Gye v Hogarth
[2003] NSWSC 825
•9 September 2003
CITATION: Gye v Hogarth & Ors [2003] NSWSC 825 revised - 11/09/2003 HEARING DATE(S): 7 August 2003 & 5 September 2003 JUDGMENT DATE:
9 September 2003JURISDICTION:
Common LawJUDGMENT OF: Master Harrison DECISION: The Court orders that by consent; (1) No amount is payable by the Cross-appellants to the Cross-respondent in respect of the Cross-respondent's costs of the assessment; (2) Set aside the Amended Certificate of Determination of Costs dated 10 July 2002 in proceedings 91355/2001 to the extent of $10,500.00; (3) Determine that no amount is payable by the cross-appellants in respect of the costs of the costs assessor; (4) Set aside Certificate of Costs with Form 4 Certificate of Determination of Costs dated 10 July 2002 in proceedings 91355/2001; (5) Set aside Form 3 Certificate of Determination of Costs dated 7 April 2003 in proceedings 91355/2001to the extent of $3,461.26; The Court further orders; (6) That the bills of costs issued by the plaintiff to the Defendants dated 2 July 2000 (No 1199 in the sum of $1,119.25), 15 August 2000 (No 1192 in the sum of $7,953.00) and 23 November 2000 (No 7073 in the sum of $2,368) be remitted to the costs assessor Mr Mark Campbell with a direction to issue a Certificate of Determination in respect of those bills of costs; (7) The balance of the appeal is dismissed; (8) The costs of the appeal and the cross appeal are reserved for further argument. CATCHWORDS: Appeal against costs assessor's decision - Estoppel - Charge out rates and GST - Photocopying - Calculation of interest - Costs LEGISLATION CITED: Legal Profession Act 1987
Supreme Court Act 1970CASES CITED: Blair v Curran (1939) 62 CLR 462
Brewer v Brewer (1953) 88 CLR 1
Commonwealth v Sciacca (1998) 17 FCR 476
Marr v White Constructions (1991) 32 FCR 425PARTIES :
Clement Anthony Gye
(Plaintiff)Robert Martin Hogarth
(First Defendant)Lakatoi Universal Pty Limited
(Second Defendant)Ensile Pty Limited
Highfield Grove Pty Limited
(Third Defendant)
(Fourth Defendant)FILE NUMBER(S): SC 11062/2003 COUNSEL: Mr VRM Gray
Mr M L Brabazon
(Plaintiff)
(Defendants)SOLICITORS: Mr C A Gye
Mr T Hsu
Gye Associates Lawyers
(Plaintiff)
Burrell Solicitors
(Defendants)
LOWER COURTJURISDICTION: Costs Assessor LOWER COURT FILE NUMBER(S): N/A LOWER COURT
JUDICIAL OFFICER :Mr Mark Campbell
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
MASTER HARRISON
11062/03 - CLEMENT ANTHONY GYE vTUESDAY, 9 SEPTEMBER 2003
- ROBERT MARTIN HOGARTH & ORS
JUDGMENT (Appeal against costs assessor’s decision)
1 MASTER: By amended summons filed 6 May 2003, the plaintiff seeks an order setting aside the Certificate as to Determination of Costs dated 7 April 2003 from assessor Mr Mark Campbell in so far as it gave effect to a decision by the assessor to allow as the charge out rates to be applied to the bills of costs the subject of the assessments charge out rates less than the charge out rates originally charged by the Plaintiff in rendering such bills of costs; secondly, an order setting aside the said Certificate as to Determination of Costs, insofar as it gave effect to a decision by the assessor to (i) disallow G.S.T. on disbursements, and (ii) reduce the amounts charged in the bills of costs for photocopying, and thirdly the costs of the assessment and of the appeal.
