A Law Firm v RT
[2021] WASC 149
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: A LAW FIRM -v- RT [2021] WASC 149
CORAM: REGISTRAR WHITBREAD
HEARD: 25 NOVEMBER 2020
DELIVERED : 14 MAY 2021
FILE NO/S: LPA 9 of 2020
BETWEEN: A LAW FIRM
Applicant
AND
RT
First Respondent
PJK
Second Respondent
RMK
Third Respondent
Catchwords:
Solicitors' costs agreement - Whether adequate costs disclosure has been given - Standard of disclosure required to meet the statutory disclosure obligation pursuant to s 260 and s 267 of the Legal Profession Act 2008 (WA) - Where clients not experienced litigants - Determination of costs reduction consequent on inadequate costs disclosure
Legislation:
Legal Practitioners (Supreme and District Courts) (Contentious Business) Determination 2018 (WA)
Legal Profession Act 2008 (WA), s 260, s 267, s 268, s 302
Result:
Reduction in costs charged to clients
Category: B
Representation:
Counsel:
| Applicant | : | Not published |
| First Respondent | : | Not published |
| Second Respondent | : | Not published |
| Third Respondent | : | Not published |
Solicitors:
| Applicant | : | Not published |
| First Respondent | : | Not published |
| Second Respondent | : | Not published |
| Third Respondent | : | Not published |
Case(s) referred to in decision(s):
Alman v Macdonald Rudder (A Firm) [2001] WASCA 375
DG Ogle v Bowdens [1979] Qd 507
Jovetic v Stoddart & Co (1992) 7 WAR 208
Stoddart & Co v Jovetic (1993) 8 WAR 420
Zaghloul v Woodside Energy Ltd [2019] WASCA 187
TABLE OF CONTENTS
A: The Issues on the Application
B: Issues relating to costs
B1: Factual matters
(1) Background to the retainer
(2) The law firm's costs disclosures
(3) Correspondence between the law firm and the clients relevant to costs
(4) Invoices delivered and amounts paid
B2: Costs disclosure obligations and consequences of non‑compliance
(1) The statutory framework
(2) The standard of disclosure required to meet the statutory disclosure obligation
B3: Did the law firm fail to disclose to the clients anything required to be disclosed under the Act?
(1) The parties' submissions on disclosure
(2) Chronology of costs incurred in the proceedings
(3) The proceeding
(a) The injunction application
(b) Defence and counterclaim
(c) The summary judgment application
(d) The stay application
(3) Conclusion on adequacy of disclosure
C: Issues as to whether work was done with proper advice and instructions
C1: Whether the interim injunction application should have been opposed
C2: Whether the summary judgment application should have been made
D: Conclusion: Determination of quantum of costs reduction consequent on failure to disclose.
D1: Should the amount of costs be reduced by the taxing officer by an amount proportionate to the seriousness of the failure to disclose?
D2: How should the reduced costs be assessed?
REGISTRAR WHITBREAD:
A: The Issues on the Application
On 9 March 2020 the law firm (the law firm) filed an application (the application) for assessment of costs under the Legal Profession Act 2008 (WA) (the Act) in relation to two invoices respectively dated 12 November 2019 and 9 December 2019. A bill of costs was filed on 24 September 2020 (the bill of costs).
On 23 October 2020, the clients, RT (a corporation) and RMK and PJK (two individuals), collectively 'the clients', filed a copy of the bill of costs containing the clients' objections; submissions in support of the clients' objections to the law firm's bill of costs and an affidavit sworn by RMK on 23 October 2020 (the RMK affidavit). The RMK affidavit was received, without objection by the law firm, as exhibit 1 on the application.
On 9 November 2020 the law firm filed a response to objections; submissions in reply to the clients' objections to the bill of costs and an affidavit sworn by TWE on 4 November 2020 (the TWE affidavit). TWE is a solicitor employed by the law firm. The TWE affidavit, was received, without objection by the clients, as exhibit 2 on the application.
Neither party sought to adduce oral evidence or to cross-examine the deponents of the two affidavits tendered by the parties on the hearing.
The application proceeded to a hearing on 25 November 2020 (the hearing). At the hearing it was agreed that I would determine the preliminary issues raised in respect of the bill of costs as any, or all, of those determinations might impact on a line by line assessment of the items objected to by the clients in the bill of costs.
The preliminary matters can be categorized as follows:
(i) whether the costs agreement executed on 19 August 2019 (the costs agreement), viewed in the context of the requirements under the Act, (a) contains sufficiently inadequate disclosure of legal costs under s 266 of the Act such that the taxing officer's discretion, under s 268(4) of the Act, is enlivened; and (b) if that discretion is enlivened, should it be applied such that the clients' costs liability should assessed on a basis other than under the costs agreement; and
(ii) whether the work undertaken by the law firm in relation to each of (i) resisting of the interim injunction application; and (ii) the summary judgment application was, in each case, work reasonably done and/or conducted consequent on proper advice and/or on instructions.
I have determined that, given the issues of principle raised and determined in deciding the preliminary matters, this decision should be published but that the parties should be de‑identified.
As the primary proceedings are ongoing it would be inappropriate, in these published reasons, to refer to the specifics of any legal advice given to the clients by the law firm; or to any instructions given by the clients to the law firm, in relation to the proceeding which remains on foot; or to any without prejudice communications between the parties to the proceeding. I have read both of the TWE affidavit and the RMK affidavit and I am satisfied that such advice, instructions and without prejudice correspondence are to be found therein. To the extent that it is necessary to refer generally to advice given, or instructions taken, in these reasons, that is done by cross-reference in the foot notes to the source documents.
Since those affidavits have been relied on in these reasons, and given the right of non‑parties to apply for access to documents under O 67B r 11 of the Rules of the Supreme Court 1971 (WA), I will make an order sealing the TWE affidavit and the RMK affidavit on the basis that it is in the interests of justice, pursuant to O 67B r 5(1)(a) read with O 67B r 5(3), until further order of the court.
B: Issues relating to costs
B1: Factual matters
Background to the retainer
It is convenient to start by setting out the history of the retainer and placing the retainer in the context of what was taking place in the proceeding in which the law firm was retained to represent the clients.
The law firm delivered four invoices to the clients. One, on 7 August 2019 for initial advice, is not in dispute. The law firm delivered an invoice on 28 October 2019, which related solely to cash disbursements, which is also not in dispute. The law firm delivered two further invoices, one dated 12 November 2019 in the sum of $117,905.00 and one dated 9 December 2019 in the sum of $6,198.00. The law firm seeks an assessment of the 12 November 2019 and the 9 December 2019 invoices.
The retainer was in the context of an action wherein two of the clients, RT and PJK, were, respectively, the first and second defendants in a proceeding commenced by writ of summons in the Supreme Court (the proceeding). RMK, as a director of RT, signed the costs agreement on behalf of RT, and is the guarantor of the costs incurred under the costs agreement.
By writ of summons, the plaintiffs in the proceeding allege, in summary, that:
(i)Pursuant to a deed of sublease entered into between WAM as landlord, the first defendant as tenant, and the plaintiffs as subtenants, the first defendant granted to the plaintiffs a sublease (the sublease) over two Crown Reserves (the land).
(ii)The initial term of the sublease was to expire 17 May 2020.
(iii)Pursuant to the terms of the sublease, the plaintiffs are entitled to peaceable and quiet possession without interruption from the first defendant.
(iv)In breach of the terms of the deed of sublease the first defendant has purported to take possession of the land to the exclusion of the plaintiffs.
Shortly after the writ was filed the clients went to the law firm and retained them to provide some initial legal advice. On 7 August 2019 the practitioner, being a partner of the law firm with the conduct of the matter (the solicitor), provided a preliminary advice to the clients.[1] The advice given is general in nature as to the dispute.
The law firm's costs disclosures
[1] TWE affidavit, Annexure TWE1, pages 5 to 7.
In relation to costs, the law firm's preliminary advice letter of 7 August 2019 firstly, attaches an invoice for the preliminary advice (which invoice is not in dispute) and secondly, states that it annexes a further disclosure notice and costs agreement giving an estimate for a trial of two days and advising court fees of $1,450 to lodge a counterclaim. The law firm asks for $5,000 to be placed in trust on account of costs. A copy of the 7 August 2019 further costs disclosure notice was not annexed to the TWE affidavit.
The clients' evidence as to the 7 August 2019 letter is found at paragraph 4 of the RMK affidavit. RMK was not cross‑examined on her affidavit and I accept that affidavit's contents as to the fact that an initial disclosure notice was sent to the clients on 7 August 2019 (the initial disclosure notice). RMK deposes that the initial disclosure notice related to the preliminary advice given, which was invoiced in the sum of $3,000 on 7 August 2019.
Clause 7 of the initial disclosure notice states:
We estimate that total legal costs in relation to the matter will be approximately $3000 plus GST, assuming any discount offered in return for prompt payment is accepted. The above estimate includes disbursements of approximately $0.
The RMK affidavit also deposes (at paragraph 4) that on or around 7 August 2019 the solicitor with the conduct of the file provided to the clients a further document entitled 'Disclosure Notice' (the disclosure notice). The disclosure notice forms part of the costs agreement signed by the clients on 19 August 2019.[2] The disclosure notice is annexed to the originating application in this matter. There is no issue between the parties that the required parties executed the costs agreement.
[2] RMK affidavit, pars 4 and 5.
Clause 7 of the disclosure notice states:
We estimate that total legal costs will be in the range of $15000 to $150000 plus GST, assuming any discount offered in return for prompt payment is accepted.
