Hall Chadwick v Doyle

[2006] NSWSC 1195

CITATION:	Hall Chadwick v Doyle [2006] NSWSC 1195
HEARING DATE(S):	22 August 2006
JUDGMENT DATE :	14 November 2006
JUDGMENT OF:	Rothman J
DECISION:	(i) Appeal against the determination of Costs Assessor Salier of 4 July 2006 between the parties hereto is allowed; (ii) The certificate issued by Costs Assessor Salier on 4 July 2006 is set aside; (iii) The judgment dependent upon the said Costs Certificate, purportedly entered on 12 July 2006 and taken out on 27 July 2006, is set aside; (iv) The Court declares that no fees are payable pursuant to the terms of the Conditional Costs Agreement between the parties dated 30 September 2004; (v) The defendant shall pay the plaintiff’s costs, as agreed or assessed, of the Costs Assessment before Costs Assessor Salier; (vi) The defendant shall pay the plaintiff’s costs of and incidental to these proceedings, as agreed or assessed; (vii) An Indemnity Certificate pursuant to the Suitors’ Fund Act 1951 is issued to the defendant for any costs arising out of these orders.
CATCHWORDS:	CIVIL LAW - costs - conditional costs agreement - award of money on Arbitration not success because of priorities of payments owing - jurisdictional limitation - jurisdiction to overturn or quash a costs assessment certificate which was taken as a judgment of the Court under statute - wide inherent jurisdiction of Supreme Court of NSW - common law exceptions to finality of judgment
LEGISLATION CITED:	Building and Construction Security of Payment Act 1999 (NSW) Charter of Justice Civil Liability Act 2002 Constitution of Australia Legal Profession Act 1987 Legal Profession Act 2004 Legal Profession Reform Act 1993 Supreme Court Act 1970 The Judicature Act 1873 (UK)
CASES CITED:	Bailey v Marinoff (1971) 125 CLR 529 Burke v Rooney (1879) 4 C.P.D. 226 C.H. Giles and Co v Morris [1972] 1 All ER 960 DJL v Central Authority (2000) 201 CLR 226 Hutchison v RTA [2000] NSWCA 332 Nixon v Phelan [1960] VR 94 Project Blue Sky v ABA (1998) 194 CLR 355 Ryan v Hansen (2000) 49 NSWLR 184
PARTIES:	Hall Chadwick Dr David Doyle T/A The Builders' Lawyer
FILE NUMBER(S):	SC 13740/2006
COUNSEL:	P: Mr N Perram/ Mr F Salama D: Mr P Menandue
SOLICITORS:	P: Mr G Spedding (Knowles Lawyers Pty Ltd) D: Mr D Doyle (The Builders' Lawyer)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ROTHMAN J

Tuesday 14 November 2006

13740/06 HALL CHADWICK PTY LTD v DOYLE

JUDGMENT

1 HIS HONOUR: The plaintiff, Hall Chadwick, seek to appeal a decision of a Costs Assessor on a question of law, being the construction of a cost agreement dated 30 September 2004. This agreement governed the obligation, if any, of the plaintiff to pay for work performed by the defendant. Also before the Court is a Notice of Motion filed on behalf of the defendant seeking an order that the plaintiff’s Summons be struck out as incompetent.

Facts

2 The defendant, Dr David Doyle, is a legal practitioner who practises as part of the firm trading under the name “The Builders’ Lawyer”. The underlying facts giving rise to this Summons are not in issue.

3 Hall Chadwick are a firm of insolvency practitioners a member of whom, Mr McDonald, was appointed with another person as joint voluntary administrators of a corporation called Grosvenor (NSW) Pty Ltd. A deed of company arrangement was entered into on or about 10 January 2003.

4 The joint administrators of Grosvenor retained the services of The Builders’ Lawyer to advise them in respect of various debt recovery actions on behalf of Grosvenor. One of the matters to which the lawyers were referred was a potential claim relating to work done by Grosvenor on the refurbishment of a project known as Edensor Park Shopping Complex.