2 The last order sought is what was formerly paragraph 3 of the summons. This paragraph was amended at the hearing. An order is now sought that the bills of costs issued by the plaintiff to the Defendants dated 2 July 2000 (No 1199 in the sum of $1,119.25), 15 August 2000 (No 1192 in the sum of $7,953.00) and 23 November 2000 (No 7073 in the sum of $2,368) be remitted to the costs assessor Mr Mark Campbell with a direction to issue a Certificate of Determination in respect of those bills of costs. The defendant agreed that these bills had not been assessed. Hence, I make the order in amended paragraph 3 as pleaded above.
3 The plaintiff is Clement Anthony Gye, a solicitor. The first defendant is Robert Martin Hogarth. The second defendant is Lakatoi Universal Pty Limited. The third defendant is Ensile Pty Limited. The fourth defendant is Highfield Grove Pty Limited. For convenience the defendants will be referred to as the “Hogarth interests”. The plaintiff relies upon his affidavits sworn 5 June 2003, 6 June 2003 and 13 June 2003.
4 Section 208L of the Legal Profession Act 1987 (the Act) provides:
"Appeal against decision of costs assessor as to matter of law
(2) After deciding the question the subject of the appeal, the Supreme Court may, unless it affirms the costs assessor's decision:(1) A party to an application who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the Supreme Court, appeal to the Court against the decision.
(b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application.(a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or
5 The grounds relied on in support of the appeal are:
“1. In proceedings between the parties No. 3721/2001, this Court (Bryson J) held that documents setting out charge out rates for work done by the Plaintiff and his employees for the Defendant in relation to the same matter as the bills of costs the subject of the assessment constituted costs agreements for the purposes of the Legal Profession Act and were binding on the parties.
3. This finding and such estoppel were binding upon the parties and the assessor should not have departed from them in respect of bills of costs for work done by the same persons on the same matter for the Defendants where there was no evidence of any material change in circumstances between the relevant parties.2. This finding gives rise to an issue estoppel as between the parties that such charge out rates were not unreasonable.
- …
6. The Plaintiff was substantially successful in the assessment.”
5. The costs of the assessment are within the jurisdiction of this court under section 76(2)(b) of the Supreme Court Act.
6 At the hearing, leave was granted to the defendants to file an Amended Notice of Cross Appeal. By consent, I make orders in accordance with paragraphs 1, 2, 5, 6, 7 and 9 of the Amended Notice of Cross Appeal. Costs of the cross appeal are reserved.
7 There has been much litigation, between what I shall describe as the “Walker interests”, and what I shall describe as the “Hogarth interests”. For some period of time, Mr Gye a solicitor, the plaintiff in these proceedings, represented and acted for the Hogarth interests (the defendants) in this litigation. The solicitor Mr Gye, has brought this appeal against his former clients, the Hogarth interests.
8 On 10 March 2000, Einstein J handed down his judgment (some 700 pages) in favour of the Hogarth interests against the Walker interests for the sum of $11,707,162. Walker appealed the decision. The bills of costs that were the subject of the costs assessment in the application before this Court relate to the costs of the preparation of appeal. On 8 June 2001, the matter was subsequently settled and the appeal did not proceed.
9 On 24 July 2001, the Hogarth interests commenced Equity proceedings against the plaintiff’s solicitor. These proceedings are 3721/01 where Robert Martin Hogarth and others were the plaintiffs and Clement Anthony Gye and another were the defendants (the equity proceedings). The equity proceedings are relevant because the Hogarth interests sought:-
- “1. A declaration that a document dated 7 April 1999 signed by Mr Hogarth and Mr Gye is void as being in breach of the provisions of s 188 of the Legal Profession [Act] 1987;
- 2. A declaration that cll 3(a) and 4 of the document entitled ‘Charge over Proceeds of Proceedings’ dated 6 July 2000 is void; and
- 3. A declaration to the effect that certain letters prepared by Mr Gye and executed by Mr Hogarth on behalf of the second plaintiff Lakatoi Universal Pty Ltd, which purported to be Costs Agreements, are not costs agreements for the purposes of the Legal Profession Act 1987; and for that reason they are not enforceable.”
