Stockingham Pty Ltd v Brisbane Angels Nominees Pty Ltd
[2025] QSC 23
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Selected for Reporting - See Editor's Note
- Stockingham Pty Ltd v Brisbane Angels Nominees Pty Ltd[2025] QSC 23
- Add to List
Stockingham Pty Ltd v Brisbane Angels Nominees Pty Ltd[2025] QSC 23
Stockingham Pty Ltd v Brisbane Angels Nominees Pty Ltd[2025] QSC 23
SUPREME COURT OF QUEENSLAND
CITATION: | Stockingham Pty Ltd v Brisbane Angels Nominees Pty Ltd [2025] QSC 23 |
PARTIES: | STOCKINGHAM PTY LTD ACN 615 829 082 (FORMERLY KNOWN AS APAGEIN BIOTECH PTY LTD) (plaintiff) v BRISBANE ANGELS NOMINEES PTY LTD ACN 122 839 294 (first defendant) AND JOHN DUGALD MACTAGGART (second defendant) AND ALAN JAMES MONAGHAN (third defendant) AND FREDERICK RICHARD HOULT (fourth defendant) |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme |
DELIVERED ON: | 14 February 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 February 2025 |
JUDGE: | Freeburn J |
ORDER: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – NATURE OF COSTS: INDEMNITY DOCTRINE – APPLICATION TO A PARTICULAR PERSON OR PARTY – LEGAL PRACTITIONER ACTING FOR SELF – where the court of appeal dismissed an application by the respondents – where the court ordered costs – where the barrister retained by the applicant held a 95% share in the applicant company – where the barrister was the sole director of the applicant company – where the cost assessor certified the barrister’s professional costs could not be claimed – whether the barrister’s professional fees were necessary and proper – whether the court should interfere with the costs assessment |
COUNSEL: | Ms Varshney for the plaintiff/applicant AJ Schriiffer for the defendants/respondents |
SOLICITORS: | No solicitors for the plaintiff/applicant (direct brief) GRT Lawyers for the defendants/respondents |
- [1]On 5 March 2024 the Court of Appeal dismissed an appeal brought by Brisbane Angels Nominees Pty Ltd and three other appellants (Brisbane Angels). The court ordered that Brisbane Angels pay the costs of the respondent, Stockingham Pty Ltd.
- [2]Stockingham claims the following items of costs:
Date | Item No | Description of Item | Disbursements |
18/12/2023 05/03/2024 | 1 2 3 | Counsel’s fees per invoice # 18122023 in the amount of $27,720 (inclusive of GST) – copy of invoice attached Counsel’s fees per invoice #05032024 in the amount of $7,920 (inclusive of GST) – copy of invoice attached Counsel’s fees for settling costs statement and anticipated future costs required to address notice of objection and draw and settle costs assessment | $27,720 $7,920 $2,200 |
- [3]The total claimed is $37,840. Those three items are the only costs claimed.
- [4]Stockingham then applied for the assessment of its costs. On 23 May 2024, the Registrar ordered that Mr Stuart Louden, a court approved cost assessor, be appointed to conduct the assessment of Stockingham’s costs.[1]
- [5]On 24 September 2024 Mr Louden certified that Stockingham’s professional costs were ‘$0.00’ and its disbursements were $1089. The disbursements are, in fact, a proportion of the costs of Mr Louden for conducting the assessment.
- [6]Oddly, Stockingham says that the costs certificate was emailed to Stockingham on 21 October 2024 (despite it being dated 24 September 2024). In any event, on 23 October 2024 Stockingham requested reasons for the decision.
- [7]
- [8]On 25 November 2024 Stockingham applied for a review of Mr Louden’s assessment and applied for orders that the court allow items 1, 2 and 3.
- [9]On 18 December 2024 Wilson J ordered that the parties exchange written submissions (on 13 and 17 January 2025) and then, on 21 January 2025 the application was adjourned from that day to 10 February 2025.
