AIF Lucas and Co v Alexellis
[2018] VSC 419
•3 August 2018
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COSTS COURT
S CI 2017 03346
IN THE MATTER of Section 3.4.40 of the Legal Profession Act 2004
| AIF LUCAS & CO, Barristers & Solicitors (a firm) | Applicant |
| - and - | |
| GEORGE ALEXELLIS | Respondent |
RULING AND REASONS
JUDGE: | Wood AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 June 2018 |
DATE OF JUDGMENT: | 3 August 2018 |
CASE MAY BE CITED AS: | AIF Lucas & Co v Alexellis |
MEDIUM NEUTRAL CITATION: | [2018] VSC 419 |
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr I Robertson | Ian Robertson Legal |
| For the Respondent | Respondent in person |
HIS HONOUR:
On 25 June 2018 I heard argument and evidence in relation to a preliminary issue in this matter and reserved my decision. At the conclusion of the hearing the respondent sought to rely on a mobile phone recording of a meeting held on 26 November 2011 between individuals that included himself and representatives of the applicant. An order was made for the respondent to file and serve an independently transcribed record of that recorded meeting. An authenticated transcript prepared by Legal Transcripts Pty Ltd was subsequently provided on 13 July 2018. I now publish my ruling and reasons.
This current proceeding commenced on 21 August 2017 when the applicant filed a Summons to review some of their own legal costs. The applicant originally provided legal services to the respondent in his capacity as an executor pursuant to a signed Costs Agreement commencing on or after 12 February 2010 in relation to a ‘Part IV application against the estate of the late Stavros Alexellis’. The bill of costs claims $14,728.57 and covers work performed between 13 December 2010 and 23 August 2011. The bill, dated 10 October 2011, was prepared by ‘LIV Legal Costing’.
The respondent was the executor of his late father’s estate. The litigation was initiated against the estate on 29 October 2009 by the respondent’s sister, Mary Louvros (‘his sister’), pursuant to Part IV of the Administration and Probate Act 1958.[1]
[1]S CI 2009 09837.
The applicant represented the respondent in the Part IV proceeding and at a mediation on 2 August 2010 which culminated in Terms of Settlement (‘Terms’) being signed in relation to that proceeding. The solicitor acting for the respondent was Simon Lo (an employee of the applicant at the time) and the respondent’s counsel was Graham Robertson. The work contained in the bill of costs, sought to be reviewed, therefore post-dates the execution of the Terms. The Terms did not finalise all the disputes between the respondent and his sister as arguments continued in relation to a number of estate issues. Relevantly, for the purpose of the current proceedings, argument, initiated by the respondent’s sister, continued in relation to the ambit of the Terms.
The Terms provided, in part, for the respondent to take the deceased’s ‘property’ in Greece and for his sister to relinquish any claims in relation thereto. There were two properties in Greece. A house and a separate piece of land. The second property which although in reality may not have been an olive grove, has been described as such throughout. Therefore references to ‘olive grove’ in these reasons refer to this second piece of land.
In an affidavit sworn 20 October 2017 and relied upon in the current proceeding the respondent deposes that the Terms were ‘not properly worded’ and were ‘open to interpretation’. He deposes further that ‘Simon Lo and Graham Robertson told me they would resolve their error at no costs to me or the estate’.[2] The respondent’s affidavit exhibits an email from Graham Robertson to Simon Lo (and the applicant’s principal, Mr Lucas) dated 23 August 2010 which confirms that he (Robertson) was prepared to give some gratuitous ‘after sales service’ on a limited basis.[3] The respondent deposes that ‘This was to assure me that the error would be resolved at no further cost to me. Simon Lo stated this verbally to me but never provided it in writing’.[4]
[2]Paragraph 2 of the respondent’s affidavit sworn 20 October 2017.
[3]Exhibit ‘GA 3’.
[4]Paragraph 9 of the respondent’s affidavit sworn 20 October 2011.
A preliminary hearing was scheduled in relation to whether there was an agreement between the parties to the effect that the respondent would not be charged for any work performed by the applicant after the execution of the Terms relating to the Part IV proceeding. If there was such an agreement then the applicant would not be entitled to make a claim for work of that nature that post-dated the Terms.
Simon Lo has long since left the employ of the applicant. He swore an affidavit on 20 June 2018 in this proceeding in which he refers to the respondent’s affidavit dated 20 October 2017 and denies ‘all his allegations made against me personally. They are untrue’.[5] He deposes further ‘I say that I did not advise Mr Alexellis that A.I.F. Lucas & Co would not charge any legal fees, post Mediation. I could not do so, as it was only my Principal, Mr Lucas, who had authority in relation to billing decisions.’[6]
[5]Paragraph 7 of the affidavit of Simon Lo sworn 20 June 2018.