5 Grosvenor obtained a determination pursuant to the Building and Construction Security of Payment Act 1999 (NSW) for approximately $760,000. In due course this Court set aside that determination. An appeal by Grosvenor was not pursued. There was then a further determination pursuant to the Building and Construction Security of Payment Act under which Grosvenor was entitled to recover approximately $486,000. The owners of Edensor Park Shopping Complex obtained a stay of execution in respect of this latter determination. The dispute between the owners and Grosvenor was referred to Mr R L Hunter QC for arbitration.

6 Paragraphs 15 and 16 of the final award of the Arbitrator stated as follows:

“15. Given that finding, it is clear from the correspondence to which I have referred that the parties are agreed that the effect of the interim award on their respective entitlements is as follows:

Contract price	3,870,000
Agreement variations	250,344
Arbitrated variations	297,942
Payments made by the Respondents	3,766,056
Cost of rectification	406,231
Liquidated damages	237,500


16. Leaving aside considerations of the application of goods and services tax that results in a nett award in favour of the claimant in the sum of $8,499.”

7 Arising from that award alone an amount of $8,499 was payable to Grosvenor.

8 Special orders were sought in relation to costs on a number of bases that are not now relevant. The Arbitrator made no award of interest to the date of award nor any order as to costs save that the parties are to pay their own respective costs and share equally the expenses of arbitration.

9 The arbitration before Mr Hunter QC occurred over some months and involved a large amount of legal work. Prior costs orders had been made against the plaintiff for sums which, in aggregate, are greater than $8499.00.

10 The arrangement between Hall Chadwick and The Builders’ Lawyer was embodied in three costs agreements, dated:

(a) 4 February 2003;
(b) 30 September 2004;
(c) 23 March 2005.

11 The cost agreement referred to in subparagraph (c) above related to an appeal to the Supreme Court from the award of Arbitrator Hunter QC. The cost agreement at (a) above was for work in relation to “certain claims which Grosvenor Constructions Pty Ltd may have against parties for whom the company has carried out construction work and advised which of any of the claimants warrant recovery procedures, and if so, what procedures.” The fees payable for each time unit of six minutes were:

Principal	44.00
Consultant	31.00
Lawyers	28.00
Paralegal	15.00
PA to Principal	3.00

12 A minimum charge for the work done is one time unit. Amounts were allowed for expenses and other matters. The billing and payment arrangements were described in cl 7 of that first fee agreement under which The Builders’ Lawyer stated that it would “aim to bill [Hall Chadwick] each fortnight for work done” and required that each bill be paid within 14 days of receipt; where more than 20 hours’ work was performed in one week payment to be made immediately upon receipt; and in respect of hearing days, all fees and applicable barristers’ fees are to be paid in full before noon on each hearing day by a bank cheque. All fees charged, which were covered by this cost agreement, have been paid.

13 The cost agreement of 4 February 2003 was overtaken by the second cost agreement. That cost agreement, dated 30 September 2004 and referred to in paragraph (b) above, is described as a Conditional Cost Agreement between Solicitors and Client. The issue in these proceedings, if the appeal is competent, is whether any costs are payable under that second cost agreement.

14 On 20 June 2005, the defendant filed with this Court an Application by A Practitioner for Assessment of Cost. A Cost Assessor was appointed and issued a certificate on 4 July 2006 determining that assessment.

15 On 7 July 2006, the defendant lodged with the Supreme Court a Request for Filing of Certificate as to Determination of Costs and Entering Judgment. The defendant swore an affidavit in relation to that Request. On 12 July 2006, with effect from 7 July 2006, judgment was entered in the following terms:

“Judgment in favour of the Plaintiff in the amount of $177,109.10 pursuant to the Certificate as to Determination of Costs dated 4 July 2006 issued by GA Salier.”

16 The judgment was taken out on 27 July 2006 and signed by a Deputy Registrar. The Summons commencing the appeal against the cost assessment was filed on 1 August 2006, within the 28 days allowed for the filling of such an appeal: UCPR 50.3.

17 On 15 August 2006, her Honour Harrison AsJ ordered that the enforcement of the judgment entered be stayed pending the determination of these proceedings, which stay continues in force.

