Erem v Moussa

[2023] NSWSC 536

Supreme Court

New South Wales

Medium Neutral Citation:

Erem v Moussa; The Estate of Mary Moussa [2023] NSWSC 536

Hearing dates:

15 and 16 May 2023

Date of orders:

16 May 2023

Decision date:

22 May 2023

Jurisdiction:

Equity

Before:

Meek J

Decision:

Hearing dates vacated. Costs of the vacation of the hearing dates be the respondent’s costs in the cause, but not including cancellation fees

Catchwords:

CIVIL PROCEDURE — Hearings — Estate litigation — Principally probate issues focussing on deceased’s capacity and rectification of a Will though other relief sought regarding property including an alternative family provision claim — Adjournment — Applicable principles — Vacation of hearing dates — Illness of counsel — First Defendant’s counsel suffers several medical episodes requiring hospitalisation and investigations — Initial episodes not of sufficient moment at that stage to require the applicant then and there to apply to vacate the hearing dates — Counsel’s discussion with medical specialist on 12 May 2023 indicating imperative for counsel to be hospitalised the decisive event to prompt application to vacate hearing dates — Various considerations applicable to decision to vacate — A significant consideration being the volume and complexity of materials for any new counsel who might have been available to have been briefed to consider — Materials in Court Book and Additional Document Bundle exceed 2,500 pages, including recently incorporated set of over 1,400 pages of hospital, healthcare and medical records — Materials include reports of over 20 medical practitioners and specialists spanning a period of over 20 years

COSTS — Principles where adjournment not arising by fault of the applicant — Meaning of costs to be a particular party’s costs in the cause — Discussion regarding cancellation fees

SUCCESSION — Cancellation fees in estate litigation — Probate, Will rectification and family provision costs orders — The particular nature of probate, Will rectification and family provision proceedings is a relevant consideration for the Court in exercising its discretion on costs — No evidence concerning practice regarding cancellation fees or the reasonable need for such fees to be recoverable from another party in probate and estate litigation — On particular facts of the case direction made that cost orders not include cancellation fees

Legislation Cited:

Civil Procedure Act2005 (NSW)

Evidence Act1995 (NSW)

Succession Act2006 (NSW)

Uniform Civil Procedure Rules2005 (NSW)

Cases Cited:

ANZ v Mio Amico Pty Ltd [2013] NSWSC 716

Ballam & Ors v Ferro & Anor (No 2) [2022] NSWSC 1358

Carey v Robson (No 2) [2009] NSWSC 1199

Chant v Curcuruto; Chant v Curcuruto (No 2) [2021] NSWSC 882

Commissioner of the Australian Federal Police v Razzi(No 2) (1991) 30 FCR 64

Edenmead Pty Ltd v Commonwealth (1984) 4 FCR 348

Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502

Forsyth v Sinclair (No 2) [2010] VSCA 195

Galvan v Galvan [2011] FamCA 1033

Haertsch v Whiteway (No 2) [2020] NSWCA 287

Harkness v Harkness (No 2) [2012] NSWSC 35

Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd [2022] NSWSC 1062

Juniper Property Holdings No 15 Pty Ltd v Caltabiano [2015] QSC 95

Kelly v Council of the City of Lake Macquarie (Supreme Court (NSW), Malpass M, 27 May 1997, unrep)

Lawrence v Hannaford (Supreme Court (NSW), Malpass M, 26 March 1997, unrep)

Levy v Bergseng (2008) 72 NSWLR 178; [2008] NSWSC 294

Long v Long; Estate of Ethel Edith Long (No 2) [2004] NSWSC 1114

O’Keefe v Integral Corporate Property Pty Ltd [2022] NSWSC 839

Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd (No 2) [2014] WASC 345 (S)

R v Carbone (No 2) [2017] NSWSC 346

Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813

Rowe v Stoltze (2013) 45 WAR 116; [2013] WASCA 92

Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521

St George Bank v Hammer [2015] NSWSC 957

Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Ltd (No 3) [2017] ACTSC 301; (2017) 325 FLR 436

Vasiljkovic v O’Connor [2011] FCAFC 112

Wilkie v Gordian Runoff [2005] NSWSC 873

Zeltner v Deputy Registrar of the Supreme Court [2022] ACTCA 34

Texts Cited:

Dal Pont, GE, ‘Lawyer Cancellation Fees’ (2020) 46(2) Monash University Law Review 52

Dal Pont, GE, The Law of Costs (5th ed, 2021, LexisNexis)

Category:

Procedural rulings

Parties:

Ali Erem (Plaintiff)
Marcel Aziz Moussa aka Marcel Alnabulsi (First Defendant)
NSW Trustee & Guardian (Second Defendant)

Representation:

Counsel:
K Morrissey (Plaintiff / Respondent)
P Bates (First Defendant / Applicant)

Solicitors:
Turner Freeman (Plaintiff / Respondent)
City Lawyers and Consultants (First Defendant / Applicant)

File Number(s):

2016/313069

JUDGMENT

Introduction

1. HIS HONOUR: On 15 May 2023, the first defendant (applicant) made an oral application in Court to vacate the hearing of these proceedings which was listed to commence on Monday, 22 May 2023 before me for 10 days.

2. The application was heard by me in late-afternoon listings on 15 and 16 May 2023 (as I had a final hearing of another matter on those days). The application to vacate the hearing was opposed by the plaintiff, who was the respondent to the application (respondent).

3. Following the conclusion of the hearing of the application on 16 May 2023, I ordered that the hearing dates be vacated and made costs orders.

4. Counsel for the respondent requested reasons be given for the vacation of the hearing date and orders made. I set out below my reasons for the decision and orders.

Outline of the proceedings

5. The respondent, Ali Erem, claims to have been the de facto husband of Mary Moussa (the deceased) and to have lived with the deceased from 1986 until her death on 23 October 2015.

6. The proceedings were commenced by statement of claim filed on 20 October 2016 and relate to claims that the respondent has in respect of the deceased’s estate.

7. The applicant is a sister of the deceased who a beneficiary under a number of Wills made by the deceased. She lives in Damascus, Syria.

8. The deceased died without issue.

9. The deceased was survived by another sister Madeline Moussa (Madeline), who relevantly has a son, Steven Ibrahim (Steven), being the deceased’s nephew.

Estate

10. The deceased left property in New South Wales including a home unit at Carlton (Carlton unit), a half share in a house in Carlton (Carlton property) and monies in bank accounts. The Carlton unit is valued at approximately $640,000, the half share of the Carlton property according to a recent appraisal appears to be valued in the order of $800,000 (derived from an appraised range of $750,000-$825,000). A sum of approximately $247,456 is held in a St George term deposit and a sum of approximately $4,508 is held in a St George Retirement Access Plus Account.

Wills and severance of a joint tenancy

11. The deceased made a number of Wills being relevantly a Will made on 30 June 1993 (1993 Will), a Will on 10 October 2014 (2014 Will) and a Will on 13 July 2015 (2015 Will).

12. The applicant is said to be a beneficiary under the 1993 Will and the principal beneficiary under the 2014 and 2015 Wills. Steven is said to be a beneficiary under the 2014 and 2015 Wills and Madeline is said to be a beneficiary under each of the three Wills.

13. Further, it is pleaded that on 3 October 2014, a week before the signing of the 2014 Will, the deceased purported to sign a severance of a joint tenancy of the Carlton property with the respondent.

Protracted procedural history

14. The statement of claim nominated the applicant and the NSW Trustee & Guardian (NSWTG) as defendants. The respondent states that the applicant was sued as “although she is a resident of Damascus, she was the only potential major beneficiary named in testamentary documents who was not under a legal incapacity”.

15. On 15 December 2017, the respondent was appointed as administrator pendente lite of the personal estate and receiver of the real estate of the deceased.

16. On 9 November 2018, the respondent, pursuant to leave, filed what was then a further amended statement of claim naming two additional defendants being Steven as third defendant and Madeline as fourth defendant.

