Gray v Kuek
[2022] VCC 1203
•1 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION GENERAL LIST | Revised Not Restricted Suitable for Publication |
| Case No. CI-14-04136 | |
| James Gray | Plaintiff |
| v | |
| Gabriel Kuek | First defendant |
| and | |
| Anja Turner | Second defendant |
JUDICIAL OFFICER: | Judicial Registrar Muller | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2021 | |
DATE OF JUDGMENT: | 1 August 2022 | |
CASE MAY BE CITED AS: | Gray v Kuek & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1203 | |
REASONS FOR RULING
Subject: PRACTICE AND PROCEDURE
Catchwords: Indemnity costs – whether plaintiff did not obtain a judgment “not more favourable” than Calderbank offer –– whether claim statute-barred – whether claim lacked a proper basis – whether plaintiff breached interim settlement agreement – whether plaintiff breached overarching obligations – whether plaintiff’s conduct in the proceeding unreasonable
Legislation Cited: County Court Act 1958 (Vic) s 78A; County Court General Civil Procedure Rules 2018 (Vic) rr 26.02 and 26.08; Civil Procedure Act 2010 (Vic) ss 18, 21, 23, 25 and 28; Limitation of Actions Act 1958 (Vic) s 5.
Cases considered: Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298; Towie v Medical Practitioners Board of Victoria [2008] VSCA 157; Chen & Ors v Chan &Ors [2009] VSCA 233; Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; Re Minister for Immigration & Ethnic Affairs (Cth); Ex parte Lai Qin [1997] HCA 6; Cockburn v Shehadie [2013] NSWSC 758; Yara Australia Pty Ltd v Oswal [2013] VSCA 337; ACN 005 490 540 Pty Ltd v Robert Frederick Jane Pty Ltd [2016] VSC 217; Ganesh & Anor v National Australia Bank Ltd [2020] VSCA 39 (Leave Reasons); Ganesh & Anor v National Australia Bank Ltd [2021] VSCA 45; United Petroleum Australia PL v Herbert Smith Freehills [2020] VSCA 15.
JUDICIAL REGISTRAR:
Background
On 27 August 2014, James Gray, a barrister, commenced proceedings in the County Court claiming unpaid legal fees from his instructor (the first defendant) and his client (the second defendant) (“County Court Proceeding” or “CPP”). The obligation to pay legal fees is said to have arisen from Mr Gray’s agreement to provide legal services to the defendants in respect of a discrimination claim brought in VCAT by the second defendant as litigation guardian on behalf of her daughter against the State of Victoria.
The agreement giving rise to the CCP is said to have been made in or about December 2004 and/or February 2005 and/or between July and September 2005. The retainer was pleaded as being ‘no win – no fee’, being a conditional fee agreement pursuant to the Legal Practice Act 1996 (Vic) (“LP Act”).
In or about November 2009, the second defendant obtained an order that the State of Victoria pay her costs of the proceeding. Mr Gray says that as a result, the defendants are liable to pay his legal fees, either pursuant to a costs agreement or on the applicable scale in the sum of $197,562.
Mr Gray says that in or about August 2011, the defendants acknowledged their indebtedness to him in the sum of $102,985.50 in a bill of costs drawn for the second defendant’s costs with respect of the VCAT claim.
The first defendant said in defence, in short, that:
(a)by reason of an agreement between him and Mr Gray, he was not responsible for Mr Gray’s fees;
(b)Mr Gray has been able to recover an amount of his fees on a party and party basis since about 11 November 2011 but elected not to do so and instead filed a summons in the Costs Court of the Supreme Court of Victoria seeking to be added as an applicant to the taxation of party and party costs and because of that application, Mr Gray’s fees remained unpaid;
(c)Mr Gray is statute barred from bringing these proceedings; and
(d)Mr Gray is in breach of his statutory and professional ethics.