Statutory Provisions

18 The appeal raises the construction of a cost agreement, to which I will come. The Defence to the appeal, and the Notice of Motion by the defendant, raises the jurisdiction of the Court, which in turn raises the nature of the appeal. To understand each of these aspects, it is necessary to understand the relevant provisions of the Legal Profession Act 2004 and the Legal Profession Act 1987. Under the provisions of those Acts, clients, law practices retaining another law practice and a law practice that has rendered a bill to a client may apply for a cost assessment. Relevantly, s 352 of the Legal Profession Act 2004 provides:

“ Application for costs assessment by law practice giving bill
(1) A law practice that has given a bill may apply to the Manager, Costs Assessment for an assessment of the whole or any part of the legal costs to which the bill relates.
(2) If any legal costs have been paid without a bill, the law practice may nevertheless apply for a costs assessment and, for that purpose, the request for payment is taken to be a bill.
(3) An application may not be made unless at least 30 days have passed since the bill was given or the request for payment was made or since an application has been made under this Division by another person in respect of the legal costs.”

19 In this case The Builders’ Lawyer, the defendant in this proceeding, applied for a costs assessment in relation to a bill rendered by him on the plaintiff. Notwithstanding the terms of s 352 of the Legal Profession Act 2004, the assessment was required to be dealt with under the Legal Profession Act 1987, pursuant to the transitional provisions of that Act, because the client first instructed the law practice in the matter before the date of commencement of the 2004 Act: see item 18 of Sch 9 of the Legal Profession Act 2004. The equivalent in the 1987 Act of s 352 was s 201, which relevantly gives the parties the same rights.

20 The Cost Assessor is required to determine the issues arising in the application for assessment and to issue a certificate as to what, if any, fees have been assessed as fair and reasonable; and to give reasons for such assessment: ss 367, 368 and 370 of the 2004 Act and ss 208J and 208JAA of the 1987 Act.

21 It is appropriate for me to set out the provisions relating to the assessment process itself. Section 208A of the 1987 Act is in the following terms:

“(1) When considering an application relating to a bill of costs, the costs assessor must consider:

(a) whether or not it was reasonable to carry out the work to which the costs relate, and
(b) whether or not the work was carried out in a reasonable manner, and
(c) the fairness and reasonableness of the amount of the costs in relation to that work.

(2) 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.”

22 The terms of s 363(1) of the 2004 Act are identical to the terms of s 208A(1) of the 1987 Act; s 363(2) is identical to s 208B of the 1987 Act; and s 364(1) is repetitive of s 363(1) and thereafter is expanded in s 364(2). Section 367 of the 2004 Act is identical to the s 208A(2) of the 1987 Act.

23 The 1987 Act has the following relevant provisions:

“ 186 Conditional costs agreements

(1) A barrister or solicitor may make a costs agreement under which the payment of all of the barrister’s or solicitor’s costs is contingent on the successful outcome of the matter in which the barrister or solicitor provides the legal services.
(2) Any such costs agreement is called a conditional costs agreement .
(3) A conditional costs agreement may relate to proceedings in a court or tribunal, except criminal proceedings.
(4) A conditional costs agreement must set out the circumstances constituting the successful outcome of the matter.
(5) A conditional costs agreement may exclude disbursements from the costs that are payable only on the successful outcome of the matter.

187 Payment of premium under conditional costs agreement

(1) A conditional costs agreement may provide for the payment of a premium on those costs otherwise payable under the agreement only on the successful outcome of the matter.
(2) The premium is to be a specified percentage of those costs or a specified additional amount. The premium is to be separately identified in the agreement.
(3) The premium is not to exceed 25% of those costs.
(4) However, the regulations may vary that maximum percentage of costs. Different percentages may be prescribed for different circumstances.

208B Additional matters to be considered by costs assessors in assessing bills of costs

In assessing what is a fair and reasonable amount of costs, a costs assessor may have regard to any or all of the following matters:
(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,
(i) the place where and circumstances in which the legal services were provided,
(j) the time within which the work was required to be done.

208D Unjust costs agreements

(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.
(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:
(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
(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
(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.
(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.
(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.