17. The proceedings have had an extremely protracted procedural history.

18. Up until the time of the listing of the application before me on 15 May 2023, there appear to have been 58 various listings or occasions on which orders have been made by the Court over the last six and a half years.

Issues

19. The status of the pleadings in the matter is that the respondent’s current claim is embodied in a third further amended statement of claim filed on 20 October 2021.

20. Broadly speaking, the respondent claims that the deceased died intestate and seeks:

1. a grant of letters of administration of the deceased’s estate;

2. a declaration that the respondent is the legal owner of the Carlton property, and the defendants are estopped by the deceased’s conduct from denying that the respondent is the legal owner or seemingly, alternatively, a declaration that the deceased held the Carlton property on trust for the respondent;

3. consequential orders for the transfer of the Carlton property into his name or for the Carlton property to be subject to a form of equitable charge;

4. a declaration that the deceased lacked capacity to sever the joint tenancy of the Carlton property with a consequential declaration sought that the deceased’s half share in the Carlton property passed to the respondent as surviving joint tenant on the deceased’s death; and

5. (alternatively) a family provision order pursuant to the provisions of s 59 Succession Act2006 (NSW) (Succession Act).

21. The applicant filed a defence to the respondent’s current claim on 7 December 2021 relevantly disputing those claims.

22. At some stage (possibly 15 October 2018), the applicant filed a cross-claim (first cross-claim).

23. The current form of the first cross-claim relied upon by the applicant is an amended cross-claim filed on 15 September 2020. By that cross-claim, the applicant seeks an order that probate in solemn form of the 2015 Will be granted to her or alternatively there be a grant of administration with the 2015 Will annexed to the NSWTG.

24. The applicant also seeks orders that in the event that the Court declares the 2015 Will invalid that the 2014 Will be rectified (with an application to extend the time to bring the rectification application) and an order that letters of administration with the 2014 Will as rectified annexed be granted to the NSWTG.

25. The respondent, the NSWTG, Steven (by his tutor) and Madeline (by her tutor) were named as the defendants to that first cross-claim.

26. A second cross-claim was filed by Madeline (by her tutor) naming the respondent, the applicant, the NSWTG and Steven as defendants (second cross-claim). That second cross-claim sought orders that in the event that it is determined that the 2014 and 2015 Wills are invalid that probate be granted to the NSWTG of the 1993 Will.

27. I am informed that there have been at least two mediations of the claims in the proceedings. The first was held on 15 December 2020 and the second on 1 September 2021. Neither mediation resulted in resolution of the respondent’s claim.

28. However, it appears that the claims of Madeline and Steven have been resolved in the proceedings (including as I understand it the second cross-claim) and orders were made on 21 December 2021 by Hallen J formalising that settlement.

29. Thus, apart from the relief sought involving the NSWTG, the active parties to the proceedings are the respondent and the applicant.

30. On 27 June 2022, almost 11 months ago, the proceedings were listed for hearing before me to commence on 22 May 2023 for 10 days, as I have noted above.

Pre-trial directions

31. On 5 April 2023, the proceedings were listed before me for pre-trial directions. On that occasion, Mr Morrissey appeared for the respondent and Mr Bates appeared for the applicant. As the nature of the matter was explained to me on that occasion, I became aware that I had had some incidental involvement in the matter by reference to the fact that a former counsel for the applicant, Ms Kako, had, on a number of occasions, discussed the matter with me, when I was Senior Counsel at the bar.

32. I informed counsel at that stage that I had no detailed recollection of the matter or the facts of the case. I explained briefly what I could recall of the matter. I gave the parties an opportunity to consider whether they wished me to recuse myself from hearing the matter.

33. Mr Morrissey indicated that for the respondent’s part he had no objection to me hearing the matter. Mr Bates wished to seek instructions.

34. On 14 April 2023, Mr Bates sent an email to my Associate indicating that there was no objection on the part of the applicant to me hearing the matter. Subsequently, on 14 April 2023, I listed the matter for pre-trial directions on 18 April 2023.

35. On 17 April 2023, Ms Ventsov the solicitor for the applicant sent an email to my Associate indicating that Mr Bates had been admitted to hospital for some unexpected investigations and would be unable to attend the pre-trial directions listing but proposed alternative listing dates on which Mr Bates would be expected to attend as being 21 and 24 April 2023.

36. On 18 April 2023, at my direction my Associate sent an email to the legal practitioners vacating the pre-trial directions listing and proposing certain pre-trial directions. The email indicated that if either party wished to contend for other directions or wished to raise other issues that matter would be listed on 21 April 2023.

37. Later that day, Mr Morrissey on behalf of the respondent and Ms Ventsov on behalf of the applicant indicated that they were content with the proposed directions and did not seek any further orders or directions.

38. Accordingly, those pre-trial directions were made and entered.

39. On 10 May 2023, Mr Morrissey sent an email to my Associate providing a list of agreed issues.

40. The agreed issues for the hearing were stated as being as follows:

1. Did the deceased have the requisite testamentary capacity at the time of the instrument dated 13 July 2015?

2. If not, did the deceased have the requisite testamentary capacity at the time of the testamentary instrument dated 10 October 2014?

3. If not, did the deceased have the requisite testamentary capacity at the time of the testamentary instrument dated 30 June 1993?

4. Was the respondent as the surviving de facto spouse of the deceased, provided with adequate and proper provision from her estate?

5. If not, what is the appropriate order for provision?

6. Did the deceased lack the requisite cognitive capacity to sever the joint tenancy with the respondent of the property, 6 MacPherson Street, Carlton, NSW (“the Carlton property”)?

7. Should the testamentary instrument dated 13 July 2015 be rectified, pursuant to the Succession Act, s 27(1) as claimed by the Applicant?

8. Whether the applicant can take a grant of probate, or Letters of Administration, whilst outside the jurisdiction, and a resident of Damascus, Syria?

Applicant’s counsel requiring urgent hospitalisation

41. On 12 May 2023, at 3:07 PM, Ms Ventsov sent an email to my Associate (which email was sent with the consent of Mr Goldberg, solicitor for the respondent) seeking effectively to vacate the hearing of the proceedings.

42. Communications between the solicitors indicated that whilst Mr Goldberg consented to the email being sent, he requested that there be an urgent listing of the matter on Monday, 15 May 2023 to make any application in open Court and that the respondent did not consent to the adjournment.

43. The email from Ms Ventsov attached a letter from Dr Leslie which relates to Mr Bates’ health.

44. Dr Leslie is relevantly a urological surgeon. His letter indicates that he had recently assessed Mr Bates and Mr Bates requires urgent hospitalisation and investigation for medical and surgical issues that cannot be safely deferred.

45. The email from Ms Ventsov indicated that the applicant would be severely prejudiced if the trial were to commence as there was claimed to be insufficient time for Mr Bates to arrange a replacement counsel.

46. Shortly after receiving the email, I arranged for my Associate to send an email to the legal practitioners indicating that the matter would be listed at 4 PM on Monday, 15 May 2023 to address the matter.

The application to vacate the hearing

15 May 2023

47. On 15 May 2023, Mr Bates appeared on behalf of the applicant to make the application for adjournment. Mr Morrissey appeared for the respondent instructed by Mr Goldberg.

48. Mr Bates confirmed that the application was an oral application.

49. He tendered the email from Ms Ventsov and report of Dr Leslie. The email contained earlier emails on 12 May 2023 between Ms Ventsov and Mr Goldberg.

50. The letter from Dr Leslie did not particularly identify the nature of the medical and surgical issues. Nonetheless, Mr Bates confirmed that they were of a urological and prostate nature.

51. Ordinarily, on an application for adjournment, the Court might expect an affidavit from the instructing solicitor addressing the basis for the adjournment.

52. Nonetheless, in the exigencies of the situation and without opposition from Mr Morrissey, I received from Mr Bates an oral indication of the basis for the adjournment. I indicated, and Mr Morrissey did not dispute, that I proposed to receive the statement from Mr Bates not as sworn evidence but nonetheless as a solemn statement made by a legal practitioner and officer of the Court.

