Coeur de Lion Investments Pty Limited v Pinehurst Nominees Pty Ltd

[2014] QSC 314

SUPREME COURT OF QUEENSLAND

CITATION:

Coeur de Lion Investments Pty Limited v Pinehurst Nominees Pty Ltd [2014] QSC 314

PARTIES:

COEUR DE LION INVESTMENTS PTY LIMITED
(applicant/defendant)
v
PINEHURST NOMINEES PTY LTD
(respondent/plaintiff)

FILE NO/S:

2588 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

23 September 2014 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

23 September 2014

JUDGE:

Carmody CJ

ORDERS:

Orders as per draft;1.   

2.   No order as to costs.

CATCHWORDS:

PROCEDURE – COSTS – APPEALS AS TO COSTS – MISTAKE OF LAW OR FACT – where Deputy Registrar took into account irrelevant considerations in determining an application to appoint a costs assessor

Lessbrook Pty Ltd (in liq) v Whap; Stephen; Bowie; Kepa & Kepa [2014] QCA 63, applied

COUNSEL:

P Travis for the applicant.
SM Gerber for the respondent.

SOLICITORS:

HopgoodGanim Lawyers for the applicant.
Sykes Pearson Miller Lawyers for the respondent.

THE CHIEF JUSTICE:   This application seeks leave for re-hearing of an application for appointment of a costs assessor and an order that Mr Christopher Pike be appointed in lieu to assess costs payable under a judgment given by Jackson J on 20 February 2014.

The review application is brought under r 791 of the Uniform Civil Procedure Rules. Under that rule, a dissatisfied party may, with leave of the Court, apply for a re-hearing. Here, it is conceded that because of a legal error, the Deputy Registrar took into account irrelevant considerations or applied the wrong test and that leave should be granted. I am satisfied that that is so and grant leave accordingly.

The respondent filed an application for the appointment of Mr Neville Hiscox to assess the costs on 1 August 2014.  The applicant opposed the appointment of Mr Hiscox and proposed instead the appointment of Mr Pike.  It sent written submissions and supporting material to the Deputy Registrar by the email on 19 August 2014.  The Deputy Registrar ordered the appointment of Mr Hiscox on 26 August 2014 and gave reasons for his decision.  This application was filed on 10 September 2014. 

Counsel for the respondent identifies at paragraphs 14 and 15 of his written submissions the reasons for retaining Mr Hiscox despite the Deputy Registrar’s error.  Counsel for the applicant identifies why he submits Mr Pike should be appointed instead of Mr Hiscox at paragraphs 29 to 31 of his written submissions.  I have taken into account both rival contentions and considered them in the context of the decision of the Court of Appeal in Lessbrook Pty Ltd (in liq) v Whap; Stephen; Bowie; Kepa & Kepa [2014] QCA 63.

While it is contended by the respondent that Mr Hiscox is the more suitable and experienced costs assessor, on the material, I am not satisfied that there is any evidence base, apart from unqualified opinion, to ground a finding that there is anything to distinguish between the rival assessors in terms of experience, skill, diligence, expedition or availability.  That leaves, as in Lessbrook, a situation where both competing assessors, at least on paper, have equal claims to appointment. 

In Lessbrook at [27], Muir JA, in similar circumstances, identified the hourly rate of charge as “…an obvious criterion for distinguishing between [rival assessors].” There was a substantial variation in hourly rates in that case, the lowest being $275 per hour and the highest $400 per hour. There was a $25 gap between the two nominees, with the lowest in the Lessbrook being the appellant’s preferred candidate.  Muir JA noted that the difference, particularly having regard to the emphasis placed on fees by the Rules, could not be regarded as de minimis.  His Honour also pointed out that the order of filing of the competing consents, while relevant in some circumstances, must be treated with care.  Plainly, its significance will vary from case to case and the review by this Court militates against arbitrary decision-making and fettering of discretions by the adoption or application of a rule of thumb or practice on an invariable basis. 

The discretion in each case must be exercised having regard to all the particular circumstances.  While the past can aid the exercise of a discretion based on a prediction or assessment of competing abilities and efficiencies, it is not always reliable.  The same body of evidence can lead to equally reasonable but opposite conclusions with neither being demonstrably right or manifestly wrong.  In Lessbrook, the Court emphasised the Registrar’s obligation not to take into account irrelevant considerations, to take into account the parties’ submissions, and to take into account all other relevant considerations that the Registrar is bound to have regard to.  Those obligations also apply to this re-hearing. 

As neither party has identified any evidentiary basis for any reason to prefer the selection of one of the cost assessors here over the other, it seems to me, as it did to the Court in Lessbrook, that the assessor charging the lowest hourly rate should be appointed.  In this case, that is Mr Pike.  Mr Pike will charge, as quoted, $198 per hour for his work performing the assessment of costs.  Mr Hiscox’s hourly rate is $330.  Mr Pike is ready to commence the assessment of the file by 26 September 2014 and give it his undivided attention on the afternoon of the 29 September 2014 through to the balance of that week.  Mr Hiscox is ready start immediately and is able to undertake at least 50 items per hour, according to the affidavit of Mr Roati filed by leave for the respondent. 

While care must be taken when using the lowest hourly rate as the decisive factor, in this case, it seems to me to be the only rational basis for distinguishing between the two assessors.  Having said that, I am mindful that, as Henry J and Muir JA both correctly pointed out, an experienced assessor may charge more per hour but take less time to complete the task than an assessor charging less but who is less efficient.  Nonetheless, the differences in the hourly rate of competing costs assessors was and should be treated as significant and, in this case, decisive. 

In those circumstances I make the orders as per the draft.

The usual rule of practice is that the loser of an application pays.  The successful applicant contends that there is no justification for departing from that approach in this case.  The unsuccessful respondent contends that, by contrast, the application for review resulted from the administrative error of the deputy registrar that was not contributed to by either party and that, in those circumstances, no order for costs should be made. 

I am mindful that both parties have spent money to correct an administrative error.  That is regrettable but in my view, apart from the applicant’s success on the application, it seems unjust or inequitable in the circumstances to order the respondent to pay not only its costs but the costs of the applicant where, as I say, there is no evidence suggesting fault on its part.  I have taken into account the factors other than the success or failure of the application that Mr Travis referred me to, and am nonetheless satisfied that the just result is that the costs be allowed to lie where they fall.  No order as to costs.