A.C.N. 627 087 030 Pty Ltd trading as Yates Beaggi Lawyers v Poche - [2023] NSWDC 551

District Court

New South Wales

Amendment notes

Medium Neutral Citation: A.C.N. 627 087 030 Pty Ltd trading as Yates Beaggi Lawyers v Poche [2023] NSWDC 551
Hearing dates: 8, 9 and 20 November 2023
Date of orders: 13 December 2023
Decision date: 13 December 2023
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
See the orders at the end of the judgment

Catchwords:
COSTS – plaintiff in family provision proceedings seeks assessment of his own costs, which far exceeded the sum he was awarded - assessment by Costs Assessor – appeal to Review Panel - appeal to the District Court - whether the law practice was afforded procedural fairness by the Review Panel – whether the methodology was appropriate – whether the calculation of hourly rates was fair and reasonable – whether there was compliance with s 172 of the Legal Profession Uniform Law 2014 (NSW) – whether adequate reasons were given – what costs orders should have been made – appeal dismissed with costs, with liberty to apply concerning costs, including any application for a gross sum costs order

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(4)
Legal Profession Uniform Law 2014 (NSW), ss 6, 169, 172, 204
Legal Profession Uniform Law Application Act 2014 (NSW), s 89
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Cases Cited:
Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166
Ahern v Aon Risk Services Australia Ltd [2022] NSWSC 702
Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Amirbeaggi v EB [2023] NSWCA 108
Amirbeaggi v EB (No 2) [2023] NSWCA 184
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Arian v Nguyen [2001] NSWCA 5
Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729
Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304
Bleyer v Google Inc [2014] NSWSC 897
Cappello v HomeBuilding Pty Ltd [2022] NSWDC 725
Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109
Carnavalesca Pty Ltd t/as Paragalli Haulage v Jenkins [2023] NSWDC 159
Cassegrain v CTK Engineering [2008] NSWSC 457
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Dybka v McKenzie [2002] NSWCA 171
Eliezer v The Council of St Andrew's Cathedral School (No 2) [2021] NSWCA 227
Ferguson v Singler (No 2) [2015] NSWSC 891
Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39
Frumar v Owners of Strata Plan 36957 (2006) 67 NSWLR 321; [2006] NSWCA 278
Gadd v Kozlowski t/as Lou Baker and Associates [2022] NSWDC 309
Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98
GB v EB [2022] NSWDC 322
Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114
GKD18 v Minister for Home Affairs [2020] FCA 1664
Griffith v Australian Broadcasting Corporation [2013] NSWSC 750
Grizonic v Suttor [2008] NSWSC 914
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
In the Matter of the Bill of Costs of Lamrock, Brown & Hall [1908] VLR 238
Jones v Sutton (No 2) [2005] NSWCA 203
King v Delta Metallics Pty Ltd [2013] FCAFC 93
Kioa v West (1985) 159 CLR 550
Lawrence v Sammut (No 3) [2022] NSWSC 657
Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Mayne Nickless Limited v Industrial Relations Commission of New South Wales [2004] NSWCA 359
Minister for Immigration and Border Protection v Ly (2018) 263 FCR 512; [2018] FCAFC 123
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Mirus Australia Pty Ltd v Wilson [2023] NSWSC 1432
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737
Poche v Poche [2020] NSWSC 835
Re Minister for Immigration; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327
Short v Crawley(No 45) [2013] NSWSC 1541
Singh (a pseudonym) v Patel (a pseudonym) [2023] SASC 164
Sita v Sita [2005] NSWSC 461
Stead v State Government Insurance (1986) 161 CLR 141; [1986] HCA 54
Szlazko v Travini [2004] NSWSC 610
Transport Accident Commission v Musura (Supreme Court (Victoria), Teague J, 27 January 1989, unrep)
Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe(No. 2) [2017] NSWSC 1362
Wormald v Maradaca Pty Ltd [2021] NSWCA 307

Texts Cited:
Legal Services Council, Legal Services Council Guideline and Direction - Costs Estimates, (11 March 2016) at 1

Category: Principal judgment
Parties: A.C.N. 627 087 030 Pty Ltd trading as Yates Beaggi Lawyers (Plaintiff)
Adam Poche (Defendant)
Representation:
Counsel:
Ms M Castle with Ms L Cooper-Hackman and Ms G Adams (Plaintiff)
Ms K Hooper and Mr J Rogers (Defendant)
Solicitors:
Yates Beaggi Lawyers (Plaintiff)
ICL Lawyers (Defendant)

File Number(s): 2022/00123132
Publication restriction: Nil

Judgment

The proceedings between the parties

This is an appeal brought by a firm of solicitors against their former client (hereafter “Adam Poche” or “Adam”) pursuant to s 89(1)(a) of the Legal Profession Uniform Law Application Act 2014 (NSW) (“the Application Act” or “the LPULAA”). The law firm (hereafter “YB2” or “the plaintiff”) seeks to set aside the Certificates of Determination of Review made by the Review Panel following an appeal to a Costs Assessor. The Review Panel upheld the Costs Assessor’s assessment and certified the plaintiff’s costs in the amount of $268,433.88.
Appeals under s 89 of the LPULAA are brought by way of rehearing (s 89(4)), which permits a party to adduce fresh evidence if the court grants leave. The plaintiff brought an application for such leave and sought to rely upon two affidavits:

An affidavit of Mr Farshad Amirbeaggi affirmed 28 November 2022 (Court Book (hereafter “CB” 606-638)) attaching a series of documents (CB 640 – 922) which he asserted had not been seen and/or taken into account by either the Costs Assessor or the Review Panel. The purpose of this affidavit is to demonstrate, firstly, that the Panel did not have all the relevant information before it and, secondly, that the Panel, by giving the plaintiff only seven days to supply information the Panel had asked for “out of the blue” (Tcpt pp. 59 Lines 19-20, 60 Line 8, 61 Line 16, 64 Line 13 and 88 Line 6), thereby assertedly denying the plaintiff procedural fairness.

An affidavit of Mr Joseph Michael Rose affirmed 8 February 2023, annexing a report called a “Costs Assessor’s report” in the plaintiff’s submissions (CB 923 – 1005). Mr Rose, who read and analysed the documents attached to Mr Amirbeaggi’s affidavit, formed his own expert view, both from this material and from his expertise generally, as to a reasonable estimate of the plaintiff’s costs (taking into account liability for the Assessor’s fee), which he concluded was $311,857.08. During the hearing, however, this affidavit was withdrawn.

Throughout these proceedings, the firm of solicitors known as “Yates Beaggi”, which operated under three different corporate entities (hereafter “YB1”, “YB2” and “YB3”) during the period in which Adam Poche brought the claim the subject of this assessment, was reimbursed for the totality of the fees charged. The total of Adam Poche’s costs and disbursements billed to him by YB1, YB2 and YB3 is $880,900 (paragraph 7.19 of the Review Panel determination). This costs appeal deals only with the assessed costs for YB2. The practical result, if the appeal is dismissed, is that the plaintiff must refund Adam Poche the sum of $98,541.15.
If the appeal were to be successful, the plaintiff’s position, until the second day of the hearing, had been that Mr Rose’s expert report should be preferred, and the sum to be refunded to Adam Poche would be $55,117.35, a difference of $43,423.80. However, all but two of the documents attached to Mr Amirbeaggi’s affidavit were either withdrawn or excluded and the affidavit of Mr Rose was withdrawn from tender. This means that Mr Rose’s method of calculation of the sum in dispute ($43,423.80) is no longer before me for acceptance as part of the calculations necessary to perform if the appeal is allowed. The plaintiff’s position now is that if the appeal is successful, the question of quantum of costs should be determined by a referee.
A further problem relates to one of the two asserted “fresh” documents. The fact of there being written advice from Michelle Painter SC was discovered by me to have been specifically drawn to the attention of the Review Panel (Exhibit 2, p. 19982 at footnote 8; p. 10124). As I had reserved and did not wish to add to the costs of this appeal by restoring the matter, I have noted the relevant pages of Exhibit 2 where this information appears and treated it with caution as a result.

The litigation the subject of the costs appeal

The plaintiff is a legal firm which represented the defendant in proceedings that may be generally referred to as a “family provision claim” (to use the term adopted by the parties: defendant’s submissions, paragraph 6). The defendant (hereafter “Mr Poche” or “Adam”) sought provision from the estate of his mother (“Mrs Poche” or “the testatrix”), who had left Adam 15% ($129,379.50 at the time of probate) and given the bulk of her $2.3 million estate to his brother, Wayne Poche (“Wayne”). The estate assets consisted of the testatrix’s 50% ownership of the home she lived in, plus superannuation and investments.
Adam Poche consulted the firm Yates Beaggi Lawyers shortly after his mother’s death. A costs disclosure letter was sent on 22 August 2016 and a Summons filed on 28 October 2016 in the Equity Division of the Supreme Court of New South Wales. Adam Poche, citing health and financial problems, sought an increase from $125,000 to $600,000 “plus some costs” (Poche v Poche [2020] NSWSC 835 at [16]), which it was contended could be met without Wayne having to sell the property in which he was residing. Wayne also had health and financial problems.
The claim was thus an apparently straightforward one of two adult beneficiaries where one had received 15% of the estate, and sought an increase in his share. There was a complicating factor, in terms of a division of property by the testatrix in 2008. The testatrix’s husband, Fred Poche, died in 2006, leaving the testatrix all his estate. He had set up an engineering business in which both Adam and Wayne worked for most of their adult lives and he jointly owned the family home with the testatrix. The brothers had long had a poor relationship and, in 2008, the testatrix, with the assistance of the company accountant, gave this business to Adam, as well as transferring 50% of the family home to Wayne, who lived with her there until her death. Although not an asset in the estate, the circumstances of this division of property was an issue in the family provision claim. Wayne claimed that he was owed compensation, while Adam claimed that he paid for these assets and that the business, which was of little value, had to be sold at a loss in 2017, leaving him with significant debts and current needs. The relevance of these events is that a great deal of time was expended on this issue by both sets of solicitors.
Although the principal claim may best be described as a family provision claim, both parties brought other claims for relief:

Adam challenged the validity of the testatrix’s 2015 will and her earlier 2009 and 2010 wills on the basis of testamentary capacity and sought an order that probate be granted in respect of the deceased’s 1982 will. These claims were included in Adam’s statement of claim filed on 1 June 2017 and amended statement of claim filed on 26 October 2017. He abandoned them after a report from an expert geriatrician, dated 31 May 2018, was provided.

In his statement of claim filed 1 June 2017, Adam advanced a claim for payment by the estate of amounts equal to the financial contributions he asserts he made for the deceased’s benefit during her lifetime in respect of rent, tax liabilities, telephone accounts, motor vehicle expenses, repayment of money secured by a mortgage and holiday costs. He abandoned this claim during oral closing submissions on the last day of the hearing.

Wayne (as defendant and cross-claimant) sought an order that Adam (as cross-defendant and plaintiff) pay to Wayne the sum of $1,500 per week from 1 August 2009 until Wayne’s death together with interest. This cross-claim was also abandoned during oral closing submissions on the last day of the hearing.

On 17 September 2018, Adam Poche was advised that the company then carrying on business as Yates Beaggi (hereafter “YB1”) would cease to operate on 30 September 2018. The corporate entity which took over (hereafter “YB2”) operated from that date onwards until 13 May 2020, when most of the work for Adam’s claim was performed. On 13 May 2020 another corporate entity (hereafter “YB3”) replaced YB2.
A three-day hearing commenced and concluded in July 2019. Adam and Wayne Poche were both cross-examined. There was brief medical evidence from Dr Teoh and Ms Rabadi, who had carriage of the matter for YB2, was cross-examined on her affidavit concerning costs.
Henry J handed down judgment on 30 June 2020. Her Honour increased the amount of provision for Adam from 15% to the sum of $350,000 (Poche v Poche at [353]). Her Honour awarded capped costs of $125,000 each to Adam and to Wayne, an order made after extensive ventilation of what her Honour appears to have considered was the principal difficulty in the claim, namely what Dr Birch SC, counsel for Adam Poche, described as “the “almost tragic” and objectively “disproportionate”” (at [269]) legal costs on both sides, but particularly in the case of Adam Poche. Her Honour stated:

“[264] Adam’s legal costs in these proceedings are estimated to be between $613,949 to $643,421 on an ordinary basis, and $760,819.80 on an indemnity basis, of which he has paid $641,400.80.
[265] Wayne’s legal costs are estimated to be $298,405.60 on an indemnity basis, of which he has paid $59,710.24.
[266] Relevantly, Adam’s legal costs (on both an ordinary and indemnity basis) exceed what he claims by way of provision, being a lump sum payment of $600,000, plus some costs.
[267] Together, Adam’s legal costs (on an ordinary basis) and Wayne’s legal costs (on an indemnity basis) far exceed the value of the net cash assets available for distribution and equates to 40% of the value of the total distributable estate (including the Dacre St property).
[268] That outcome is inconsistent with the “object of resolving the issues between the parties in such a way that the cost [to them] is proportionate to the importance and complexity of the subject-matter in dispute”: Civil Procedure Act 2005 (NSW), s 60: Squire v Squire [2019] NSWCA 90 at [8].”