10 In the cross claim the defendant (Mr Gye) claimed firstly, declarations to the effect that the confirming letter of 21 February and the confirming letter of 6 June 2001 evidenced costs agreements for the purposes of s 184 of the Act and constitute costs agreements for the purpose of s 208C of the Act; secondly, a declaration that the costs agreements are binding on the parties; thirdly, a declaration that the plaintiffs are not entitled to have assessed under Part 11 Div 6 of the Act any bill of costs delivered and paid wholly or in part more than 12 months before the application for assessment is made; and fourthly, a declaration “that for the purpose of s 190 of the Act the former clients paid the bill of costs wholly or in part when they or any of them paid to Mr Gye a lump sum on account of outstanding fees under bills previously rendered”.
11 At paragraph 28 of his reasons for judgment Bryson J stated:
- “It was contended that Mr Gye obtained Mr Hogarth’s agreement to execution of the agreement of 7 April 1999 by duress. Evidence on this issue led to a subsidiary question whether the term of the letter were drawn up by Mr Gye or by someone on the part of Mr Hogarth; this question cannot be satisfactory resolved on the evidence and is of no importance. There is no substance in the claim that any duress was applied by Mr Gye to Mr Hogarth in negotiations leading to the agreement of 9 April 1999. There was no element of duress or coercion in Mr Gye’s stipulating for named rates of remuneration for the time of himself and of his staff. My experience in hearing proceedings in this Division shows me that, while the rates stipulated for were certainly not modest, they were not unusually high in relation to heavy commercial litigation attended to by the principal of a firm and engrossing most of the resources of the firm. …”
12 At paragraphs 34 and 36 His Honour stated:
- “34 The first claim in the Summons seeks a declaration which would mean in substance that the document was wholly void. That is not a correct proposition. Some provisions of the document are void, but their lack of effect is very clear and was conceded, and no purpose would be served by making a declaration establishing it. The plaintiff is not entitled to a declaration in terms of claim 2. The confirmation letters which were in fact executed are Costs Agreements for the purpose of the Legal Profession Act and the plaintiffs are not entitled to a declaration in accordance with claim 3.
- 35 …
- 36 With respect to the Cross-claim the letter dated 21 February 2001 referred to in the first claim does in my opinion evidence a Costs Agreement and a declaration as claimed should be made in respect of it. However the letter of 6 June 2001, which Mr Hogarth did not sign, is not and is not evidence in writing of a Costs Agreement, and the cross-claimants are not entitled to a declaration in respect of it. The second letter of 12 April 2000 which among other things established in cl.(6) the rates of costing for work done after 1 January 2000 is also evidence of a Costs Agreement and it may well affect rates of charging for work charged for in the bills which have been referred to assessment; those bills include bills dated on and after 2 August 2000 and may well relate back to the early part of that year. Declarations should be made in terms of claims 1(a) and 2 of the Cross-claim, but not in terms of claim 1(b). Declarations in terms of claims 3 and 4 in the Cross-claim cannot be considered without evidence in detail of the times and manner of making payments, and in any event the declarations claimed appear to be academic as there has been no attempt to refer bills earlier than bills delivered on 2 August 2000, twelve months before the application for assessment was made. In my view I should decline to give declaratory relief on claims 3 and 4. Claim 5 was abandoned during the hearing.”
13 I interpose that the two letters dated 12 April 2000 refer to equity division, commercial list matters. The letter of 21 February 2001 refers to court of appeal proceedings and refers to specific bills rendered between 1 July 2000 and 9 February 2001.
14 Bryson J dismissed the summons with costs and made declarations to the effect that the letter dated 21 February 2001 and the confirming letter of 6 June 2001 evidenced costs agreements for the purposes of s 181 of the Act and constituted a costs agreements for the purposes of s 208C of the Act and a declaration that the costs agreements were binding on the parties (as per claim (1)(a) and (2) of the cross claim). The cross claim is not in evidence so I am unable to be precise regarding the terms of paragraph 1(a). Bryson J also dismissed claims 1(b), 3, 4 and 5 in the cross-claim, and ordered that the Plaintiffs Cross-defendants pay the defendants' cross-claimants' costs of the Cross-claim.