53. Mr Bates indicated that:

1. He had two ambulance call outs to his home on 2 and 9 May 2023 followed by some tests. On one of those occasions the ambulance took Mr Bates to have some additional investigation. On the other occasion he arranged to see Dr Leslie. He has had additional imaging done on 9 May 2023 prior to his visit to Dr Leslie on 12 May 2023.

2. He saw Dr Leslie on 12 May 2023 and was informed that he would need to have urgent hospitalisation and investigation and that such investigation had been booked to take place at hospital on Friday, 19 May 2023 under general anaesthetic. The additional imaging was instrumental in Dr Leslie’s advice that he have the initial procedure in hospital on 19 May 2023. Dr Leslie has advised him that he cannot safely defer this initial procedure and that after it he may need to recommend further procedures.

3. He is expected to remain in hospital itself for a day. However, Dr Leslie has told him that he expects that it will take 7 to 10 days after that for him to receive the findings and be able to analyse them. Upon such analysis, Dr Leslie may need to carry out further procedures.

54. Mr Bates’ terminology varied at times between precisely what was to occur on 19 May 2023 as to whether it was a procedure or an operation. I did not understand the difference to be relevantly material, nor did Mr Morrissey make any particular submission about it. It is clear that whether it be a procedure or an operation, there is a clear risk that Mr Bates would not be available for the trial. Mr Morrissey did not submit otherwise.

55. Mr Morrissey read an affidavit of Mr Goldberg sworn 15 May 2023, which set out an abbreviated history of the litigation.

56. Mr Goldberg’s affidavit indicates that the respondent is now 72 years of age and is in “average health”. The affidavit indicates that the lay witnesses from whom the respondent has served evidence are for the most part not young and at least two lay witnesses (Velenka Vanovac and Julie Knox) have died since the commencement of the proceeding albeit that the respondent proposes to rely upon their affidavit evidence and that on 15 May 2023, a s 67 Evidence Act1995 (NSW) (Evidence Act) notice was served in respect of each of those witnesses.

57. The affidavit updated details of the estate and made reference to the respondent’s costs of the proceedings. To date the respondent’s costs have been billed and paid by him in the order of approximately $361,623. There is an amount of costs in the order of $20,000 that have not yet been billed to the respondent. Mr Goldberg indicates that the respondent’s expected costs of and incidental to the trial are likely to be an additional $250,000. Mr Morrissey, it is indicated, was to be assisted on the trial by a junior counsel, Matthew Short.

54. Mr Goldberg provided a schedule of costs of the claim to be costs thrown away in the event that the hearing was vacated. Those costs were estimated as being $81,363.50. In excess of half of that estimated figure was said be cancellation fees referable to counsel. Counsel’s fees associated with the application for adjournment (at least with respect to the appearance on 15 May 2023) are said to be $3,850. Preparation fees for counsel and for solicitors on the hearing are said to total a figure approaching $30,000.

55. I sought to understand from the legal representatives the details regarding the number of witnesses expected to be called on the hearing and details of the nature of the material comprised in the Court Book and the size of the proposed Court Book.

56. I was informed by Mr Morrissey that there are 4 lay witnesses to be called in the respondent’s case, 2 Court appointed experts being Dr Robert Fisher, a psychiatrist and Dr Noel Saines, a neurologist. In addition, the respondent proposes to call Dr Elizabeth Hovey, the deceased’s treating oncologist and another specialist, Dr Shivalingam, a neurologist.

57. Mr Bates indicated that there were approximately 8 witnesses to be called by the applicant including the applicant herself and at least 2 witnesses (Robert Francis Windeyer and Timothy Roy Young) who are solicitors who I was informed had previously been consulted by and had advised the deceased in respect of a number of the disputed instruments in the proceedings.

58. In attempting to understand the extent of the material to be read on the hearing I asked if there was a Court Book Index prepared. I was provided by Mr Bates with a draft Court Book Index that had been prepared by Ms Ventsov on 5 May 2023. On the hearing of the application, Mr Goldberg indicated to the Court that from his perspective that draft was incomplete.

59. The draft Court Book Index (at that stage) did not reveal a page estimate for the volume of material. It contained reference to reports from about 20 medical professionals. On inquiry by me, Mr Goldberg indicated to the Court that the volume of material in the Court Book would be “Well over 1,000 pages” and stated that “I think there’s two sets of hospital records”: T 17 (15 May 2023).

60. At that point I indicated my provisional view that I thought it was extremely unlikely that the applicant would be able to obtain any new counsel to run a 10-day hearing commencing in a few working days involving that sort of volume of material and getting across material from 20 medical experts albeit that only apparently 4 of them would be examined.

61. Mr Morrissey submitted that there was no evidence before the Court as to what steps have been taken by the applicant to find alternative counsel to prepare the case.

62. In those circumstances, I adjourned the hearing of the application to the following day, 16 May 2023, to give the applicant an opportunity for Ms Ventsov to put before the Court any evidence of enquiries to obtain new counsel to run the hearing.

63. I additionally made the observation that there was a degree of default by both parties in the compliance with the pre-trial directions. Lists of objections due on 11 May 2023 had not been provided. An order for a joint agreed schedule of assets and liabilities costs and expenses due on 12 May 2023 had not been provided.

16 May 2023

68. On 16 May 2023, the matter was further listed before me, and Mr Bates and Mr Morrissey again appeared.

69. There was additional material provided which I note below.

70. Mr Morrissey indicated that Mr Goldberg had prepared an electronic Court Book which had been sent for printing and to be subsequently delivered to the Court.

71. Mr Morrissey handed up two indexes being an index described “Court Book Index” comprising pleadings, affidavits, medical reports and affidavits of medical practitioners set out under 46 separate tabs comprising in total 949 pages. The second index handed up was described as “Bundle of Additional Documents” which set out medical records relating to the deceased, testamentary documents and solicitor’s files materials and s 67 Evidence Act notices under 28 tabs comprising 1,640 pages of materials.

72. Mr Morrissey also handed up a schedule of assets and liabilities costs and expenses as had been directed by me (that had been due on 12 May 2023).

73. As I understood him, Mr Bates indicated that the materials in the Court Book Index and Bundle of Additional Documents were agreed as materials to be placed before the Court although, as is evident below, Ms Ventsov clearly did not appreciate the extent of the volume of the materials that the respondent sought to rely upon.

74. Mr Bates read an affidavit from Ms Ventsov affirmed 16 May 2023 relating to enquiries to obtain new counsel. The affidavit indicates that:

1. Between the listing on the afternoon of 15 May 2023 and during the course of the day up to the listing on 16 May 2023 she contacted by email and telephone Clerks at approximately 15 chambers. She spoke on the telephone to 3 counsel who indicated that “they could be available for the Hearing”.

2. During that time (noted above) she twice requested a copy of the latest proposed Court Book Index from Mr Goldberg. At 1:28 PM on 16 May 2023, she received the Court Book Index and the Index of Additional Documents. She received an iManage share link from the respondent’s solicitors for the Court Book and Additional Documents but has not been able to open them.

3. She did not have the latest Court Book Index and Index of Additional Documents when she spoke with the above-mentioned counsel regarding their availability and (accordingly) counsel has not been provided with those indexes.

4. Having spoken with the applicant she did not have instructions to brief another counsel.

75. Mr Bates sought to read the second affidavit of Ms Ventsov affirmed 16 May 2023 relating to costs. The version of the affidavit handed up was not formally sworn or affirmed. However, Mr Morrissey did not take issue with that and accepted that I could receive and act on the information in that second affidavit. The affidavit as to costs indicated that:

1. Mr Bates and she are acting “unconditionally” in the sense that the applicant “in her capacity as executor … is liable to pay the Estate’s costs on an indemnity basis regardless of the outcome”.

2. Costs associated with the applicant’s previous solicitor and counsel have been assessed and a judgment entered against the applicant on 11 May 2023 in respect of those costs in the sum of $437,516.17.