The second defendant said in defence, in short, that:
(a)work was done by Mr Gray in respect of the VCAT claim;
(b)Mr Gray never provided her with a disclosure statement or costs agreement or explained the terms on which he would act for the second defendant;
(c)there was no written or other costs agreement as required under the LP Act;
(d)alternatively, if there was a costs agreement, it was a conditional costs agreement and Mr Gray never set out the circumstances that would constitute a successful outcome as required under s 97 of the LP Act. As a result, any costs agreement was void pursuant to s 102 of the LP Act;
(e)alternatively, the second defendant assumed that the plaintiff would only charge fees if and to the extent of any costs recovered from the respondent in the VCAT claim and that Mr Gray induced the second defendant to adopt that assumption;
(f)the claims are statute barred by reason of s 5 of the Limitation of Actions Act 1958 (Vic).
On or about 10 May 2016, the parties settled the County Court Proceeding by way of an “interim settlement agreement”.
That agreement resolved the substantive issues on terms that:
(a)Mr Kuek reactivate and finalise the taxation of Mr Gray’s fees in the proceeding before the Costs Court (“Costs Court Proceeding”);
(b)a costs consultant, Blackstones (“Costs Consultant”) was to be appointed and the parties agreed to abide by any amount determined by the Costs Court or, by agreement between the Costs Consultant and the State of Victoria (being the respondent to the VCAT claim);
(c)Mr Gray would release Mr Kuek and Ms Turner from any claim for additional fees save for those fees to be determined by the Costs Court and the issue of costs in the County Court Proceeding;
(d)Mr Gray would pay the costs of the resumed taxation in the Costs Court.
The issue of the costs of the County Court Proceeding was expressed to remain outstanding and any amount recovered from the Costs Court Proceeding was to be ‘held in trust by [the Costs Consultant] or alternatively, be paid into court or any other place by written agreement.’
Multiple adjournments were granted in this Court while the Costs Court Proceeding was finalised. On 24 April 2020, Wood AsJ delivered reasons in the Costs Court Proceeding and ordered the State of Victoria pay $37,948.68 to Mr Gray. The Associate Justice directed that sum be paid into the County Court pending the finalisation of the County Court Proceeding.
The competing claims as to the costs of the CPP
The plaintiff claims the professional costs and disbursements he incurred in prosecuting his case.
He relies upon his affidavits dated 9 December 2020, 23 December 2020, and 4 February 2021 and written submissions dated 12 January 2021 and 11 February 2021.
The first defendant relies upon the affidavit of Gabriel Kuek affirmed 16 December 2022, and an affidavit of Yu Shan Tong, his former solicitor, dated 21 January 2021 and written submissions dated 12 January 2021, reply submissions dated 19 January 2021 and supplementary submissions dated 11 February 2022.
The second defendant relies upon written submissions dated 11 January 2021 and 11 February 2021, her notice of defence filed 29 September 2014 and the affidavit of Daniel Bean sworn 15 December 2020.
The further submissions were provided after I requested that the parties address the issues raised by the High Court of Australia’s decisions in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 (“Bell”), and Re Minister for Immigration & Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 622 (“Lai Qin”).
The first defendant claims the costs of and incidental to the proceeding on an indemnity basis. In written submissions filed on his behalf dated 12 January 2021 he set out the following basis upon which he submitted that Mr Gray should pay his costs:
(a)because costs follow the event;
(b)because on 5 September 2014, Mr Kuek made an offer of compromise to Mr Gray in which he offered to accept that the claim against Mr Kuek be dismissed with no order as to costs;
(c)by the terms of settlement, Mr Gray left no issue to be determined other than the question of where costs should fall;
(d)the plaintiff did not obtain “a judgment on the claim to which the offer relates not more favourable to the plaintiff than the terms of the offer”;
(e)the plaintiff’s conduct contravened the principles in Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298, Towie v Medical Practitioners Board of Victoria [2008] VSCA 157, and Chen & Ors v Chan & Ors [2009] VSCA 233;
(f)the plaintiff’s claim was statute-barred.
The second defendant claims the costs of and incidental to the proceeding, including the costs of this application, on an indemnity basis. Alternatively, the second defendant contends that the plaintiff should bear his own costs of the proceeding and/or each party should bear their own costs. She relies upon the following contentions:
(a)the claim lacked a proper basis, being statute-barred;
(b)the plaintiff breached the interim settlement agreement;
(c)the plaintiff breached his overarching obligations under the Civil Procedure Act 2010 (Vic) (“CPA”).