[6]Paragraph 8 of the affidavit of Simon Lo sworn 20 June 2018.
On 22 June 2018, immediately before the scheduled hearing, the respondent filed a further document entitled ‘affidavit’ but it was unsworn. The respondent adopted the first two pages as true and correct in the witness box at the preliminary hearing. It reads, in part, as follows:
1. Simon Lo gave me the letter from Graham Robertson to show that there would be no charge to me or the estate to resolve the issue of ‘the olive grove’ not being mentioned to Mary Louvros at mediation as I had instructed at mediation.
2. This caused the argument about what the word ‘property’ included in the agreement. I had also instructed Simon Lo and Graham Robertson to use wording the (sic) Agreement that could not be disputed. They both assured me that the Agreement was worded correctly. I signed the Agreement under false pretenses (sic).
3. I accepted the letter by Graham Robertson from Simon Lo as being enough to satisfy that I would not be charged by A.I.F. Lucas & Co.
4. A.I.F. Lucas & Co. hired Graham Robertson to be the barrister for my matter. It was explained to me by Simon Lo that it was Graham Robertson who was at fault and that he would resolve the matter.
5. It was also explained that Graham Robertson worked for A.I.F. Lucas & Co. and they acted as one in my matter. I accepted that A.I.F. Lucas & Co. and Graham Robertson and Simon Lo were not independent from each other. They all acted for me as one.
After the Terms were executed the solicitors for his sister (Clark Toop & Taylor) claimed in a letter dated 30 September 2010,[7] that the Terms only covered the house in Greece and that ‘no agreement had been reached over a piece of land used for the growing of olive groves’. In a further letter dated 8 November 2010 the assertion is made that ‘If it was contemplated that all interests were to be transferred, the Terms of Settlement….would have referred to “properties” rather than “property”’.[8]
[7]Exhibit ‘GA - 1’.
[8]Exhibit ‘GA - 2’.
As noted in paragraph 4 above the Terms did not finalise all of the disputes between the respondent and his sister in relation to other matters arising from the estate. The letter of 30 September 2010 also refers to missing chattels and allegations of money being withdrawn from the deceased’s bank account. The dispute in relation to the Terms and other issues in relation to the estate continued well after the applicant’s retainer ended. The respondent described his sister in very unfavourable language at the hearing[9] and it is clear there is, and was, longstanding and ongoing animosity between them. In fact previous County Court litigation[10] in relation to the house in Greece had run to judgment in 2009. There was also previous VCAT litigation in relation to the respondent’s management of his father’s affairs prior to his father’s death.[11] It is hardly surprising that his sister would adopt a course that would prolong disputation even if there was little justification for doing so.
[9]Hearing Transcript – Page 130 at line 19.
[10]Hearing Transcript – Page 125 at lines 13 to 31 & Page 126 lines 1 to 5.
[11]Hearing Transcript – Page 126 at lines 13 to 27.
As a result of his sister’s attempt to continue disputing that the olive grove was included in the Terms the respondent initiated a conduct complaint with the Legal Services Commissioner against Mr Robertson on 24 May 2011.[12] This was subsequently dismissed. On 23 December 2013 the respondent initiated a second conduct complaint with the Legal Services Commissioner against Mr Lo.[13] This was also dismissed in August 2014.[14]
[12]Hearing Transcript - Page 26 at lines 6 to 12.
[13]Part of exhibit ‘SL 1’.
[14]Part of exhibit ‘SL 1’.
Whether Mr Robertson and Mr Lo were or were not aware of the existence of the olive grove at the time of the mediation and whether the Terms sufficiently protected the respondent to retain all property in Greece is an issue that has become a matter that the respondent has become wedded to for a number of years. The respondent recorded a meeting with Mr Lo and Mr Lucas in November 2011[15] which he relied upon in the second conduct complaint to the Legal Services Commissioner. The respondent swears that permission had been given for the recording.[16] The applicant’s position with the Legal Services Commissioner[17] and the Court[18] was that no such permission had been given. The respondent agreed at the hearing that the applicant’s legal costs did not form part of this second complaint.[19] A third complaint has recently been made in 2018 but the respondent stated at the hearing that this is held in abeyance because of the current proceeding.