The above estimate includes disbursements of approximately $5000. The major variables that will affect the calculation of total legal costs are: whether action can be settled.
Clauses 7.1 to 7.9 set out a broad, comprehensive, general list of the factors which can impact on estimates of legal costs in litigation matters in general, but that list is not specific to the subject litigation. Those clauses contain a number of warnings that legal costs are difficult to estimate and the general reasons why that is the case. Clauses 7.5 to 7.6 relate to recovery and provide:
7.5If there is a court proceeding and you are successful, an order by a court for the payment of costs in your favour will not necessarily cover the whole of your legal costs. We estimate that the amount which you could recover from the opposing party would be around 50%-70% of the amount which you would have to pay us under the proposed agreement.
7.6If there is a court proceeding and you are unsuccessful, we estimate that you would have to pay the opposing party around 50%-70% of the amount which you would have to pay us under the proposed agreement.
Clause 7.9 states:
Whether or not it is reasonably possible for us to give cost estimates of the kind referred to above, it is important for you to appreciate that there is a real risk, if not a certainty, of the costs under the proposed agreement being significantly more that under the appropriate scale.
The disclosure notice does not set out, or specifically identify, the relevant scale.
At page 12, the disclosure notice states:
Description of matter: [NFG] v [RT] and [RMK]: Supreme Court CIV [proceeding number]. Counterclaim for declaration that sub lease terminated, damages for conversion and claim by [PJK] for remuneration.
Lastly, at page 12, the disclosure notice states:
Estimate of Legal Costs Please see above clause 7 of the disclosure notice.
Clause 2 of the disclosure notice states that a practitioner, admitted five years or more, will be charged at the rate of $600.00 per hour; a practitioner admitted less than five years, will be charged at $390 per hour; an articled clerk/law graduate will be charged at $280 per hour and a clerk/paralegal will be charged at $250 per hour. Those rates are stated to be exclusive of GST.
Correspondence between the law firm and the clients relevant to costs
On 13 August 2019, the solicitor wrote to the clients to confirm the instructions he had received and to provide some initial advice. That letter also provided the following:
4. The issues raised are both extensive and complex. Given the amount of money involved it is likely they will be hard fought. My cost estimate of $150,000 is hopelessly inadequate to deal with these issues. To raise the issues could cost around $50,000. To go to trial could cost at least another $300,000 or thereabouts.
5.(PJK) asked the writer if I was able to handle this litigation. My answer to this is: I would want the help of another competent lawyer; preferably senior counsel to assist first in the formulation of your claim, and second at trial. If senior counsel is used, costs could increase.
6.There is no way to colour or hide the magnitude or cost of this suite of disputes. We are not in a position to carry you on costs. You will have to find the resources to fight the case from other sources. Of course, as (PJK) intimated, your opponents may not be up for the fight. They may compromise. Let us hope so. Either way they must, in my view, be met with strength. You may find lawyers prepared to carry you.
It is not in issue that the law firm did not provide an updated cost disclosure notice for the clients to review and sign. The only cost disclosure notice signed by the clients remained the disclosure notice.
On 2 September 2019 the solicitor wrote to the clients enclosing a first draft of the defence and counterclaim and stating that he proposed to move for summary judgment of wages due to PJK and seeking instructions relevant to that proposed application.[3] In paragraph 5 of that email the solicitor states:
My costs to date are presently well over $50,000. I do not expect you to pay all of this now, but you must be aware of costs and make a substantial contribution now.
[3] TWE affidavit, Exhibit TWE1, page 27.
No updated costs disclosure notice was provided to the clients at this time.
On 28 October 2019, the solicitor wrote to the clients.[4] That letter contains a summary of a meeting on 25 October; and contains further advice and requests for instructions. That letter also contains references to costs. The client is advised that an issue (raised by the plaintiffs in relation to an arbitration clause governing the wages claim) has occupied the better part of two days of the solicitor's time to date and states that arbitration could cost around $10,000 per day. As to solicitor/client costs that letter states:
I attach a bill for cash disbursements only. As orally advised legal fees are approaching $100,000. I must still consider these costs before rendering a bill. I can carry you for some of these costs (assuming my instructions, or the facts, do not change). However, I will require you to pay a substantial portion of the costs as we progress.
[4] TWE affidavit, Exhibit TWE1, page 39.
No updated costs disclosure notice was provided to the clients at this time.
I have reviewed all of the law firm's correspondence to the clients, as contained in the TWE affidavit and the RMK affidavit, and I can find no other reference to solicitor/client costs and no other costs disclosure notice. I was not referred to the existence of any other relevant documents at the hearing by either party.
Invoices delivered and amounts paid
The law firm subsequently delivered the 28 October invoice which only related to cash disbursements; the 12 November 2019 invoice in the sum of $117,905.00; and the 9 December 2019 invoice in the sum of $6,198.00. On, or about, 9 December 2019 the clients retained new legal representation and a notice of change of solicitor was filed on 9 December 2019.
The clients have paid $14,834.00 of the amount invoiced by the law firm, plus an additional amount of $2,662, paid out of a costs order received from the successful defence of an application made by the plaintiffs (when new legal representatives were representing for the clients in the proceedings).
B2: Costs disclosure obligations and consequences of non‑compliance
The statutory framework
The relevant statutory provisions relating to disclosure of legal costs are to be found in pt 10, Div 3 of the Act. Section 260 of the Act provides:
260.Disclosure of costs to clients
(1)A law practice must disclose to a client in accordance with this Division -
(a)the basis on which legal costs will be calculated, including whether a costs determination applies to any of the legal costs; and
(b)the client's right to -
(i)negotiate a costs agreement with the law practice; and
(ii)receive a bill from the law practice; and
(iii)request an itemised bill after receipt of a lump sum bill; and
(iv)be notified under section 267 of any substantial change to the matters disclosed under this section;
and
(c)an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable -
(i)a range of estimates of the total legal costs; and
(ii)an explanation of the major variables that will affect the calculation of those costs;
and
(d)details of the intervals (if any) at which the client will be billed; and
(e)the rate of interest (if any) that the law practice charges on overdue legal costs, whether that rate is a specific rate of interest or is a benchmark rate of interest (as referred to in subsection (2)); and
(f)if the matter is a litigious matter, an estimate of -
(i)the range of costs that may be recovered if the client is successful in the litigation; and
(ii)the range of costs the client may be ordered to pay if the client is unsuccessful;
and
(g)the client's right to progress reports in accordance with section 269; and
(h)details of the person whom the client may contact to discuss the legal costs; and
(i)the following avenues that are open to the client in the event of a dispute in relation to legal costs -
(i)costs assessment under Division 8;
(ii)the setting aside of a costs agreement under section 288;
(iii)making a complaint under Part 13;
and
(j)any time limits that apply to the taking of any action referred to in paragraph (i); and
(k)that the law of this jurisdiction applies to legal costs in relation to the matter; and
(l)information about the client's right -
(i)to accept under a corresponding law a written offer to enter into an agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter; and
(ii)to notify under a corresponding law (and within the time allowed by the corresponding law) the law practice in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter.
(2)For the purposes of subsection (1)(e), a benchmark rate of interest is a rate of interest for the time being equal to or calculated by reference to a rate of interest that is specified or determined from time to time by an ADI or another body or organisation, or by or under other legislation, and that is publicly available.
(3)The regulations may make provision for or with respect to the use of benchmark rates of interest, and in particular for or with respect to permitting, regulating or preventing the use of particular benchmark rates or particular kinds of benchmark rates.
(4)For the purposes of subsection (1)(f), the disclosure must include -
(a)a statement that an order by a court for the payment of costs in favour of the client will not necessarily cover the whole of the client's legal costs; and
(b)if applicable, a statement that disbursements may be payable by the client even if the client enters into a conditional costs agreement.
(5)A law practice is taken to have complied with the requirement to disclose the details referred to in subsection (1)(b)(i), (ii) and (iii), (g), (i), (j) and (l) if it provides a written statement in or to the effect of a form prescribed by the regulations for the purposes of this subsection at the same time as the other details are disclosed as required by this section.
(6)A form prescribed for the purposes of subsection (5) may, instead of itself containing details of the kind referred to in that subsection, refer to publicly accessible sources of information (such as an internet website) from which those details can be obtained.
(7)The regulations may require the Board to develop a statement of the relevant details and to revise it as necessary to keep it up to date.
The obligation to disclose legal fees is ongoing:
267.Ongoing obligation to disclose
A law practice must, in writing, disclose to a client any substantial change to anything included in a disclosure already made under this Division as soon as is reasonably practicable after the law practice becomes aware of that change.
There is no evidence before me that the clients waived their right to disclosure and no evidence before me of a written record (s 263(4)) evidencing that the principal of the law firm decided, on reasonable grounds, that, having regard to the nature of previous disclosures and the relevant circumstances, that further disclosure was not warranted (s 263(2)(b) (ii) & (iii)).
Neither of the parties contends that this was a matter to which any of the exceptions set out in s 263 of the Act applied. It was not in issue that the costs agreement (containing the disclosure notice) was in writing and was signed by the clients.
Section 266 of the Act requires the disclosure to be in 'clear plain language'. Section 267 requires the law practice to disclose to a client any 'substantial change to anything included in a disclosure already made'. The consequences of a failure to disclose are set out in s 268 of the Act in the following terms (emphasis added):
268. Effect of failure to disclose
(1) If a law practice does not disclose to a client or an associated third party payer anything required by this Division to be disclosed, the client or associated third party payer (as the case may be) need not pay the legal costs unless they have been assessed under Division 8.