In respect of the Bell decision:
(a)the plaintiff did not address the decision in his written submissions;
(b)the first defendant submitted that pursuant to the Bell decision, the plaintiff is not entitled to professional costs for legal work he performed as a self-represented litigant but would, if appropriate to order, be entitled to disbursements actually paid; and
(c)the second defendant submitted that the plaintiff is not entitled to any costs.
In respect of the Lai Qin decision:
(a)the plaintiff submitted that it is likely no party behaved unreasonably.
(b)the first defendant submitted that the plaintiff’s case was misconceived and hopeless; that it was reasonable for the first defendant to defend the proceeding; that the plaintiff acted unreasonably in bringing the proceeding; and, that the first defendant did not act unreasonably.
(c)the second defendant submitted that the plaintiff acted unreasonably.
The legal framework
The starting position for costs
The starting position is that the court retains a general discretion as to costs. The absolute rule that is often stated is that there is no absolute rule as to how the discretion ought be exercised. That is of course, subject to the overriding consideration that the discretion must be properly exercised.
Subject to the above observation, ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs.[1] Success in the action or on particular issues is the fact that usually controls the exercise of the discretion and a successful party is prima facie entitled to a costs order.[2]
[1] Ex parte Lai Qin (1997) 186 CLR 622 at 624-5, citing Latoudis v Casey (1990) 170 CLR 534.
[2] Ibid.
The principles where there has been no hearing on the merits
In Lai Qin, McHugh J observed (at [6]–[9] with reference to previous cases) that:
(a)when there has been no hearing on the merits a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order;
(b)the court cannot try a hypothetical action between the parties;
(c)in an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action;
(d)in some cases, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action;
(e)in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. But such cases are likely to be rare;
(f)if it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.
In Zhao v Suzhou Haishum Investment Management Co Ltd [2020] VSCA 34 (“Zhao”), the Court of Appeal accepted as a general principle:
We accept as a general principle that where a party litigates for some time and then acts so as to effectively surrender or capitulate to the other, that will usually be a strong ground to award costs against the party who has surrendered or capitulated.[3]
[3] Zhao at [12].
The abolition of the Chorley exception
On 4 September 2019, in the Bell decision, the High Court held that the Chorley exception (which permitted a self-represented litigant who happened to be a solicitor, to recover their professional costs of acting in the litigation) was not part of the common law in Australia. In doing so the High Court also rejected that the exception should extend to barristers.[4] The High Court expressly disavowed that their decision operated only prospectively.[5]
[4] Bell at [3].
[5] Bell at [55].
Bell leaves open the question of whether a self-represented barrister or solicitor is entitled to claim disbursements. However, in United Petroleum Australia PL v Herbert Smith Freehill [2020] VSCA 15 (“United Petroleum”) at [121]–[122] the Victorian Court of Appeal held that a firm of solicitors, was not entitled to recovery of costs for time spent by its own employees, but that it was entitled to recovery of costs in respect of disbursements incurred by it.[6]
[6] See also Ganesh v National Australia Bank [2021] VSCA 45 at [89].
Offers of compromise
In relation to offers of compromise made by a Calderbank letter, the principles are well established. The offer must represent a genuine compromise as opposed to an invitation to capitulate. Where an offer is not accepted and the offeree does not achieve a more favourable outcome than that contained in the offer, there is a basis for awarding costs at a higher level. The unreasonable refusal to accept an offer of compromise provides a basis for an order that costs be awarded on an indemnity basis. The reasonableness or otherwise should be assessed at the time the offer was made and not on the facts known at the time the application for a special costs order.
The ultimate issue
The ultimate issue is: what order as to the costs of the County Court Proceeding should be made?
There are eight sub-issues that are necessary to resolve to determine the ultimate issue. They are:
(a)Did the parties act reasonably in commencing and defending the CCP claim?
(b)Did the conduct of the parties continue to be reasonable until the litigation was settled or its further prosecution became futile?
(c)Did one or more of the parties act so unreasonably that it would be proper for them to pay the whole or part of the costs of the proceeding?
(d)Is this case a circumstance where one party effectively capitulated or surrendered to the other?
(e)Did the plaintiff breach his obligations under the CPA?
(f)If so, what are the consequences of any breaches found in respect of how costs should be awarded in this case?
(g)Following the Bell decision, is the plaintiff entitled to payment of his professional costs and disbursements?