15 A brief overview of the obligations and duties of a costs assessor in carrying out a costs assessment is set out below.
16 Section 208 of the Act provides:
(1) A costs assessor must not determine an application for assessment unless the costs assessor:“Consideration of applications by costs assessors
(b) has given due consideration to any submissions so made.(a) has given both the applicant and any barrister, solicitor or client or other person concerned a reasonable opportunity to make written submissions to the costs assessor in relation to the application, and
(3) For the purposes of determining whether an application for assessment may be or is required to be made, or for the purpose of exercising any other function, a costs assessor may determine any of the following:(2) In considering an application, a costs assessor is not bound by rules of evidence and may inform himself or herself on any matter in such manner as he or she thinks fit.
(b) whether a costs agreement exists, and its terms.”(a) whether or not disclosure has been made in accordance with Division 2 and whether or not it was reasonably practicable to disclose any matter required to be disclosed under Division 2,
17 In deciding what was fair and reasonable the costs assessor had to consider the matters in s 208A(1) set out below and was entitled to have regard to the paragraphs in s 208B, also set out below. Section 208A(1) obliged the costs assessor to consider:
“(a) whether or not it was reasonable to carry out the work to which the costs relate, and
(c) the fairness and reasonableness of the amount of the costs in relation to that work.”(b) whether or not the work was carried out in a reasonable manner, and
18 Section 208A(2) provided:
“A costs assessor is to determine the application by confirming the bill of costs or, if the assessor is satisfied that the disputed costs are unfair or unreasonable, by substituting for the amount of the costs an amount that, in his or her opinion, is a fair and reasonable amount.”
19 Section 208A(5) was as follows:
“A costs assessor may not determine that any part of a bill of costs that is not the subject of an application is unfair or unreasonable.”
20 Section 208B provided that in assessing what was “a fair and reasonable amount of costs, a costs assessor may have regard” to any or all of the following:
- “(a) whether the barrister or solicitor complied with any relevant regulation, barristers rule, solicitors rule or joint rule,
- (b) whether the barrister or solicitor disclosed the basis of the costs or an estimate of the costs under Division 2 and any disclosures made,
- (c) any relevant advertisement as to the barrister’s or solicitor’s costs or skills,
(d) any relevant costs agreement (subject to section 208C),
(e) the skill, labour and responsibility displayed on the part of the barrister or solicitor responsible for the matter,
(f) the instructions and whether the work done was within the scope of the instructions,
(g) the complexity, novelty or difficulty of the matter,
(h) the quality of the work done,
(j) the time within which the work was required to be done.”(i) the place where and circumstances in which the legal services were provided,
21 Sections 208C and 208D provide:
(1) A costs assessor is to decline to assess a bill of costs if:“208C Costs agreements not subject to assessment
(b) the costs agreement specifies the amount of the costs or the dispute relates only to the rate specified in the agreement for calculating the costs.(a) the disputed costs are subject to a costs agreement that complies with Division 3, and
(2) If the dispute relates to any other matter, costs are to be assessed on the basis of that specified rate despite section 208A. The costs assessor is bound by a provision for the payment of a premium that is not determined to be unjust under section 208D.
(3) This section does not apply to any provision of a costs agreement that the costs assessor determines to be unjust under section 208D.
(4) This section does not apply to a costs agreement applicable to the costs of legal services if a barrister or solicitor failed to make a disclosure in accordance with Division 2 of the matters required to be disclosed by section 175 or 176 in relation to those costs.
208D Unjust costs agreements
(2) For that purpose, the costs assessor is to have regard to the public interest and to all the circumstances of the case and may have regard to:(1) A costs assessor may determine whether a term of a particular costs agreement entered into by a barrister or solicitor and a client is unjust in the circumstances relating to it at the time it was made.