208J Certificate as to determination

(1) On making a determination, a costs assessor is to issue to each party a certificate that sets out the determination.
(1A) A costs assessor may issue more than one certificate in relation to an application for costs assessment. Such certificates may be issued at the same time or at different stages of the assessment process.
(2) In the case of an amount of costs that has been paid, the amount (if any) by which the amount paid exceeds the amount specified in any such certificate may be recovered as a debt in a court of competent jurisdiction.
(3) In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed.
(4) For this purpose, the amount of unpaid costs does not include the costs incurred by a costs assessor in the course of a costs assessment.
(4A) To avoid any doubt, this section applies to or in respect of both the assessment of costs referred to in Subdivision 2 of this Division (practitioner/client costs) and the assessment of costs referred to in Subdivision 3 of this Division (party/party costs).
(5) If the costs of the costs assessor are payable by a party to the assessment (as referred to in section 208JA), the costs assessor may refuse to issue a certificate relating to his or her determination under this section until the costs of the costs assessor have been paid.
(6) Subsection (5) does not apply:
(a) in respect of a certificate issued before the completion of the assessment process under subsection (2), or
(b) in such circumstances as may be prescribed by the regulations.


208K Determination to be final

A costs assessor’s determination of an application is binding on all parties to the application and no appeal or other review lies in respect of the determination, except as provided by this Division.
208KA Application for review of determination

(1) A party to an assessment who is dissatisfied with a determination of a costs assessor may, within 28 days after the issue of the certificate under section 208J that sets out the determination of the costs assessor or within such further time as the Manager, Costs Assessment may allow, apply to the Manager, Costs Assessment for a review of the determination.

208KC General functions of panel in relation to review application

(1) A panel constituted under this Subdivision may review the determination of the costs assessor and may:
(a) affirm the costs assessor’s determination, or
(b) set aside the costs assessor’s determination and substitute such determination in relation to the costs assessment as, in their opinion, should have been made by the costs assessor who made the determination that is the subject of the review.
(2) For the purposes of subsection (1), the panel has, in relation to the application for review, all the functions of a costs assessor under this Part and is to determine the application, subject to this Subdivision and the regulations, in the manner that a costs assessor would be required to determine an application for costs assessment.

208KE Effect of review on costs assessor’s determination

(1) If the Manager, Costs Assessment refers a determination of a costs assessor to a panel for review under this Subdivision, the operation of that determination is suspended.

208KF Certificate as to determination of panel

(1) On making a determination in relation to an application for review of a costs assessment under this Subdivision, a panel is to issue to each party concerned a certificate that sets out the determination.
(2) If the panel sets aside the determination of the costs assessor, the following provisions apply:
(a) if the amount of costs has already been paid, the amount (if any) by which the amount paid exceeds the amount specified in the determination of the panel may be recovered in a court of competent jurisdiction,
(b) if the amount of costs has not been paid, the certificate is, on filing of the certificate in the office or registry of a court having competent jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs,
(c) if the costs assessor issued a certificate in relation to his or her determination under section 208J:
(i) the certificate ceases to have effect, and
(ii) any judgment that is taken to have been effected in relation to that certificate also ceases to have effect, and
(iii) any enforcement action taken in respect of that judgment is to be reversed.

208KI Appeal against determination

(1) Subdivision 4B applies in relation to a decision or determination of a panel under this Subdivision as if references in Subdivision 4B to a costs assessor were references to the panel.
208L Appeal against decision of costs assessor as to matter of law

(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.
(2) After deciding the question the subject of the appeal, the Supreme Court may, unless it affirms the costs assessor’s decision:
(a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or
(b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application.
(3) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.

208M Appeal against decision of costs assessor by leave

(1) A party to an application relating to a bill of costs may, in accordance with the rules of the Supreme Court, seek leave of the Court to appeal to the Court against the determination of the application made by a costs assessor.
(2) A party to an application relating to costs payable as a result of an order made by a court or a tribunal may, in accordance with the rules of the court or tribunal, seek leave of the court or tribunal to appeal to the court or tribunal against the determination of the application made by a costs assessor.
(3) The Supreme Court or court or tribunal may, in accordance with its rules, grant leave to appeal and may hear and determine the appeal.
(4) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.
(5) After deciding the questions the subject of the appeal, the Supreme Court or court or tribunal may, unless it affirms the costs assessor’s decision, make such determination in relation to the application as, in its opinion, should have been made by the costs assessor.”