(h)Depending on the resolution of the above issues, is it appropriate to order that the plaintiff pay one or more of the defendant’s costs because of previous offers made, and if so, on what basis and for what period should such an order be made?
Did the parties act reasonably in commencing and defending the CCP claim?
The plaintiff commenced his claim seeking damages for breaches of contract in circumstances where work was performed for which he had not been paid. Various defences are raised by the defendants to the claim, some of which seek to attribute liability to the other defendant.
I note that there is no evidence of an application being made either to strike out the statement of claim or for summary judgment.
Much is sought to be made by the defendants by their submission that the plaintiff’s claim was statute barred and that the fact of that is proof of the plaintiff’s unreasonableness in commencing the action.
However, that submission overlooks the fact that s 5 of the Limitation of Actions Act 1958 operates as a defence that must be pleaded to a claim. The defence might not be taken. In turn, if raised, there are defences that might operate to that plea (such as an estoppel). Further, the statute barring of a claim is almost always determined at trial, although at times it might be determined on a summary judgement application for which evidence would be adduced by the parties. Nothing like that occurred here.
I do not find anything unreasonable about the plaintiff commencing the CCP.
Similarly, I do not find anything unreasonable about the defendants’ defence of the CPP claim made against them.
Did the conduct of the parties continue to be reasonable until the litigation was settled or its further prosecution became futile?
There is no doubt that the conduct of the CPP was not a textbook approach to running a proceeding in this Court. There were delays, mishaps and a considerable amount of correspondence directed towards convincing the plaintiff to withdraw his claim and, further, reams of correspondence directed towards the parties apportioning blame to other parties for various alleged failings. None of these however, rises to unreasonable conduct by any party such to warrant a departure from the usual position identified by McHugh J in Lai Qin.
I searched the affidavit material submitted by the parties for correspondence directed towards a proposed statement of issues or attempts to focus the scope of discovery or streamline the conduct of the proceeding. Sadly, my search was in vain.
Did one or more of the parties act so unreasonably that it would be proper for them to pay the whole or part of the costs of the proceeding?
Ultimately, what occurred was the parties came into the orbit of an experienced and highly skilled judicial registrar who, through a judicial resolution conference, guided and assisted the parties to negotiate a settlement of the real issues in dispute.
I can see nothing in the conduct of the proceeding to the point where the parties resolved the real issues in dispute by entering into the interim terms of settlement, that rises even close to unreasonable conduct by a party such to make it proper for them to pay the whole or part of the costs of the proceeding.
Is this case a circumstance where one party effectively capitulated or surrendered to the other?
The first defendant did not directly submit that by the interim terms of settlement, Mr Gray had capitulated. He did submit that by the interim terms of settlement Mr Gray leaves the Court with no substantive issue to determine, and that consequently, the Court will not grant Mr Gray the principal relief he sought. I reject that submission. It is circular and illogical.
The second defendant submits that Mr Gray effectively surrendered or capitulated based on, it seems, the fact that the proceeding has been rendered futile. However, the ongoing futility of the CCP arises because the parties entered into terms of settlement, not because the plaintiff “gave up”. Rather, as can be seen from the outcome in the Costs Court, the fight, so to speak, transferred to that jurisdiction where it was assisted by the first defendant pursuant to obligations he accepted in the terms of settlement.
Accordingly, I do not find that Mr Gray surrendered or capitulated in the County Court Proceeding.
I note that in considering each of the above four issues, it is not enough that I might suspect the plaintiff would likely fail at trial. I would have to feel confident that the defendants would be almost certain to have succeeded if the matter had been fully tried. I would much prefer to be in the defendants’ shoes than those of the plaintiff. I would be prepared to say that the plaintiff would likely fail at trial. But I am not prepared to find that the defendants would be almost certain to have succeeded. Such cases, as McHugh J noted, are rare. This case is not one of those rarities.
Similarly, the plaintiff submits that the interim terms of settlement resulted in the parties agreeing to restart the taxation in the Costs Court to assess the plaintiff’s fees and that this eventually occurred. This is, the plaintiff submits, in a conventional sense, a win for the plaintiff and a loss for the defendants, presumably because paragraph 2 of the Prayer for Relief sought is an order that fees be assessed on County Court Scale D from time to time by the Costs Court in default of agreement. However, that was a claim directed at the defendants, not the State of Victoria (against whom the fees were ultimately assessed). The plaintiff did not ‘succeed’ in having his fees assessed as against the defendants.