(2) A law practice that does not disclose to a client or an associated third party payer anything required by this Division to be disclosed may not maintain proceedings against the client or associated third party payer (as the case may be) for the recovery of legal costs unless the costs have been assessed under Division 8.
(3) If a law practice does not disclose to a client or an associated third party payer anything required by this Division to be disclosed and the client or associated third party payer has entered a costs agreement with the law practice, the client or associated third party payer may also apply under section 288 for the costs agreement to be set aside.
(4) If a law practice does not disclose to a client or an associated third party payer anything required by this Division to be disclosed then, on an assessment of the relevant legal costs, the amount of the costs may be reduced by an amount considered by the taxing officer to be proportionate to the seriousness of the failure to disclose.
(5) If a law practice retains another law practice on behalf of a client and the first law practice fails to disclose something to a client solely because the retained practice failed to disclose the relevant information as required by section 261(2), then subsections (1) to (4) -
(a) do not apply to the legal costs owing to the first law practice on account of legal services provided by it, to the extent that the non disclosure by the first law practice was caused by the failure of the retained law practice to disclose the relevant information; and
(b) do apply to the legal costs owing to the retained law practice.
(6) In a matter involving both a client and an associated third party payer where disclosure has been made to one of them but not the other -
(a) subsection (1) does not affect the liability of the one to whom disclosure was made to pay the legal costs; and
(b) subsection (2) does not prevent proceedings from being maintained against the one to whom the disclosure was made for the recovery of those legal costs.
(7) Failure by a law practice to comply with this Division is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any Australian legal practitioner or Australian registered foreign lawyer involved in the failure.
The clients do not contend that s 287 of the Act applies. That section states that:
287.Certain costs agreements void
(1)A costs agreement that contravenes, or is entered into in contravention of, any provision of this Division, is void.
That section provides that where a costs agreement is found to be void it is thereby effectively set aside and an alternate mechanism for the assessment of legal costs is set out in s 271(b) or s 271(c) of the Act. A registrar does not have jurisdiction to set aside a costs agreement.
Accordingly, the issue raised in clients' submissions, as to the inadequacy of the costs disclosure, falls to be considered under s 302(1) of the Act which states (emphasis added):
(1)A taxing officer must assess the amount of any disputed costs that are subject to a costs agreement by reference to the provisions of the costs agreement if -
(a)a relevant provision of the costs agreement specifies the amount, or a rate or other means for calculating the amount, of the costs; and
(b)the agreement has not been set aside under section 288,
unless the taxing officer is satisfied that -
(c)the agreement does not comply in a material respect with any applicable disclosure requirements of Division 3; or
(d)Division 6 precludes the law practice concerned from recovering the amount of the costs; or
(e)the parties otherwise agree.
The clients carry the burden of satisfying me, on a balance of probabilities, that the costs disclosure given by the law firm is inadequate for the purposes of the Act: Jovetic v Stoddart & Co (1992) 7 WAR 208, 220, 222, as referred to in Stoddart & Co v Jovetic (1993) 8 WAR 420, 429.
Therefore, on the basis of the evidence and submissions before me, I must consider whether I am satisfied, on the balance of probabilities (the clients carrying the onus), that the costs agreement fails to disclose anything required under the disclosure requirements of Div 3. If I am so satisfied then I do not have to consider the disputed costs by reference to the provisions of the costs agreement, I may use my discretion to reduce the amount that would otherwise be allowed (s 268(4) of the Act), or to assess the costs other than by reference to the costs agreement (s 302(1)(c) of the Act).
As stated by Murray J in Alman v Macdonald Rudder (A Firm):[5]
As Steytler J observes, the Interpretation Act 1984 (WA) s 56(1) provides that:
'Where in a written law the word "may" is used in conferring a power, such word shall be interpreted to imply that the powers so conferred may be exercised or not, at discretion.'
However, it is not of course considered that the word 'may' when so used is always to be so interpreted and it is well understood that the word may simply provide a power to be exercised, often upon the satisfaction of statutory preconditions.
[5] Alman v Macdonald Rudder (A Firm) [2001] WASCA 375[4].
Under s 271 a legal practice may recover costs pursuant to a costs agreement made in accordance with Div 6. Otherwise costs are paid pursuant to an applicable cost determination on the basis of what is fair and reasonable. Section 271 provides:
271.Basis on which legal costs are recoverable
Subject to Division 2, legal costs are recoverable -
(a)under a costs agreement made in accordance with Division 6 or the corresponding provision of a corresponding law; or
(b)if paragraph (a) does not apply, in accordance with an applicable costs determination; or
(c)if neither paragraph (a) nor paragraph (b) applies, according to the fair and reasonable value of the legal services provided.
If there has been a lack of disclosure for the purposes of s 266(4) then costs may be reduced by an amount considered by the taxing officer to be proportionate to the seriousness of the failure to disclose. The Act provides no guidance as to how to determine such a reduction. Since no application has been made to set aside the costs agreement, it is implicit that the costs agreement is still valid and that the matter therefore does not automatically fall into s 271(b) such that costs are assessed by virtue of the applicable costs determination. I must independently reach a conclusion, if I find anything in the costs disclosure to be inadequate, as to what reduction in costs is proportionate to the seriousness of the failure to disclose on the facts of this matter; or whether I should proceed to assess costs other than by reference to the costs agreement pursuant to s 302(1)(c).
The standard of disclosure required to meet the statutory disclosure obligation
The meaning of the word 'disclosure' in the context of legal costs disclosure does not appear to have been judicially considered but the purpose of disclosure, in a legal costs context, must be to provide sufficient information in order to enable the client to make an informed decision as to how best to instruct their solicitors to conduct the litigation.
That purpose is apparent from the Explanatory Memorandum that accompanied the Act when it was read as a Bill before the Parliament. In explaining the purpose of s 260 of the Act, the Explanatory Memorandum states (emphasis added):
It is a requirement that clients are appropriately informed as to the extent of legal costs that they will be liable for upon engaging a law practice.
The references to 'appropriately informed' in the Explanatory Memorandum indicates that compliance with the disclosure obligations must be assessed on a case by case basis, having regard to the adequacy of the disclosure in the context of the sophistication of the client and the steps being taken by the law firm incurring costs. What is adequate disclosure to a multi‑national corporation in a simple debt claim may be significantly different to what is adequate for a small business or an individual embarking on complex litigation for the first time.
If there is a limited budget, adequate disclosure is that which enables a client to determine how best to allocate that limited budget in order to advance their cause. It is clear from much of the correspondence attached to the TWE affidavit that how the clients were going to pay legal costs was an issue; inferentially, appropriate budgeting was therefore a significant factor.
I will therefore first consider whether the law firm's costs disclosure was adequate in this case. If I find that anything in the required disclosure was inadequate I will then look, broadly, at the scope of the work done by the law firm for the clients in the context of any inadequate disclosure in order to determine what, if any, the impact of the failure to disclose was. I will then determine, in the light of that, whether I should exercise my discretion to reduce the allowable costs consequent upon the failure to disclose and, if so, what that reduction should be, or whether to assess the costs on some basis other than by reference to the costs agreement.
B3: Did the law firm fail to disclose to the clients anything required to be disclosed under the Act?
The parties' submissions on disclosure
In determining whether the law firm failed to disclose for the purposes of s 268(4) or s 302(1)(c), the appropriate exercise is to compare the disclosure notice costs estimate against the information provided to the clients as to costs, in the context of what was occurring in the proceeding, both as to what was happening in the court proceeding itself and as to how costs were accruing in the background. In that context I turn to summarise the parties' submissions on this issue.
The clients made the following submissions in support of their contention that disclosure did not comply with all of the requirements of the Act. First, the clients submit that the law firm charged them at the top end of the cost estimate in the disclosure notice despite not progressing the proceedings past the pleadings stage. As at the date of the law firm coming off the record, pleadings had not closed, discovery had not occurred and the matter was, on the client’s contention, not ready to be entered for trial.
Secondly, the clients submit that although the present matter is not governed by the scale set out in the Supreme & District Courts (Contentious Business) Determination 2018 (WA), the law firm's own cost agreement wording limits the amount of costs they should logically be able to recover from the clients. Clauses 7.5 and 7.6 of the disclosure notice provide, when read together, that the law firm "estimate(s) that you would have to pay the opposing party [or conversely, recover from the opposing party] around 50% ‑ 70% of the amount which you would have to pay us under the proposed agreement". The inverse of this estimate of recovery indicates that the law firm was effectively estimating that it would charge legal costs somewhere between 1.4 times and 2 times scale costs.
Accordingly, the clients submit that, pursuant to the costs agreement, the reasonable amount to be charged by the firm is somewhere between $51,000 and $72,000 (although it should be noted that this range is impacted by the clients' other contentions in relation to what work can be said to have been reasonably, and competently, done).
The law firm submits that the clients' contention as to being billed at the "top end of their costs estimate which was for the entirety of the Proceedings" is incorrect for two reasons. First, total costs inc GST were $113,937 (if the $12,000 discount was accepted). Secondly, the costs estimate at that time was about $350,000 as stated in the letter of 13 August 2019.[6] Further, the law firm asserts that the case for the clients, at least in relation to the misrepresentation claim, was largely ready for trial by about 2 September 2019; statements had been taken and documents had been analysed and were ready for discovery.
