Australian Mutual Provident Society v Kien Dan Luu Pty Ltd & Ors (No 2) No. DCCIV-97-9

[2001] SADC 177

AUSTRALIAN MUTUAL PROVIDENT SOCIETY v KIEN DAN
LUU PTY LTD AND OTHERS
[2001] SADC 177

Judge Rice
Civil

Introduction

1. This is an appeal from an order of a Master relating to the taxation of a Bill of Costs.  I refer to the history of the proceedings below, but I should say something initially about the nature of these proceedings.

2. Norman Waterhouse took proceedings in the Adelaide Magistrates Court for legal costs unpaid by Mr and Mrs Luu and Kien Dan Luu Pty Ltd (“the company”).  Although the liability of Mr and Mrs Luu and the company to pay legal costs is conceded, the quantum remains in dispute.

3. On 24th April, 2001, the Master made general rulings concerning the entitlement of Norman Waterhouse to charge for certain of its costs.  On 3rd July, 2001, the Master heard argument on specific items that were the subject of dispute and made certain rulings.  The Master then allowed the costs of Norman Waterhouse in the amount of $18,327.26 and authorised the Registry to issue the Allocatur in that amount.

4. The precise nature of the proceedings before me is a contentious matter, although in practical terms the result is unaffected.

5. Mr Luu, who presented the case for himself, his wife and the company, contended this was an appeal pursuant to s.43(2) of the District Court Act and DCR 97.01.

6. Mr Tredrea, on behalf of Norman Waterhouse, contended that the proceedings were not an appeal pursuant to Rule 97.01 but a reconsideration and review pursuant to DCR’s 101.19, 101.20 and 101.21.  So far as I can glean from the Court file, the procedure envisaged by Rule 101.19 has not been followed.  Having said that, the argument before me revealed that there was full argument before the Master upon items the subject of objection.  In my view, a reconsideration by the Master would not serve any useful purpose.  Being of that view, on the application of Norman Waterhouse, I dispense with compliance with Rule 101.19.  Whether the proceedings are now governed by Rule 101.21 or Rule 97.01 does not, in my view, make any practical difference in this case, although I favour Rule 101.21.  No further evidence was sought to be lead as is contemplated by Rule 101.21.

7. The nature of the Judge’s review pursuant to those two Rules is expressed and interpreted differently.  However, for my purposes, I have adopted and applied the discussion and test of Kitto J in Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621 at 627-629, particularly p.629. This test applies to Rule 101.21 reviews.

   History of the proceedings

8. A little needs to be said about the manner in which the present proceedings arose.  In 1996, the AMP Society took action against Mr and Mrs Luu and the company to recover monies advanced by it to them.  At that time, Mr and Mrs Luu and the company had solicitors acting for them other than Norman Waterhouse.  The matter came on for trial before Judge Pirone in the District Court.  Part the way through the trial of the matter, Mr and Mrs Luu and the company terminated the instructions of their previous solicitors and instructed Norman Waterhouse.  The basis upon which Norman Waterhouse was instructed is contained within written Terms of Engagement dated 16th December, 1997.  In March, 1998, the instructions of Norman Waterhouse were also terminated.  Orders that Norman Waterhouse cease to act for any of the defendants were obtained on 19th March, 1998.

9. Norman Waterhouse unsuccessfully sought to obtain its fees without recourse to legal proceedings.  Eventually, proceedings were instituted in the Adelaide Magistrates Court and an order was made by Mr Rogers SM that the costs of Norman Waterhouse be taxed.  Norman Waterhouse then drew its Bill of Costs and it is the taxation of that Bill that has given rise to these proceedings before me.

   Arguments upon Review/Appeal

10. As mentioned, the Master made certain general rulings on 24th April, 2001 concerning the entitlement of Norman Waterhouse to charge for some of its costs.  The first ruling was that the solicitors are, by virtue of their retainer agreement dated 16th December, 1997, entitled to charge on a time basis as set out in that letter.

11. Secondly, the solicitors are entitled to charge for their costs after 10th March, 1998 (being the date of the letter terminating their instructions) insofar as they relate to ceasing to act for the client.

12. The grounds complain that the Master erred in a number of respects.  I deal with them using the same number as the Notice of Appeal.