- [10]The parties are agreed that the principles governing an application to review the decision of a costs assessor are accurately set out by Muir J in Civil Mining and Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd as follows:[3]
- First: The onus lies on those who seek to impeach the costs assessor’s decision to satisfy the court of the error;
- Secondly: An application to review involves the exercise of discretion so it is analogous to an appeal. It follows that the well-known principles pertaining to an appeal against the exercise of a discretion, as set out in the House v The King [1936] 55 CLR 499 at 505, are applicable: the court may interfere with a costs assessor’s exercise of discretion where it is demonstrated that the costs assessor has either acted upon a wrong principle, failed to exercise a discretion, or exercised a discretion in a way that was manifestly wrong;
- Thirdly: A decision of a costs assessor will be manifestly wrong if it was not open on the facts or not within the costs assessor’s lawful discretion;
- Fourthly: There is a strong presumption in favour of the correctness of a costs assessor’s decision such that it should be affirmed unless the judge on review is satisfied that it is clearly wrong;
- Fifthly: Ordinarily, the discretion of the costs assessor will not be interfered with on review unless the costs assessor has erred on a question of principle;
- Sixthly: Where the decision involves quantum only, it is, generally speaking, final, and it must be a very exceptional case in which the court will even listen to an application to review such a decision;
- Seventhly: In practice, it is necessary to show there has been some specific error or that the outcome is so obviously inappropriate there is an undisclosed error in the exercise of the assessor’s judgement; it is not sufficient for the reviewing court to take the view that if it had been performing the assessment, a different amount would have been assessed; and
- Finally: If there is an error, it is appropriate (if in a position to do so) for the court of review to exercise the relevant judgement itself.
- [11]Of course, the central concept where costs are awarded on a standard basis is that the costs assessor is to allow all costs that are “necessary and proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed.”[4]
- [12]In the assessment of costs on the standard basis, an Australian lawyer is entitled to charge and be allowed the costs under the scales of costs for work done for or in a proceeding in the court.[5] The rule refers to the relevant scale of costs in Schedule 1 to the Uniform Civil Procedure Rules 1999. However, the scale for Supreme and District costs does not specifically provide for the costs claimed here – the fees of a barrister. Thus, the issue is whether the barristers’ professional fees are ‘necessary and proper’.
- [13]Brisbane Angels argue that there are two reasons why Stockingham’s application should be dismissed.[6]
- First Argument – The Application is Irregular
- [14]When Stockingham brought its application for review by the court of Mr Louden’s certificate, rule 742(3) of the UCPR required Stockingham to:
- state specific and concise grounds for objecting to the certificate; and
- have attached to it a copy of any written reasons for the decision given by the costs assessor.[7]
- [15]Neither of those requirements were complied with.
- [16]Stockingham’s failure to attach Mr Louden’s reasons to its application was an omission in form rather than substance. Mr Louden’s reasons were exhibited to the affidavit filed in support of the application. That affidavit accompanied the application.
- [17]However, it is not so easy to dismiss Stockingham’s failure to state “specific and concise grounds” for objecting to the certificate. That was a requirement of the rules and, on no sensible basis can it be said that the omission was unimportant. The rule expressly mandates ‘specific and concise’ grounds for the objection. That, presumably, is designed to assist with expediting the resolution of costs disputes.
- [18]Here, there was no attempt to comply with the rule. The furthest the material goes is Mr Van Eps’ affidavit which, rather blandly, asserts that Mr Louden’s decision is “manifestly wrong and/or proceeded on a wrong principle of law.” The vagueness of those words no doubt led to the orders requiring Stockingham to file and serve written submissions in support of its application (and a response).
- [19]The rules of court are not, of course, ends in themselves. And, the court can make any order or direction about the conduct of a proceeding it considers appropriate – even if it is inconsistent with the rules.[8] The touchstone is the interests of justice.
- [20]Curiously, Stockingham does not explain why it failed to comply with rule 742(3) by identifying its ‘specific and concise’ grounds for the objection. Not even inadvertence is proffered as an explanation for the failure to comply with the rules.
- [21]Stockingham has now filed and served submissions which identify its complaints regarding Mr Louden’s certificate. However, its failure to comply with rule 742(3) has been largely ignored by Stockingham.
- [22]The failure to comply with rule 742(3) is an irregularity. Ordinarily, little would be required in these circumstances to cure the irregularity. But here Stockingham does not seek an order curing the non-compliance,[9] and it does not explain its non-compliance.
- [23]That indifference to the requirements of the rules makes this a rather unappealing case for permitting the application to proceed in spite of the irregularity.
- [24]The application is in breach of the rules and should be dismissed on that basis.
- Second Argument – Not Necessary or Proper
- [25]Brisbane Angels argues that the professional costs of Mr Van Eps do not meet the twin test of being “necessary or proper”.
- [26]I reject Brisbane Angel’s argument in so far as it relies on the concept “necessary”. Brisbane Angels’ argument was that Stockingham could have engaged a solicitor, or it might have engaged another barrister. The argument was that it was not necessary for Stockingham to have engaged Mr Van Eps when he was the sole director and 95% shareholder in Stockingham.