By reason of the costs-capping procedure, parties have to be in a position to tell the trial judge what their costs on a solicitor/client basis. This had been done. Henry J described both the total sum and the costs for abandoned application and cross-claim as follows:

“[320] Estimates were provided by the parties that sought to identify the costs attributable to the different claims. As with the quantum of costs, there was a significant disparity in approach to outcomes.
[321] Of the $641,400.80 of legal costs that Adam has paid, his solicitor estimates that $76,235.07 (12%) is attributable to the probate claims, $39,561.16 (6%) to the cross-claim and the balance, which equates to $525,604.57 (82%), to the provision claim. This breakdown does not deal with the costs attributable to Adam’s contributions claim or the costs that he had not been paid as at the date of the hearing, of $119,419. I assume that similar proportions apply to the unpaid costs, and have allocated 85% to the provision claim and 15% to the cross-claim and the contribution claim. Accordingly, I calculate Adam’s costs in relation to the family provision claims to be around $627,110.72.”

Her Honour described these costs as “excessive”, not only at [269] and [327], but in the headnote to the judgment, noting that the case ran for two and a half days and that only four witnesses were called. The costs cap of $125,000 from the estate took into account comparable costs for similar claims of a similar complexity (at [336]).

YB2’s costs are assessed

Certificates of Determination were issued by a Review Panel on 11 March 2022 in which, inter alia, it upheld the assessment of the Costs Assessor dated 3 May 2021, who determined that the plaintiff YB2 should refund to the defendant Adam Poche the sum of $98,541.15, plus costs.
The Review Panel, upholding the assessment of the Costs Assessor, certified the plaintiff’s costs in the amount of $268,433.88.

Appeal grounds

The appeal grounds set out in the Summons are as follows:

The Review Panel erred by reason of its failure to afford the Plaintiff procedural fairness in respect of the determination of the Review Application.

The Review Panel erred in adopting the determination of the Costs Assessor, which was erroneous.

The Review Panel erred by reason of its failure to apply the provisions of section 172(1) and (2) of the Legal Profession Uniform Law 2014 (NSW) and as a result failed to determine the fair and reasonable costs the subject of the invoices issued by the Plaintiff.

The Review Panel erred in determining to reduce the hourly rates charged.

The Review Panel failed to give adequate reasons for adopting the determination of the Costs Assessor, who had himself given inadequate reasons.

The Plaintiff seeks the determination of the Court that the costs of the Costs Assessor, the Review Panel and the costs of this appeal are payable by the Defendant.

The issues for determination

This appeal is conducted in the form of a rehearing. The plaintiff brings an application for leave to rely on further evidence in the substantive appeal. As a result, the issues are essentially the following:

Whether the plaintiff should be granted leave pursuant to the Legal Profession Uniform Law Application Act 2014 s 89(4) to rely on further evidence set out in the affidavit of Farshad Amirbeaggi dated 28 November 2022 (“the procedural fairness affidavit”) and/or the affidavit of Joseph Michael Rose dated 8 February 2023 (“the expert affidavit”). This is referred to below as “the leave application”.

Whether the Review Panel denied the plaintiff procedural fairness by only giving YB2 seven days to answer its email of 7 February 2022 (“the procedural fairness ground”).

Whether the Review Panel erred by “adopting the determination of the Costs Assessor, which was erroneous” and failed to apply s 172 of the LPUL to the plaintiff’s seven invoices, in reducing the hourly rates and in failing to give adequate reasons (“the appeal”).

Before determining whether leave to rely on further material is granted, I must first set out the evidence put before the Costs Assessor and Review Panel.
The costs the subject of assessment did not constitute the whole of the costs charged by the plaintiff’s legal advisors to Adam in the course of his proceedings against the estate. The costs which were assessed were not incurred by the solicitors during the time that YB1 and YB3 acted for him. The bills charged by the plaintiff need to be seen in the context of the following:

Adam had a costs agreement with YB1, and was issued with 23 invoices for the total of $94,000. These costs are not the subject of assessment. There was no advice about prospects or capped costs, but there was a figure provided in the costs agreement for the likely costs of the action.

After YB1 ceased operating and YB2 took over its operations on 30 September 2018, YB2 continued to act in the matter in the place of YB1. At no stage did YB2 provide or update the YB1 costs agreement or disclosure, or advise Adam Poche about cost-capping.

The firm changed its corporate entity again to become what has been referred to in this litigation as “YB3”, but this is of no relevance to the appeal.

The seven invoices

Ms Hooper and Mr Rogers, counsel for the defendant, have provided me with a helpful Table for the seven invoices to the defendant, containing footnotes, which I also include, as these explain the contents:

#. [YB2 #]	Date of invoice (date range of work)	Handwritten numbering against line items (fees only)	Sum incl GST (fees only)	Evidence ref (pages of the material before the Review Panel)
1. [2056]	5 November 2018 (22/08/18-02/11/18)^[1]	1097-1184^[2]	$49,203.00^[3]	2378
2. [2096]	3 December 2018 (02/11/18-29/11/18)	1187-1219	$12,474.00	2384
3. [2294]	7 May 2019 (05/02/19-07/05/19)	1220-1282	$37,246.00	2389
4. [2339]	28 June 2019 (07/05/19-28/06/19)	1287-1386	$44,968.00	2395
5. [2361]	18 July 2019 (28/06/19-17/07/19)	1388-1470	$31,746.00	2403
6. [2369]	24 July 2019 (18/07/19-24/07/19)	1474-1532	$28,226.00	2410
7. [2396]	13 August 2019 (25/07/19-13/08/19)	1536-1611	$72,633.00	2416
Total:	$276.496.00

1. Entries 1097-1123 are all for work pre-dating 30 September 2018 and therefore relate to work pre-dating the date on which Mr Amirbeaggi informed Mr Poche that YB2 would commence work.

2. Entries 1097-1123 are all for work pre-dating 30 September 2018 and therefore relate to work pre-dating the date on which Mr Amirbeaggi informed Mr Poche that YB2 would commence work.

3. A discount was applied to the invoice that is numbered 1 in the table (invoice number 2056). The discount was 10.28% of the total sum identified in this invoice (which carried over an outstanding amount from a YB1 invoice). A 10.28% total discount to invoice 1 ($53,113.65 incl GST) makes it a total of $47,653.57 incl disbursements and GST. If the discount is applied only to professional fees incl GST, the professional fees are $44,144.93.

Disbursements of $90,000 are not in issue.
After YB2 ceased operating on 13 May 2020, YB3 took over trading as Yates Beaggi Lawyers (CB 966). Again, there was no costs agreement. One invoice for $2,401.53 was issued. These costs are not the subject of assessment.
The total sum invoiced by YB1, YB2 and YB3 is therefore $880,900.74, which sum has been paid (CB 137 and 575).

The application before the Costs Assessor

According to the defendant’s chronology set out at CB 223, Adam Poche sought the return of the files on 6 August 2020, a process which seems to have resulted in slow releases of documents between then and November 2020 (CB 224). In the meantime, his solicitor served a Costs Assessment Application on 12 August 2020 (CB 6). In this application, Adam sought assessment of all bills for the whole period, namely the bills for YB1, YB2 and YB3, which was a total of $844,780.74 (CB 3), for a total of 1,291 cost “events” (CB 90), arguing that there was a continuing contract and that all bills should be assessed.
There were delays from the first. Objection was taken to the fact that all three YB entities would have to respond and there were delays in providing documentation. A time for production was sought by the Costs Assessor in correspondence. Mr Amirbeaggi replied on 12 October 2020 to the Costs Assessor as follows (p. 156 of the USB documents which were tendered as Exhibit 2):

“The majority of the Estate file has been provided.
The balance is the "correspondence" file, which is over 10,000 pages. I need to review that before it is released. That is a normal practice management requirement.
I will reach that this week and release that part of the file by Friday.
Do not otherwise send me emails with time stipulations that are a nonsense.”

As counsel for the defendant point out in their written submissions at paragraph 31, subsequent correspondence resulted in what they call “a threat…to commence proceedings challenging the procedural determination of the Assessor” (pp. 260 – 276 of Exhibit 2), apparently largely in response to an email dated 9 February 2021, where the Assessor responded to the plaintiff’s continued failure to comply with his timetables:

“It is now over 4 weeks since your firm returned from its Christmas break and 6 weeks since the objections were lodged. This is a matter where there has been ongoing disregard for compliance with my directions. At no stage prior to your email of 5 February have you indicated that you would be seeking a further 7 weeks to provide a response.
The fact that there are other proceedings between the parties does not bear on this matter and I am not prepared to accede to your request for the additional time sought by you.
I direct that your client provide its response by 5pm on Friday 19 February 2021. In regard thereto, I shall regard time as being of the essence. It is for your firm to take appropriate steps to meet this deadline. At the expiration of this period, I will attempt to undertake the assessment at the earliest possible time.
I should formally indicate my dissatisfaction with the approach your firm has taken and what appears to be an obstructive approach to this assessment. Given the foregoing, I formally reserve my right to require production of your file.”

On 10 February 2021, Mr Amirbeaggi responded:

“The “dissatisfaction” and “production of a file” are non sequitur [sic]. It is clear that the Cost Assessor is not able to proceed with impartiality. There has been no approach with which a Cost Assessor should hold dissatisfaction. Hence we formally request / make application that the assessment be reassigned to a fresh Cost Assessor who will exercise jurisdiction / fulfil his function with independence and impartiality.”

A complaint to the Costs Manager and a request for him to intervene were unsuccessful (p. 267 of Exhibit 2).
On 19 February 2021, Ms Rabadi sent an email to the Assessor stating that the plaintiff “meets only the claim against it for the 7 tax invoices that were issued by it” (p 285 of Exhibit 2). This meant that the plaintiff put forward the position that, as only YB2 (and not YB1 and YB3) was identified as a costs respondent, then the assessment process could only concern its seven invoices.
Ms Rabadi did, however, set out in detail for these purposes answers to other requests for information, such as the expertise and experience of the relevant YB2 staff (p. 2505 – 2508 of Exhibit 2), including Mr Amirbeaggi, Adam Poche’s instructions, trial issues, the proportionality of costs incurred, hourly rates, time claimed including in the preparation of affidavits, the use of 6 minute units, and other matters (pp 317ff of Exhibit 2). She also responded to the “specific objections” raised by Adam (pp. 357 – 400, 473, 492, 9109 – 10567 and 2038 – 2120 of Exhibit 2).
After further correspondence the Costs Assessor handed down his determination on 3 May 2021 (CB 417 – 430). He rejected Adam Poche’s claim that bills from all three entities should be assessed, holding that only YB2 bills should be assessed. (Adam was unhappy with the determination of the Costs Assessor for costs being restricted to the seven YB2 invoices but does not appear to have raised this as an issue with the Review Panel). The Costs Assessor assessed the fair and reasonable costs for the work of YB2 as $268,433.88 and accordingly ordered that the plaintiff (YB2) should refund the sum of $98,541.15 to Adam Poche, plus costs. He issued two Certificates on 3 May 2021, namely:

Form C1 Certificate of Determination of Costs at $268,433.88.

Form C3 Certificate of Determination of Manager’s Assessment Costs requiring YB2 to pay the Costs Assessor’s costs of $8,966.10.

A Statement of Reasons set out the Costs Assessor’s account of the parties’ submissions and the evidence of the work undertaken. He considered the skills and work history of those who had worked on the file and, in relation to their hourly rate, a wide range of factors, such as the extent of Ms Rabadi’s experience in family provision matters. He concluded that the costs were not proportionately and reasonably incurred, concluding:

“[81] It is not a simple task to dissect the time taken to undertake the work, to deduct the claims that I regard as excessive or duplicated and then to apply an hourly rate to them, however I have attempted to do so.
I have allowed 12 hours to review and consider the defendant's affidavit of 5 September 2018;
I have allowed 22 hours for drafting the Costs Applicant's affidavit;
I have allowed 8 hours for drafting the updating affidavit;
I have allowed 10 hours for reviewing documents produced by the defendant;
I have allowed 14 hours for preparation of the Court Book and other documents relating to the hearing;
I have allowed 3 hours for drafting the Costs Applicant's affidavit relevant to the "Shiklin" proceedings;
I have allowed 45 hours for attendances preparing for, attendance at the hearing and in relation to matters arising during the hearing;
I have allowed 250 hours for the various attendances on the Costs Applicant and in progressing the proceedings.
[82] Accordingly, I have allowed professional fees of $163,800.00. to this must be added GST, making a total amount allowed of $180,180,00.”