(a) the consequences of compliance, or non-compliance, with all or any of the provisions of the agreement, and
(b) the relative bargaining power of the parties, and
(c) whether or not, at the time the agreement was made its provisions were the subject of negotiation, and
(d) whether or not it was reasonably practicable for the applicant to negotiate for the alteration of, or to reject, any of the provisions of the agreement, and
(e) whether or not any of the provisions of the agreement impose conditions that are unreasonably difficult to comply with, or not reasonably necessary for the protection of the legitimate interests of a party to the agreement, and
(f) whether or not any party to the agreement was reasonably able to protect his or her interests because of his or her age or physical or mental condition, and
(g) the relative economic circumstances, educational background and literacy of the parties to the agreement and of any person who represented any of the parties to the agreement, and
(h) the form of the agreement and the intelligibility of the language in which it is expressed, and
(j) whether the barrister or solicitor or any other person exerted or used unfair pressure, undue influence or unfair tactics on the applicant and, if so, the nature and extent of that unfair pressure, undue influence or unfair tactics.(i) the extent to which the provisions of the agreement and their legal and practical effect were accurately explained to the applicant and whether or not the applicant understood those provisions and their effect, and
(4) In determining whether a provision of the agreement is unjust, the costs assessor is not to have regard to any injustice arising from circumstances that were not reasonably foreseeable when the agreement was made.”(3) For the purposes of this section, a person is taken to have represented a person if the person represented the other person, or assisted the other person to a significant degree, in the negotiations process up to, or at, the time the agreement was made.
22 I shall deal with the issues raised in the summons in sequential order.
(1) Estoppel – Charge out rates and GST
23 The first issue raised is whether the findings by Bryson J give rise to an estoppel binding as between the parties that the charge out rates were not unreasonable. Where issue estoppel applies, it prevents a party from asserting, as against other parties bound by a judgment in earlier proceedings, an issue that is contrary to its determination in the earlier proceedings. Issue estoppel only applies to an issue that was indispensable or fundamental to the ultimate decision in the earlier case – see Blair v Curran (1939) 62 CLR 462 at 531-2 per Dixon J; Commonwealth v Sciacca (1998) 17 FCR 476. In respect of findings of act, estoppel only applies to those ultimate facts which form the ingredients of the cause of action or defence. The issue determined in the first proceedings and the issue that arises in the second proceeding must be precisely the same. There is no estoppel in relation to evidentiary facts found in the course of determining a material issue or a larger or different issue – see Blair v Curran; Brewer v Brewer (1953) 88 CLR 1 at 15; Marr v White Constructions (1991) 32 FCR 425; Milojevic v ROH Industries Pty Ltd (1991) 56 SASR 78, 83.
24 In his interim statement of reasons regarding the agreement of 21 February 2002, the costs assessor at page 4 stated:
- “On 7 June 2002 a Notice of Objection was served in respect of all the bills. In the objections the Cost Applicant stated that I was able to review the costs referred to in the Cost Agreement dated 21 February 2001 if I find that the Cost Agreement was unjust within the meaning of Section 208D of the Act. On behalf of the Cost Applicants it was argued that Mr Hogarth had no say in the drafting of the agreement; there was no evidence that the solicitor explained the agreement; the relative bargaining power of the parties was not equal and that the agreement was self serving.
- It is true that His Honour Judge Bryson did not rule on the question of whether the 21 February 2001 agreement was unjust in the meaning of the Act. However, he made a declaration that it was binding and made judicial comments to the effect that Mr Hogarth was a skilled and successful businessman. The arguments put forward by the Cost Applicant are of insufficient force for me to set aside the agreement especially in the light of His Honour’s rulings and his findings in relation to Mr Hogarth’s business skills.