[15]Referred to in paragraph 1 above.
[16]Paragraph 10 of his affidavit of 20 October 2017.
[17]LSC letter dated 25 August 2014 – part of exhibit ‘SL 1’.
[18]Hearing Transcript – Page 140 at line 21 to Page 141 at line 2.
[19]Hearing Transcript - Page 4 at lines 9 to 17 & Page 133 at lines 4 to 7.
In respect to the 2013 complaint about Mr Lo, the Commissioner advised that he must be satisfied that there was no reasonable likelihood that VCAT would make a finding of professional misconduct or unsatisfactory conduct.[20] As part of that investigation the Commissioner stated in part ‘You say that you signed the deed following Mr Robertson and Mr Lo’s advice that the word “property” as detailed in the deed would cover all property in Greece. In relation to this advice, on the face of the information before them, it would not have been unreasonable for the practitioners to have believed the term “property” would have covered all property in Greece’.[21] That second complaint was dismissed on 25 August 2014.
[20]Letter to the respondent dated 30 May 2014 (part of Exhibit ‘SL 1’).
[21]Letter to the respondent dated 25 August 2014 (part of Exhibit ‘SL 1’).
The conclusion of the Commissioner is not relevant to the determination of the preliminary question before me. However, by way of comment, there is force in any argument that the words ‘property in Greece’ encompasses any and all property both real estate and personal. It is apparent from the transcript of the meeting on 26 November 2011 that this was the interpretation adopted by the applicant in discussion with the respondent.
Both the respondent and Mr Lo were cross examined at the hearing. Prima facie if a lawyer performs work for a client he is entitled to charge.[22] The respondent has the burden of proof to establish that there was probably an agreement to the contrary.
[22]Hudgson v Endrust (Australia) Pty Ltd [1986] 11 FCR 152 at 154.
The respondent spent considerable time attempting to establish, and have Mr Lo concede, that he was told about the existence of the olive grove owned by the deceased prior to the execution of the Terms. He stated he was doing this in order to demonstrate that Mr Lo had a poor memory,[23] had lied to the Commissioner[24] and therefore that he was being untruthful about the absence of any agreement that the respondent would not be charged for work performed after the Terms were executed. In relation to the allegation of poor memory there were many occasions on which Mr Lo answered that he ‘could not recall’. A large proportion of these answers related to specific events and sequences of events that occurred seven to eight years ago. Mr Lo did not have the benefit of access to the applicant’s file. Mr Lo also stated in evidence he could not recall what was said at the secretly recorded meeting in November 2011.[25]
[23]Hearing Transcript - Page 69 at lines 4 and 5.
[24]Hearing Transcript - Page 99 at line 8.
[25]Hearing Transcript - Page 34 at line 18 to Page 35 line 4, Page 36 at lines 14 and 15, Page 36 at line 24 to Page 37 at line 1 & Page 108 at lines 1 to 6.
There was some contradictory evidence given by the respondent and Mr Lo in relation to matters that did not directly relate to the issue of whether there was an agreement in place relevant to the applicant’s entitlement to charge for work performed post–Terms. It was not possible to reconcile some of the evidence or determine what actually occurred in relation to some events raised, but they were not directly relevant to the preliminary question. As outlined in paragraph 16 above, the respondent bears the onus of proof as to the existence of the agreement.
Mr Lo swore in his affidavit that there was no such agreement. He was a junior lawyer under supervision at the time and he had no authority to make such an agreement. He confirmed this in the witness box on numerous occasions when questioned.[26] One could pose the question as to why a solicitor would commit perjury and potentially end his career over a $14,000 bill he has no interest in. It would be his former employer who would potentially benefit.
[26]Hearing Transcript - Page 7 at lines 16 to 23, Page 16 at lines 17 to 25, Page 17 at lines 5 to 31, Page 18 at line 1, Page 18 at lines 29 to 31, Page 30 at lines 13 to 26 & Page 119 at lines 12 to 21.
The respondent’s affidavits are silent as to the date or place when the conversation with Mr Lo took place. He gave oral evidence that it was soon after being handed a copy of Mr Robertson’s email dated 23 August 2010 by Mr Lo (referred to in paragraph 6 above). It is not clear when he received the email but it must have been after the stated date in the email. The respondent gave evidence that Mr Lo gave it to him. Mr Lo has no recollection of doing so.[27]
[27]Hearing Transcript – Page 18 at lines 2 to 3 & Page 31 at lines 1 to 9.