[6] Applicant's submissions [9].
The law firm submits that by the time the affidavits, were filed on about 4 September 2019, the clients were almost ready for trial on the main issue; that issue being the question of whether RT was misled into signing the sub‑lease. The law firm relies on its email to the clients on 02/09/2019 at 13:04:27,[7] wherein the law firm informed the clients that they were almost ready for trial on the misrepresentation cause of action.
[7] TWE affidavit, pages 27 – 28.
The law firm submits that the referred affidavits were comprehensive statements of virtually all the evidence required for trial on that issue. All documents received to that time had been considered, analysed and categorised. Discoverable documents had been identified (a draft list of discovered documents is attached to the law firm's submissions).
In that context, I note that, as of 31 October 2019, further documents were still being sourced by the clients.[8] As at the termination of the law firm's retainer, discovery had not been given in the proceeding by the plaintiffs.
[8] RMK affidavit, Annexure RMK9.
The law firm goes on to state that the evidence did not support a number of the claims the clients wanted to pursue and the clients were advised accordingly on 21 November 2019.[9] In that context I note the contents of the law firm's letter to the clients dated 24 October 2019 advising on merits and seeking instructions as to which claims were to be pursued.[10] There are no file notes produced recording instructions consequent on that letter. As stated above, at the hearing, the law firm confirmed that there were no written instructions; the law firm contends that the correspondence confirms instructions.
[9] TWE affidavit, pages 47 – 49.
[10] TWE affidavit, pages 37 – 38.
I am satisfied that, as at 28 October 2019, there was clearly advice being given as to prospects based on documents provided.[11] Further advice as to prospects was given by the letter of 21 November 2019 but the matter was still clearly heading for a trial in some form. There was still a further potential claim, discovery and further statements/affidavits which required consideration and advice.[12]
[11] TWE affidavit, pages 39 – 41.
[12] TWE affidavit, pages 47 – 49 (pars 11 and 14, in particular).
In summary, the law firm says ongoing costs disclosure was given and the costs were reasonable given the stage that the matter was at. The law firm relies on the 13 August 2019 letter which states:
4. The issues raised are both extensive and complex. Given the amount of money involved it is likely they will be hard fought. My cost estimate of $150,000 is hopelessly inadequate to deal with these issues. To raise the issues could cost around $50,000. To go to trial could cost at least another $300,000 or thereabouts.
5. [PJK] asked the writer if I was able to handle this litigation. My answer to this is: I would want the help of another competent lawyer; preferably senior counsel to assist first in the formulation of your claim, and second at trial. If senior counsel is used, costs could increase.
6. There is no way to colour or hide the magnitude or cost of this suite of disputes. We are not in a position to carry you on costs. You will have to find the resources to fight the case from other sources. Of course, as [PJK] intimated, your opponents may not be up for the fight. They may compromise. Let us hope so. Either way they must, in my view, be met with strength. You may find lawyers prepared to carry you.
The question is whether that letter, when read with the disclosure notice, amounts to adequate disclosure of costs for the purposes of s 260 of the Act.
Chronology of costs incurred in the proceedings
Firstly, it is important to set out what the rate of fee accrual was against the disclosure notice and the correspondence of 13 August 2019. Whilst not specifically relied on by the law firm in written submissions, the letters of 2 September 2019 and 28 October 2019 are also relevant to this task. The costs information in the following table is taken from the 12 November 2019 and 9 December 2019 invoices filed for assessment by the law firm. The relevant steps in the proceeding are also inserted in the chronology (and further detailed below in section B3(3) of these reasons).
Date
2019
Event
Costs information
Legal costs incurred on that day $
Accrued legal costs
Aug
7
Costs Disclosure Notice
Range of $15,000 to $150,000 provided (see costs disclosure notice)
720.50
720.50
8
1,310.00
2,030.50
9
327.50
2,358.00
13
On 13 August the clients were told: 'My cost estimate of $150,000 is hopelessly inadequate to deal with these issues. To raise the issues could cost around $50,000. To go to trial could cost at least another $300,000 or thereabouts
2,729.50
5,087.50
14 Plaintiffs filed an urgent interim injunction application 2751.00 7,838.50 15 3275.00 11,113.50 16 4257.50 15,371.00 19 5130.00 20,501.00 20 Interim injunction hearing – Day 1 6308.50 26,809.50 21 Interim injunction hearing – Day 2 3406.00 30,215.50 22 4410.00 34,625.50 23 3668.00 38,293.50 26 Interim injunction application granted until full hearing on 5 Sept 4584.50 42,878.00 27 1265.00 44,143.00 28 2945.00 47,088.00 29 2816.50 49,904.50 30 3184.00 53,088.50 31 2161.50 55,250.00 Sept 2 On 2 September the clients were told 'costs to date are presently well over $50,000'. 3,864.00 59,114.00 3 3,142.00 62,256.00 4 Defendants filed defence and counterclaim 3,362.00 65,618.00 5 Continuation of interlocutory injunction application hearing 2,247.00 67,865.00 6 522.00 68,387.00 9 1,244.50 69,631.50 10 2,554.50 72,186.00 11 1,113.50 73,299.50 12 Continuation of interlocutory injunction application granted 2,070.50 75,370.00 13 Defendants filed amended defence and counterclaim 3,513.00 78,883.00 17 217.50 79,101.00 19 565.50 79,666.00 20 1,524.00 81,190.00 23 43.50 81,233.50 Oct 7 Defendants filed re‑amended defence and counterclaim 2,553.00 83,786.50 8 4,865.00 88,651.50 9 Defendants filed amended re‑amended defence and counterclaim 1,219.00 89,870.50 10 Plaintiffs by counterclaim, filed a summary judgment application 631.00 90,501.50 11 675.50 91,177.00 14 87.00 91,264.00 16 131.00 91,395.00 17 393.00 91,788.00 18 2,227.00 94,015.00 21 Programming orders made in the summary judgment application 65.50 94,080.50 23 458.50 94,539.00 24 2,751.00 97,290.00 25 917.00 98,207.00 28 Defendants by counterclaim filed affidavit On 28 October the clients were told 'legal fees ae approaching $100,000' 3,209.50 101,416.50 29 Defendants by counterclaim filed further affidavit 4,061.00 105,477.50 30 3,777.00 109,254.50 31 4,585.00 113,839.50 Nov 1 Plaintiffs by counterclaim filed submissions in the summary judgment application 2,735.00 116,574.50 5 Defendants by counterclaim filed submissions in the summary judgment application 1,244.50 117,819.00 6 Plaintiffs by counterclaim filed list of authorities 3,099.50 120,918.50 7 1,834.00 122,752.50 12 Total costs up to 12 November $122,905.00
Invoice delivered for $117,905.00152.50 122,905.00 Nov 12 524.00 524.00 14 1,310.00 1,834.00 15 131.00 1,965.00 18 262.00 2,227.00 19 Plaintiffs filed stay application 65.50 2,292.50 20 262.00 2,554.50 21 Stay application programming orders made 1,527.50 4,082.00 22 43.50 4,125.50 25 786.00 4,911.50 26 784.50 5,696.00 27 Defendants filed affidavit in opposition to stay application 43.50 5,739.50 28 65.50 5,805.00 29 196.50 6,001.50 Dec 4 65.50 6,067.00 5 131.00 6,198.00 9 Total further costs 12 November to 9 December $6,198.00
Invoice delivered for $6,098.00
In relation to the work recorded against fee earners in the two relevant invoices, the solicitor undertook 176.7 hours of the work charged (about 88% of the total costs charged); TWE undertook 28.4 hours of the work charged; two other practitioners undertook 1 hour and 0.5 of an hour respectively; and reception undertook 1.1 hours. Accordingly, I find that the solicitor, being the partner with the conduct of the file, knew (or ought to have known) how the legal costs were accruing at all stages of the matter, what aspects of the litigation those costs were being incurred in relation to, and what the litigation landscape looked like into the future.
Costs disclosure was first given on 7 August 2019. On 13 August, prior to the 7 August 2019 disclosure notice being signed, the costs estimate had gone up but no further costs disclosure notice was produced to the clients. The 13 August 2019 letter provided no specifics, or details, as to either, why the costs estimate had changed; or, how costs were being expended at the present time; or, what level of costs were likely to be incurred in the immediate future or the long term. The bottom estimate of the disclosure notice was reached on 16 August 2019. By 30 August 2019 the costs incurred stood at $50,000. The clients were not advised of that figure until 2 September 2019, at which point costs actually stood at just under $60,000.
By 28 October costs stood at $101,416.50 as against a maximum costs disclosure of $150,000 in the disclosure notice, and a general figure of $350,000 given on 13 August 2019, to take the matter to trial. As at 12 November 2019 incurred costs stood at $122,905.00.
The proceeding
It is now necessary to look at what had occurred in the proceeding since the law firm was retained and what the costs incurred as at 12 November 2019 related to.
As at 7 August 2019 the plaintiffs, being the holder of the relevant sub‑lease, had commenced the proceeding.
In the proceeding the plaintiffs sought, as final relief, an injunction restraining the first and second defendants from entering upon the land and damages.
(a) The injunction application
On 14 August 2019, the plaintiffs filed a summons for an interim injunction, seeking an injunction, until further order, restraining the defendants, through their servants or agents, from entering upon the land, and an order to deliver up possession of the land to the plaintiffs (the interlocutory injunction application). In support of the summons the plaintiffs filed an affidavit of PH, sworn 12 August 2019. On 20 and 21 August 2019 an urgent interim injunction application (the interim injunction application) was heard. The defendants were represented by the law firm and the defendants opposed the application. An interim injunction was granted, on 26 August 2019 (the interim injunction), until the full hearing of the injunction application on 5 September 2019 (the interlocutory injunction application).