3. The applicant’s former solicitors have not transferred their files and assert a lien “against the estate” and Ms Ventsov has incurred costs to reconstruct the entire estate files in the proceedings from the date of filing in 2016.

4. Ms Ventsov estimates that on an indemnity basis the applicant’s legal costs and disbursements (including counsel fees) are expected to be in the order of $250,000 until the end of the 10-day hearing.

76. Mr Morrissey tendered an email dated 15 May 2023 at 12 noon from Ms Ventsov to Mr Goldberg attaching various documents. The tendered material became Exhibit A4.

77. The covering email in Exhibit A4 disclosed statements by Ms Ventsov to the following effect:

1. on 6 May 2023, the applicant with her family travelled on a flight from Damascus, Syria to Dubai;

2. the applicant was then currently in Dubai and apparently in the process of applying for visas to enter Australia;

3. accommodation for the applicant in Sydney for the duration of the hearing had been already arranged with a friend of the family;

4. the visas were finalised to be lodged on 12 May 2023 for entry to Australia with airline tickets from Dubai to Sydney and back to Dubai to be booked (with migration agents’ invoices and consultation details provided);

5. the applicant intended to arrive in Sydney before the start of the hearing on 22 May 2023;

6. on 12 May 2023, after finding out about Mr Bates’ urgent upcoming surgery, the lodgement of the visas was postponed “until the Court’s further trial allocation dates”;

7. the visas have a validity period and could be issued for a shorter single entry only;

8. an Arabic interpreter was also booked for the entire duration of the hearing;

9. in response to subpoenas served on Ms Ventsov on 10 May 2023 the applicant and her other witnesses were ready to attend to give evidence; and

10. but for Mr Bates’s medical emergency the applicant was ready for hearing commencing on 22 May 2023.

78. Mr Bates confirmed my understanding of the above-mentioned email being part of Exhibit A4 that as at that afternoon (16 May 2023) there was no visa for the applicant to enter Australia. Mr Morrissey suggested that there was no application either, although, as he more precisely indicated, the lodgement of the application had been postponed.

Principles regarding vacation of hearing dates

79. The Court has power to adjourn the hearing of proceedings in appropriate circumstances and to vacate a hearing date.

80. There is a statutory power pursuant to s 66 Civil Procedure Act2005 (NSW) (CPA) and the Court has an inherent power to adjourn or vacate proceedings.

81. The statutory power to adjourn proceedings is to be exercised in accordance with the overriding purpose of the civil procedure legislation and rules to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

82. The Court in deciding whether to make any order granting an adjournment of proceedings must seek to act in accordance with the dictates of justice: s 58(1)(a)(ii) CPA.

83. For the purposes of determining what the dictates of justice are in a particular case the Court must have regard to the provisions in ss 56 and 57 CPA and may have regard to the matters set out in s 58(2)(b) CPA to the extent to which the Court considers them relevant.

84. The matters the Court may have regard to include: the degree or complexity to which the issues in the case give rise, the degree of expedition with which the parties have approached the proceedings, the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, the degree to which the respective parties have fulfilled their s 56(3) duties, the degree of injustice that would be suffered by the respective parties as a consequence of an order vacating the hearing and such other matters as the Court considers relevant.

85. In Rowe v Stoltze (2013) 45 WAR 116; [2013] WASCA 92, the Western Australian Court of Appeal emphasised that the rules of procedural fairness are not fixed or immutable and noted that procedural fairness is directed to avoiding practical injustice and observed that what is necessary to avoid practical injustice will depend upon the circumstances of any given case: at [51] per Newnes JA (Pullin and Murphy JJA agreeing).

86. Mr Morrissey provided an outline of submissions in which he cited authorities relevant to adjournment applications.

87. In particular, he submitted that relevant considerations include whether the applicant has had ample opportunity to seek to engage other counsel, whether there is evidence of enquiries that have been made in that regard and whether there is any explanation as to the circumstances in which the counsel who has been briefed on the matter is unable to appear: Vasiljkovic v O’Connor [2011] FCAFC 112 at [6]-[10] per Keane CJ (as his Honour then was), with whom Dowsett and Jessup JJ agreed.

88. Mr Morrissey submitted that evidence regarding the ill-health of the practitioner should be in a satisfactory form: ANZ v Mio Amico Pty Ltd [2013] NSWSC 716 at [12]-[14]; St George Bank v Hammer [2015] NSWSC 957 (St George Bank v Hammer) at [18]; Zeltner v Deputy Registrar of the Supreme Court [2022] ACTCA 34 at [3] per McCallum CJ.

89. Further, whether an order for costs may cure prejudice is a consideration: St George Bank v Hammer at [20] per Campbell J.

90. In O’Keefe v Integral Corporate Property Pty Ltd [2022] NSWSC 839 (O’Keefe), I considered an application to vacate a hearing date for proceedings listed for hearing for five days to commence in the following week in circumstances where the defendants’ counsel had contracted COVID-19. I addressed the relevant considerations including the particular issue of what might be required for another legal representative to come to grips with the nature of the case and the issues involved and prepare for the hearing: at [67]-[68].

Submissions

91. Mr Bates’ principal submission was that there was insufficient time available for new counsel to be engaged to effectively run the hearing.

92. He stated that he had had video conferences from time to time with the applicant and he submitted that any counsel who may be able to be available to run the case would need to have the benefit of adequate time to go through material with the applicant particularly having regard to the fact that the respondent has sworn a number of affidavits and the relative complexity of the claims.

93. Mr Morrissey fairly acknowledged Mr Bates’ inability to appear at the hearing as a result of investigations and medical treatment for a serious condition.

94. Nonetheless, he submitted that the unavailability of counsel per se is not conclusive or determinative of an application for vacation of the hearing date.

95. Mr Morrissey intimated that there was delay in bringing the application to vacate and that it ought to have been clear or at least “rung alarm bells” from at least 17 April 2023 that Mr Bates’ admission to hospital on that day would put the hearing dates in jeopardy.

96. Mr Morrissey alternatively submitted that the ambulance callout on 2 May 2023 ought to have prompted an application to the Court at that time. He submitted that there was no evidence that Mr Bates had asked Dr Leslie at that stage whether he would have been fit to attend Court on 22 May 2023.

97. However, Mr Morrissey stopped short of suggesting that there was an inappropriate or ill-considered delay in making the application to vacate the hearing dates: T 7-8 (16 May 2023).

98. Mr Morrissey, initially, on 15 May 2023, submitted that there was no evidence of enquiries made to brief alternative counsel. However, in light of the particular evidence of Ms Ventsov of enquiries on the evening of 15 May 2023 and morning of 16 May 2023, it is clear that there was an attempt to then ascertain whether other counsel would be available.

99. Mr Morrissey submitted that the applicant in effect made a forensic decision not to brief other counsel. He indicated that Ms Ventsov had a sufficient draft index of documents to be able to give prospective counsel an impression of the amount of work required.

Consideration of the application

100. I have had regard to the overriding purpose of the CPA and rules as they apply to the determination of the real issues in the proceedings and the objects of case management: ss 56 and 57 CPA. In particular, I have had regard to the just determination of the proceedings and am mindful of the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings at costs affordable by the respective parties.

101. There are several striking features of the application to vacate the hearing date which I will refer to below. They relate to the timeliness of the application and the likelihood of any new counsel being able to be appropriately briefed at this late stage to adequately run the hearing on behalf of the applicant so as to ensure a fair trial.

102. Before touching upon those matters, I mention some other applicable considerations which I have had regard to in determining the application. Those considerations include:

1. The issues in the proceedings are relatively common issues that may arise in estate litigation, but nonetheless are factually complex and in particular there is very significant medical material which in my assessment would be difficult for a counsel who has had no background to the matter to quickly and capably get across within the available time before the hearing is due to commence.

2. The proceedings have had had a very protracted history, however, despite the death of at least two lay witnesses it appears that at no stage has any application been made to expedite the hearing of the proceedings.