    Ground 2(a)

13. Mr and Mrs Luu and the company were provided with three invoices dated 21/1/98, 10/2/98 and 13/3/98 respectively as the matter progressed.  The particulars provided in those invoices are expressed in very general terms, only sometimes with the total period of time involved and no reference to the hourly rate.  The Bill of Costs, on the other hand, provides the necessary detail as required for the purposes of taxation.  The complaint is that the amount invoiced does not tally with the comparable dates and items in the Bill of Costs and that the amount charged in the Bill of Costs is greater.  On that basis it is said that they should not be required to pay more than that itemised in the original invoices.

14. As observed, the Bill of Costs is in much greater detail than the invoices and includes some items not included in the invoices.  It seems clear that the preparation of the Bill of Costs exposed items additional to those charged in the invoices, probably items that had been overlooked.  The fact of there being differences between the original invoices and the eventual Bill of Costs is not decisive.  This matter was fully argued before the Master and he decided that all items should be allowed.  I do not see any basis upon which to take a different view.

    Ground 2(b)

15. Mr and Mrs Luu claim that Norman Waterhouse charged them in the Bill of Costs for more time than Norman Waterhouse spent on various items.   Transcript pages from before Judge Pirone were provided.  Again the Master heard full argument.  As is revealed by the original Bill of Costs on the Court file, Mr and Mrs Luu were partially successful concerning items 22, 62, 86 and 91.  Costs were taxed off by the Master.  Again I see no reason to depart from his decisions.

    Ground 2(c)

16. The complaint in this ground is that Mr and Mrs Luu should not have been charged for the attendance of an instructing solicitor as well as counsel.  The Master refused to tax off any amount under this heading.

17. It is submitted by Norman Waterhouse that this was a complex matter that required the attendance of both counsel and an instructing solicitor.  Judge Pirone delivered his 84 pages judgment on 25th February, 1998.  AMP was partially successful;  Mr and Mrs Luu and the company were partially successful.  The transcript runs to 2,250 pages.  The hearing spanned various dates between August, 1997 and February, 1998.

18. A consideration of the judgment showed that the issues were many and complex.  The primary issues related to agency and breach of contract.  Arising from those issues was the measure of damages for breach of contract, a claim for damages for personal injuries following AMP’s wrongful termination of the corporate defendant’s agency and a claim for damages by a non-party to the contract.

19. Whilst this was not a case that called for two counsel, the length and complexity of the matter justified an instructing solicitor who needed to be present at all times.  Again I see no reason to depart from the decision of the Master.

    Ground 2(d)

20. As was referred to above, Master Berry gave leave that Norman Waterhouse cease to act for Mr and Mrs Luu and the company on and from 19th March, 1998.  This ground complains that no charge should have been made to them after that date.  Items 148-184 are referrable to this ground.  Yet again this was the subject of extensive submissions before the Master.  Some amounts were taxed off in recognition of the limited success under this heading.

21. Mr and Mrs Luu do not seem to appreciate that the Rules of Court require certain procedures be undertaken to seek leave to withdraw and attending at Court for that purpose.  The charges involved are moderate and I see no reason to disagree with the Master.

    Ground 2(e)

22. This ground is specific in the sense that it complains that charges were made at the rate of $160 and $170 per hour, being in excess of the scale on a party and party basis.

23. This ground can be disposed of by direct reference to the Terms of Engagement of Norman Waterhouse dated 16th December, 1997.  Those terms specifically permit the two named solicitors to charge at rates of $170 and $160 per hour respectively.  The Master, in a preliminary ruling on 24th April, 2001, decided that Norman Waterhouse could charge out on an hourly basis in accordance with that fee agreement.  On its face, that agreement is in order and all parties acted in accordance with it.  No proper reason has been advanced as to why Mr and Mrs Luu should not be bound by its terms.

    Grounds 2(f), (g) and (h)

24. These complaints can be dealt with in a composite manner.  They relate to Mr and Mrs Luu being charged with costs associated with the taxation process.  Unless Mr and Mrs Luu were substantially successful in their objections, then Norman Waterhouse are entitled to the costs of drawing the Bill and attending upon the taxation.  Mr and Mrs Luu had only very limited success.

25. For the above reasons, this appeal/review fails.  No matter which test is used (either Rule 97.01 or 101.21), there is no reason to depart from the decisions of the Master.

26. I will hear the parties as to costs.  I note that Norman Waterhouse, in the event of it being successful, seeks its costs of the review fixed in the amount of $500.