In addition, at [91] of his Reasons, the Costs Assessor stated:

“91. Given the conduct of the Costs Respondent, it is appropriate to request that the Costs Respondent's conduct and, in particular, Mr Amirbeaggi's behaviour be referred to the Prothonotary and to the Law Society and/or Legal Services Commissioner as appropriate.”

Adam and YB2 both applied to the Review Panel for review of the assessment.

The Review Panel

On 14 July 2021, the Review Panel wrote to the parties identifying the material with which they had been provided and other preparatory information. A timetable was included. It was to be the first of a series of timetables. This history is relevant to the ground of absence of procedural fairness.
On 13 August 2021, the Review Panel allowed an extension of time until 12 August 2021 for YB2 to provide voluminous materials:

“a. Poche to send to panel by 2 September 2021 the original application, numbered bills and any specific objections beyond previously provided;
b. YB2 to send to the panel so that the panel receives these documents by Thursday 2 September 2021:
3.2.1 Any general response to the objections, other than parts 1 to 7 raising specific responses to items 1097 to 1616;
3.2.2 Any documents relating to disclosure relied on, including estimates of costs and updates of estimates and any written advice as to whether the legal costs to be incurred by Adam were proportionate to the nature of the subject matter and the amount in issue, with the exception of the following, (which the panel has):
3.2.2.1 Documents dated 22 August 2016;
3.2.2.2 Email of 17 October 2016;
3.2.2.3 Email of 20 April 2017 sending the disclosure documents from Sharna Clemmett;
3.2.2.4 Email of 29 May 2019; 51085
3.2.2.5 Emails of 17 June 2019, 18 June 2019 and 21 June 2019 principally
relating to the costs of Doctor Hollaway and Doctor Teo; and
3.2.2.6 Email of 16 July 2019 relating to the costs of access valuations.
3.2.3 The whole of the YB2 file relating to work done from 22 August 2018 to 12 August 2019 or otherwise covered in the bills ultimately assessed by the assessor;
3.2.4 Any documents relied on as evidence as “apparent bias against” YB2 in ground 16 or relevant to the alleged failure to “…afford (YB2) procedural fairness”, in particular the assessor’s “directions and interlocutory determinations” relied upon in ground 15;
3.2.5 Any written material indicating the breadth of Adam’s instructions, the importance of the subject matter to him, advice as to the amount he would likely secure with a successful family provision claim and any advice as to the amount of costs and the proportion those costs might bear to the amount Adam was likely to recover; and
3.2.6 Any documents provided by Dropbox to the assessor.”

On 25 August 2021, YB2 emailed the Review Panel requesting an extension of time until 30 September 2021 to serve its submissions / response in order to brief counsel:

“The RA will require until 30 September 2021 to complete and serve its submissions / response. The RA has briefed Michelle Castle of Counsel and Andrew Fernon of Senior Counsel both of whom are presently engaged in other pressing matters / hearings – hence the time sought for the submissions”.

This document, and the other timetabling documents set out below, were set out in a chronology of correspondence tendered on Adam’s behalf. In those circumstances, references to material on the USB (Exhibit 2) and in the Court Book are unnecessary.
On 25 August 2021, the Review Panel emailed to parties confirming receipt of documents, updating timetable and requesting:

“The panel requires YB2 to send to the panel so that the panel receives these documents by Thursday 30 September 2021:
8.2.1 Any general response to the objections, other than parts 1 to 7 raising specific responses to items 1097 to 1616;
8.2.2 Any documents relating to disclosure relied on, including estimates of costs and updates of estimates and any written advice as to whether the legal costs to be incurred by Adam were proportionate to the nature of the subject matter and the amount in issue, with the exception of the following,(which the panel has):
8.2.2.1 Documents dated 22 August 2016;
8.2.2.2 Email of 17 October 2016;
8.2.2.3 Email of 20 April 2017 sending the disclosure documents from Sharna Clemmett;
8.2.2.4 Email of 29 May 2019; 51085 [sic]
8.2.2.5 Emails of 17 June 2019, 18 June 2019 and 21 June 2019 principally relating to the costs of Doctor Hollaway and Doctor Teo; and
8.2.2.6 Email of 16 July 2019 relating to the costs of access valuations.
8.2.3 The whole of the YB2 file relating to work done from 22 August 2018 to 12August 2019 or otherwise covered in the bills ultimately assessed by the assessor;
8.2.4 Any documents relied on as evidence as “apparent bias against” YB2 inground 16 in the YB review or relevant to the alleged failure to “…afford(YB2) procedural fairness”, in particular the assessor’s “directions and interlocutory determinations” relied upon in ground 15 of the YB review;
8.2.5 Any written material indicating the breadth of Adam’s instructions, the importance of the subject matter to him, advice as to the amount he would likely secure with a successful family provision claim and any advice as to the amount of costs and the proportion those costs might bear to the amount Adam was likely to recover; and
8.2.6 Any documents provided by Dropbox to the assessor.
8.2.7 In the Poche review, a response to the submissions made through the grounds that the panel should effectively assess all 27 bills”.

The Review Panel concluded by saying that it required “any final reply and any final documents” to reach the Panel and Adam’s solicitors by 11 November 2021.
On 26 August 2021, the Review Panel sent the parties a letter underlining how they planned to conduct the appeal, with particular reference to timetabling disputes. It was clear they were dissatisfied with failures to comply with timetables. The relevant portion of the letter is as follows:

“The panel had required YB2 to send responses in the Yates Beaggi review by 2 September 2021.
In that matter, YB2 was the review applicant. The review application was lodged on 4 June 2021, now a little less than three months ago.
YB2 already sought an extension to 22 August 2021 and the panel granted the extension to 2 September 2021.
To keep the two matters running together, in the Yates Beaggi review, the panel now requires the matters set out at 3.2 in the panel’s letter of 13 August 2021 to reach the panel by 30 September 2021. The submissions from Adam Poche which were to come by 16 September 2021 per 3.3 in the panel’s letter of 13 August 2021 in the Yates Beaggi review by 21 October 2021.
Any final reply by YB2 is to reach the panel and Mr Poche by 11 November 2021.
Given that this review was lodged by YB2 now almost three months ago, it is very unlikely the panel will extend those times.
The panel notes that in the email from YB2, YB2 said it “will require”. The panel will take that to mean that it requested further time. The panel would not normally have allowed such an extension because, particularly when YB2 is the costs review applicant, has lodged the grounds and the review application and that was done almost three months ago, it has had sufficient time to deal with legal and factual issues.
Normally the panel will not extend time because of the unavailability of counsel – YB2 are themselves a law practice and other counsel can be instructed.
However in this case, the extension sought is granted because that will make the Yates Beaggi review run in tandem with the Poche review.
Thus the existing timetable and directions in the Yates Beaggi review are amended as set out above.”

On 1 October 2021 Ms Rabadi provided correspondence, written submissions and a hyperlink to material in a Dropbox. The letter stated that it enclosed, among other matters:

“2. Items 3.2.3 and 3.2.5: The Cost Respondent’s file from 26 July 2018 to 12 August 2019 which includes work covered in the invoices ultimately assessed by the cost assessor as requested in item 3.2.3 and includes relevant correspondence to and from Adam Poche as requested in item 3.2.5;
3. Item 3.2.4: Documents relied on as evidence of bias against the Cost Respondent.”

Counsel for the defendant notes (submissions, paragraph 54) that the Review Panel’s revised timetable called for “[a]ny written material indicating the breadth of Adam’s instructions” including “advice as to the amount he would likely secure with a successful family provision claim and any advice as to the amount of costs and the proportion those costs might bear to the amount Adam was likely to recover”. This made it clear that “any” written material from Counsel and/or YB2 was required and that what was being sought was:

Any advice on prospects.

Any advice on costs-capping.

Any advice on the amount of costs likely to be incurred (for example, an updated costs agreement or letter of advice or other information about costs estimates).

It must have been clear to the Review Panel, from their reading of the Assessor’s determination, that no such document(s) had been provided to the Assessor. YB2’s response was to refute statements made by Adam’s solicitors about this.
YB2 also sought to limit the documentation to be inspected in this regard by the Review Panel. On 7 October 2021, Ms Rabadi wrote to the Review Panel to stress that no further documents “beyond that which was before the costs assessor” should be permitted, although relying upon an affidavit from Mr Amirbeaggi deposing to events and conversations asserted to be relevant:

“[w]hilst the Submissions (attached to our email below) refuted the facts and matters alleged by Mr. Poche in his affidavit sworn 1 June 2021, and we maintain that the Review Panel ought not receive further record beyond that which was before the cost assessor, we attach for completeness an affidavit of Farshad Amirbeaggi affirmed today.”

The reference to “submissions” is to the 30 September 2021 submissions. Ms Rabadi’s submission that material which was not before the Costs Assessor should not be received by the Panel is of significance in relation to the procedural fairness issue.
On 8 October 2021, the Panel wrote to the parties, inter alia, confirming receipt of documents and making some preliminary observations about the complaint of bias by the Costs Assessor, which they concluded appeared to consist entirely of complaints about unfair timetabling:

“3. Bias?
The panel has had a first brief look at the material sent. The panel notes that the nature of the bias alleged is not clear to the panel. If the allegation relates to request for further time, then the panel notes that further time was given by the assessor on several occasions. That issue was raised in correspondence with the Manager, Costs Assessment by Yates Beaggi. The course the matter had taken before the assessor was set out in the assessor’s letter of 15 February 2021. Yates Beaggi wrote indicating they would comply with the time limit of 19 February 2021. Yates Beaggi set out its submission as to relevant facts in a letter of 23 February. It appears the material required was provided by 19 February 2021. It seems like the entirely of the dispute which resulted in a request made both to the assessor and to the Manager, Costs Assessment for the assessor to cease acting in the matter, related to the periods given in timetables by the assessor.”

In the 8 October 2021 letter, the Review Panel also set out next steps, giving Adam a final date for submissions of 21 October 2021 and YB2 of 11 November 2021 (including replies). Importantly, the Review Panel gave a warning that timetables for the submissions to the Review Panel should not be ignored:

“No party should assume that there will be any extension to these timetables. The panel notes that the first work the subject of the original application was done 7 December 2016. The bills ultimately assessed were dated between 5 November 2018 and 31 August 2019. The original application filed by YB2 was dated 12 August 2020. The assessor’s certificates and reasons were dated 3 May 2021.”

On 21 October 2021, the Review Panel again wrote to the parties, specifically identifying as a potential issue that work done by YB1 was included in the first of the seven YB2 invoices, confirming it had received from YB2 the entire Court Book and the YB2 file documents, and repeating that “reply and any final documents, information or submissions from YB2 (and if appropriate YB1 and YB3 as well) should reach Mr Poche and the panel by 11 November 2021.”
It was only after this that, on 12 November 2021, YB2 provided detailed written submissions by Michelle Castle of Counsel dated 12 November 2021, in support of its review, submissions that must be taken to have been prepared on the basis that there was sufficient documentation to ensure that these assumptions by the Review Panel (namely that they had all the relevant documents, including any YB1 documents) was correct.
The Review Panel confirmed receipt of YB2’s submissions and, again relevantly, allowed a limited further time for the parties to submit any further material. This was added to on 23 November, when the Review Panel wrote allowing further time, this time to Adam, to provide material but adding that after 9 December 2021, “the panel will start work on the review in earnest”. The plaintiff replied to this on 25 November 2021 to state that YB2 “will be in a position to indicate the time required for YB2 to serve any submissions in reply to Mr Poche’s submissions in respect of YB2’s Review Application once we have had the opportunity to review Mr Poche’s submissions in reply in respect of YB2’s Review Application.”.
On 26 November 2021, the Review Panel wrote to the parties:

“The panel received further submissions from Yates Beaggi dated 25 November 2021. A copy of those submissions had been sent to the representatives of Mr Poche at the time they were sent to the panel.
The submissions and material appear to be supplementary to or an overdue part of the submissions due from YB2 by 11 November 2021.
The panel remind the parties that when a time limit is set for submissions, a party that sends submissions late:
1.1 Runs the risk that the panel will determine the matter without taking the late material or the overdue submissions into account;
1.2 Additional costs through having to deal with submissions not being sent in accordance with the timetable set by the panel may be borne by the party that did not observe the panel’s timetable.
…
Mr Poche was to provide material to the panel and Yates Beaggi by 9 December 2021. That was extended from 2 December 2021. In the light of the late material, the panel will extend that to Thursday 16 December 2021.”