24 As can be seen, I have set out, at length, the provisions of the 1987 Act that are most relevant. Each of those provisions has a counterpart in the 2004 Act.

25 The parties have approached the proceedings on the basis that the transitional provisions, in particular item 3(3) of Schedule 9, provide that the appeal proceed under the Legal Profession Act 2004.

26 Item 3(3) of Schedule 9 is in the following terms:

“(3) Without limiting subclauses (1) and (2), if a provision of the old Act that corresponds to a provision of this Act would, but for its repeal by this Act, have applied in relation to anything done or being done or in existence before the commencement day, the provision of the new Act applies in relation to that thing, and so applies with any necessary adaptations.”

27 The difficulty with applying the provisions of item 3(3), in the manner that the parties suggest, is that item 3(4) is in the following terms:

(4) This clause does not have effect to the extent that other provision is made by this Schedule or that the context or subject-matter otherwise indicates or requires, and has effect subject to the regulations.”

28 As already stated, item 18(1) of the Schedule renders Part 3.2 of the 2004 Act applicable to a matter if the client first instructs the law practice on or after the commencement day and also provides that Part 11 of the 1987 Act continues to apply to a matter if the client first instructed the law practice before that day in the matter to which the costs agreements relate. It is clear, in this case, that the client, Hall Chadwick, instructed the law practice, relevantly the defendant, Dr David Doyle, in the matter before the commencement day. In those circumstances, the 1987 Act is the Act that governs this appeal unless the subjection applies. It should be made clear that the equivalent provisions in the 2004 Act to the sections of the 1987 Act set out above are contained within Part 3.2 of the 2004 Act.

29 Applying the 1987 Act, instead of the 2004 Act, makes no difference to the arguments presented, or the result.

The Second Cost Agreement

30 The cost agreement dated 30 September 2004 to which reference has already been made is entitled “Conditional Cost Agreement between Solicitor and Client”. The table of fees is, under the heading “Normal”, the same for this agreement as was prescribed by the cost agreement of 4 February 2003. Additionally, there is a column of fees headed “Success (Normal + Premium)”. Most of the other conditions relating to the agreement are identical save for that which is under the heading “Conditional Cost Agreement (s.187 of ‘the Act’)”. The reference to “the Act” is a reference to the Legal Profession Reform Act 1993. The Legal Profession Reform Act 1993, assented to on 29 November 1993, forms part of the 1987 Consolidated Act as reprinted and introduced into the 1987 Act the provisions of ss 185-189 dealing with conditional costs agreements. A conditional cost agreement is defined in s 186 of the 1987 Act in the terms set out at [23] infra, as are the terms of s187 of 1987 Act (‘the Act’).

31 The 2004 Conditional Costs Agreement includes the following passage:

“Conditional Costs Agreement (s187 of “the Act”):
A. You pay all disbursements and expenses.
B. Fees paid on success will be paid at the success rate stated above.
C. If we do not achieve success you will not be liable for any legal fees (save as set out in D below) (other than disbursements) although you will be liable to pay any costs awarded to the other party.
D. You pay all fees incurred prior to this date strictly in accordance with the terms and conditions of the Costs Agreement then obtaining between us prior to 30 September 2004 (“the overdue fees”), and these overdue fees shall be paid upon the receipt of payment pursuant to the Arbitrators’ Award or by way of settlement, and FURTHER these overdue fees shall be payable whether or not the arbitration is successful.
E. It may be that the enhanced fees will amount to a greater sum than the savings to you which may accrue from a successful outcome, and/or will be due and payable even if the Full Court do not make a costs order in relation to the appeal in favour of you.
F. Success is deemed to occur if any of the following occur:

(i) There is a net balance of monies awarded by the Arbitrator to Grosvenor Constructions Pty Ltd (subject to Deed of Company Arrangement) and sufficient monies are recovered from the respondents to enable payment of the Conditional Fees or part thereof);

(ii) A settlement is reached by the parties prior to the Arbitrator’s Award irrespective of the terms of that settlement;

(iii) the Arbitrator dies or becomes incapacitated prior to publishing his award.”

