, leads me to conclude that the actual expenses with respect to senior counsel in relation to the two applications in 2012 were reasonable.  I also conclude the actual expenses with respect to  junior counsel in relation to the two applications in 2015 were reasonable and in fact modest.   In these circumstances the costs in relation to each of the applications should be fixed in the following amounts :

    1. (i)
       application heard on 5 June 2012 - $28,380;
    2. (ii)
       application heard on 22 November 2012 - $15,180;
    3. (iii)
       applications heard on 28 January and 15 December 2015 - $4,834.50.

Costs of this application

58. [58]
    In paragraph 6 of the application the respondent seeks an order that the applicant pay its costs of the application.  Both parties submitted in oral submissions that the successful party with respect to the application ought to be awarded the costs of it.  There being no contest about this, it is appropriate that the applicant pay the respondent’s costs of the application.  Once again, the costs being sought are limited to counsel fees fixed in the sum of $7,000 plus GST.  This seems more than reasonable to me and I fix the costs of the application in this sum.   

Conclusion

59. [59]
    The following orders are made:

1. (i)
   There be judgment entered for the respondent in the sum of $3,915.72;
2. (ii)
   The respondent’s costs ordered by Douglas J on 22 November 2012 be fixed in the sum of $15,180.00;
3. (iii)
   The applicant pay the respondent’s costs of the applications:

   3. (a)
      heard on 5 June 2012, fixed in the sum of $28,380.00;

   3. (b)
      heard on 28 January and 15 December 2015, fixed in the sum of $4,834.50;
4. (iv)
   There be no order as to costs that were reserved by the Deputy Registrar on 18 December 2014 and by Bowskill QC DCJ (as she then was) on 15 July 2015; and
5. (v)
   The applicant pay the respondent’s costs of this application fixed in the sum of $7,000 plus GST.