- [27]It is true that Stockingham may well have engaged somebody else to defend the appeal. But that is not the thrust of the word “necessary”. The concept really calls for a focus on whether the professional work carried out was necessarily undertaken or performed for the attainment of justice, or for the purpose of defending Stockingham’s rights.[10] Here, Mr Van Eps represented Stockingham in the Court of Appeal. It can hardly be said that that work was not necessarily undertaken or performed without justice and Stockingham’s rights in view.
- [28]On the other hand, there is a second basis for the Brisbane Angels’ claim that Mr Van Eps’ representation of Stockingham in the Court of Appeal was not “proper”. Rule 95(g) of the Barrister’s Conduct Rules states that:
- “A barrister must refuse to accept or retain a brief or instructions to appear before a court if…(g) the barrister has a material financial or property interest in the outcome of the case, apart from the prospect of a fee.”
- [29]Here, Mr Van Eps was the barrister retained by Stockingham and yet he held 95% of the shares in Stockingham, and he was its sole director.
- [30]Rule 95 is designed to ensure that the barristers that appear in court are independent. And so, barristers with the confidential information of the other party, or with a conflict of interest, or who are potentially a witness in the proceeding, are obliged to refuse a brief to appear.
- [31]Rule 25 provides that a barrister has an overriding duty to the court to act with independence in the interests of the administration of justice.
- [32]For Stockingham, Ms Varshney submitted that there was no conflict of interest between the personal interests of Mr Van Eps and that of his client, Stockingham. The point, as I understood it, was that their interests coincided.
- [33]I am not sure that is the correct analysis. The Barrister’s Conduct Rules go to some effort to ensure that barristers act independently, and recognise and discharge their obligations in relation to the administration of justice, and provide services of the highest standard unaffected by personal interest.[11] Barristers owe their paramount duty to the administration of justice. They owe duties to the courts, to their clients and to their colleagues in the legal profession.[12] And so barristers are obliged to exercise their forensic judgements and give their advice independently and for the proper administration of justice, despite any contrary desires of their client.[13]
- [34]Accordingly, I do not accept that the court can sweep aside any concerns about Mr Van Eps’ personal interest in his client Stockingham on the basis that his personal interests and Mr Stockingham’s interests are likely to coincide.
- [35]For Stockingham, it was also submitted that Mr Van Eps has not been found guilty of any professional misconduct. That is true. And it is true also that the court will not often, or at least not always, act as the effective guardians of the Barrister’s Conduct Rules. But here the court has a stark choice. The court is invited to exercise its discretion to set aside or vary the decision of a costs assessor, by means of an irregular application, in circumstances where the professional costs are claimed by a barrister who has a material financial or property interest in the outcome of the case, contrary to rule 95.
- [36]In other words, the court is being asked to exercise its discretion to permit a barrister to recover his professional fees in circumstances where he has acted contrary to the rule requiring independence. The court has a legitimate interest in ensuring that the barristers that appear in court are independent.
- [37]Stockingham also argued that the only evidence before the court was that Mr Van Eps held a 95% shareholding in Stockingham and was its sole director. It was suggested that:
- a full inquiry would be needed before any adverse conclusions could be drawn;
- there may be facts which mean that, for example, the 5% shareholder has control of Stockingham; and
- Brisbane Angels bore an onus to establish that Mr Van Eps had effective control or a material financial or property interest in the outcome of the case.
- [38]I reject those submissions. The facts of Mr Van Eps interest in Stockingham are plain enough. The issue was fairly raised in Brisbane Angels objections in April 2024 and again in its submissions in January 2025. Stockingham was entitled to offer an explanation of Mr Van Eps interest and role in Stockingham. Stockingham chose not to do so.
- [39]For those reasons, the court declines to interfere with the costs assessment. The application is dismissed.
Footnotes
[1] See UCPR rule 710(1A) and 713(2).
[2] See UCPR rule 738(2).
[3] [2024] QSC 28 at [20].
[4] UCPR rule 702(2).
[5] UCPR rule 691.
[6] In fact, Brisbane Angels’ submissions refer to three arguments. However, the second and third are aspects of the same argument.
[7] UCPR rule 742 (3).
[8] UCPR rule 367(1).
[9] For example, under rule 367.
[10] See W & A Gilbey Ltd v Continental Liquers Proprietary Ltd [1964] NSWR 527 at 534-5.
[11] Barrister’s Conduct Rules, rule 4.
[12] Barrister’s Conduct Rules, rule 5.
[13] Barrister’s Conduct Rules, rule 5(e).