32 There are other provisions of the Agreement that deal with expenses/disbursements, living arrangements and the like, most of which terms are the same as the costs agreement which this Conditional Costs Agreement replaced.

Competency of Appeal

33 The notice of motion filed by the defendant seeks to strike out the plaintiff’s Summons as incompetent and also seeks to lift the stay on the enforcement of judgment issued by her Honour Harrison AsJ. Necessarily, the competence of the appeal is also raised as a substantive defence to the Summons.

34 The submission is pressed on the primary premise that no appeal can proceed at a point in time after judgment of the Court has been entered. This premise is supported by two submissions: first, that the determination of the costs assessor had already merged into a judgment when the appellant lodged its appeal; as a consequence the underlying basis of the appeal has disappeared and the appeal is incompetent. Second, the Court has no jurisdiction to deal with a judgment that has been entered, it being conclusive and beyond recall. It is said, in support of these submissions, that the structure of the governing Act supports that construction, especially the view that the Act encourages appeals to the Costs Review Panel and limits appeals to the Supreme Court. The defendant relies upon Bailey v Marinoff (1971) 125 CLR 529.

35 In Bailey v Marinoff, Barwick CJ said:

“Once an order disposing of a proceeding has been perfected by being drawn up as a record of the Court, that proceeding apart from any specific and relevant statutory provision is at an end in that Court and is in substance, in my opinion, beyond recall by that Court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a Court to have a power to reinstate a proceeding of which it has finally disposed.” (per Barwick CJ at 530).

36 Chief Justice Barwick was agreeing with the other members of the Court, with the exception of Gibbs J, as he then was. One of the members of the High Court in Bailey v Marinoff, Menzies J, said:

“This appeal is not concerned with the power of a Court to alter orders in pending litigation. It is concerned with the power of a Court to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the Court, To recognise the problem is, I think, to solve it. However wide the inherent jurisdiction of a Court may be to vary orders which have been made, it cannot, in my opinion, extend to the making the orders in litigation that has been brought regularly to an end.” (per Menzies J 125 CLR at 531-532).

37 Bailey v Marinoff was a case in which the Court of Appeal had made self- executing orders the effect of which was that proceedings were dismissed because appeal books, although served, had not been filed. The judgment which contained the self-executing orders had been entered by the Court and, in every respect, perfected. The Court of Appeal then purported to reinstate the matter into the list for reasons which are now irrelevant. This seems a very different factual situation than the one with which the Court is now dealing.

38 In Bailey v Marinoff, Barwick CJ speaks of the absence of any “inherent power or jurisdiction” and Menzies J speaks of “the inherent jurisdiction”, in reference to the Court of Appeal of the Supreme Court of New South Wales.

39 The Supreme Court of New South Wales was established by the Charter of Justice (the third such Charter) being Letters Patent dated 13 October 1823 and proclaimed on or after 5 April 1894. The statutory basis for the issue of the Letters Patent was the promulgation of an Act to provide “for the better administration of justice in New South Wales and Van Diemen’s Land, and for the more effectual Government thereof”. This Act of the Imperial Parliament allowed the lawful creation of Courts of Judicature in New South Wales and Van Diemen’s Land, the New South Wales Supreme Court operating in New South Wales (then comprising the entirety of New Holland) and the Chief Justice thereof, together with the Governor, acting as the Court of Appeal for the Supreme Court of Van Diemen’s Land.

40 More relevantly, the Supreme Court of New South Wales was created as a superior court of record with jurisdiction in relation to all pleas, civil, criminal or mixed, with all of the powers of the Westminster Courts of Kings Bench, Common Pleas and Exchequer, being Courts of Oyer and Terminer and General Gaol Delivery. It was further enacted that the Supreme Court of New South Wales be a Court of Equity having the same power and authority in the area for which it was created in the execution of such equitable jurisdiction as the Lord High Chancellor of Great Britain. Lastly, the Supreme Court of New Wales was created as a court of ecclesiastical jurisdiction, but in relation to ecclesiastical jurisdiction only to the extent committed to the Supreme Court by the Letters Patent: see generally 4 George IV c96, AD 1823, sections II, III, IX, X. The jurisdiction of the New South Wales Supreme Court was indirectly derived from the absolute power of the monarch and extended to doing everything necessary for the administration of justice in New South Wales. That jurisdiction was continued by the Supreme Court Act1970: see s23.