However, there are several crucial contemporaneous documents and events of significance which do not assist the respondent in relation to the probable existence of such an agreement.
A typed file note dated 6 October 2010 from the applicant’s file was received into evidence.[28] It records a telephone conversation between Mr Lo and the respondent. The note records in part - ’he understand (sic) that extra work needs to be done, and happy we have our costs, post mediation assessed with LIV – and charged to estate.’ Under questioning Mr Lo conceded he now had no actual recollection of the conversation[29] but when the file note was mentioned to the respondent in cross-examination he did not question its accuracy or validity.[30]
[28]Exhibit ‘3’.
[29]Hearing Transcript - Page 75 at lines 23 and 24.
[30]Hearing Transcript - Page 135 at lines 8 to 10.
The LIV Costing Service subsequently produced a bill dated 10 October 2011. The production of a bill by this same entity containing post-Terms costs in part corroborates the accuracy of the file note. This same bill is in fact the one that is the subject matter of this proceeding. The applicant’s records show it was sent to the respondent on 13 October 2011.[31] At the hearing the respondent initially gave evidence that he did not recall having the bill in October 2011[32] but later acknowledged receiving it.[33]
[31]Part of Exhibit ‘7’.
[32]Hearing Transcript - Page 23 at lines 10 to 12.
[33]Hearing Transcript - Page 132 at lines 25 to 29.
The respondent had already initiated a complaint with the Legal Services Commissioner in May of 2011 so he was aware of that avenue for complaint if he had been given a bill of costs in breach of the alleged agreement in place. At that time the Commissioner had jurisdiction to investigate a civil complaint in relation to a bill of costs under $25,000.[34] No complaint was made about the claim for costs in that bill. The respondent also had the option to apply for a review in this Court within 12 months of receipt of the bill. Neither of these options were explored.
[34]Section 4.2.2(2)(a)(i) Legal Profession Act 2004 .
The delivery of the bill by the applicant is inconsistent with the existence of an agreement not to charge, and the failure of the respondent to take issue with the bill when he received it is consistent with there being no such agreement.
At the hearing a file note dated 8 November 2010 was produced.[35] The note evidences a conversation between Mr Lo and the respondent. I t records that the respondent was frustrated and unhappy about further legal costs. There is no reference to the respondent raising any recent prior agreement about the waiver of costs.
[35]Exhibit ‘5’.
Soon after the receipt of the bill of costs on 13 October 2011 the respondent recorded a meeting with Mr Lo and Mr Lucas on 26 November 2011. The transcript of the meeting confirms that the conversation was only about the olive grove. T here was no conversation or complaint about the bill of costs and any alleged agreement. If there were such an agreement (which was not documented) then logically the respondent would have attempted to obtain an acknowledgment of its existence.
The respondent engaged new legal representation (Professor Phillip Hamilton) after the applicant ceased to act. On 17 February 2012 that new solicitor wrote to the applicant renewing the respondent’s request for detailed bills.[36] The applicant wrote back to Professor Hamilton on 27 February 2012 advising that the respondent had received the itemised bill on 13 October 2011. This was the same bill of costs prepared by LIV Costing Service referred to in paragraph 23 above, also being the subject matter of this proceeding. Again, with the benefit of legal advice and representation the respondent presumably had the option of instructing his new solicitor about the alleged agreement and either making a civil complaint to the Legal Services Commissioner about being charged or making an application to the Costs Court for a review. Either of these rights could have been exercised but were not. The failure to act in either manner while legally represented is consistent with there being no such agreement.
[36]Exhibit ‘7’.
There are other matters that raise questions about the existence of this oral agreement. There is no confirmation in writing by the respondent of the existence of such a conversation about such an agreement. The respondent presents as an assertive and articulate individual who was used to dealing with lawyers acting on his behalf. He had previously engaged and terminated retainers of other lawyers to this point. He presents as the type of person who would be careful to document and confirm in writing such an arrangement if it existed.
Further, the respondent had previously sworn an affidavit in the Probate file[37] on 14 September 2009, prepared by his then solicitors Robinson Gill, which deposes to there being no assets outside Victoria.[38] On 30 July 2010 (a few days prior to the mediation and execution of the Terms in the Part IV proceeding) the respondent swore an affidavit as to the estate assets and deposes to only a ‘House in Lesbos Greece’. The respondent claims that the applicant (via Mr Lo) and his counsel, Graham Robertson, were aware of the existence of property other than the house referred to as the ‘olive grove’ at the time the Terms were drafted and failed to sufficiently protect his position as the Terms only referred to ‘property’ in Greece. The position of Mr Lo is that they were not so aware before the mediation and only first became aware upon receipt of the letter of 30 September 2010.[39]
[37]S PRB 2009 13418.