On 30 November 2021, the Review Panel raised the issue of a further timetable to accommodate the parties:

“Yates Beaggi write that in the event that they wish to serve submissions in reply, they seek that be allowed until say late January 2022.
At this point the panel is unlikely to accept any submissions after the Poche submissions. Yates Beaggi have had ample opportunity to make submissions and provide material and they have done so. The panel has the grounds and the application filed by Yates Beaggi. The panel has all the material that was put before the assessor. The panel has submissions and material from Yates Beaggi dated 12 November 2021. The panel has the material from Yates Beaggi of 25 November 2021.
Normally, review grounds, and two sets of submissions from Yates Beaggi are ample opportunity. There has to be an end to submissions.
Unless there are specific reasons, the panel will not allow further submissions from Yates Beaggi.
If Yates Beaggi submit there are specific reasons that should be undertaken, then they should submit an application of no more than one A4 page briefly setting out why that is so.”

On 15 December 2021, the Review Panel received evidence from Poche. YB2 sought an extension to respond to the Poche submissions, and were allowed until 28 January 2022, as the extract of this document from the defendant’s chronology of timetabling orders by the Review Panel demonstrates:

“‘It seems very unlikely…that any further material will be of any significant assistance to the panel.
‘Again is difficult to see how these will assist the panel given that on 12 November 2021 when the last Yates Beaggi’s submissions were made, that was about five months after filing of each of the Poche review and the Yates Beaggi review.’
‘Nevertheless, the panel will allow a short further period for such submission’.
Approaching Christmas break, panel will allow response by 28 January 2022 – very unlikely time will be extended (almost 7 months since each review applications were filed)”

On 11 February 2022, the Review Panel wrote to the parties, raising observations about the material they were considering and indicating the costs issues troubling them. Ms Castle referred to this email as “a bolt from the blue”, on the basis that this was the first inkling that Mr Amirbeaggi, Ms Rabadi and YB2 were likely to be the subject of any critical consideration of this kind. The seven-day period given at the end of the letter is the core objection to procedural fairness, having regard to his being taken by surprise by such a devastating and unexpected turn of events.
I set the email out in full:

“Dear Parties
Re: Yates Beaggi Review No. 2020/235821 Re: Poche Review No. 2020/235821
1. General
In relation to the Yates Beaggi review, the panel has started the process of going through the Court Books and file documents on the USB. The panel proposes to set out some factual observations to allow the parties to make brief comment on them. The comments should not be extensive. The parties may be able to assist the panel by indicating the position of documents that indicate an observation by the panel is incorrect or incomplete. As the panel has previously indicated, anything set out as an observation or preliminary view is not a finding. It is not a determination. It is set out to enable the parties to provide an indication of the location, position or existence of any relevant documents or material, and to allow brief submissions. No party should assume that an observation or preliminary view set out by the panel in the course of the review will be the final view of the panel when the review is determined.
2. BACKGROUND
2.1 YB1, YB2 and YB3 acted for Adam Poche in a family provision and lack of capacity claim in an estate worth around $2.3 million.
2.2 The total legal costs charged by YB2 to Adam were $844,780.74 plus $36,120.00, the sum $880,900.74. Of course that includes fees, expenses and GST.
2.3 Brenda Poche, the mother of Adam Poche died in 2016. Her will provided that Adam Poche receive 15% of cash assets of the estate, which would have come to the sum of $104,539.06.
2.4 Adam sought provision from the estate. Adam’s Counsel submitted that a reasonable provision for him would be $600,000.00.
2.5 After a hearing over three days, 29, 30 and 31 July, and written submissions on 12 August, Henry J awarded provision to Adam of $350,000.00, instead of his entitlement under the will to around $104,539.06.
2.6 In addition to Adam’s provision claim, Adam and his brother, the defendant executor Wayne Poche, each advanced claims which were abandoned prior to the judgment. Adam’s claims included challenge to the validity of the 2015 will and 2009 will of his mother, on the basis of lack of testamentary capacity. Adam originally sought an order that probate be granted of a 1982 will of his mother Brenda Poche. Those claims were abandoned on 21 August 2018 after receipt of a joint report of a geriatrician dated 31 May 2018.
2.7 Adam also sought repayment to him of various financial contributions he made for the benefit of his mother Brenda during her lifetime. That claim was abandoned during closing submissions on the last day of the hearing.
2.8 Wayne sought an order that Adam pay $1,500.00 per week from 1 August 2019 for Wayne’s life. That cross-claim was abandoned on the last day of the hearing.
2.9 The deceased included in her will of 2015 an indication that she had, during her lifetime, caused transfer of 8 identified classes of assets to Adam, largely relating to the Poche Engineering business. She was critical of Adam’s conduct towards her.
2.10 Evidence was given for Adam that he had paid legal costs of $641,400.80, with 12% attributable to the probate claims, 6% to the cross-claim and 82% to the family provision claim. That breakdown did not deal with costs attributable to the claim that Adam was due reimbursement for financial contributions he made to his mother Brenda. Nor did it include costs owing at the date of the hearing, said to be $119,419.00. At the hearing, on the evidence provided to Henry J, the Court found Adam’s costs in relation to the family provision claim alone to be around $627,110.72.
2.11 Wayne’s legal costs were said to be $298,405.60 without costs attributable to contribution claim or the cross-claim, expenses such as barristers’ fees or the balance of solicitors’ fees. Wayne’s family provision costs were said to be around $145,000.00.
2.12 His Honour ordered that as executor Wayne pay Adam’s costs of the family provision claim, capped at $125,000.00. His Honour observed that Adam’s costs in relation to family provision claim were “disproportionate to the success he has had. His costs are around $627,000.00, significantly more than the provision of $350,000.00. His costs are also in an amount that is relatively close to the value of the available cash assets in the estate, from which he accepted an order for provision should be made” (paragraph 333).
2.13 His Honour found that Adams’s costs attributable to the family provision claim “…are significantly, more than four times greater than the family provision claim costs claimed by Wayne of $145,000.00 (on an indemnity basis)” (paragraph 334).
2.14 His Honour observed that the significant disparity between the costs of Adam and Wayne “…is inexplicable, even allowing for the scope of the notices to produce issued to Adam. While that notice was extensive, many of the paragraphs sought the same documents just for different years and companies. Costs were also incurred by Adam on affidavits that had to be updated on more than one occasion, and contained evidence that was in parts, objectionable and unread, and of marginal relevance having regard to the nature and size of the provision claim” (paragraph 335).
2.15 His Honour noted the estimates referred to by Slattery J in Wilson v Porada; the estate of Peter Wolfgang Porada, late of Perico (No. 2) [2017] NSW SC 1362, in which His Honour referred to a standard family provision case over two days with a handful of witnesses costing $70,000.00 to $80,000.00, or a complex four-day case costing $120,000.00 to $140,000.00. His Honour Henry J noted that the Poche hearing was completed in two and half days with only four witnesses.
2.16 Adam was ordered to pay Wayne’s costs of the probate claim.
2.17 The contribution claim brought by Adam and the costs claim brought by Wayne resulted in no orders as to costs, to the intent that each party pay their own costs in respect of those claims.
2.18 All of the observations of Henry J were made in a context of a court making orders that one party pay the costs of another party, that is, “ordered costs”. None of those observations is binding or decisive in relation to whether the costs charged by YB2 to Adam were proportionately and reasonably incurred in the circumstances at the time the work was done, or proportionate and reasonable in amount in those circumstances and at that time. The panel accepts that the issue of what instructions were given to YB2 by Adam was not part of His Honour’s determination.
2.19 There were three entities that acted as a law practice for Adam, and sent bills totalling $880,900.74. Those were referred to by the assessor as YB1, YB2 and YB3.
2.20 The assessor found that “…given the significant corporate changes to the billing party, … I can only assess those invoices rendered by the costs respondent (YB2)”. The assessor assessed only the seven invoices provided by YB2, which the panel also refers to as YB2. Adam had sought assessment of all the bills. Ultimately the assessor determined that he could not assess the 23 invoices from YB1 with fees of $372,430.18 plus GST and expenses close to $94,000.00. The only invoice issued by YB3 was for expenses of $2,401.53.
2.21 The assessor assessed seven bills dated between 5 November 2018 and 13 August 2019 from YB2 claiming fees of $251,960.00 plus GST and over $88,000.00 in expenses.
2.22 The assessor determined a total amount in respect of those seven bills of $268,433.88.
2.23 The assessor indicated the view that “the total costs rendered by YB in its various forms are disproportionate to the subject matter of the proceedings”.
2.24 The assessor at paragraph 81 of the reasons took a global approach to the work done, allowing 12 hours for review of Wayne’s affidavit of 5 September 2018, 22 hours for drafting Adam’s affidavit and 8 hours the updating affidavit, 10 hours for reviewing documents produced by Wayne, 14 hours for preparation of the Court Book, 3 hours for drafting Adam’s affidavit in relation to the Shiklin proceedings, 45 hours for attendances, preparing for the hearing, at the hearing and in relation to matters arsing during the hearing, and 250 hours for attendance on Adam and generally progressing the proceedings.
2.25 The assessor allowed the expenses as claimed at $88,253.88.
2.26 The “grounds” to the Yates Beaggi review are extensive and relate to general matters, specific matters, matters involving disclosure and broad-brush matters such as submissions that the assessor “erred in finding that the costs were not proportionate and reasonably incurred”. The panel take the broad matters raised to be a request that the panel set aside the assessor’s determination, and redetermine the costs.
2.27 The Poche review seek [sic] assessment of the YB1 and YB3 bills. 2.28 On that basis, the assessor allowed fees of $163,800.00, at a rate of $450.00 per hour. Adding GST to that amount resulted in a figure for fees inclusive of GST of $180,180.00.
3. GENERAL OBSERVATIONS as to COSTS
3.1 The total costs charged by YB1, YB2 and YB3 charged to Mr Poche came to around $880,900.74.
3.2 Mr Poche’s barrister sough family provision in the sum of $600,000.00, instead of the figure of about $104,539.06 that he would have received pursuant to the will of his mother Brenda Poche.
3.3 The Court ordered provision of $350,000.00.
3.4 The Court capped the costs to be paid to Mr Poche by the estate at $125,000.00.
4. ADVICE as to PROSPECTS
4.1 The panel has not been able to find any formal advice to Adam Poche as to the likelihood of success in relation to the claims of lack of capacity, nor as to the likelihood of success in respect of the family provision claim, or the amount that might be awarded, except for the following:
4.1.1 By Chris Birch, barrister, 26 June 2019. The advice was “Adam would improve his situation by obtaining a legacy of something between $250,000.00 and $500,000.00 (at a time when Mr [sic] Birch wrote Adam’s $600,000.00 of costs to date reflect in part costs of the probate issue that he abandoned, he will never recover those costs, and the estate could well obtain an order against him for those costs) and the “likely best outcome for Adam” would result in something “unlikely to cover the costs he has already incurred”. It is not clear whether that email was provided to Mr Poche. The panel enclose that email, if it was provided to him, the panel request that the location of any sending email or letter be indicated; and
4.1.2 A short text in which Yates Beaggi appear to advise that after costs $1 million would be left in the estate and “I think you will get 50% ie $500K”, that legal advice was referred to in the judgment at paragraph 275. The panel attach a copy of that text.
4.2 Whilst the position of the litigation was broadly reviewed, the panel has found no advice on prospects. The panel notes that Adam contended that the deceased lacked capacity to make wills from 2009 to 2015, although the deceased had transferred the Poche engineering business to Adam in 2008. The report of Professor Caplan was held by the Court not to be sufficient to conclude that there were real grounds for Adam to question the wills made by the deceased, particularly in 2009 and 2010.
4.3 It would assist the panel if a copy of any other advices as to prospect of the claim of Adam Poche were sent to the panel or the location of those documents on the USB was indicated.
5. DISCLOSURE
5.1 At the present, the disclosures of which the panel is aware are:
5.1.1 The initial disclosure of 22 August 2016, indicating an estimate of fees of $100,000 to $200,000 and barrister’s fees as an expense of $100,000.00, thus a total of $300,000.00;
5.1.2 29 May 2019 – in an email where Yates Beaggi advise “we will spend about $80,000.00 to $90,000.00 in the lead up to and on that final 3 day hearing with our fees, barrister’s fees and Court costs … please take steps to raise the sum of same $150,000.00…” to which the response from Adam Poche is that he is borrowing Paul Myliotis, and has requested $150,000.00 for legal expenses, “that is provided $150k will see this matter out”. A copy of those two emails is attached; and
5.1.3 Some costs disclosures from various barristers, in particular Sharna Clemmett, sent after the appearance by that barrister, and Evan Walker.
6. COSTS CAPPING
6.1 Given the size of the estate and other matters, it is always possible, even likely that there would have been an upper limit put on costs payable by the estate to Adam Poche. 6.2 At this point, the panel cannot find any advice to Mr Poche regarding the likelihood of costs capping.
7. QUALIFICATIONS and EXPERIENCE of MS RABARDI
7.1 Ms Rabardi described as a senior associate was charged at $500.00 per hour plus GST until 25 April 2018 and then $600.00 plus GST thereafter. Ms Rabardi was admitted in 2011.
7.2 According to a transcript of 30 July 2019 referred to at paragraph 64 of the assessor’s reasons, Ms Rabardi had conducted two previous family provision claims.
7.3 The first work was done in 2016.
8. DISCLOSURES YB1 to YB2, YB2 to YB3
8.1 The case of Yates Beaggi is that there were three separate entities. That is not disputed by Adam Poche.
8.2 Yates Beaggi submit that there were three separate contracts, which would normally mean that there must have been disclosure as required by the Uniform Legislation when YB1 ceased work and YB2 commenced work and when YB2 ceased work and YB3 commenced work.
8.3 As the panel understand it, the position of YB2 is that disclosure was not required because the details that would have been disclosed were known to Mr Poche, for example the applicable rates for those who did the work. Yates Beaggi and Mr Poche agree that there were no new Uniform Law costs disclosures when YB1 ceased and YB2 commenced work, nor when YB2 Ceased and YB 3 commenced work.
9. SETTLEMENT and MEDIATION
9.1 It appears mediation took place in March 2017.
9.2 Yates Beaggi have sent a number of documents which suggest that Adam Poche’s instructions were that there would be no compromise. Those are dated 10 October 2016, 12 July 2018, 31 July 2018, 3 August 2018 and 24 August 2018. Copies of those documents are attached.