41 Given the existence of the Constitution of Australia and the federal system of government under which we operate, there is no part of the government, including the courts of the States, which has unlimited jurisdiction. Further, there are statutory limits on the jurisdiction of the Court: see for example the provisions of the Civil Liability Act2002.

42 However, when one is dealing with a limitation imposed by the correct application of the common law, it may be confusing to refer to it as “jurisdictional limitation”, as did the parties in these proceedings. The limitation imposed upon the reopening of a judgment already entered is a limitation imposed by the common law for sound policy reasons that are implemented in a number of areas of law. Nevertheless, it is a self- imposed restriction on the basis of proper principle of the common law, and in that sense, not a jurisdictional limitation. By self-imposed, I mean imposed by the courts themselves (particularly, the High Court of Australia and the Court of Appeal).

43 While it may generally be said that the above distinction is a semantic one having no practical impact, there is one area in which it does have impact. It has an impact where the legislature has provided a right or duty which conflicts with the self-imposed limitation. In those circumstances, the legislative right or duty must override the limitation.

44 It should be borne in mind that a principle as important and fundamental as the finality of judgment entered would only be overridden by an express provision of the legislature or a provision which necessarily involves such an intention.

45 In submissions of the defendant in these proceedings, it is said that the judgment, having been entered, is conclusive and beyond recall and that, therefore, the appeal is incompetent.

46 The appeal is a right granted by statute and overrides any self-imposed limitation. The submission of the defendant confuses the right to appeal and the competency of any such appeal, with the orders which may be made following such an appeal. It may well be, although it would be a most inconvenient result, that the Court would be unable to recall and interfere with a judgment entered on the basis of the principle embodied in Bailey v Marinoff. However, that does not deny the plaintiff a right to appeal. It may simply mean that orders would need to be framed which did not so interfere. Such orders may include the continuation of a stay on the enforcement of the judgment (such a stay having already been granted) or an extension of time to appeal the judgment that has been entered, thereby allowing the entered judgment to be dealt with in accordance with law: Burke v Rooney (1879) 4 C.P.D. 226; Nixon v Phelan [1960] VR 94.

47 The status of a superior court of record necessarily involves the proposition that judgments of the Court are not amenable to prerogative relief, either certiorari or other prerogative relief, and that judgments of the Court are valid and operative until such time as they are quashed. Ultimately, the Court has the power to give such judgment, or make such order, as the nature of the case requires whether or not a party has claimed the relief in those terms: UCP r36.1.

48 The issue is discussed also by the High Court in DJL v Central Authority (2000) 201 CLR 226. The majority judgment (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) discusses the issues of the relief sought to be obtained and the capacity of a court, in the proceedings then before the High Court it was the Family Court of Australia, without inherent jurisdiction to reopen its own judgment. In so doing it cited with approval the judgment of the Chancery Division in C.H. Giles and Co v Morris [1972] 1 All ER 960. There, Megarry J said:

“A convenient starting point is the head note to Ainsworth v Wilding [1896] 1 Ch 673. This reads as follows:
‘After a judgment has been passed and entered – even where it has been taken by consent and under a mistake – the Court cannot set it aside otherwise than in a fresh action brought for the purpose unless (i) there has been a clerical mistake or an error arising from an accidental slip or omission within the meaning of the Rules; or (ii) the judgment as drawn up does not correctly state what the Court actually decided and intended to decide – and either of which cases the application may be made by motion in the action. Semble, that different considerations apply to interlocutory orders; but even if a judgment has not been passed and entered the Court will not always interfere on motion, eg. where from the nature of the ground relied on conflicting evidence is essential.’
This decision has been repeatedly applied and approved; and on the face of it the decision appears to require that a fresh action should be brought in a case like this. However, motions to discharge or vary an order have long been known, and so the question is what part is left for them to play.
…
Counsel for the defendants contended that the distinction was not between interlocutory and final orders (although Ainsworth v Wilding recognises that there may be a distinction of this kind), nor between orders made by the master and orders made by a judge, but between orders made in chambers, whether by a master or a judge, and orders made in Court. He submitted that, though perfected, an order made in chambers is open to review on motion, whereas an order made in court, at all events if a final order, can be discharged or varied only by means of a new action…That may indeed have been the distinction; the question is not easy and requires further consideration.” (at 964-965)