3. Mr Morrissey, on 15 May 2023, accepted that there was some default in compliance with the pre-trial directions by the respondent. On 16 May 2023, he intimated that the respondent had effectively complied with those directions. That is not entirely correct. As at the afternoon of 16 May 2023, when I completed hearing the application, the respondent had not provided objections to affidavits or other material. Further, although an electronic form of the Court Book was said to have been available, hard copies of the Court Book had not been provided.

4. The applicant has not provided objections to affidavits.

5. The basis for the adjournment is not conduct attributable to the applicant.

6. Mr Bates has been briefed for the applicant for approximately the last several years and Mr Morrissey has been in the matter for a considerable period of time.

7. The applicant is currently overseas and according to Mr Bates was due to come to Australia but was currently waiting to hear the outcome of this application before confirming flights. The application for a Visa had, as at 16 May 2023, been prepared (or substantially prepared) but I understand it had not actually been lodged and accordingly the applicant had no actual Visa.

8. In assessing the impact of costs potentially wasted by the application, in estate litigation such as this matter, costs orders, particularly in relation to enquiries regarding the capacity for a testatrix to make a Will, stand apart at least to some degree from the approach of the Court when assessing costs in ordinary commercial litigation.

Timeliness of the application

103. I now return to the question regarding the timeliness of the application. The application has arisen in circumstances where the basis for the adjournment application has arisen from onset of a medical condition that requires immediate attention that cannot be deferred.

104. Whilst clearly the admission to hospital on 17 April 2023 was an important matter, I do not accept the submission that it was of sufficient moment at that stage to require the applicant then and there to apply to vacate the hearing dates. The email from Ms Ventsov of 17 April 2023 proposed alternative listing dates on which Mr Bates would be expected to attend as being 21 and 24 April 2023.

105. Mr Bates submitted, and I accept, that it was really only following his discussion with Dr Leslie on 12 May 2023 that the necessity for him to be hospitalised on 19 May 2023 with consequent testing and investigation was decisive in determining his unavailability for the hearing. Until that point, whilst there was no doubt some cause for concern, I do not consider that there was any untoward delay in approaching the Court to vacate the dates.

Ability of any new counsel to adequately appear on the hearing

106. As to Mr Morrissey’s point that Ms Ventsov ought to have been aware of the level of material involved, I do not consider that is a compelling factor in counting against the application to vacate the hearing dates. It is clear that on the afternoon of 15 May 2023 there had been no final agreement about what would be comprised in the Court Book. The index that was tendered on that afternoon was in a draft form.

107. It is evident from Mr Goldberg’s responses to me in Court on 15 May 2023 as I have outlined above that even at that point the extent of the hospital, medical and healthcare records had not been identified by him at that stage to Ms Ventsov.

108. In particular, at that stage Mr Goldberg’s indication, as noted above, was that the volume of material in the Court Book would be “Well over 1,000 pages”. There was no clarity regarding what was meant by “[w]ell over”. However, I did not understand at the time that Mr Goldberg was conveying anything larger than up to perhaps 1,250 pages.

106. In fact, by the afternoon of 16 May 2023, the volume of material was significantly more than double that being 2,589 pages. The draft of the Court Book Index that had been tendered on 15 May 2023 has been rejigged and divided between what I have described above as the “Court Book Index” (949 pages) and the “Bundle of Additional Documents” (1,640 pages). The critical difference between the volume of material intimated on 15 May 2023 to that stated on 16 May 2023 is the addition of three sets of records being from the Prince of Wales Hospital (Hospital), Catholic Healthcare (Healthcare) and medical records of Brindha Shivalingam comprising over 1,400 pages.

107. Ms Ventsov was not cross-examined. I do not know whether she was required for cross-examination or not. In any event, it is clear that for whatever reason the volume of material that was proposed by the respondent to be included in the “Bundle of Additional Documents” (particularly the material I have just mentioned) was not appreciated by her nor conveyed to counsel.

108. A particular consideration is the fact that any new counsel to be engaged on behalf of the applicant would ordinarily be required to cross examine first in the proceedings and accordingly would be required to be ready to do that potentially on the first day of the hearing, but if not then very soon thereafter.

109. The matters that any new counsel would have to grapple with in order to properly prepare for the hearing include the following:

1. reviewing the material proposed to be adduced on the hearing which presently comprises over 2,500 pages of materials;

2. within that material reviewing hospital and healthcare records and other medical records in excess of 1,400 pages;

3. considering reports of 20 medical experts dating back over 20 years;

4. preparing for cross-examination of lay witnesses; and

5. preparing for cross-examination of 4 medical experts.

113. Mr Bates submitted that the issues on the hearing were complex. I do not think that the issues as to legal principle are necessarily complex. The sort of legal principles applicable to the issues outlined above are not uncommon in estate litigation.

114. The critical issue that I see for any new counsel in attempting to take on the hearing on behalf of the applicant is not so much being able to get across the legal principles, but rather in reviewing and analysing the large volume and complexity of the factual material. That is reinforced by the fact that it is likely that the applicant’s counsel would be required to cross-examine first.

115. Even if any new counsel were available, and had been engaged even as at the afternoon of 16 May 2023, I consider it extremely unlikely that any such counsel would be able to adequately and properly in such a short period of time prior to the commencement of the hearing review and analyse the extensive array of material indicated above, quite apart from then making appropriate forensic choices as to the actual running of the proceedings including preparing for fairly immediate cross-examination.

Determination

116. Overall, having regard to the above considerations, the explanation for the adjournment application and the reasons advanced to oppose it, I considered that it would be unjust to force the applicant to proceed to trial in the circumstances that currently prevail as a consequence of Mr Bates’ medical condition.

117. In those circumstances, I ordered that the hearing dates be vacated.

Mediation

118. On both 15 and 16 May 2023, Mr Morrissey raised with me the question of referral of the matter to mediation. On 15 May 2023, Mr Bates indicated he would need to obtain some instructions in relation to that. On 16 May 2023, Mr Bates was content for the matter to be referred to mediation. There were discussions regarding the logistics of that. The outcome of those discussions is embodied in the orders that I made (as recorded below).

Costs

119. Mr Morrissey submitted that the applicant should pay the respondent’s costs thrown away by the adjournment and, based on a contention that the applicant has no assets on her own evidence, that the costs should be paid from the estate funds. He did not make any alternative submission. I asked whether the evidence of the respondent was complete prior to determining the application: T 5.15-19 (16 May 2023). Mr Morrissey did read or tender any such evidence (affidavit or otherwise) of the asset position of the applicant.

120. Mr Bates submitted that the appropriate costs order should be that the costs occasioned by the vacation of the hearing dates should be the respondent’s costs in the cause.

121. Mr Morrissey submitted that the applicant should pay the respondent’s costs in any event, rather than simply in the cause.

122. I raised with Mr Morrissey whether he wished to make any submission in relation to the costs identified in Mr Goldberg’s affidavit as including cancellation fees. Mr Morrissey submitted that the costs order should include provision for cancellation fees. He suggested that “like most counsel” his retainer as well as his junior’s retainer has provision for cancellation fees.

123. When I made the observation that the question of retainer fees was a matter between himself, and the client and the issue was specifically whether the applicant ought to be liable for the cancellation fees of the respondent, Mr Morrissey indicated that he did not wish to say anything further. Nonetheless, I did not understand him as abandoning any submission that any costs order should include cancellation fees.

124. Mr Bates opposed any order for payment of costs that would require the applicant to pay cancellation fees.

Vacation of the hearing dates

125. Costs are in the discretion of the Court: s 98 CPA.

126. There is significant caselaw dealing with costs in relation to vacating hearing dates.

127. There is particular caselaw which bears upon a consideration of the determination of an appropriate costs order in proceedings which are vacated through either the illness of counsel or connected with medical issues resulting in a counsel being unavoidably unable to appear on the hearing without the fault of any party.