The defendants were represented by the law firm at the hearing on 5 September 2019. The defendants opposed the granting of a continuation of the interim injunction. The defendants relied on five affidavits which they had filed. The plaintiffs relied on the original PH affidavit as well as one further affidavit (in respect of which objection was taken by the defendants as to some of the contents). The application to continue the interim injunction was granted on 12 September 2019 until further order of the court (the interlocutory injunction).
The interlocutory injunction remained in place until 11 June 2020, by which time the balance of convenience then lay with the defendants as the date for expiry of the initial sublease term had passed (that date being 17 May 2020).
(b) Defence and counterclaim
On 4 September 2019, the defendants filed a defence and counterclaim. On 13 September 2019, the defendants filed an amended defence and counterclaim. On 7 October 2019, the defendants filed a re‑amended defence and counterclaim. On 9 October 2019, the defendants filed an amended re-amended defence and counterclaim. No amended pleading was filed by plaintiffs during that period.
(c) The summary judgment application
On 10 October 2019, the law firm, on behalf of the plaintiffs by counterclaim (RT and PJK), filed a chamber summons (supported by two further affidavits) for summary judgment in respect of part of the counterclaim (the summary judgment application). Programming orders in relation to the summary judgement application were made on 21 October 2019. The defendants by counterclaim filed two affidavits in opposition to the summary judgment application on 28 and 29 October 2019. The plaintiffs by counterclaim filed submissions in support of the summary judgment application on 1 November and the defendants by counterclaim filed submissions in reply on 5 November 2019. The plaintiffs by counterclaim filed a list of authorities on 6 November 2019.
(d) The stay application
On 19 November 2019, the plaintiffs filed a summons for stay of proceedings, with supporting affidavit, seeking that the action be stayed and the parties referred to arbitration (the stay application). On 21 November 2019, the stay application was programmed through to a hearing on 17 December 2019. The defendants filed an affidavit in opposition to that application on 27 November 2019. On 5 December 2019, the plaintiffs filed submissions in support of the stay application.
On 9 December 2019, the defendants, and plaintiffs by counterclaim, filed a notice of change of representation.
Conclusion on adequacy of disclosure
From the history set out above, it can be seen that the law firm was acting for the clients in respect of four primary issues: (i) the interlocutory injunction application; (ii) drafting and filing of the defence and counterclaim and amendments thereto; (iii) whether the plaintiffs were correct in their assertion that an arbitration clause governed the wages claim by the second defendant, which contention resulted in the stay application; and (iv) whether a summary judgment application should be pursued by the second defendant in respect of the wages claim, which resulted in the summary judgment application on the counterclaim.
Throughout the relevant period the solicitor was seeking instructions from the clients and was providing some advice to the clients. There are no signed instructions from the client on the law firm's file and the law firm relies on its 28 October 2019 letter as a summary of instructions given up to that date.[13]
[13] ts 12.7 (25 November 2020).
Over that period of time, the parties arrived at the legal costs position set out in the table above. The interim injunction costs, the partial summary judgment costs and the costs of opposing the stay application all sat, to some degree separate to the costs which would be incurred in usual programming of the matter to trial. Whilst some of those incurred costs might have been incurred anyway in the normal ambit of work required in order to progress the matter to trial, the clients were given no breakdown that could assist them in understanding the context of their growing legal costs exposure and how the costs, that had been incurred were related to progressing the matter to trial.
As at the termination of the law firm's retainer, on or about 5 December 2019, pleadings had not closed in the proceedings; discovery had not occurred and the matter was, in my view, far from ready for entry for trial. The legal costs billed had largely been incurred in relation to defending the interim injunction application; the interlocutory injunction application, and in relation to the proposed summary judgment application. It is hard to see how, in that context, that this matter, or any part of it, was substantially ready for trial as submitted by the law firm. For example, final witness statements could not have properly been taken until discovery was complete and inspection of the plaintiff's documents had taken place.
Meaningful costs disclosure was absent at this time. An estimate as to likely discovery costs (based on the documents provided by all of their parties) could have been given; it was not. An estimate of the total costs expended on the injunction applications could have been given; it was not. An estimate of the costs of the stay application could have been given, it was not. It would have been simply impossible for the clients to assess where they sat on costs exposure unless the solicitor gave them a meaningful breakdown of costs; which never occurred.
The law firm made the point, at the hearing, that at the beginning of a matter it can be very difficult to estimate costs. However, in this matter, on the law firm's version of events, the law firm received a lot of information by way of instructions and documents (both from the clients and the plaintiffs on affidavit) in a short space of time. No further costs disclosure breakdown was given as more information came to the solicitor's attention and his knowledge of the details of the proceeding significantly increased.
In that context I have to, decide whether, on application of s 260 of the Act, adequate costs disclosure was given to the clients.
Clause 7 of the disclosure notice states that 'the major variables that will affect the calculation of total legal costs are: whether action can be settled'.
The law firm relies on the 13 August 2019 letter. In that letter there was no indication given as to the costs likely to be incurred in the interlocutory injunction application or how that might affect the total estimate of legal costs to trial. Meaningful context, by which the clients could assess their costs exposure at any stage points in the litigation was completely lacking. To have indicated a top end of $350,000 in costs the solicitor must have had some idea of how those costs and the injunction costs broke down but no indication of that was given to the clients at all.
Equally, the letters of 2 September 2019 and 28 October 2019 provided no detail in the context of the solicitor's knowledge of the matter going up exponentially.
I find that, by 19 November 2019 (by which time there had been two contested injunction hearings, a summary judgment application filed, and programmed, and a stay application filed) the solicitor must have been aware that the statement in cl 7 of the disclosure notice, that 'the major variables that will affect the calculation of total legal costs are: whether action can be settled', was no longer accurate. The interlocutory application costs had increased substantially without any context being given for what those costs related to, or what additional costs would be incurred in progressing the matter to trial. No further costs disclosure was provided to the clients at this time.
I find that the law firm's failure to give meaningful costs disclosure, in the whole context of the retainer, in particular in the context of the law firm's level of knowledge of the matter, meant that the clients had insufficient information about their exposure to legal costs to be able to provide informed instructions as to the conduct of the proceedings.
I find that, after the initial advice was given, the law firm failed to give further meaningful written costs disclosure updates as to the impact on costs of any of the interlocutory steps. The type, and number, of interlocutory steps in the proceedings amounted to a substantial change which created a need for further, adequate and meaningful costs disclosure. Such disclosure should have been made within a reasonable time of the law firm becoming aware of the impact of those matters on costs.
Specific mention was made by the law firm that costs were increasing rapidly but no breakdown of how those costs were being incurred, or applied, was given, and no written advice was given as to how the costs incurred in the interlocutory steps were impacting on the overall estimate of costs to trial given in the disclosure notice.
I further find that the general costs estimate in the disclosure notice did not contain a meaningful estimate of the total legal costs; a broad range of $35,000 to $350,000 is meaningless to an unsophisticated client in the context of civil proceedings without some breakdown against the known procedural steps which are required in the proceeding. Further, it is important to note that, after 13 August 2019, both the stay application and the summary judgment application came into existence, both of which were going to impact on costs. The clients were given no information as to how those matters would impact on their costs exposure to the law firm, they were merely advised as to party/party costs orders which might be made for, or against them, in those matters.[14]
[14] RMK affidavit; Annexure RMK8 (email at page 57).
In my view, the first preliminary issue turns on a determination of the first part of the submission, whether costs disclosure was adequate for the purposes of the Act, not whether the value of the work already done fitted into the very broad costs estimate range. Given the stage the matter was at, in the context of a broad range estimate of up to $350,000 costs to take the matter to trial, as of 5 December 2019 costs were still going to fit within that range. The relevant question is whether there had been adequate costs disclosure to the clients during the period of the retainer. Whether costs were going to fit within that top end broad range estimate (or go up or down) in the future was a matter for potential future disclosure dependent on what was happening in the litigation. I consider that the litigation was not at a stage where one could confidently assert that it was as ready for trial as the law firm submits but that factor is not relevant to my findings as to whether costs disclosure was adequate.
I refer also to the clients' submission that the overall costs estimate has to be seen in the light of clauses 7.5 and 7.6 of the disclosure notice: See [55] to [56] above.
I note the disclosure notice does not set out, or specifically refer to, the relevant scale. It is not suggested that the clients were sophisticated, or experienced, litigants therefore it is unclear how the clients were supposed to be able to quantify costs exposure against scale even in the context given.
At no point were the clients told that the costs being incurred by them were significantly more that the scale allowance, plus a factor of 1.4 to 2, in respect of the work being done by the law firm. In my view of that letter the clients could never have understood their potential costs exposure and made an informed decision as to conduct of the litigation.
Based on the above findings, on the balance of probabilities, the clients have persuaded me that the law firm gave inadequate explanation of the substantial changes to costs disclosure (made in the disclosure notice) consequent on interlocutory applications. The law firm failed to give the required costs disclosure as soon as reasonably practicable after the law firm became aware of those changes. Accordingly, I find that the law firm has not satisfied the requirements as to both disclosure and ongoing disclosure set out in s 260(c)(ii) of the Act read with s 267 of the Act.