9.3 There were a number of other emails which suggest some willingness to settle beyond what was in those documents, for example 7 December 2017, in which Mr Poche wrote “it may be advantageous in arranging a meeting with Phil and my brother’s legal representatives engaging how fare off a settlement is. I am open to suggestions in having this mediated more successfully then last March…” and “efforts in this area might prove beneficial then perusing banks and gathering supportive evidence, in a case that is becoming very expensive to all concerned”. A copy of that email and a the very short reply a few minutes later from Mr Amirbeaggi is attached.
10. THE EVIDENCE
10.1 A considerable proportion of the affidavit evidence compiled for Adam Poche was objected to successfully and not pressed. Some of it was of marginal relevance.
10.2 A relatively quick look through the affidavits compiled and submitted on Mr Poche’s behalf suggests that objections were always likely.
10.3 The panel notes observations about objections to the affidavits were made at paragraph 335 of the judgment. 10.4 Most of the difficulties observed by the panel relate to the form in which the evidence was presented. It does appear at this stage that some of the work was not done well. That may reflect in appropriate hourly rates if there were any failures to make disclosure.
11. FURTHER SUBMISSIONS The panel request any submissions from Yates Beaggi reach the panel and Mr Poche by Friday 18 February 2022 and any submissions from Mr Poche reach Yates Beaggi and the panel by 25 February 2022.
A short period is given because the parties have already made extensive submissions, and the panel has set out some factual observations to allow the parties to make brief comment on them, which comments should not be extensive.”

YB2 made no response whatever during the seven-day period. On 23 February 2022, YB2 sent the following letter:

“Dear Messrs Wall and Webley,
We refer to your letter dated 11 February 2022 and the direction requiring Yates Beaggi to provide any Submissions to the panel and Mr Poche by 18 February 2022.
We respectfully request an extension to provide the Submissions. The solicitor with day‐to‐day conduct of this matter has been engaged in the preparation and attendance of a hearing, which commenced on 21 February 2022 and concludes on 25 February 2022. Due to the extensive nature of this matter, it has not been possible to assign the matter to other staff members as it would take a solicitor even longer to review and assume carriage to be able to respond to your queries. We do not believe a short extension will impact the review proceedings. We otherwise note there are many errors in your letter which we will address by reply submissions.
Noting the above, please advise if you are minded allowing us until 11 March 2022 to respond.
We look forward to hearing from you.”

On 25 February 2022, the Review Panel’s letter to the parties regarding YB2’s correspondence sent to the Review Panel on 23 February 2022 requesting for an extension of time. The Review Panel stated:

“Well after the expiration of the time for Yates Beaggi to make submissions on the panel’s letter of 11 February 2022, on 23 February 2022 Yates Beaggi request an extension of time on the basis that a solicitor from their practice is engaged in a hearing 21 to 25 February 2022.
The panel also notes that Yates Beaggi sought extensions of time by correspondence of 12 August 2021, 25 August 2021, and 12 November 2021. Each extension of time was granted.
The reason given is not sufficient.”

Although the reason was rejected, in practical terms, the Review Panel did give an extension. On 8 March 2022, the plaintiff emailed the Review Panel information purporting to provide answers to some of the material sought in its 11 February 2022 email, namely Ms Rabadi’s litigation experience, and stated that YB2 “relies on the file as to the quality of services and work completed.”
Two portions of this reply are of particular relevance to the procedural fairness question. The first is the following statement:

“The Review Panel ought to assess the tax invoices issued by YB2 and whether the entries reflect work completed and if so, whether the costs were proportionately and reasonably incurred at the time they were incurred, proportionate here referring to proportionate to the instructions and information given to YB2 by the Client.”

The second, and more concerning, statement, was the following:

“YB2 will respond to the balance of your letter shortly. The response is being submitted in tranches as we understand a determination is imminent and it takes time to locate other information requested by you (example, the communications requested at paragraphs 4 and 9 given the size of the file).”

YB 2 could not even give a calendar date for when this additional material would be provided. The best they could do was to say it would be provided “shortly”, but this optimistic word is undermined by the ominous phrase “it takes time.” The Review Panel did not wait for these further submissions, and handed down the reasons for determination on 11 March 2022.
The complaint of absence of procedural fairness arises by reason of this refusal to allow YB2 further time to answer the Review Panel’s letter.

The nature of an appeal which is a rehearing

The plaintiff appeals from the Review Panel findings to this Court pursuant to s 89 of the LPULAA which provides:

89 Appeal on matters of law and fact
(1) A party to a costs assessment that has been the subject of a review under this Part may appeal against a decision of the review panel concerned to—
(a) the District Court, in accordance with the rules of the District Court, but only with the leave of the Court if the amount of costs in dispute is less than $25,000, or
…
(2) The District Court or the Supreme Court (as the case requires) has all the functions of the review panel.
…
(4) An appeal is to be by way of a rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the review panel or costs assessor may, with the leave of the Court, be given on the appeal.

What is meant by the reference in s 89(2) to “all the functions of the review panel”? Basten JA, in Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98 (“Gazecki”), explained this as follows:

“[42] Sixthly, the court is not given specific powers, but rather is said to have “all the functions of the review panel.” The effect of this provision is by no means clear. The functions of the review panel are set out in s 85 of the Application Act, and involve reviewing “the determination of a costs assessor”: s 85(1). For that purpose, the review panel has “all the functions of a costs assessor … and is to determine the application … in the manner that a costs assessor would be required to determine an application for costs assessment”: s 85(2). The review panel is not bound by the rules of evidence and may inform itself on any matter in the manner it thinks fit: s 85(3). There is a degree of awkwardness in conferring on a court required to determine an appeal against a decision of a review panel all the functions of the review panel, which involve review of the decision of a costs assessor. That language may affect what is meant in s 89(4) by an appeal “by way of a rehearing”.
[43] No submissions were made in this Court on the scope and operation of s 89; accordingly, it is both unnecessary and inappropriate for the Court to resolve these questions in this case. What is clear, however, is that courts exercising jurisdiction under this provision must pay close attention to the terms of the statutory power and should not adopt statements from earlier cases dealing with different powers, unless persuaded that they remain applicable. Although the distinction between appeals on matters of law and appeals from the final determination of a costs assessment have been removed, it may, nevertheless, be appropriate to adopt different standards of scrutiny with respect to each. Thus, questions of law are inherently liable to review according to a correctness standard; a lower standard of scrutiny may well be applicable to an assessment of what costs are fair and reasonable in the circumstances of the particular case. Particularly is that so where a specific body of costs assessors, appointed solely for that function, reach evaluative judgments. Furthermore, costs assessors are expected to ensure consistency of approach, being a standard which cannot readily be applied by a reviewing court with limited experience of such matters.”

What is meant by the reference in s 89(4) to “rehearing”? In Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 at [7]-[9], Meagher JA explained the difference between an appeal by way of rehearing and an appeal stricto sensu as follows:

“[7] The nature of an appeal by way of rehearing is described in Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23] (Gaudron, Gummow, McHugh and Hayne JJ) by reference to the characteristics which distinguish it from a hearing de novo and an appeal in the strict sense:
For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.
[8] The following passage from the judgment of Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [31] makes clear that while it remains necessary to identify an error in the decision appealed from, in an appeal by way of rehearing that requirement may be satisfied by reason of further evidence adduced in the appeal or a change in the law which has the result that looked at in retrospect the decision appealed from was in one or more respects incorrect:
For practical purposes, the difference between correction of error on an appeal in the strict sense and correction of error on an appeal by way of rehearing lies in the temporal perspective that the appellate court is required to adopt in examining the correctness of the judgment under appeal. An appellate court determining an appeal in the strict sense is required to determine the correctness of the judgment under appeal at the time that judgment was given: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial and on the law as it then stood. An appellate court determining an appeal by way of rehearing, in contrast, is required to determine the correctness of the judgment under appeal in retrospect: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial supplemented by any further evidence that the appellate court may allow to be adduced on the appeal, and on the law as it stands when the appellate court gives judgment on the appeal.
[9] As Basten JA recently observed in Gazecki v McCabes Lawyers Pty Ltd [2020] NSWCA 98 at [42] by s 89(2) the Court determining the appeal by way of rehearing is said to have “all the functions of the Review Panel”. By s 85(2) the Review Panel in turn had “all the functions of a costs assessor in relation to the assessment concerned and is to determine the application, subject to Pt 7 of the Act and the costs assessment rules, in the manner that a costs assessor would be required to determine an application for costs assessment.” It was not submitted by either party that the effect of this provision is that the powers of the appellate court may be exercised whether or not there was error (in either of the senses referred to above) on the part of the Review Panel.”

The observations of Basten JA in Bazecki have been applied in a series of decisions at first instance, as is noted by Schmidt AJ in Lawrence v Sammut (No 3) [2022] NSWSC 657 at [41]-[42]:

“[41] An appeal against a review panel certificate is to be by way of a rehearing, with fresh or additional evidence able to be led with the leave of the Court: s 89(4) of the Application Act. Given the nature of such a costs appeal, a court exercising the s 89 jurisdiction must pay close attention to the terms of the statutory power: Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98 at [4].
[42] In Gazecki the functions imposed by s 89 of the Application Act were discussed:
“42 … the court is not given specific powers, but rather is said to have ‘all the functions of the review panel.’ The effect of this provision is by no means clear. The functions of the review panel are set out in s 85 of the Application Act, and involve reviewing ‘the determination of a costs assessor’: s 85(1). For that purpose, the review panel has ‘all the functions of a costs assessor … and is to determine the application … in the manner that a costs assessor would be required to determine an application for costs assessment’: s 85(2). The review panel is not bound by the rules of evidence and may inform itself on any matter in the manner it thinks fit: s 85(3). There is a degree of awkwardness in conferring on a court required to determine an appeal against a decision of a review panel all the functions of the review panel, which involve review of the decision of a costs assessor. That language may affect what is meant in s 89(4) by an appeal ‘by way of a rehearing’.
43 No submissions were made in this Court on the scope and operation of s 89; accordingly, it is both unnecessary and inappropriate for the Court to resolve these questions in this case. What is clear, however, is that courts exercising jurisdiction under this provision must pay close attention to the terms of the statutory power and should not adopt statements from earlier cases dealing with different powers, unless persuaded that they remain applicable. Although the distinction between appeals on matters of law and appeals from the final determination of a costs assessment have been removed, it may, nevertheless, be appropriate to adopt different standards of scrutiny with respect to each. Thus, questions of law are inherently liable to review according to a correctness standard; a lower standard of scrutiny may well be applicable to an assessment of what costs are fair and reasonable in the circumstances of the particular case. Particularly is that so where a specific body of costs assessors, appointed solely for that function, reach evaluative judgments. Furthermore, costs assessors are expected to ensure consistency of approach, being a standard which cannot readily be applied by a reviewing court with limited experience of such matters.””