128. In O’Keefe, I made reference to the decision of Refshauge J in Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Ltd (No 3) [2017] ACTSC 301; (2017) 325 FLR 436 in which his Honour delivered judgment in relation to issues of costs and, in particular, dealt with the reserved costs of proceedings occasioned by the illness of senior counsel. His Honour helpfully and conveniently gathered the relevant authorities and set out those principles at [322]-[336] as follows:

322. As a starting point, some principles can be divined from the approach courts take to the costs of an aborted trial. Thus, in Electrolytic Zinc Co of Australasia Ltd v Cieslak [1969] Tas SR 50 at 55, the Full Court said:

If a trial proves abortive for a reason beyond the control of the parties and not due to the fault of either of them, that in our view is (unfortunately) an accident of litigation of which both parties run the risk until the litigation is decided. When it is decided, we think the ordinary rule should apply — the loser should pay, in the absence of circumstances indicating some other result.

323. To a similar effect was what fell from Keane JA in Queensland v Brooks & McCabe [2006] QCA 523 at [5], where a hearing had to be vacated because of the illness of one of the judges on the Court of Appeal:

It is true that neither party was responsible for the circumstances which led to the vacation of the first hearing. But that is no reason to deny the successful party costs necessarily incurred by it in relation to the determination of the appeal in its favour. There is no principle of law that a successful party should recover only those costs which it has incurred by reason of the default of the other party.

324. Some older authorities take a rather different approach. Thus, in Pell v Linnell (1868) LR 3 CP 441 at 443, the Court of Common Pleas held that, where a trial was suspended by “act of God”, that is by no fault of a party, then there should be no order as to costs. That approach was followed in Earp Woolcock Beveridge & Co Ltd v Gordon (1927) 44 WN (NSW) 123.

325. Nevertheless, costs orders have been made against parties who have secured adjournments, even where they did not act unreasonably. In Business in Focus (Aust) Pty Ltd v Begun Property Pty Ltd [2006] FCA 264, an adjournment was sought because the applicants had to change their solicitors as a result of “inactivity by their former solicitors”, resulting in “associated complications” which would result in “a very real prejudice to them” if they were forced to proceed. The adjournment was granted but they were ordered to pay the costs. This is, perhaps, an unremarkable example of the payments of costs where an indulgence is granted to a party.

326. The Court relied heavily on what was said by the High Court in Queensland v JL Holdings Pty Ltd (1996) 189 CLR 146. That reliance would now be moderated following the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, though this would probably not affect the order for costs if the adjournment were still granted.

327. In R & R Industries (Australia) Pty Ltd v Marbletrend Pty Ltd [2010] FCA 1311, a trial had to be vacated because the applicant’s solicitor had been rendered quite seriously ill and his treatment prevented him from properly preparing for trial. The solicitor was a sole practitioner with only a single employee. Again, the trial was adjourned but the applicant was ordered to pay the costs thrown away by reason of the adjournment.

328. On the other hand, in Alstom Power Ltd v Yokogawa Australia Pty Ltd (No 4) [2010] SASC 109, senior counsel for the defendants was, on medical advice, unable to continue with the proceedings. The trial had to be adjourned for at least eight weeks. The Court (at [11]), considered that there was no default by the defendants, and that the adjournment was “caused by one of the many exigencies which may affect the smooth running of a trial”. It was expressly found that the complexity meant that it would be “unreasonable … to continue with one counsel unassisted by a second counsel”.

329. The Court referred to the principle that “a party who seeks a dispensation, indulgence or favour of the court is, as a general rule, ordered to pay the other party’s costs of the application” and then continued (at [13]–[14]):

[13] … I do not consider that I was granting an indulgence to the defendants. I was merely endeavouring to ensure that, in the unfortunate circumstances which had happened, the defendants would not be unduly prejudiced in the conduct of their case. If the indulgence granted to the defendants were a result of the defendants’ default then the case might well be different.

[14] In all the circumstances I refuse the plaintiff’s application [for its costs thrown away to be paid by the defendant]. The costs of the adjournment incurred by both sides, unfortunate as that may be, are a regrettable but necessary incident of this trial.

330. A modification of that approach was adopted in Sandvik Mining and Construction Australia Pty Ltd v Dempsey Australia Pty Ltd [2012] QSC 102, where an adjournment of a six week trial was also granted five days before it was listed to commence because senior counsel became ill. It was considered “unreasonable to expect junior counsel for the defendants to run the matter alone”.

331. In that case, the plaintiff vigorously opposed the adjournment but then submitted that no order be made as to costs, while the defendant sought an order that the costs thrown away by the adjournment be costs in the cause.

332. The Court said (at [21]):

While the defendants themselves were in no way to blame for the need for an adjournment, the necessity for an adjournment does come from their side of the record. Costs thrown away on a six week trial are potentially very significant. The need for the adjournment in no way comes from the plaintiff. Even if the plaintiff is not successful at the end of the trial, there is no good reason why it should pay the costs thrown away because of this adjournment… The plaintiff however has not asked for its costs, it has asked that there be no order as to costs of the adjournment. In effect that will mean the parties bear their own costs thrown away by the adjournment. In the circumstances it seems to me that it is a more just order than that sought by the defendants.

333. In Zuecker v Bruggmann [2016] QSC 115, an elderly litigant in person was the defendant and became ill resulting in the adjournment of the trial. While there were suggestions that the illness was a convenience which impacted when it suited, that suggestion was rejected by the trial judge who, however, followed what Keane JA had said in Queensland v Brooks & McCabe, quoted above (at [323]) and ordered that the costs of the plaintiff thrown away by the adjournment be the plaintiff’s costs in the proceedings.

334. Finally, in Meadows v Vance [2016] FCCA 1814, the trial had to be adjourned when counsel for the applicant had to attend for urgent medical tests. The case, listed for resumption of an adjourned hearing for 1 and 2 December 2015, had to be adjourned to 15 December 2015. The Court considered (at [144]) that the parties knew on 1 December 2015 that the proceedings would not proceed on 2 December 2015 at that time. Accordingly, the Court ordered that the costs thrown away on 1 December 2015 should be paid by the applicant but not for 2 December 2015.

335. There is, on these authorities, no clear line of principle, save that it is not necessary for there to be a default or misconduct on the part of a party before that party should bear the costs thrown away occasioned by an adjournment it or its lawyers have caused.

336. In this case, senior counsel was supported by junior counsel who did take an active part in the proceedings and conducted a significant part of the cross-examination. It seems to me that there was no real reason why the proceedings could not have continued on 29 January 2015 with junior counsel, though I do not consider that would have been reasonable on 28 January 2015.

129. Having regard to the overall circumstances of the case and the fact that it cannot fairly be said that there is any relevant or material fault attributable to any party or practitioner giving rise to the vacation of the proceedings, I was not persuaded that it is appropriate for there to be an order that the applicant pay the respondent’s costs of the vacation of the hearing dates thrown away in any event.

130. However, subject to the question of cancellation fees (which I address below), I was persuaded that an order should be made that the costs of the vacation of the hearing dates be the respondent’s costs in the cause.

131. “Costs in the cause” (or “costs in the proceeding”) means that the costs of the application are awarded according to the final award of costs in the proceedings, and are therefore in a sense conditional on the outcome: GE Dal Pont, The Law of Costs (5th ed, 2021, LexisNexis) (Dal Pont, The Law of Costs) at [14.26] 491 citing Juniper Property Holdings No 15 Pty Ltd v Caltabiano [2015] QSC 95 at [27] per Jackson J.

132. A reference to a particular party’s “costs in the cause” means that if that party wins, or relevantly succeeds, he or she gets the costs of the interlocutory application, but does not have to pay the opponent’s costs of the application if that party (with the benefit of the interlocutory costs order) loses (or does not succeed): Dal Pont, The Law of Costs at [14.26] 491 citing Edenmead Pty Ltd v Commonwealth (1984) 4 FCR 348 at 355 per Spender J.

Cancellation fees

General observations

133. There are some cases which touch upon the question of cancellation fees in the context of adjournment of proceedings.