- If am unable (sic), on the evidence before me, to set aside 21 February 2001 agreement as unjust within the meaning of Section 208D of the Act I am to decline to assess the bill unless the dispute relates to some matter other than the rate specified in the costs agreement – see Section 208C. The Cost Applicant puts in dispute matters other than the rate.
- Firstly the Cost Applicant says that the 21 February agreement does not cover the charging rate 31 January 2001 and that it is open to the Costs Assessor to find the rates charged in this period are unreasonable. In the light of the comments made by His Honour at paragraph 28 of the judgment, I am not inclined to make such a finding. Further, I note that Mr Hogarth’s by signing the Cost Agreement dated 21 February 2001 did not have any objection to rates at that time. Indeed, 21 February 2001 states that the work was done in accordance with instructions and the charges were correct and have been charged in accordance with the agreement.”
25 Thus, the costs assessor applied the rates stipulated in the costs agreement dated 21 February 2001 to those bills of costs.
26 On 10 July 2002, the costs assessor issued an Amended Certificate of Costs in the sum of $341,379.92 in respect of a number bills which Bryson J held fell within a costs agreement dated 21 February 2001.
27 In his reasons for judgment dated 7 April 2003, the costs assessor recounted that the bills that he was left with and required to assess fell outside the costs agreement and accordingly he was required by the Act to assess those on the basis of what was “fair and reasonable” and was not constrained from assessing costs on the basis of the rates claimed in the bill. The costs assessor then specified the bills of costs that he was obliged to assess. It is common ground that the bills specified (with the exception of one for which an order has been made by consent) are not those covered in the costs agreement.
28 At page 6 the costs assessor stated:
- “As previously indicated I consider that a fair and reasonable hourly rate for a solicitor during this period is $220 inclusive of GST with the exception of Mr Gye (AG) in which case I consider $280 inclusive of GST fair and reasonable. These rates are what I consider to be the commercial rates for practitioners concerned at the time the work was carried out. I reach this conclusion after having generally compared rates charged in other bills and having taken into consideration the experience of the practitioners concerned and the comments made regarding their qualifications and experience. This opinion is not inconsistent with the view held by Bryson J who said that the rates claimed in the bills were ‘certainly not modest’ (see paragraphs 21 and 28).”
29 The plaintiff submitted and emphasised s 208P as being the provision which was most relevant here. It provides:
- “Liability of barrister or solicitor for costs
(2) The costs assessor may in the determination:(1) A costs assessor may act as set out in subsection (2) if it appears to the costs assessor that costs have been incurred improperly or without reasonable cause, or have been wasted by undue delay or by any other misconduct or default.
(a) disallow the costs as between the barrister or solicitor and the barrister's or solicitor's client, and
(c) direct the barrister or solicitor to indemnify any party other than the client against costs payable by the party indemnified.(b) direct the barrister or solicitor to repay to the client costs which the client has been ordered by a court or a tribunal to pay to any other party, and
(4) The costs assessor must give due consideration to any submissions so made.”
(3) Before taking action under this section, the costs assessor must give notice of the proposed action to the barrister or solicitor and the client and give them a reasonable opportunity to make written submissions in relation to the proposed action.
30 As I understand it, the purpose of the plaintiff’s counsel referring to this section was because, once the costs assessor had proposed that he would not be minded to allow certain items claimed in the bill, he was obliged under s 208P to notify the parties of his or her intention so that they had an opportunity to make submissions on this issue. Under s 208 both parties are given an opportunity to make written submissions. There are folders of documents which contain the notice of objection and the reply. The Hogarth interests raised objections and Mr Gye forwarded a lengthy reply to those objections. There is no evidence to suggest that the plaintiff did not have a reasonable opportunity to make submissions in relation to any items that were put in issue by the Hogarth interests. It would be unnecessary to further complicate and lengthen the assessment procedure to request the parties to make further submissions.