Costs appeals in this Court have referred to and followed these principles, as was the case in Gadd v Kozlowski t/as Lou Baker and Associates [2022] NSWDC 309 at [12]-[20] and Carnavalesca Pty Ltd t/as Paragalli Haulage v Jenkins [2023] NSWDC 159 at [10].
The decision of Mirus Australia Pty Ltd v Wilson [2023] NSWSC 1432 was handed down after I reserved my decision and I have not been addressed on it. I note Campbell J’s emphasis on the need for close attention to be paid to the legislation and that the court should be alert to avoid adopting statements from earlier cases dealing with different powers, unless these remain applicable (at [21]). This is particularly the case in relation to an appeal by way of rehearing and I particularly note the reference to Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [31].
There has been recent consideration of what kind of further evidence may be led, in Amirbeaggi v EB [2023] NSWCA 108 at [52], where Basten AJA restated his earlier determinations in terms of when and in what circumstances further evidence may be adduced:

“Although the appeal to the District Court is an appeal by way of rehearing, and one for the purposes of which further evidence may be adduced, it is nevertheless necessary for an appellant to demonstrate error on the part of the review panel. Unless there is a question of jurisdiction, which may always be an issue, whether raised or not, there will generally be no appeal from a review panel with respect to an issue which was simply not raised before it. If a ground of appeal in the District Court were to raise such a matter, the likely response of the Court would have been that the review panel cannot have been in error in failing to deal with the matter which it was not asked to address.”

In the present case, the plaintiff sought to argue that the Review Panel’s errors resulted from their failure to consider documents that were not put before them by either party. The plaintiff says that, had he been given longer than seven days to answer the Review Panel’s email of 11 February 2022, he would have been able to put before the Review Panel the documents and information attached to his 316-page affidavit at CB 606 – 922. As Exhibit B demonstrates, less than thirty of those documents were “new” at all and of those, 28 were repetitive in content. The remaining two documents were admitted into evidence but since reserving, I have found that one of those documents, an email of advice from Michelle Painter SC, was in fact put before the Review Panel as part of a historical chronology of the counsel briefed (Exhibit 2, p. 19982; the email containing the advice is specifically referred to at footnote 8 and the advice is set out at p. 10124). The remaining document, an advice from Mr Walker sent the day after he was briefed in April 2017, is thus the sole remaining “new” document.
I have set out below the reasons for my rejection of the exhibits to Mr Amirbeaggi’s affidavit. There are, however, other arguments put before me by the defendants as to why not only these annexures but also this affidavit should not be admitted into evidence. The defendants identify the following:

Admissibility of Mr Rose’s affidavit: Challenges were made to the admissibility of the report of Mr Rose, who appeared to be addressing the ultimate issue and who failed to comply with the series of expert evidence requirements set out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305. These arguments did not need to be determined because the tender of Mr Rose’s affidavit was withdrawn.

Admissibility of Mr Amirbeaggi’s affidavit: No formal rulings were made but most of its contents were submissions rather than evidence, fresh or otherwise. For example, he stated that “I believe that the Review panel has erred” (CB 610) and he then sets out “some of the error that I believe were made are without limitation identified below” (CB 610). The principal error is asserted to be that the Review panel had “only a very small proportion of Mr Poche’s file during the proceedings that spanned approximately 4 years” and that “[a]t no time did the Review Panel have the full YB2 files regarding the Estate Proceedings” (CB 610). What the Review Panel did have, of course, was all of the documentation in relation to the seven memoranda of fees the subject of the assessment, and certain other material and information from the parties. Mr Amirbeaggi’s claim was that the missing documents were those attached to his affidavit. As is set out in more detail below, a Table prepared by Ms Hooper and Mr Rogers (Exhibit B) demonstrated that all but 31 of the documents had been provided; during argument a further 4 were withdrawn and 3 were deferred. I ruled on the remainder and only two documents contained material that I considered “fresh”, namely an Advice from Michelle Painter SC dated 12 March 2018 (CB 821 – 822) and an Advice from Mr Walker dated 21 April 2017 (CB 763 – 765). Rulings as to the admissibility of his affidavit were not pursued, presumably as there were only two documents considered to contain fresh evidence.

As set out in my findings as to Ground 1, I am satisfied that the Review Panel did have sufficient information about the work carried out, its complexity, and the view taken by counsel of that work. This is in part because the plaintiff took every opportunity to address this topic in submissions to the Review Panel. This included the nature of the instructions provided by Adam (see paragraph 15.12 of the Review Panel determination), Adam’s instructions as to settlement and consideration of offers and the gathering of evidence on subpoena.
In addition the Review Panel was entitled to view these proceedings through the prism of the judgment of Henry J and in particular her Honour’s observations about the nature of these proceedings (at [336]), comparing it to costs in a similar trial before Slattery J (Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe(No. 2) [2017] NSWSC 1362). They were also entitled to take into account the Supreme Court’s jurisdiction to cap costs (which I note is summarised by Slattery J in Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe (No. 2) at [33] ff, but is presumably well known to costs assessors) because this is information which may inform decisions concerning the hourly rate.
There remain two main areas of contention that must still be considered in relation to the hourly rates arrived at by the Review Panel. These are whether the Review Panel has taken into account correspondence from Counsel praising Mr Amirbeaggi and Ms Rabadi and discussing prospects, the asserted complexity of the claim and the sheer volume of work performed at a level of expertise stated to be beyond that of the average family provision claim lawyer.

Counsels’ commendations of YB2 staff

The Review Panel made findings as to quality and as to whether work was carried out properly or at all without having regard to the work done by YB1 during the period not the subject of assessment, namely prior to the work done by YB2. As noted above, the plaintiff’s submissions put forward that this included not having “advices” which were “in parts of the file that the Panel did not request” (submissions, paragraph 77, CB 1054).
It is helpful to set out the list of counsel briefed in the matter which was supplied to the Review Panel, although this list required corrections:

On around March 2017 Andrew Fernon (now SC) was briefed in the matter.

On or about 19 April 2017 Evan Walker was briefed, although whether he was retained as Mr Fernon’s junior is unclear. The day after he accepted the Brief, he sent the email containing advice which was one of the two documents which I have accepted into evidence from the annexures to Mr Amirbeaggi’s affidavit. No reference was made to this email in the chronology of counsel appointed prepared by the plaintiff for the Review Panel (CB 551).

Mr Fernon appears to have gone out of the matter, but Mr Walker remained, and was drafting pleadings. Mr Fernon was re-engaged in October 2017, but some time afterwards, Ms Painter SC was engaged, possibly in his place. On Friday 16 March 2018 Ms Painter SC provided an email to Ms Rabadi containing advice, largely in relation to the cross-claim (Exhibit 2, pp. 10,124 and 19,982). Significantly, in my view, the Review Panel was told of the existence of the 16 March 2018 document (CB 551) and, according to footnote 8 on that page of the Court Book, a copy of that email was in fact available for inspection by the Review Panel. I note that Exhibit B gives the date of 12 March 2018 (CB 821-822) and not 16 March 2018, but the subject matter is very similar. If so, that means that the plaintiff’s submission that any advice from Ms Painter SC was new material not seen by the Review Panel was incorrect and that this document would also fail the “fresh evidence” requirement. Not having received any submissions on this issue, I do not propose to investigate further.

Mr Fernon and Ms Painter SC continued to carry out work up until August 2018 when Sharna Clemmett of Counsel was retained. There may be some invoice overlap but Ms Painter SC clearly went out of the case as YB2 were planning to brief Mr Meek in her place, according to their email of 9 November 2018 (Exhibit 2, p. 9,560). On or about 27 November 2018, YB2 were still looking for a replacement counsel for Ms Painter SC.

On or about 6 March 2019 YB2 briefed Miles Condon SC but he does not appear to have done any work of significance as on 7 May 2019, two months before the hearing, Dr Chris Birch SC was briefed.

In early July 2019 Mr Amirbeaggi provided a text message which set out what Dr Birch SC had said in relation to costs. This text message said in full:

“Call you at lunch however:
1. $2m Estate;
2. $1m comes out in costs;
3. $1m left and I think you will get 50% ie $500k.
Call you in 10m.”

I agree with the Review Panel that the only advice on prospects of significance was that provided by Dr Birch SC, which the Review Panel’s letter pointed out they had found and about which they gave the plaintiff seven days to reply. However, it was Dr Birch SC who had told Henry J that the size of the legal costs in these proceedings was “disproportionate” and “almost tragic”: Poche v Poche at [269]. That was not an endorsement of the plaintiff’s conduct of the proceedings.
I am satisfied that the Review Panel considered what Dr Birch SC and Michelle Painter SC said, and took this into account. I am also satisfied that the advice in question was never sent to Adam, apart from the material set out in the text message above, and that the Review Panel was entitled to take a critical view of the YB2 employees’ failure to advise Mr Adam Poche in relation to the very significant costs issues of costs capping, prospects and costs disclosures.
The email dated 21 April 2017 from Mr Walker of Counsel (CB 763-765) is of little assistance. It starts with the words “I refer to the brief delivered to me yesterday” and is a general overview which does not deal with the family provision application but with other issues discarded well before the YB2 costs, such as contribution of the mortgage and removal of the estate’s solicitor. There is advice given about challenging the validity of the will which is highly pessimistic and should have been provided to Adam.
There is similar advice from Ms Painter SC dated 12 March 2018, who recommended a geriatrics expert, a sensible step which led to the claim being abandoned. As noted above, I am satisfied that the Review Panel did know that she provided advice, as this is referred to in the footnotes at CB 551 as well as in the Review documentation in Exhibit 2 (pp. 10,124 and 19,982). (As noted at the commencement of this judgment, this was one of the two remaining documents that survived the objections to the annexures to Mr Amirbeaggi’s affidavit.)
The plaintiff points to the language of praise in these communications, such as Ms Painter SC’s reference to an “excellent review” provided to her and to Dr Birch SC’s description of Ms Rabadi as the best solicitor who had ever instructed him. The Review Panel was well aware of his encomiums; at p. 2505 of the USB file (Exhibit 2) the plaintiff’s submissions record that “Notably, during these proceedings, Chris Birch SC informed Mr Amirbeaggi and Ms Rabadi that Ms Rabadi “is one of the best litigators I’ve worked with since I started practice”.” I am satisfied that they factored all of this material into the hourly rates but that they also factored into those rates the very serious errors they identify in Ms Rabadi’s affidavit material and cross-examination concerning costs and the likelihood of overservicing of the file.
Ms Castle dwelled with vigour on the injustice of these solicitors being awarded such a low hourly rate. I agree that this is an important topic and have considered the evidence in detail. Central to this appeal ground is the concern that the plaintiff feels about the failure to appreciate that this was a complex claim involving very high skills.

Ms Rabadi

The errors the Costs Assessor was asserted to have made in relation to his findings about her work included:

Failure to identify which ‘short’ emails were charged on a six-minute basis.

The finding that the time taken to prepare Mr Poche’s affidavit sworn 2 November 2018 was excessive (noting the time he refers to is incorrect).

The finding that Ms Rabadi spent 9 hours 54 minutes (i.e., significantly less time was spent) reviewing the other party’s affidavit sworn 5 September 2018 which comprised 33 pages together with a 167-page exhibit.

The finding that the tax invoice of 3 December 2018 refers to time by Mr Amirbeaggi to review the other party’s affidavit sworn 5 September 2018.

The finding that Ms Muliadi spent 3 hours 48 minutes preparing a table of invoices and that Ms Rabadi spent a further 3 hours 12 minutes reviewing it.

Finding for work associated with the Appointment of Proxy. (CB 544).

These findings were essentially upheld by the Review Panel. For example, at CB 582 the Review Panel went into some detail about the “unfair way” that the minimum six minutes unit of $77 inclusive of GST was charged even for such simple calls as Mr Amirbeaggi or other staff members telling Adam they would get back to him later, or for reading a one-sentence email.
The Review Panel noted that the work performed by Ms Rabadi was charged at $500.00 per hour plus GST until 25 April 2018, then $600.00 per hour plus GST thereafter. She had been a solicitor for five years and had worked on two family provision matters before these proceedings. The Review Panel considered she was junior and inexperienced.
Of particular concern to the Review Panel were the statements made about costs set out in the affidavit she swore in relation to the costs-capping part of the litigation. Although most of the blame was put onto Mr Amirbeaggi by the Review Panel, the fact that she helped prepare it and then swore that the contents were true are matters to take into account. The Review Panel stated:

“The affidavit of Ms Rabardi of 5 July 2019 as to costs was not done well. To start with, paragraph 6 reads “from my discussions with colleagues at YBL and my experience at YBL, YBL generally recovers between 75% and 80% of its professional fees that are subject to a party costs order …”. If that was relevant, and if a copy of this affidavit had been provided to Mr Poche (and it appears it was not so provided), then it was incomplete and misleading. There was an obvious case for capping of costs in a matter such as this. It was never likely that Mr Poche would recover 75 – 80% of either fees or expenses given the level that legal costs had reached. The submission of Lindsay Ellison SC for the defendant made 12 August 2019 put the matters regarding costs succinctly. The panel attaches a copy of the last page of those submissions. An amount of $389,807.00 would be available to fund any provision in favour of Adam Poche, together with any costs order.”