Did the plaintiff breach his obligations under the Civil Procedure Act 2010?
The second defendant submits that the plaintiff breached his obligations under sections 18, 21, 23 and 25 of the CPA.
Section 18 stipulates the requirement of proper basis. The second defendant submits that because the plaintiff’s claim was statute barred pursuant to s 5 of the Limitation of Actions Act 1958 and because the plaintiff did not reply to other defences raised, the plaintiff did not have a proper basis. For the reasons stated above, I reject the submission that s 5 of the Limitation of Actions Act meant there was no proper basis. I also reject the submission that not providing a reply is sufficient evidence of a breach of s 18.
Section 21 requires a party not to engage in conduct which is misleading or deceptive or likely to mislead or deceive. The second defendant submits that because the plaintiff did not inform the parties that the Costs Consultant had disengaged its services, the plaintiff has breached the interim terms of settlement. No link is made between the alleged breach and any misleading or deceptive conduct beyond perhaps a submission that there was a ‘failure to inform.’ I am not prepared to find that this amounts to a breach of s 21 of the CPA by the plaintiff.
Section 23 provides that if the whole of the dispute cannot be resolved by agreement a person must make reasonable endeavours to resolve by agreement any issue which can be resolved in that way and narrow the issues in dispute.
Plainly, the parties, by the interim terms of settlement, resolved, by agreement, the majority of the dispute. The second defendant says that on two occasions she tried to bring the proceeding to the end by making Calderbank offers. In my view, the making of a Calderbank offer is different to, and for a different purpose, narrowing the issues in dispute. The parties did their best to resolve what they could and leave a much narrower dispute to be determined.
Section 25 requires the parties to act promptly and minimise delay. The second defendant says that the plaintiff caused extraordinary delay. However, examined closely, that submission does not hold true.
The plaintiff issued proceedings in 2014. By May 2016, the CPP had been resolved save for the question of costs. The fight then transferred to the Costs Court and was reactivated in April 2017. There was a mediation in June 2017 and a taxation concluded on 20 August 2018. However, the plaintiff here sought an adjournment to allow him to make an application to VCAT for certification of counsel’s fees that, if allowed, would have increased the amounts claimable by him on taxation after the Costs Court found that it did not have the usual discretion to allow more than scale without certification by the trial judge. That the plaintiff here approached VCAT without notice to the State was improper and ill-conceived. It did result in delay, but a delay of no more than 6 months whereafter it returned to the Costs Court and was finalised by April 2020. By December 2020, the parties were substantially ready to have the remaining issue of costs determined in the Court.
There was of course, delay along the way. Things could have been done with greater haste. In hindsight, things might have been done differently which might have sped things up. But none of that, in my view amounts to delay that rises to the level of a breach of the CPA.
If so, what are the consequences of any breaches found in respect of how costs should be awarded in this case?
Given my above findings, it is not necessary to address this point.
Following the Bell decision, is the plaintiff entitled to payment of his professional costs and disbursements?
It is clear, following Bell, that a barrister or solicitor representing themselves, is not entitled to recover their professional costs for the time spent but they are entitled to a costs order and for disbursements properly incurred.[7]
[7] Ganesh & Anor v National Australia Bank Ltd [2020] VSCA 39 (Leave Reasons) at [55].
It is equally clear that, if it is appropriate to exercise the discretion in favour of the plaintiff then that should be done. It is not for this court in exercising the discretion to determine the quantum of costs unless it is fixing the amount of costs. The quantum and recoverability of costs is a matter for the Costs Court to be determined on proper evidence.
Here, it is not clear whether the plaintiff was self-represented at all times. In any event, he appears to have incurred disbursements and if so, he would be entitled to recover them if he receives a cost order in his favour.[8]
[8] Ganesh & Anor v National Australia Bank Ltd [2021] VSCA 45 at [89].
Conclusion of whether costs should be awarded
For the reasons stated above, I decline to make any order as to the costs of this proceeding.
Having decided that, I now turn to the final issue.