I therefore find that my discretion, under s 268(4) and s 302(1)(c) of the Act is enlivened, as the law firm failed to disclose to the clients something required under Div 3 of the Act to be disclosed.
I must therefore consider whether the costs should be reduced by an amount I determine to be proportionate to the seriousness of the failure to disclose, or whether the costs should be assessed on a basis other than by reference to the costs agreement.
C: Issues as to whether work was done with proper advice and instructions
The clients' overall contention is that the law firm undertook work, or pursued points, that were misconceived and/or clearly doomed to fail, particularly in resisting the application for an interlocutory injunction and in making a summary judgment application in the proceedings.
The clients further contend that either they were not properly advised in relation to these points, or proper instructions were not sought before the law firm acted. As such, the clients object to certain categories of work in their entirety.
The clients' very broad evidence as to instructions is found at paragraph 6 of the RMK affidavit:
I recall that there were numerous occasions that it came to my attention that [the applicant] had acted on behalf of [RT and PJK] without seeking instructions or confirmation from [RT] and/or [PMK].
The clients bear the onus of proof, on a balance of probabilities, in respect of each of the specific criticisms they level against the law firm.
C1: Whether the interim injunction application should have been opposed
The clients contend that they should not have to pay the legal costs incurred in opposing the interim injunction application on 20 and 21 August 2019. They contend that they should have been given proper advice to consent to the initial interim injunction as there was no reasonable prospect of opposing it and the costs incurred in opposing it were costs which were not reasonably charged, or incurred.
By the 14 August 2019 summons, the plaintiffs sought an urgent injunction, until further order, restraining the defendants, through their servants or agents, from entering upon the sub-lease land, and an order to deliver up possession of the sub-lease land to the plaintiffs. There was a hearing of the urgent interim injunction application and then, later, there would be a hearing of the interlocutory injunction application.
In the circumstances, the clients contend that the initial interim injunction application was bound to succeed, and yet it was resisted on the advice (or lack thereof) of the law firm: see RMK affidavit at par 15 which states:
I do not recall any specific advice given by [the applicant] in relation to whether or not [RT and PJK] should resist the injunction, aside from the fact that lifting of the injunction would give [RT and PJK] an opportunity to re-enter the [sub-lease land]. [RT's] main focus was to regain access to the [sub-lease land] and [PJK] and I did not understand nor agree with the proposition stated by the plaintiffs that [RT and PJK] had no right to enter the premises.
The interim injunction application was granted on 21 August 2019 pending further order of the court and the interlocutory injunction application was granted on 12 September 2019 following a hearing on 5 September.
The clients submit that in assessing whether the plaintiffs were likely to have success on the injunctive relief at trial, a key fact was that the purported termination of the sub‑lease sent by the clients was not compliant with s 81 of the Property Law Act 1969 (WA) and so the termination of the sub‑lease was invalid and could not form a basis for the re‑entry onto the sub‑lease.
The decision in relation to the interim injunction relevantly found at par 20 to par 21:
20It is not, in my opinion, reasonably arguable that the letter of 17 May 2019 is a notice that complies with s 81. It is, as it expressly states, a dispute notice, pursuant to cl 15 of a Heads of Agreement between the parties, invoking a mechanism for resolving the issue should a dispute arise between them.
21It was not in dispute that the purported notice of termination sent on 28 May 2019 was not enforceable.
The clients contend that a further, more contentious issue, that was contemplated in his Honour's interim injunction reasons was the issue of whether or not the plaintiffs had breached the sub‑lease by non‑payment of rent:
34 On the evidence now before me, I believe that the plaintiffs' contention that they had no obligation to pay rent to (RT) is likely to be correct. I would not, however, make a final decision on that issue without considering other evidence which may be adduced and which may influence the construction of the Sublease …
…
36 In the present case, the plaintiffs are being kept out of possession of land to which, on their case, they have an entitlement pursuant to the Sublease. They may also be liable for failure to comply with the Mines Safety and Inspection Act and the regulations made under that Act, unless the (first plaintiff's) Registered Manager is able to resume direct control and supervision of the site and remedy the identified defects from the site visit.
37I am satisfied that, on an interim basis, the balance of convenience favours the preservation of the plaintiffs' position ...
On 20 August 2019, the solicitor wrote to the clients and provided certain advice in relation to the injunction and in relation to advice provided by the clients' former legal representatives.[15]
[15] TWE affidavit, Annexure TWE1, pages 13 - 19.
The clients contend that at no point, in the letter dated 20 August 2019, or otherwise, did the solicitor advise the clients as to the weaknesses of resisting the injunction. Instead, the solicitor stipulates in the letter of 20 August 2019 that he 'must start immediately to prepare an affidavit for [PJK] to sign' in preparation for the hearing on 5 September 2019 as to submissions on the injunction, notwithstanding that he acknowledges that arguments as to the construction of the termination notice has already been rejected by the court and that the interim injunction and was fought 'only on technical grounds'.
The clients submit that they did not fare better at the hearing of the interlocutory injunction on 5 September 2019. The interlocutory injunction judgment did not discharge the injunction and none of the solicitor's arguments succeeded in this respect. His Honour held that 'on the present state of the evidence, I am satisfied that the balance of convenience favours the plaintiffs as the party claiming the right of possession pursuant to an executed instrument'.
Given the above, the clients contend that it was not reasonable for the law firm to carry out the work in relation to opposing the interlocutory injunction application and so all work relating to the opposition of that application has been objected to.
The law firm submits, in response, that it was reasonable to resist the initial interim injunction and that there was a proper basis for resisting the application.
The law firm submits that at the initial interim injunction hearing, two arguments were raised on behalf of the clients. The first was based on a purported termination by the clients' former lawyer; the second on the failure of the first plaintiff to pay rent. Whilst both arguments failed, the law firm contends that both were arguable. The court found that the demand to remedy breach had to be explicit to comply with s 81.
The law firm relies on items 5, 32 and 43 in the bill of costs in support of its contentions that it advised PJK on available arguments and risks in opposing the interim injunction application.
The law firm submits that the interim application was made on 2 days' notice and involved a relatively short amount of time in both preparation and appearance. That submission fails to address whether the best allocation of the clients' limited funds for legal fees would have been to consent to the interim injunction and just to oppose the interlocutory injunction, or to oppose neither and to advance the substantive disputes to trial. The law firm contends that on 5 September 2019 the injunction was opposed on the ground that the balance of convenience/justice favoured the clients. The only argument raised on the return of the application on 5 September 2019 was the balance of convenience; notwithstanding the advice that had previously been given as to other arguments.
The law firm contends that a significant plank of the balance of convenience submission was that PJK could earn a living treating the battery ore stockpile on the sub‑lease. The law firm now submits, on this taxation, that this argument was correctly rejected because the first plaintiff had an option to treat this stockpile until 31 December 2019.
In fact, the first plaintiff did not exercise this option within that time frame. The law firm submits that the clients successfully applied to discharge the injunction on, inter alia, this ground on 13 May 2020. However, as referred above, it is clear to me that by May 2020 the balance of convenience had changed so, even though the clients relied on the affidavit of PJK sworn 29 August 2019 (which was used in the injunction application and had been prepared by the law firm), it was the effluxion of time that altered the clients' prospects of resisting the continuation of the injunction. Between the injunction application and May 2020 the balance of convenience had shifted because the option had expired. As his Honour stated in his decision on 13 May 2020:
76. I accept that the Sublease was not conditional or dependent on the exercise of the option to treat the Stockpile. The option however, was a material circumstance in granting the injunction, and the decision not to exercise it is material in weighing the justice of continuing the injunction.
Lastly, the law firm submits that evidence of misleading conduct was always going to be crucial to success on that issue at trial in order to recover the sub‑lease. It is also submitted that it had some relevance to the balance of convenience argument. Therefore, the bulk of the work done for the hearing on 5 September 2019 was also relevant to the trial of the counterclaim and as such, should be recoverable solicitor/client costs whether the injunction was reasonably opposed or not.
In order to properly determine this I have had regard to the interim injunction decision. Whether the outcome of the interim injunction application was inevitable, or not, the question for me is whether the work done by the law firm in opposing that application was reasonable and/or on instructions given consequent on proper advice to the client as to the purpose and prospects of opposing the interim injunction application pending a full hearing of the interlocutory injunction application.
In order to obtain an interim, or interlocutory, injunction, a plaintiff does not need show it was more probable than not that they will succeed at trial. It is sufficient if they show a sufficient likelihood of success to justify, in the circumstances, the preservation of their rights pending trial. The 'governing consideration' is that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory orders sought.
The summons seeking the interim injunction was filed on 14 August 2019. The defendants were given late notice of the summons and filed an appearance on 19 August 2019. In an affidavit filed on the morning of 20 August 2019, the day listed for the return of the summons, a solicitor in the employ of the law firm, acting for the defendants, stated that he had been informed by one of the directors of RT that the plaintiffs had not paid the rent for the sublease. The allegation of non‑payment of rent had not previously been made in the correspondence between the plaintiffs and PJK, or the lawyer formerly acting for the defendants. The defendants relied on non-payment of rent to take the matter outside s 81 of the Property Law Act 1969 (WA). Alternatively, the defendants submitted that the dispute notice sent 17 May 2019 sufficiently complied with s 81.
His Honour found that it was not reasonably arguable that the letter of 17 May 2019 was a notice that complies with s 81. He found it to be, as it expressly states, a dispute notice, pursuant to cl 15 of a Heads of Agreement between the parties, invoking a mechanism for resolving the issue should a dispute arise between them.