134. A useful overview of the caselaw regarding the approach of the Supreme Court (and, indeed, other Courts) to cancellation fees is provided by Professor Dal Pont: see Dal Pont, The Law of Costs at [5.35]-[5.36] 132-134, [17.54] 662-663; GE Dal Pont, ‘Lawyer Cancellation Fees’ (2020) 46(2) Monash University Law Review 52 at 57-62 (Lawyer Cancellation Fees).

135. Much commentary on the charging of cancellation fees and their appropriateness harks back to the decision of Wilcox J in Commissioner of the Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64 (Razzi).

136. In Razzi, Wilcox J stated at 67 (emphasis added):

I do not think that a solicitor-client order would in fact enable recovery of "cancellation fees". A solicitor-client costs order enables the recipient of the order to recover the actual costs, reasonably incurred, of all work reasonably required and actually performed in connection with a matter. But it does not extend to fees for work not done.

However, even if there was a basis for recovery of "cancellation fees", I would require a deal of persuasion ever to make an order which would have the effect of permitting a party to recover such payments from someone else. The charging of "cancellation fees" by some barristers seems to be a practice of very recent origin. In 21 years at the Bar, from 1963 to 1984, I never heard of such fees being asked. There were, of course, occasions when cases were suddenly adjourned, or when they took less time than had been estimated, so that the barristers briefed in the matter found themselves unexpectedly out of court. Very often they would have refused other work because of the case and its estimated duration. But, as I understood the situation, barristers generally accepted that any financial loss caused by such circumstances was to be borne by them. Any disadvantage had to be balanced against the advantage conferred by the rule which permits barristers to charge a full fee on a matter settled after delivery of the brief but before any hearing. This approach was fair. The unexpected time out of court was rarely the personal fault of the barrister's client, or even of the opposing party. Moreover, it was right in principle. The practice of demanding "cancellation fees" can rest only on the premise that, if a case does not proceed or finishes early, the barrister will be left without remunerative work. But, except perhaps for beginners at the Bar who are unlikely in any event to be able to command a "cancellation fee", the premise is rarely well-founded in point of fact. Most established barristers find that their problem is over-employment, not underemployment. For most, some unexpected time out of court is a welcome opportunity to catch up with chamber work.

At a time when legal fees are so onerous as to exclude from significant litigation all but the wealthy and the legally-aided, any new practice which further increases costs requires meticulous justification. I am not aware of any attempted justification of "cancellation fees". It seems to me that it would be desirable for Bar Councils and Law Societies to examine such fees, and perhaps issue a ruling or some guidelines, before the practice becomes firmly entrenched.

137. Wilcox J’s comments been referred to in this Court: see Levy v Bergseng (2008) 72 NSWLR 178; [2008] NSWSC 294 (Levy v Bergseng) at [93] per Rothman J; Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd [2022] NSWSC 1062 (Hoho Property v Bass Finance) at [22] per Rees J.

138. Whatever may have been the relative novelty of cancellation fees at the time of Wilcox J’s comments in Razzi, subsequent cases have acknowledged that the charging of cancellation fees by counsel is a relatively common practice: Wilkie v Gordian Runoff [2005] NSWSC 873 (Wilkie) at [17] per McDougall J; Levyv Bergseng at [95] per Rothman J; Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd (No 2) [2014] WASC 345 (S) (Pilbara) at [39] per Edelman J.

139. Indeed, the payment of cancellation fees as between solicitor and client has been upheld in several decisions of this Court: see, eg, Lawrence v Hannaford (Supreme Court (NSW), Malpass M, 26 March 1997, unrep); Wilkie at [22] per McDougall J; Levy v Bergseng at [100], [114], [115] per Rothman J.

137. While judges of the Supreme Court have reluctantly been willing to uphold the charging of cancellation fees between solicitor and client (on the basis that cancellation fees have been agreed in the costs agreement between the parties as a “matter of contract”: R v Carbone (No 2) [2017] NSWSC 346 (R v Carbone (No 2)) at [68] per Davies J), the position in the party-party context is more nuanced.

138. Particular considerations regarding cancellation fees apply in different types of proceedings.

139. In R vCarbone (No 2), Davies J dealt with an application in which the costs were said to be thrown away by reason of the adjournment of a trial fixed for four to five weeks.

140. Davies J in that case noted that the proximity of the adjournment of the hearing to the hearing date was a relevant consideration in the decision to render the Crown liable to pay the cancellation fees of the accused’s counsel: at [46].

141. His Honour noted that then (2017) it was reasonably common and accepted practice for counsel privately briefed in the criminal area (and in some parts of the civil area for that matter) to stipulate for a cancellation fee for part of the time set aside to conduct a lengthy trial: at [62].

142. His Honour also distinguished between the contractual obligations between client (in that case the applicant’s father) and a solicitor as to whether part of the retainer for proceedings involves an obligation to pay a cancellation fee on the one hand and on the other the liability of a third party for such costs.

143. In Hoho Property v Bass Finance, Rees J rejected an argument that counsel’s cancellation fees should be included in a gross sum costs order in the party-party context. Her Honour had the following to say about cancellation fees (at [21]-[23]) (emphasis added):

21.  The obligation to pay counsel’s cancellation fees arises from the instructing solicitor’s acceptance of counsel’s costs agreement setting out such fees. No costs agreement had been issued, or accepted, when I made the costs order on 17 June 2022. Bass Finance then had no contractual obligation to pay the cancellation fee. There is thus nothing to pass onto the plaintiffs.

22.  In any event, I would not have been minded to include counsel’s cancellation fees in a gross sum costs order. Whilst a solicitor and their client may be prepared to agree to pay cancellation fees in order to retain a particular counsel, such fees are not standard or, indeed, common. I do not consider it just or fair that another party to the litigation should inherit the obligation to pay such a fee by reason of the briefing choices of others. As Wilcox J observed in Commissioner of the Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64 at 67:

Even if there was a basis for recovery of “cancellation fees”, I would require a deal of persuasion ever to make an order which would have the effect of permitting a party to recover such payments from someone else.

23. Razzi has been widely followed, including by Edelman J in Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd (No 2) [2014] WASC 345 at [39]. Similarly, in R v Martinello [2005] ACTSC 109, Connolly J considered that cancellation fees were not caught within a general form of costs order: at [9]. See also GE Dal Pont, Law of Costs (5th ed, 2021, LexisNexis) at [17.54].

147. Professor Dal Pont has observed the following about cancellation fees in the party-party context in The Law of Costs at [17.54] 662-663 (footnotes omitted):

As the process of taxation (or assessment) seeks to quantify the work performed by the lawyers for the party in whose favour costs are ordered, at least in theory fees for work not done should not be allowable. This logically translates, when it comes to counsel’s fees, to disallowance as between party and party of a cancellation fee charged by counsel. Yet it has been suggested that there may be cases, on a party and party taxation, where a fee to counsel for having kept a day aside for the trial of the matter might be properly allowed — though not strictly either a fee on brief or a refresher fee — assuming there was material relating to it put before the taxing officer. And there is authority allowing counsel’s fee for the first day of a trial, listed for a five-day hearing, settled late on the day before trial. The case law also reveals occasions where cancellation fees have been allowed between party and party against a litigant whose conduct caused the case to be adjourned and thus costs thrown away. But no such fee is allowable where the trial is adjourned well before hearing, at which time no briefs on trial had been delivered, and there is no material before the taxing officer vis-à-vis any work done by counsel that had been ‘thrown away’.

148. Two cases (see below) are cited by Professor Dal Pont for the proposition that cancellation fees have been allowed between party and party against a litigant whose conduct caused the case to be adjourned and thus costs thrown away. In Lawyer Cancellation Fees (supra), Professor Dal Pont also (at 62-63) cites the same two cases suggesting that there is no bright-line distinction which would necessarily preclude cancellation fees being allowed on a party-party basis as distinct from being only allowable on a lawyer-client basis.