[38]Exhibit ‘C’ to the respondent’s affidavit in that file.
[39]Hearing Transcript – Page 29 at lines 15 to 19 & 20 to 24 & Page 30 at lines 1 to 14.
As outlined above the Terms refer to ‘property in Greece’ a phrase which is capable of both singular and plural meaning. The respondent had sworn these two affidavits (prior to the execution of the Terms) which made no mention of a second property in Greece. The first affidavit deposed to there being no property at all outside Victoria (sworn in the Probate proceeding) and the second affidavit deposed to only a house in Greece (sworn in the Part IV matter). The actual, and perceived, lack of candour and accuracy in the previous affidavits sworn by the respondent may have been a part of the impetus for his sister continuing the dispute if she was aware of the olive grove or subsequently became aware of the olive grove.
The respondent swore both those affidavits knowing they were false but relies on the fact they were prepared for him by others. The respondent put to Mr Lo at the hearing that he had told him about his conversation with his previous solicitor (Sharon McRae[40] at Robinson Gill) who prepared the affidavit in the probate matter, to the effect that he had raised its inaccuracy with Ms McRae but was told to sign it anyway.[41] Mr Lo stated that he had no recollection of that conversation.[42] The respondent did not give evidence about the swearing of the affidavit in the probate matter. The respondent also put a question to Mr Lo that he had mentioned the olive grove to Mr Lo but was told by Mr Lo to sign the affidavit in the Part IV proceeding anyway. The respondent later gave evidence to this effect.[43] Mr Lo denied this and gave evidence he was only instructed about the house at that time.[44]
[40]Appointed a Magistrate on 26 June 2018.
[41]Hearing Transcript – Page 45 at lines 12 to 18.
[42]Hearing Transcript - Page 86 at lines 4 to 23.
[43]Hearing Transcript – Page 137 at lines 27 to 29.
[44]Hearing Transcript – Page 46 at lines 26 to 27 & Page 90 at lines 3 to 11.
It is primarily the obligation of any deponent of an affidavit to ensure the contents are true and correct. Adverse inferences about the absence of seriousness with which the respondent treats sworn evidence can be drawn. It is inherently unlikely that two separate solicitors from two separate firms on two separate occasions in two separate matters would not amend an affidavit if a client advised them it was inaccurate. One could question the legitimacy of the respondent’s explanation on that basis alone but even accepting what the respondent said, that is, that this is what occurred twice, it is clear from the respondent’s demeanour in the presentation of his case on his own behalf and his cross-examination of Mr Lo that he is not an individual who can be intimidated or overborne. On the contrary, he presents as assertive and expresses his opinions in that manner. On either scenario (whether he was told to swear both affidavits in their inaccurate state or he was not) the respondent was obviously willing to knowingly swear two affidavits that were not accurate.
The meaning of the Terms became the subject of further dispute between the respondent and his sister. That was not ultimately resolved by a Court. The wording in the Terms was prima facie sufficient to protect the respondent’s position that he was to take all or any property in Greece as part of the overall settlement with his sister. The intention of the parties to the Terms is relevant and the respondent gave evidence at the hearing that his sister was aware of the olive grove and had been since at least 2008. Assuming this evidence is accurate then these affidavits would have created the impression with his sister that he was trying to hide or minimise assets of the estate and this would have armed his sister with the ability to query the Terms after they were signed in order to give her leverage in the on-going disputes about the Terms and other matters.
It is of note that the respondent has a document written in Greek dating from 1958[45] which establishes his father’s entitlement to the house and the land described as the olive grove.[46] He gave evidence at the hearing that the document had been in his possession since 2002, that he had never shown it to his sister, that he regarded the land as his heritage even though it had no financial value and that he wanted it.[47] The respondent deposed in his first affidavit that ‘Mr Lo would also have known about the olive grove from the same 1958 document’.[48] However, contrary to that assertion, the respondent then stated in evidence at the hearing that he had not shown that document to Mr Lo.[49]
[45]Exhibit ‘GA 10’ – incorrectly referred to as ‘GA 9’ at paragraph 16 of the respondent’s affidavit of 20 October 2011.
[46]Hearing Transcript - Page 43 at lines 22 to 25.
[47]Hearing Transcript - Page 127 at lines 12 to 18 & Page 129 at lines 1 to 8.