31 This approach taken by the cost assessor in dealing on “fair and reasonable” hourly rates for their solicitors involved in the work was one which was open to him. There was no finding by Bryson J that where no binding costs agreement existed, specific charge out rates were to be applied. There is no estoppel created in relation to charge out rates for the bills the subject of the costs assessor’s reasons dated 7 April 2003, (with the exception of the item referred to earlier). There is no error of law.
(2) Photocopying
32 Mr Gye (aff 5 June 2003) deposed that Assessor Campbell in the final Campbell assessment, had accepted submissions by the Hogarth interests costs consultants and disallowed substantial sums claimed for photocopying without giving him an opportunity to respond specifically to any proposed disallowance of such costs (the s 208O argument). The plaintiff submitted that an error of law occurred because the plaintiff was not given an opportunity to respond to the assessor’s intention to award less than the plaintiff has claimed for photocopying. As previously stated there is no such obligation under s 208. There is no error of law.
(3) Calculation of interest
33 As this matter has been remitted to a costs assessor the amount of interest will change and need recalculation. The parties have already made submissions on this issue. The costs assessor stated that interest was allowed at the rate of 10% per annum pursuant to s 190 of the Act which states that interest may be charged provided there is a statement to the effect in the bill of costs (which is defined to include a memorandum of fees) and that the rate is not in any event to exceed the rate prescribed under the Supreme Court Act 1970. In allowing interest the costs assessor noted that the applicant made a payment of $100,000.00 on 27 June 2002 and $50,000 on 23 January 2003.
34 The relevant part of s 190 provides:
- (4) A barrister or solicitor may not charge interest under this section or under a costs agreement at a rate that exceeds:
- (a) except as provided by paragraph (b) the rate prescribed under the Supreme Court Act 1970 in respect of unpaid judgment of the Supreme Court, or
- (b) the rate prescribed by the regulations.
35 The costs assessor was entitled to adopt the interest rate and calculate interest in the manner he undertook. There is no error of law.
(4) Costs
36 The plaintiff sought to invoke s 52A r 7 of the SCR. According to the plaintiff, the costs assessor determined that the appellant should have his costs of the assessment. The defendant submitted that the Court’s power to make orders in relation to costs below is intended to empower the Court, where a substantive appeal succeeds, to make that order in relation to costs which the Court or Tribunal below should have made. As the plaintiff’s appeal has been largely unsuccessful, there is no reason to override any costs orders made by the costs assessor. The plaintiff requested that the costs of the appeal and the cross appeal be reserved for further argument.
37 The plaintiff also made the submission that the costs assessor’s reasons were inadequate. This was not raised in the grounds of appeal. When the interim reasons of 21 February 2002 are read together with the reasons dated 10 July 2003 they are adequate.
38 Aside from the order made by consent (which appears below) the summons is dismissed.
39 The Court orders that by consent:
(1) No amount is payable by the Cross-appellants to the Cross-respondent in respect of the Cross-respondent’s costs of the assessment.
(2) Set aside the Amended Certificate of Determination of Costs dated 10 July 2002 in proceedings 91355/2001 to the extent of $10,500.00.
(3) Determine that no amount is payable by the cross-appellants in respect of the costs of the costs assessor.
(5) Set aside Form 3 Certificate of Determination of Costs dated 7 April 2003 in proceedings 91355/2001 to the extent of $3,461.26.(4) Set aside Certificate of Costs with Form 4 Certificate of Determination of Costs dated 10 July 2002 in proceedings 91355/2001.
40 The Court further orders:
(6) That the bills of costs issued by the plaintiff to the Defendants dated 2 July 2000 (No 1199 in the sum of $1,119.25), 15 August 2000 (No 1192 in the sum of $7,953.00) and 23 November 2000 (No 7073 in the sum of $2,368) be remitted to the costs assessor Mr Mark Campbell with a direction to issue a Certificate of Determination in respect of those bills of costs.
(8) The costs of the appeal and the cross appeal are reserved for further argument.(7) The balance of the appeal is dismissed.
Last Modified: 09/15/2003
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