There was no dispute that the purported notice of termination sent on 28 May 2019 was not enforceable. The more contentious issue was whether there was, under the sublease, an obligation to pay rent. The plaintiffs submitted that, on its proper construction, there was no obligation.
Counsel for the defendants submitted that, on the proper construction of the sublease, the first plaintiff was obliged to pay rent, and that the court should determine that issue immediately. On the evidence before the court, his Honour found that the plaintiffs' contention that they had no obligation to pay rent to RT was likely to be correct. His Honour declined to make a final decision on that issue without considering other evidence which may be adduced and which may influence the construction of the sublease.
His Honour went on to consider the balance of convenience. His Honour found that, in some cases, the appropriate question on the balance of convenience will be whether damages would provide the law firms with an adequate remedy. In other cases, it may be more appropriate to ask whether it is just in all the circumstances that the law firm should be confined to a remedy in damages. The guiding consideration remains what is necessary to do justice between the parties.
His Honour found that in the present case, the plaintiffs were being kept out of possession of land to which, on their case, they have an entitlement pursuant to the sublease. He also found that they may also be liable for failure to comply with the Mines Safety and Inspection Act 1994 (WA), and the regulations made under that Act, unless the first plaintiff's registered manager was able to resume direct control and supervision of the site and remedy the identified defects from the site visit.
His Honour was satisfied that, on an interim basis, the balance of convenience favoured the preservation of the plaintiffs' position. Given that the defendants had not had the opportunity to present evidence regarding the effect of continuing the injunction, his Honour stated that the issue would be revisited when the matter was next before the court.
In my view, the reasons for decision on the interim injunction evidence that the interim injunction application was almost inevitably going to be successful. The balance of convenience, on the initial interim injunction, was always going to lie with preserving the plaintiff's rights in light of their obligations under the Mines Safety and Inspection Act 1994 (WA).
The clients must have been aware that the law firm was going to oppose the interim injunction, as relevant information was clearly given in order that the affidavit relied on by the defendants could be prepared.
Nowhere in the law firm's submissions, or evidence, is there any reference to the law firm: (i) advising on the prospects of opposing the injunction; or, (ii) advising on the pros and cons of doing so on the interim injunction application, in circumstances where the matter would be referred to a full hearing of the injunction application shortly thereafter; or (iii) taking instructions thereon. The 20 August 2019 letter contains no such advice and confirms no such instructions. The law firm's counsel stated at the hearing that there were no file notes recording instructions.[16] Most critically, for present purposes, there is no evidence of the clients having been given any costs estimate for opposing the injunction application.
[16] ts 12.7 (25 November 2019).
The evidence establishes that, although the clients knew about the initial interim injunction application and gave the law firm's information pertaining thereto, what is missing are instructions to proceed based on advice given, and in particular any advice as to whether to oppose the initial interim injunction application where if that application was consented to pending going to a full hearing of the injunction application shortly thereafter there could have been significant cost savings.
It was not reasonable to contest the initial interim injunction application in the absence of some, at least brief, advice on prospects, costs and the relative advantages and disadvantages of objecting to the interim order. I find that the legal costs charged to the client, above what was required to consent to the initial interim application, were not reasonably incurred in relation to the interim injunction application except in so far as those costs which would have been incurred in relation to the interim injunction application. For example, preparation of affidavits relied on at the injunction application and consideration of the plaintiff's affidavit would have all been required on the full hearing of the interlocutory injunction application.
It was, potentially, a different matter for the interlocutory injunction application, which was heard on 5 September 2019 (some two weeks later) which was more than sufficient time for the prospects of a full argument to be considered in opposition thereto and for proper advice to be given and instructions taken. A letter from the law firm dated 22 August 2019 refers to the clients' general aims in the litigation but contains no advice directly relevant to the injunction application and seeks no instructions in that regard.[17] An email of 24 August annexes a draft affidavit and seeks further information in relation to the preparation thereof.[18] An email of 30 August 2019 relates to the counterclaim and makes no specific reference to the injunction application.[19] An email of 2 September 2015 refers to the draft defence and counterclaim, accruing costs (see above); that the clients are close to trial on the lease issue and the fact that 'the judge might give us some indication of his thoughts on Thursday' and that the law firm proposes moving to summary judgment on the wages issue. Other than a reference to being in court on Thursday (5 September 2019) there is no reference to the injunction application, its prospects or merits. The next correspondence is not until 6 September 2019.
[17] TWE affidavit, Annexure TWE1, pages 21 - 22.
[18] TWE affidavit, Annexure TWE1, page 23.
[19] TWE affidavit, Annexure TWE1, page 25.
Accordingly, I cannot be satisfied that the clients gave informed instructions on the injunction proceedings on the basis of advice on prospects, costs and the relative merits of opposing, or conceding, the injunction application in the context of the litigation as a whole. However, it is clear the clients wanted to oppose the interlocutory costs application. As to whether any, or all, of the work was necessarily done (in that it would have to have been done in any event for the substantive litigation), that also has to be seen in the context of the litigation. A client can, of course, insist that a lawyer persist with a weak argument (subject to that lawyer's obligations as an officer of the court), and in those circumstances a client must pay for the legal work done, but there is no evidence that this is what happened here. Here, the work was done in a vacuum of proper costs disclosure, advice and informed instructions. The absence of proper costs disclosure impacts on what a proper costs reduction as a consequence of failure to disclose should be.
The question also remains what, if any, costs charged to the clients on both the interim injunction application and the injunction application were ultimately costs which would have had to be incurred in the matter in any event. Firstly, the costs of reading all of the plaintiffs' materials on both applications are recoverable, as those costs would have had to be incurred in considering whether or not to oppose the injunction application. Secondly, any costs incurred in preparing the clients' case on the injunction application which would have been incurred in preparing the matter for trial are recoverable. Hence, many of the costs incurred (other than specific preparation for, and attendance at, the injunction application hearings) would likely be costs which the law firm is entitled to recover in any event. This will be assessed at the final hearing of this matter.
I will hear the parties as to the quantum of the legal costs not reasonably charged in relation to the interim injunction application at the final hearing of this matter but I find, as a preliminary matter, that the amounts charged for work done in relation to the injunction application, in the absence of ongoing costs disclosure, and compounded by a failure to give legal advice as to the merits of opposing the interim injunction application, are prima facie relevant to the quantum of the reduction in costs to be made.
C2: Whether the summary judgment application should have been made
The clients state that the law firm filed a summary judgment application in the proceedings on 10 October 2019 in relation to an aspect of the proceedings, specifically the 'salary' or 'wage' payments sought by PJK under a heads of agreement. The clients contend that the summary judgment application was pursued despite it not being a straight-forward case. Further, the clients submit that PJK and RMK were not properly advised on the prospects of success in relation to the summary judgment application.
The clients contend that the only written advice that the solicitor provided to the clients in relation to the summary judgment application was as follows:
(i) On 2 September 2019: "I propose to move for summary judgment to recover Paul's wages. I must first understand what if any defence NFG have to this claim".[20]
(ii) On 31 October 2019: "There is no point in trying to refute factual allegations at this time. That is for the summary judgment application. If the court finds an issue of fact or law that impacts upon the relief sought in summary judgment, it must send it to trial. You have to establish that there is no defence to the claim".[21]
(iii) On 31 October 2019: "Whilst the defence raised (by [the first plaintiff] in relation to the summary judgement application) smells, it is open to the court to give [the first plaintiff] the right to defend the claim. You are exposed to an order for costs if you lose, but I think it unlikely the court will make this order'.[22]
[20] RMK affidavit, Annexure RMK5, pars 17 - 18.
[21] RMK affidavit, Annexure RMK7, pars 21 - 22.
[22] RMK affidavit; Annexure RMK8, pars 23 - 24.
The summary judgment application was pursued by the clients at the recommendation of the solicitor who, the clients assert, orally represented to the clients that they had a good prospect of success and that the application should be pursued. RMK deposes: "In around early September I recall [the solicitor] verbally raising the idea that we pursue a 'summary judgment application'. I recall [the solicitor] saying words to the effect that the application had a good prospect of success and that he was confident in a positive outcome. At that time [PJK] and I had never heard of such an application and we did not understand it. [The solicitor] never fully explained to us what it entailed".[23]
[23] RMK affidavit, par 16.
As I have noted above, RMK was not cross‑examined on the contents of her affidavit.
On 7 February 2020, the summary judgment application was dismissed. The clients refer to par 54 of the relevant decision where it was held that "the case is not as clear and certain as the plaintiffs contend. I am satisfied that there are issues in dispute that ought to be tried". The clients refer to issues identified in that decision, namely (references are to paragraphs of the summary judgment application judgment):
(i) the difficulty in establishing that the agreement had been varied (or novated) so as to provide that RT was to perform the work instead of PJK and the terms of that variation/novation: see [45], [49] and [50];
(ii) that PJK was not an employee of the first plaintiff: see [49];
(iii) that there was no evidence of the terms of agreement under which RT provided services and, in particular no evidence as to how it when it might be terminated: see [52]; and
(iv) that the plaintiffs' evidence was that in or about February 2019, PJK ceased to provide services to the first plaintiff and the agreement was purported to be terminated on 1 May 2019, by the plaintiffs, making it potentially challenging for the clients to claim anything after that date: see [53].