[48]Paragraph 16 of the respondent’s affidavit sworn 20 October 2017.
[49]Hearing Transcript - Page 33 at line 23.
All these matters are relevant in the context of two sworn affidavits that omit any reference to the olive grove. It is also of note that the material generated by the Legal Services Commissioner makes reference to the respondent complaining that he had told Mr Lo that there ‘could’ be other property in Greece. The transcript of the meeting on 26 November 2011 also has Mr Lo conceding that there was discussion with the respondent that there ‘could‘ be other land.[50] Given the respondent knew there was, swore two affidavits there was not and failed to show the applicant and his sister the document that proved there was, leads to the conclusion that the respondent is likely to have only mentioned the possibility of the olive grove to the applicant and been trying to direct focus away from the actual existence of the olive grove.
[50]Meeting Transcript – 26 November 2011 – Page 2 at lines 2 to 9, Page 4 at lines 15 to 19 and Page 6 at lines 29 to 31.
The different positions of the parties in relation to the applicant’s alleged knowledge of the olive grove can be explained on the basis of semantics. That is, as stated by Mr Lo in the recorded meeting, the respondent told them at the mediation (while not actually using the term olive grove) that other land ‘could’ exist rather than it ‘did’ exist. The inclusion of the word ‘property’ in the Terms should have ended the matter. The fact that the respondent’s sister chose to continue the argument does not necessarily mean there was a strong basis to do so particularly if she always knew about the olive grove and then only told her solicitors about its existence after the execution of the Terms.
In evidence was the letter from Clark Toop & Taylor dated 30 September 2010[51] (after the execution of the Terms) referred to in paragraph 10 above, in which a number of matters were still in dispute, e.g., the chattels at Richmond, the taking of money and a claim that the existence of the olive grove had only just come to their client’s attention. The respondent asked questions of Mr Lo[52] on the basis that he (the respondent) was the only one who knew about the existence of the olive grove and therefore the applicant must have told his sister’s lawyers and therefore the applicant must have known about it. This position is then contradicted by his sworn evidence that his father had constantly talked about the olive grove over the years, that the respondent had known about it his whole life[53] and that his sister had known about it since at least 2008.[54] His sister therefore knew about the olive grove, and the issue was probably raised by her with her solicitors after the mediation as leverage to an attempt to re-agitate the remaining matters with the respondent. Mr Lo gave evidence that the Terms referred to ‘property’ even though they only knew about a house in order to give the respondent the benefit of broader wording and greater protection.[55] As outlined in paragraphs 14 and 15 above there is merit in that conclusion.
[51]Exhibit ‘GA-1’.
[52]Hearing Transcript – Page 118 at line 30 to Page 119 at line 8.
[53]Hearing Transcript - Page 43 at line 22.
[54]Hearing Transcript – Page 127 at line 28 to Page 128 at line 19.
[55]Hearing Transcript - Pages 46 at lines 11 to 27 & Page 47 at lines 1 to 14.
On that basis the respondent’s quest to prove that his counsel and solicitors knew about the existence of the olive grove and, in particular, whether they did or did not know at the mediation becomes an arid debate, the answer to which is irrelevant to the issue to be determined.
The email relied on by the respondent only deals with Mr Robertson’s attitude to future costs on a limited basis, and, consistent with that email, no fees for Mr Robertson are contained in the bill. That is the extent of any waiver of fees. For the reasons referred to commencing from paragraph 21 above the claim now being made about an agreement with the applicant has the hallmarks of a recent invention. I cannot be satisfied on the balance of probabilities that there was such an arrangement.
The answer to the preliminary question as to whether there was an agreement between the parties that the respondent would not be charged by the applicant for further work finalising the settlement of the Part IV case after mediation is “No”.
The Civil Procedure Act 2010 imposes obligations on the parties to ensure the time and costs devoted to a dispute are proportionate to the issue in dispute. It is of great concern that the parties are in dispute over a sum of $14,000 in the Supreme Court. The preliminary issue has required affidavits, a full day hearing with transcript and the cross-examination of a professional witness for most of that day. The costs to date would be significant. The taxation of the bill would now ordinarily follow. Unless one or both parties change their position further delay and expense will be incurred, including the further utilisation of publicly funded resources. It is well past the point at which common sense ought to have prevailed. Before fixing the matter for taxation the parties will be given an opportunity to digest these reasons, and consider their respective positions.
I will reserve the question of costs of the preliminary hearing and grant liberty to either party to apply.
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