The plaintiff argues that Ms Rabadi had commercial expertise and that her work on Adam’s affidavit required specialist knowledge and skills concerning conveyancing and commercial matters. The reality was that she had only conducted two family provision matters beforehand and her experience in this field was accordingly limited. More importantly, the material set out in her affidavit concerning costs was, as the extract from the Review Panel reasons set out above shows, incomplete and misleading. That displays a level of expertise, in general terms of dealing with clients in terms of providing them with information and assistance, at an unacceptably low level. I see no error of law or fact in the Review Panel’s conclusions.

Mr Amirbeaggi and the other members of staff

The main basis upon which Mr Amirbeaggi’s work was challenged was as follows:

“11.3 Part of the role of a solicitor is normally to give measured and careful advice to clients, particularly in important and expensive litigation, as to the client’s prospects of success. Insufficient attention to written advice as to the prospects of success appears to have been given by Yates Beaggi. In that respect, the work was not of good quality.
11.4 On 26 June 2019 Chris Birch barrister advised YB2 in the terms set out above. The panel can find no evidence that this was sent to Adam Poche….
11.5 Given the contents of the file, it is fair to observe that appropriate advice should have been given at an early stage that the costs may be capped, costs may be disproportionate and the costs may be more than the amount Adam would receive from the estate. That was always a significant possibility, right from the outset, on the basis of the evidence.
11.6 There should have been clear written advice to Adam Poche that any award would not likely cover the costs that Adam had incurred. The panel has been unable to find any such advice. The panel invited a response on that issue from the parties by letter of 11 February 2022. The panel did not receive a response.
11.7 On the contrary, YB2 sent a short text in which it advised “after costs $1 million would be left in the estate, and I think you will get 50% ie $500k”. that legal advice was also referred to in the judgment at paragraph 275. The panel attach a copy of that email.
11.8 That text was poor legal advice. It assumed that all of Adam’s costs and the estate’s costs would come out of the estate and would total no more than $1 million. That assumption was wrong in two respects. First of all, it did not consider the possibility, (indeed the likelihood in the circumstances), that the presiding Judge would cap costs. That is a common course of action in family provision and estate matter. Secondly, it did not properly address the possibly that Adam would not receive a costs order that his costs be paid from the estate.
11.9 It was always possible, and even likely, that there would be an upper limit put on costs payable by the estate to Adam Poche by the presiding Judge. That is what ultimately happened.
11.10 It is also important to bear in mind that these are matters that were dealt with in one way or another before the assessor. Yates Beaggi did not put significant material before the assessor about these matters.” (CB 578)

I agree that these failures to advise meant that Mr Amirbeaggi in particular provided “poor legal advice”. This meant that, in addition to the absence of a YB2 costs agreement and costs updates, Adam was actually being given wrong advice. In particular, he should have been told about costs-capping.
Failure to give proper advice is the first reason why Mr Amirbeaggi’s work was of poor quality. The second reason is that Mr Amirbeaggi overserviced the file, apparently because he considered that this was a very complex matter requiring hours of reading documents at a cost of hundreds of thousands of dollars.

Complexity and the level of experience

The plaintiff submits that “the claim was not an ordinary one for provision” in that it was both unusual for a provision claim and complex” (submissions, paragraph 78). As a result, it required “legal skills beyond those of an ordinary family provision solicitor” (submissions, paragraph 78). In particular, Wayne claimed that Adam had been “gifted” the engineering business, which that the “legal team” (to use the term in the written submissions) “had to review thousands of pages” to piece together the structure of the corporate entities running the business (submissions, paragraph 78).
As Dr Birch SC was only briefed about two months before the hearing (see the letter of 7 May 2019 (at p. 9633 of Exhibit 2); the hearing commenced on 29 July 2019), he had little to do with drafting. He did settle the plaintiff’s final affidavit re costs (p. 9821 of Exhibit 2). There is no challenge to Ms Rabadi’s work here, although Counsel appear to have been retained almost constantly during this period and the memoranda contain references to drafting, so I assume this work was done by them. Ms Castle submits that the affidavits drafted by Ms Rabadi were well drafted and notes that, in the case of the challenged affidavit on costs, that this was settled by Dr Birch SC. The fact remains that the criticisms of the contents of this affidavit, and the extravagant costs it revealed, by the Review Panel (and by Henry J) were well justified.
Adam Poche was not a difficult client. In terms of being able to obtain instructions, Adam Poche was no stranger to the plaintiff, having retained its services for about 20 matters over the ten-year period prior to the family provision claim. Mr Amirbeaggi described this long and close working relationship as follows:

“The client had been a client of YBL (particularly Mr Amirbeaggi) for a period of approximately 10 years prior to this matter. YBL had acted for the client in approximately 20 matters including refinancing his business, various liquidations, sale of his business and real estate, and other commercial matters.” (p. 2510 of Exhibit 2).

The plaintiff submits that Adam was a sophisticated client who had been prepared to pay the hourly rates set out in the costs agreement and had paid costs at such a rate in the past. By reducing them the Review Committee were giving Adam “a windfall” (submissions, paragraph 81).
I do not accept the submissions. The fact that Adam Poche accepted and paid these amounts when he was not receiving essential advice about his prospects and costs exposure is another reminder of how, in the words of Cussen J, clients sometimes need to be protected from themselves.
This ground of appeal is not made out.

Appeal Ground 5: adequate reasons

The plaintiff argues that both the Costs Assessor and Review Panel did not provide adequate reasons because they did not make individual rulings on each disputed item of work in the seven invoices.
This ground of appeal overlaps with all of the other grounds. As set out above, I consider that what was required was to assess the entirety of the costs in the seven invoices, not each and every individual item, and that the complaint of a failure to articulate reasons to this high degree of particularity must therefore fall away (see Cassegrain v CTK Engineering at [80] and [90] – [92] and Ahern v Aon Risk Services Australia Ltd at [55] – [56]).
For the same reasons as those set out above, this ground of appeal is not made out.

Appeal Ground 6: Costs issues

Whether or not I have erred in my findings, should there be a variation of the costs orders made by the Review Panel?
The Review Panel ordered the plaintiff to pay the costs and specifically noted:

“10.12 Even had YB1, YB2 and YB3 been the same entity, the original estimate was not revised as and when required.
10.13 That was an important failure to disclose.
10.14 The panel notes that if there was any failure to disclose:
10.14.1 YB2 pay the costs of the assessment;
10.14.2 YB2 may be ordered by the assessor to pay the costs of Mr Poche of the assessment;
10.14.3 If there were unpaid costs, normally interest would not be allowed on those unpaid costs. A client need not pay costs where there has been any failure to disclose, and such costs cannot normally be recovered by legal action;
10.14.4 Any costs agreement is void;
10.14.5 As there has been a failure to disclose, the rates and the amount of costs are be prima facie regarded as fair and reasonable.

10.15 The panel also finds that when YB1 ceased work and YB2 commenced work, disclosure should have been in accordance with the provisions of the Uniform Legislation. An estimate of costs should have been made at that time. Where there is a contract with a new entity, as Yates Beaggi submit, and as the panel have found, it is important that a client is given all the information required by the Uniform Legislation.
10.16 The panel finds there were significant failures to revise estimates, and that no significant disclosure of legal costs was made when YB2 started work, after YB1 ceased work.” (CB 578).

The failures to disclose were described as “significant” and “serious” and formed a major part of the reason for the orders for costs.

The costs orders to make if the appeal is dismissed

The plaintiff submits that, even if I were not to set the Certificates aside, the plaintiff should be entitled to its costs of the assessment and review, on the basis that Adam’s conduct of the assessment and review disentitles him from costs. In addition, in the course of the assessment process, he either made or authorised his legal representatives to make “numerous allegations which were without factual foundation and contrary to the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) and should not have been made” (plaintiff’s submissions, paragraph 84, CB 1056). The submissions at CB 1056 set out the following extract from the plaintiff’s submissions to the Costs Assessor dated 19 February 2021:

“1. The client raising untruthful statements of fact in the general response which are plainly wrong having regard to documents in his possession (as corrected below);
2. Reducing time to $0 on the basis that emails to/from the client do not form part of the file when they did in fact form part of the file or in any event are in the client's possession as they are emails sent to or by him (for example, see ltems 1101, 1104, 1208, 1259 and many more). This also applied to emails to / by third parties that formed part of the file yet client has reduced to $0.00 (e.g. ltem 1240 and many more);
3. Asserting he has no record of documents but at the same time asserting "ln the alternative, time claimed grossly excessive" (for example, see ltem 1207). This is proof of the fact that the client has arbitrarily and without regard to the actual work carried out simply discounted the greater part of YB's fees;
4. Discounting all time entered by "JM" in circumstances where the client accompanied Ms Muliadi to court on 29/11/18 and was well aware of both her identity and the fact that she was an admitted solicitor (for example, see ltems 1217 to 1219);
5. The client has not provided an explanation for discounting time where he asserts time is excessive (despite the time entry recording precisely the time the work was started and stopped), for example see ltem 1243 and many more large entries.
6. The client has discounted time for a number of conferences to $0 on the basis that "no details provided as to purpose of conference and no file notes located on file". This being the case even though the client is well aware how much face to face time was spent between him and FA. For example, the client has discounted Item 1263 to $0.00 despite there being an email from the client to FA sent Friday, 5 April 2019 (which is obviously in the client’s possession) that reads "Since our meeting on Tuesday [Tuesday being 02/04/19] I’ve gone over areas I believe we could have Subpoenaed / produced by my brother and my mother's estate... " There is also an email from the client sent 23/04/2019 3:46 PM to TR advising "I understand Farshad is interstate at present. I’m eager to talk with him in relation to the motion to produce items due next Monday. We met at the start of the month and he wasn't concerned about anything. If you could give me a call I'd like to go over it with you given the closing time frame, / can revisit it with him when he is available".”

The plaintiff submits that, while costs assessment is not a court proceeding, it is close to the judicial function of the courts, including the Supreme Court’s supervisory jurisdiction over solicitors, noting the role historically played by Registrars in the assessment of costs prior to 1994. Conduct on costs assessment “should be no less than that which is satisfactory in Court, where the making of baseless allegations and the use of inflammatory language is both unhelpful and improper” (plaintiff’s submissions, paragraph 86, CB 1057). The Court is asked (“whoever the author of the documents was”, the signature being unintelligible) to “demonstrate its intolerance of the practice by disallowing the costs claimed by the defendant on assessment and review” and by awarding these costs to the plaintiff (plaintiff’s submissions, paragraph 86, CB 1057).
The defendant denies that there has been any disentitling conduct either by himself or his legal representatives (whom I am satisfied are the author of the costs document with the allegedly unintelligible signature). Examination of the nine numbered items identified (1101, 1104, 1208, 1217 – 9, 1240, 1259, 1263) shows that these items were challenged either on the basis that they did not form part of the file and/or did not occur, or that another solicitor charged for attending court with Ms Rabadi.
I see nothing in these responses warranting that the Court show its “intolerance” in the manner sought.
What is also clear is that, despite having paid for the file in full, the defendant’s new solicitors did not obtain the whole file until November 2020, about four months after the assessment notification was given, and was delivered by being sent to a dropbox. In those circumstances, the assessment was carried out on the basis that absence of corroborating evidence meant that the costs of specific items would be objected to (paragraph 3.3, CB 137). I see nothing objectionable in such an approach to these issues.
I agree that costs assessments should be conducted in the same manner in which court proceedings are conducted (plaintiff’s submissions, paragraph 86, p. 1057), but I see nothing discourteous or improper in any of the submissions made on behalf of the defendant. By contrast, Mr Amirbeaggi’s correspondence with the Costs Assessor and Review Panel leaves much to be desired; his letters to the Costs Assessor about timetables for provision of material, examples of which are set out earlier in this judgment, show a degree of combativeness that is unwarranted.
It would only be in exceptional circumstances that a party who is successful would be deprived of their costs: Arian v Nguyen [2001] NSWCA 5. There have been cases where such orders have been made, the most interesting of which is Jones v Sutton (No 2) [2005] NSWCA 203, where the manner of conduct of the proceedings not only resulted in offers of compromise better than the result being refused and a refusal to certify for Senior Counsel but also a refusal of an order for costs to follow the event for 13 of the 17 days of trial. This important judgment is one of the first examples of proportionality issues being taken into account in costs, as the comments of the Court (Beazley, Santow JJA and Stein AJA) under the heading “Lack of proportion between damages and costs” attest to (at [48] ff). Nevertheless, the extraordinary political vendetta that resulted in these orders being made (notwithstanding the plaintiff’s modest win of $5,000 defamation damages) is in no sense comparable to any conduct by Adam’s legal representatives here.
For the above reasons, if the appeal is dismissed, this basis for challenge to the costs orders made is not made out.