The clients contend that, in light of the recognition by the solicitor that factual assertions would need to be dealt with at trial, the pursuit of a summary judgment application in circumstances where he had not attempted by pleading or on affidavit to identify a novated agreement is problematic. The law firm ought to have had all the relevant materials and instructions before it prior to making the summary judgment application.
In support of the proposition that a taxing officer can entirely tax off the claim for costs incurred in preparing the summary judgment application, the clients rely on the decision of the Court of Appeal in Zaghloul v Woodside Energy Ltd.[24] In that case the taxing officer at first instance had, inter alia, refused to allow the costs involved in the preparation of a summary judgment application because the taxing officer considered it was unnecessary for the solicitors to have briefed counsel given the "significant history of litigation between the parties".[25] This course was upheld before K Martin J and on appeal to Quinlan CJ, Murphy JA and Pritchard JA.[26]
[24] Zaghloul v Woodside Energy Ltd [2019] WASCA 187.
[25] Zaghloul v Woodside Energy Ltd [33].
[26] Zaghloul v Woodside Energy Ltd [91].
The clients submit that it was not reasonable for the law firm to carry out the work in relation to the summary judgment and the clients object to all work undertaken in relation to that application. They contend that there was no evaluative assessment communicated to them by the solicitor to enable them to make a cost benefit analysis of pursuing the summary judgment application.[27] I note that, again, as with the injunction application dealt with above, the law firm appears to have given no estimate of the costs of the summary judgment application so as to allow the clients to make an informed decision on whether the application should be pursued.
[27] ts 22.3 (25 November 2010).
I note that it was the new solicitors for the clients who represented the defendants at the hearing of the summary judgment application; on 14 January 2020. Accordingly, in so far as that application was proceeded with, the court can infer that, as officers of the court, the new solicitors would not have proceeded with an application that was doomed to fail. One can therefore assume there was some prospect of success.
In response, the law firm contends that, in the 2 September 2019 email, it proposed a summary judgment application if conferral with the first plaintiff did not reveal an arguable defence.
The law firm states that the only issue raised by the defendants by counterclaim, in conferral, was that the remuneration agreement (in cl 6(c) of the heads of agreement) had been reviewed (in accordance with the provisions of the heads of agreement) and, pursuant to that review, orally terminated. In support of that proposition the law firm relies on the 11 September email from the solicitor to the plaintiffs' solicitors[28] and the memorandum of conferral filed on 10 October 2019.
[28] TWE affidavit; Annexure 1, page 53.
The law firm contends that the claim was weakened by RMK's change in testimony set out at a meeting on 8 October 2019 which is referred to at Item 155 of the bill of costs: 'TWE Meeting with clients to discuss affidavits and the matter broadly'. I note that no file note is produced and the TWE affidavit does not depose to anything regarding that meeting.
An affidavit filed by the plaintiffs, sworn by PRH on 24 October 2019, raised an oral variation and misleading conduct. The submissions, filed by the law firm on behalf of the clients, dealt with these allegations and sought a conditional order if a question of fact remained. The law firm also relies on the 31 October 2019 email[29] in support of its position.
[29] TWE affidavit, Annexure 1, page 43.
The law firm's submissions, on the summary judgment application, were filed on 1 November 2019. The first return of the application, on 21 November 2019, was adjourned to deal with the application by the plaintiffs to stay the proceeding on the ground that the matter should proceed by arbitration.
The law firm states that new solicitors were then appointed to act for the clients. The stay application by the plaintiffs was dismissed in December 2019 on the grounds set out in the submissions prepared by the law firm. The summary judgment application was heard on 14 January 2020. The new solicitors for the clients argued the application on the counterclaim as pleaded by the law firm and on the submissions prepared by the law firm, save that they did not seek the alternative relief sought by the law firm.
The law firm states that the new solicitors changed the basis of the claim. On 16 January 2016, two days after the hearing on 14 January 2020, the clients amended the counterclaim and their submissions. In the reasons for decision his Honour states: "The amendments to [56] and [57] delete the claim by [PJK] for 'salary', with the plaintiffs now claiming only for services provided by [RT], 'through [PJK]', pursuant to the Variation".
The law firm states that the prayer for relief was similarly amended to delete the alternative claim by PJK. At [48] and [49] his Honour said: "The plaintiffs' position on the summary judgment application reflected the change in legal representation between the filing and the hearing of the application. The plaintiffs no longer rely on the terms of the written heads of agreement. The plaintiffs' submissions and pleading speak of a Variation to the heads of agreement, but it appears, in substance, to be a different agreement".
The law firm submits that, in the end, the summary judgment application was run and lost on grounds raised by the new solicitors, although they went to hearing on the pleading and submissions filed by the law firm. The law firm submits that it is difficult to understand how the clients can, on the one hand, assert that the summary judgment application was hopeless, and, on the other, run the same case to hearing and then abandon the heads of agreement as the foundation of the claim.
At the hearing the clients' counsel submitted that by the time they took over the file from the law firm so much time and costs had been invested in the summary judgment application that "There was nothing to be done other than to abandon it or roll the dice" and accordingly proposed order 1 was amended and proposed order 2 was abandoned.[30]
[30] ts 20.1 to 20.8 (25 November 2020).
I do not conclude that the work done in relation to the summary judgment application was unreasonably done but, in the context of failure to give ongoing costs disclosure a situation compounded by a failure to give clear legal advice as to merits, the circumstances of the summary judgment application are relevant to determine how costs should be reduced in this matter.
D: Conclusion: Determination of quantum of costs reduction consequent on failure to disclose.
D1: Should the amount of costs be reduced by the taxing officer by an amount proportionate to the seriousness of the failure to disclose?
In order to assess the effect of the failure to disclose, that failure to disclose has to be seen in the context of what was happening in the proceeding at the relevant time. The failure to adequately disclose the level at which fees were being incurred is intrinsically linked to what was causing fees to be incurred and what information the clients had about both their prospects of success in the interlocutory matters balanced with any sort of costs/benefit analysis of taking or opposing, those interlocutory steps.
In this matter, solicitor/client costs were increasing rapidly against interlocutory applications where no costs breakdown had been given such that the clients could assess the costs being incurred in interlocutory matters as against a total estimated budget for the entire proceeding (through to trial). Those costs were being incurred in a context where no costs/benefit advice was given, in particular, of opposing the interlocutory injunction application or pursuing a summary judgment application. The situation was compounded by there being no evidence before me that any advice was given on prospects as to either of those matters.
Hence, the consequence of the failure to disclose has to be seen in that full context before I can determine the costs consequence of the failure to disclose. The question is whether the failure to disclose had a serious consequence for the clients in the context of the fees being incurred absent a proper context being given to those fees.
I find that there was a serious consequence as the clients were never given sufficient, meaningful, ongoing disclosure such that they could understand (i) how legal fees were being incurred in the context of the overall proceeding as against interlocutory costs and (ii) how they could allocate their budget to best effect in the litigation.
In all of the circumstances I therefore find that my discretion is activated such that I should either make a reduction in the costs pursuant to s 286(4) by an amount considered by me to be proportionate to the seriousness of the failure to disclose, or assess the costs other than by reference to the costs agreement pursuant to s 302(1)(c).
In making my determination I have regard to the fact that there is still a costs agreement on foot. The adverse effect of the failure to disclose was that the clients were never in a position to see their current exposure to solicitor/client costs in the context of the steps being actually taken in the litigation as against the anticipated future solicitor/client costs likely to be incurred in the standard procedural steps required in the proceeding if the matter went to trial. There was no breakdown of costs incurred into the context of expected future costs. The law firm had significant relevant information which should have been utilized to give the clients that costs disclosure.
In DG Ogle v Bowdens,[31] the Full Court of the Queensland Supreme Court was dealing with the assessment of costs under the Queensland equivalent of s 286(4). The court held that the cost assessor was entitled to draw on his or her experience in this field of expertise to inform his or herself as to what factors, including scales of costs to take into account, in discharging his or her obligations. This included that there was an applicable scale of costs against which the costs could be assessed in lieu of using the costs agreement. By applying the relevant scale, the approach under s 286(4) becomes effectively the same as that made under s 302(1)(c).
[31] DG Ogle v Bowdens [1979] Qd 507.
The factors I must consider in this case include the failure to comply with the disclosure requirements under s 260 and s 267 and the consequences of the failure under s 268(4). I am entitled to use for this purpose the costs scale that would apply in the absence of a costs agreement, namely the Supreme and District Courts (Contentious Business) Determination 2018 (WA) (the Supreme Court scale).
D2: How should the reduced costs be assessed?
I am permitted to ameliorate the reduction in costs from the costs agreement to the scale by allowing a care and consideration component not included in the Supreme Court scale. In that regard, I take into account that the clients had agreed to pay the law firm at hourly rates above those provided by the scale.
I consider that in applying s 268(4) and s 301(1)(c), it is fair and reasonable to adopt a similar rate of remuneration for professional fees of the respondent by reference to the remuneration allowed by the Supreme Court scale, plus a care and consideration component not included in the Supreme Court scale.
I determine that the consequence of the failure to disclose should be that the law firm should only be permitted to recover solicitors' costs capped at the applicable hourly rates provided in the Supreme Court scale plus 10% (inc GST) and costs are to be capped at scale items plus 10% (inc GST).
The law firm should redraw the bill of costs in accordance with this decision. That bill should not include amounts for work already determined herein to have not reasonably been done, as determined in Section C above. On the taxation of the revised bill, I will proceed to determine what of that remaining work was reasonably and necessarily done.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RD
Associate to Registrar Whitbread
14 MAY 2021
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