149. The first is Galvan v Galvan [2011] FamCA 1033, being a decision of Faulks DCJ in family law proceedings where the wife was held to be entitled to costs thrown away, including a cancellation fee in the amount of $4,000, as a result of the husband’s adult children being joined as parties during the final hearing, prompting an adjournment by reason of the adult children being unprepared to meet the case. Faulks DCJ, in ordering that the adult children (who were joined) pay the costs, did not analyse considerations regarding cancellation fees in detail but simply stated at [38]:

“However, the cancellation fee is clearly a contractual element between Mr Howard [a solicitor] and his client and it is a matter which in my opinion I can properly take into account. He has produced his fees agreement in relation thereto”. 

150. The second decision is R v Carbone (No 2), which is discussed above.

151. Professor Dal Pont also refers in footnote 239 (at the bottom of page 663) of The Law of Costs to the decision of Master Malpass in Kelly v Council of the City of Lake Macquarie (Supreme Court (NSW), Malpass M, 27 May 1997, unrep; BC9702213). In that case, Malpass M did not disturb a costs assessor’s allowance of part of a cancellation fee by counsel in the party-party context.

152. That decision does not provide any detailed discussion regarding the considerations as to whether cancellation fees may appropriately be claimed on a costs order on the ordinary (party-party) basis. Malpass M stated there (BC9702213 at 7):

The authorities clearly demonstrate that a Costs Assessor is not obliged to give reasons for his determination. In fact, in this case, he did voluntarily provide reasons. Those reasons do not disclose either any error of law or any basis on which leave might be granted.

There are specified statutory considerations. It is not said that he has erred in relation to any of these matters. The statute requires the Costs Assessor to, inter alia, determine the costs payable by forming an opinion as to what is a fair and reasonable amount. This is what he has done. In my view, it has not been demonstrated that he made an error of law in the performance of that task. It has not been demonstrated that the interests of justice would be best served if leave to appeal was granted. Accordingly, I find that the plaintiff is not entitled to relief under either s208L or s208M. In the circumstances, it would be futile to grant any extension of time. In my view, the onus has not been discharged.

Estate litigation – probate, rectification and family provision costs

153. Quite apart from principles regarding cancellation fees in general civil litigation it must be remembered that these proceedings principally involve probate issues in estate litigation regarding a determination as to whether the deceased died testate or not, with 3 testamentary instruments being in dispute.

154. Whilst those are not the only issues in the proceedings, they are the main presenting issues. The other issues include a related issue as to whether the 2014 Will should be rectified and another issue is the alternative family provision claim by the respondent

155. I recently addressed the principles regarding costs in probate litigation in Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 at [181]-[192] (Estate of Guamani).

156. Other eminent judges of this Court have also addressed principles regarding costs in probate litigation: see Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813 at [93]-[101] per Lindsay J; Ballam & Ors v Ferro & Anor (No 2) [2022] NSWSC 1358 (Ballam v Ferro) at [72]-[80] per Hallen J.

157. As I observed in Estate of Guamani, it is well-established that when the Court comes to make a decision as to awarding costs in probate litigation, the particular nature of the proceedings is a relevant consideration for the Court in exercising its discretion on costs in the context of the statutory power pursuant to s 98 CPA and the directive under the Court rules that costs are to follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: r 42.1 Uniform Civil Procedure Rules2005 (NSW).

158. In Chant v Curcuruto; Chant v Curcuruto (No 2) [2021] NSWSC 882,Hallen J also addressed costs in probate proceedings and, in particular, at [32c] stated as follows:

In Probate suits, there are considerations that more readily affect the application of the Civil Procedure Act2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) than in most other forms of litigation. These considerations act as guides to the exercise of discretion, but they are not inflexible. The role which a particular party has played in litigation, whether as plaintiff or defendant, is relevant. Further, facts about the knowledge available to parties and the reasonableness of their conduct in conducting the litigation can be taken into account.

159. Even in cases involving rectification of a deceased’s Will there are particular considerations in relation to costs arising from the obvious fact that a claim for rectification involves an enquiry into the testatrix’s true intentions and in some cases a failure to communicate a testatrix’s intention accurately may be laid at the feet of the testatrix. Even if an error has been made by a solicitor, the Court might consider that at least in an abstract sense the litigation has been caused by the testatrix: e.g. Long v Long; Estate of Ethel Edith Long (No 2) [2004] NSWSC 1114 at [9] per Barrett J (as his Honour then was).

160. In relation to the alternative family provision claim, it is also clear that costs orders in family provision cases stand apart from cases in which costs follow the event: Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521 at 522 per Gaudron J. Particular considerations apply in family provision litigation regarding costs. This has been made clear by the Court of Appeal: Haertsch v Whiteway (No 2) [2020] NSWCA 287 at [4]-[11] per Macfarlan, Meagher and Leeming JJA. It has also been made clear by the current Succession List Judge who has summarised the principles in several cases including Harkness v Harkness (No 2) [2012] NSWSC 35 (Harkness (No 2)) at [17]-[20] and more recently in Ballam v Ferro at [112]-[113].

161. For many years it has been clear that parties should not assume that family provision litigation can be pursued, safe in the belief that costs will be paid out of the estate: Harkness (No 2) at [18(d)] per Hallen AsJ (as his Honour then was) citing Carey v Robson (No 2) [2009] NSWSC 1199 and Forsyth v Sinclair (No 2) [2010] VSCA 195.

162. The comment of Mr Morrissey that that “like most counsel” his retainer as well as his junior’s retainer has provision for cancellation fees is not self-evident.

163. The question is whether another party should have some liability for the opposing counsel’s cancellation fees under a costs order for payment of costs on the ordinary basis.

164. I am not aware of any judge in this Court in probate, family provision or estate litigation who has authorised or approved that a party ordered to pay the costs of an opponent on the ordinary basis be burdened with the cancellation fees of the opponent’s counsel, as part of the costs payable.

165. In the absence of any evidence concerning the practice or the reasonable need for such a fee in estate litigation raising probate issues and an alternative family provision claim, I would need to be convinced as to the reasonableness of a party being required under an order for costs to pay cancellation fees claimed by counsel of the opposing party in whose favour the costs order is made.

166. Specifically, in the particular circumstances of this case, I do not consider that it would be reasonable or just for the applicant to be burdened with the cancellation fees having regard to:

1. the circumstances that have given rise to the adjournment;

2. the fact that important issues in the proceedings are probate issues, and the nature of the probate jurisdiction is relevant to any ultimate award for costs in the proceedings;

3. no submission was made to justify why the applicant ought to be burdened with the cancellation fees of the respondent based on an agreement between the respondent and its lawyers to which the applicant is not a party.

167. In the event that the respondent succeeds in the cause in obtaining an order for costs I am not prepared to leave to the outworking of an assessment process the issue of whether such costs should include the cancellation fees indicated by the evidence.

168. For that reason, my orders below expressly provide that in the event that the respondent succeeds in the cause in obtaining an order for costs, the costs not include cancellation fees of the vacated hearing referrable to the legal practitioners for the respondent.

Orders

169. The orders of the Court I made on 16 May 2023 are as follows:

1. Order that the hearing of these proceedings listed to commence before Meek J on Monday, 22 May 2023 for 10 days be vacated.

2. Order that costs of the vacation of the hearing dates be the respondent’s costs in the cause.

3. Order, in the event that the respondent succeeds in the cause in obtaining an order for costs, that the costs referred to in order 2 above not include cancellation fees of the vacated hearing referrable to the legal practitioners for the respondent.

4. Direct that the parties attend by appropriate means (including audio visual facility) a mediation of the proceedings, such mediation to take place by Monday, 12 June 2023.

5. Order that in the first instance, the costs of the mediator who is to be agreed upon by the parties be paid out of the estate, without prejudice to any party to contend on a later occasion including the final hearing of the proceedings that some other costs order ought to be made.

6. Grant leave to the parties to approach the Registrar in Equity with a view to seeking a hearing date in the proceedings such approach to be not before the commencement of Tuesday, 13 June 2023.

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Decision last updated: 22 May 2023