Is it appropriate to order that the plaintiff pay one or more of the defendant’s costs because of previous offers made, and if so, on what basis and for what period should such an order be made?
A. The first defendant’s offer of compromise dated 5 September 2014
On 5 September 2014, Mr Kuek made an offer of compromise to settle the proceeding on the basis that the claim against the first defendant be dismissed with no order as to costs.
Putting aside the difficulty of assessing the reasonableness of the offer at the time it was made, it seems to me that the first defendant cannot say that the plaintiff did not better the offer when:
(a)the orders to be made absent any consideration of the offers is that the proceeding be dismissed with no order as to costs; and
(b)by not accepting the offer and resolving the substantive part of the claim, the plaintiff is significantly better off because he got a taxation of his costs in the Cost Court, a result that he would not have achieved if he had accepted the first defendant’s offer.
Therefore, there is no basis to make a special costs order because of the plaintiff’s non-acceptance of the 5 September 2014 offer of compromise.
B. The second defendant’s Calderbank offer dated 11 May 2015
On 11 May 2015, Ms Turner made a Calderbank offer to settle the proceeding on the basis that the claim against the second defendant be withdrawn and each party bear their own costs.
Setting aside the differences between an offer of compromise under the Rules and a Calderbank offer (which make no difference here), for the same reasons as state above in respect of the first defendant’s offer of compromise, there is no basis to make a special costs order because of the plaintiff’s non-acceptance of the 11 May 2015 Calderbank offer.
C. The second defendant’s Calderbank offer dated 4 October 2018
This offer differs from the earlier offer because it is decoupled from the outcome of the litigation (that having already been settled by the interim terms of settlement) other than in respect of costs.
Materially, the letter states:
That with regards to any application for costs in the proceeding, between the Plaintiff and the Second Defendant only, the parties agree to bear their own costs, and not make an application for costs against the other.
In United Petroleum, the Court of Appeal upheld a special costs order made by the trial judge where the proceeding resolved on terms no less favourable than the terms of the offer to settle and that the applicant in that case acted unreasonably in not accepting the offer. Having regard to the matters relevant there, the Court of Appeal found that the trial judge was correct to find that United did not do “better” than the offer.[9]
[9] United Petroleum at [4], [126]-128].
Here, it cannot be said that the plaintiff bettered the offer. He drew equal. If follows that the proceeding resolved on terms no less favourable than the offer made. Given the time that the offer was made, what had occurred between the parties at that stage, and the knowledge that the parties had, it should have been apparent to the plaintiff that this was a reasonable offer and, assessed at that time, it was unreasonable of him not to accept it.
The second defendant submitted that “it’s time to say enough is enough” and urged me to fix her costs in the sum of $10,000 which, it is said, will essentially cover Counsel’s fees and nothing else. The second defendant is to be commended for making this concession.
I agree that it is time to say enough is enough on this matter. I am loathed to make any order that requires the parties to do anything further of substance in this proceeding. Pursuant to s65C of the CPA I am permitted to award a party costs in a specified sum where I consider it appropriate to further the overarching purpose. I intend to do that here.
However, there is no referrable evidence to the make-up of the $10,000. That is regrettable. However, I will do the best I can so that there are not more costs incurred.
On the costs issue alone, there were two days of hearings and two sets of written submissions. Counsel for the second defendant is an experienced barrister of over 10 years call. At scale she would be entitled to a fee of around $2,500 for each half day spent in the hearing and between $400 and $500 an hour for preparation. Based on that, I am prepared to allow counsel two half day appearances and 10 hours preparation at $450 per house including drafting submissions, totalling $9,500.
Conclusion and orders
I propose to make the following orders:
(a)The proceeding is dismissed.
(b)There is no order as to costs as between the plaintiff and the first defendant.
(c)The plaintiff pay the second defendant’s costs fixed in the sum of $9,500.
(d)The money held in Court be released as follows:
(i) the sum of $9,500 to Foley’s List on account of Luisa Alampi, the barrister for the second defendant; and
(ii) the balance to the plaintiff.
I will give the parties seven days to tell me if there is any reason not to make orders in the form proposed in sub-paragraph (d) above. Any submission on the point must be in writing and no more than 2 A4 pages.
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