The costs orders to make if the appeal is allowed

Even if the appeal is allowed, the defendant submits that the plaintiff failed to comply with its disclosure obligations.
YB1, at paragraph 7 of the costs agreement sets out the following:

“We estimate our professional fees for undertaking the work will range between: Early resolution: $30,000.00 - $50,000.00 + GST Litigated resolution: $50,000.00 - $100,000.00 + GST Fully contested to final hearing: $100,000.00 - $200,000.00 + GST Junior Counsel/Senior Counsel/Experts/Sundries etc - $100,000.00.”

No other estimate or update of the "total legal costs" was given.
Even for this attempt at disclosure, legal costs are defined in s 6 of LPUL as "including disbursements" but as an amorphous mass. The defendant (at the time of this agreement being YB1, not YB2) should have separately identified all professional fees, disbursements and GST.
As identified in the costs submissions to the Costs Assessor (CB 137), the Legal Services Council Guideline and Direction - Costs Estimates issued by the Legal Services Council on 11 March 2016 set out this requirement at paragraph 3:

"... an estimate of the total legal costs in a matter, as required by section 174(1)(a) of the LPUL, is a reasonable approximation of the total costs that a client is likely to have to pay in the matter for which instructions have been given, expressed as a single figure, from time to time (the estimate). The definition of total legal costs in this context includes professional fees, any disbursements and GST, which should be separately identified, but not interest: LPUL section 6."

The failure to identify what the disbursements were is compounded by the absence of information as to the stage at which the “$100,000” would be incurred for these disbursements. It seems unlikely that these would have remained unchanged whether the matter settled early or went on to hearing. Even the estimate the defendant was given did not constitute adequate disclosure enabling him to make an informed choice about his legal options at that time and the costs associated with pursuing those options (s 169(1) of the LPUL).
In addition to providing a disclosure of such poor quality, the plaintiff failed to have regard to the desirability of updating the estimate. As also noted in the submissions to the Costs Assessor at CB 137, the Legal Services Council Guideline and Direction - Costs Estimates states at paragraph 8:

"The provision of an estimate or estimates from time to time does not preclude the provision of other information to a client about the steps or stages in a matter and the provision of such information to a client should be encouraged. It will not be inconsistent with section 174(1)(a) to provide estimates for each of the stages that the matter might reach, whether 138 - 10 – individual stage estimates are expressed as a single figure or as a range of figures, PROVIDED the law practice, having considered all the circumstances and the most likely outcome, always gives the single figure estimate of the total legal costs in the matter that section 174(1)(a) requires."

The absence of a proper estimate in the costs agreement provided by the law practice did not enable the defendant to make an informed decision about whether or not to continue to instruct the law practice and to proceed with the matter. However, there were further failures. First, the plaintiff continued to fail to comply with its disclosure obligations when it replaced YB1 (the contracting party in the costs agreement) with YB2 and then YB3. Second, there was no advice given about the costs capping procedure that is a feature of all claims of this kind. Third, what advice was obtained from Counsel in writing (in particular Dr Birch SC) was not copied to Adam for his information.
Adam submits that even if the appeal is unsuccessful, the plaintiff’s failure to comply with its disclosure obligations (Part 4.3, Division 3 of the LPUL) means that it should be ordered to pay the costs of the costs assessment. Section 204(2) of the LPUL provides:

204 Costs of costs assessment
…
(2) Unless the costs assessor believes that in all the circumstances it is not fair and reasonable for the costs to be paid otherwise, the costs of a costs assessment are payable by a law practice if—
(a) the law practice has failed to disclose a matter required to be disclosed by Division 3; or
(b) the law practice has failed to disclose a matter required to be disclosed in the manner required by Division 3; or
(c) the law practice’s costs have been reduced by 15% or more on assessment.

I am satisfied that the failure to disclose is of great significance in this case and that this significance is such as to warrant requiring the plaintiff to bear the costs of the costs assessment.
Further, in the defendant’s Counsel’s written submissions, Ms Hooper and Mr Rogers point out that the LPUL does not make provision for a client to pay the costs of a costs assessment; if the Costs Assessor does not determine that the costs of the costs assessment are payable by the law practice, the Costs Assessor’s fees are paid out of a working account established by the Department of Justice for that purpose (paragraph 160 of the defendant’s submissions).

Concluding remarks

Costs should follow the event. However, given the amount of documentation and length of the hearing (three days) there will clearly be costs issues of substance. In addition, it is a general practice for the costs of appeals of this kind to be made by way of gross sum costs order pursuant to s 98(4) of the Civil Procedure Act. I have granted liberty to apply.
As this judgment is being handed down in the last week of term, and additionally is likely to be appealed, those costs may not necessarily be determined for some time. I take this opportunity, to note some conflicting authority as to whether a variation of a costs order to seek a gross sum costs order is an application that should be made within 14 days and pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 36.16. I wish to draw this to the attention of Counsel as it is easy for 14 days to run out at the end of the Court sittings year.
The question of whether an application varying an existing order to seek a gross sum costs order enlivens UCPR r 36.16 is one on which there has been inconsistent appellate opinion for some time. On the one hand, Leeming JA has stated that this rule was engaged: Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327 at [59]-[62]. On the other hand, there is a prior judgment of White J to the contrary: Short v Crawley(No 45) [2013] NSWSC 1541 at [27].
In Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 (“Ahern”) at [19], the Court described the problem as follows:

“There is conflicting authority in this Court as to whether an application for a gross sum costs order is an application to vary the costs order originally made, so as to enliven the requirements of UCPR r 36.16: see Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327 at [59]-[62] (Leeming JA) (taking the view that it is); cf Short v Crawley (No 45) [2013] NSWSC 1541 at [27] (White J), followed in Livers v Legal Services Commissioner (No 2)[2021] NSWCA 164 at [5]-[8] (White JA); Eliezer v The Council of St Andrew's Cathedral School (No 2) [2021] NSWCA 227 at [44]-[45] (White JA) (Eliezer (No 2)).”

White JA, with whom Meagher and Brereton JJA concurred in this judgment, had been the judge in Short v Crawley(No 45). As noted above, this decision predated Leeming JA’s finding to the contrary in Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) at [59]-[62].
The Court in Ahern went on to state that the decision of White JA had been followed in both Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164 at [5]-[8] (White JA) and Eliezer v The Council of St Andrew's Cathedral School (No 2) [2021] NSWCA 227 at [44]-[45] (White JA); see also, most recently, Amirbeaggi v EB (No 2) [2023] NSWCA 184 at [10]-[11].
In Wormald v Maradaca Pty Ltd [2021] NSWCA 307 at [12], the Court noted that Leeming JA had not been referred to White J’s consideration of this issue in Short v Crawley.
In short, I consider that the views expressed by the Court of Appeal in these decisions subsequent to Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) should be preferred, and that the result is that this Court does have jurisdiction to determine this issue if application is made more than 14 days afterwards, but I draw the issue to the attention of both parties in case I am wrong on this point.
Finally, I note that I was greatly assisted in the preparation of this judgment by Ms Castle and her junior, as well as by Ms Hooper and Mr Rogers, including the overnight preparation of Exhibit B, which greatly speeded up the conduct of the hearing.

Orders:

Summons dismissed; appeal from the Review Panel dismissed.
Plaintiff to pay the defendant’s costs, with liberty to apply to vary this order or to seek a gross sum costs order.
Exhibits to be retained until further order.

**********

Endnotes

Amendments

06 May 2024 - Typographical errors in paragraphs [1], [2], [4], [12], [24], [35], [70(b)], [75(f)], [93], [107(b)], [153(d)]

Decision last updated: 06 May 2024

Medium Neutral Citation:	A.C.N. 627 087 030 Pty Ltd trading as Yates Beaggi Lawyers v Poche [2023] NSWDC 551
Hearing dates:	8, 9 and 20 November 2023
Date of orders:	13 December 2023
Decision date:	13 December 2023
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	See the orders at the end of the judgment
Catchwords:	COSTS – plaintiff in family provision proceedings seeks assessment of his own costs, which far exceeded the sum he was awarded - assessment by Costs Assessor – appeal to Review Panel - appeal to the District Court - whether the law practice was afforded procedural fairness by the Review Panel – whether the methodology was appropriate – whether the calculation of hourly rates was fair and reasonable – whether there was compliance with s 172 of the Legal Profession Uniform Law 2014 (NSW) – whether adequate reasons were given – what costs orders should have been made – appeal dismissed with costs, with liberty to apply concerning costs, including any application for a gross sum costs order
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98(4) Legal Profession Uniform Law 2014 (NSW), ss 6, 169, 172, 204 Legal Profession Uniform Law Application Act 2014 (NSW), s 89 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited:	Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166 Ahern v Aon Risk Services Australia Ltd [2022] NSWSC 702 Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 Amirbeaggi v EB [2023] NSWCA 108 Amirbeaggi v EB (No 2) [2023] NSWCA 184 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Arian v Nguyen [2001] NSWCA 5 Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304 Bleyer v Google Inc [2014] NSWSC 897 Cappello v HomeBuilding Pty Ltd [2022] NSWDC 725 Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109 Carnavalesca Pty Ltd t/as Paragalli Haulage v Jenkins [2023] NSWDC 159 Cassegrain v CTK Engineering [2008] NSWSC 457 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Dybka v McKenzie [2002] NSWCA 171 Eliezer v The Council of St Andrew's Cathedral School (No 2) [2021] NSWCA 227 Ferguson v Singler (No 2) [2015] NSWSC 891 Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 Frumar v Owners of Strata Plan 36957 (2006) 67 NSWLR 321; [2006] NSWCA 278 Gadd v Kozlowski t/as Lou Baker and Associates [2022] NSWDC 309 Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98 GB v EB [2022] NSWDC 322 Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 GKD18 v Minister for Home Affairs [2020] FCA 1664 Griffith v Australian Broadcasting Corporation [2013] NSWSC 750 Grizonic v Suttor [2008] NSWSC 914 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 In the Matter of the Bill of Costs of Lamrock, Brown & Hall [1908] VLR 238 Jones v Sutton (No 2) [2005] NSWCA 203 King v Delta Metallics Pty Ltd [2013] FCAFC 93 Kioa v West (1985) 159 CLR 550 Lawrence v Sammut (No 3) [2022] NSWSC 657 Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Mayne Nickless Limited v Industrial Relations Commission of New South Wales [2004] NSWCA 359 Minister for Immigration and Border Protection v Ly (2018) 263 FCR 512; [2018] FCAFC 123 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Mirus Australia Pty Ltd v Wilson [2023] NSWSC 1432 Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 Poche v Poche [2020] NSWSC 835 Re Minister for Immigration; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327 Short v Crawley(No 45) [2013] NSWSC 1541 Singh (a pseudonym) v Patel (a pseudonym) [2023] SASC 164 Sita v Sita [2005] NSWSC 461 Stead v State Government Insurance (1986) 161 CLR 141; [1986] HCA 54 Szlazko v Travini [2004] NSWSC 610 Transport Accident Commission v Musura (Supreme Court (Victoria), Teague J, 27 January 1989, unrep) Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe(No. 2) [2017] NSWSC 1362 Wormald v Maradaca Pty Ltd [2021] NSWCA 307
Texts Cited:	Legal Services Council, Legal Services Council Guideline and Direction - Costs Estimates, (11 March 2016) at 1
Category:	Principal judgment
Parties:	A.C.N. 627 087 030 Pty Ltd trading as Yates Beaggi Lawyers (Plaintiff) Adam Poche (Defendant)
Representation:	Counsel: Ms M Castle with Ms L Cooper-Hackman and Ms G Adams (Plaintiff) Ms K Hooper and Mr J Rogers (Defendant) Solicitors: Yates Beaggi Lawyers (Plaintiff) ICL Lawyers (Defendant)
File Number(s):	2022/00123132
Publication restriction:	Nil