49 The High Court in DJL v Central Authority summarised the situation in the following way:

“The common law courts, as superior courts of record, had ‘full power to rehear or review a case until judgment [was] drawn up, passed, and entered’. That statement, with citation of supporting authority, was made by Starke J in Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382 at 457. Even after entry of judgment, an error arising from an accidental slip or omission might be corrected at any time by further order in the action and even without an enabling rule of court (Shaddock v Parramatta City Council [No2] (1982) 151 CLR 590 at 594-595). An order might also be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce ( Ainsworth v Wilding [1896] 1 Ch 673 at 678-679; Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR (Part 1) 642 at 669). It also appears that a judgment might be set aside after entry if the parties to the judgment consented, although in deciding whether to make such an order the Court would have regard to the interests of third parties ( Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings(Canberra) Pty Ltd (1976) 26 FLR 195). Finally, where the business of the Court was so organised that some orders were made in chambers, those orders may have been open to review by motion in the action, even if they were final orders ( Giles (CH) and Co Ltd v Morris [1972] 1 WLR 307 at 313; [1972] 1 All ER 960 at 965).

The Court of Chancery had power to reopen and rehear cases which had been tried before it, even after the decree had been entered. The right of rehearing in the Court of Chancery had involved the exercise of appellate rather than original jurisdiction…However, that peculiar state of affairs in Chancery did not continue with respect to the exercise of equitable jurisdiction by the Supreme Court of Judicature established by the Judicature Act 1873 (UK). The structure it provided included the Court of Appeal.” ( DJL v Central Authority , supra , at 244, [34] - [35]).

50 The limitation consequent upon the enactment of the Judicature Act is not a relevant consideration in relation to the Supreme Court of New South Wales. The initial grant of power to the Supreme Court of New South Wales was a grant of both equity and common law to the one judicial body and the later separation into equity and common law divisions was an administrative arrangement which did not derogate from the initial grant of power to the Court en banc. The Supreme Court Act 1970 continued the jurisdiction otherwise granted and continued the existence of the pre- existing Supreme Court. The Judicature Act 1873 (UK) did not have an equivalent in New South Wales.

51 From the foregoing we can derive the following principles:

(a) The Supreme Court of New South Wales is a superior court of record with inherent jurisdiction and all of the jurisdiction and the powers necessary for the administration of justice in New South Wales;
(b) The New South Wales Supreme Court has all of the powers of the Courts of Westminster, untrammelled by any restriction in power that may have been a consequence of the Judicature Act 1873 (UK);
(c) The limitations on the Supreme Court of New South Wales in recalling and reopening a judgment once passed and entered are limitations imposed by the common law and have exceptions which include:
(a) The “slip” rule;
(b) The power to amend a rule where the intention of the Court has not manifested in the judgment;
(c) The capacity to allow the opening of orders made in chambers.

52 Further, common law and equity will, in cases of manifest injustice or inconvenience, find ways in which orders can be made which affect the law without contravening the rule; eg an extension of time in which to appeal a judgment entered; or the grant of a permanent stay on the enforcement of any such judgment.

53 Further, as discussed at [43] and [44], the common law restriction on reopening the judgment entered will give way to a statutory requirement so to do, which requirement will need to be an express provision or a provision of necessary intendment.

54 In the current proceedings the assessment of the Costs Assessor becomes a judgment without more, ie without a hearing or the filing of a Summons, by operation of the statute. This is a judgment which, in terms of status, is less than one made in chambers and is a judgment made and enforced only by operation of the statute. The same statute which allows for the certificate of assessment to be taken as a judgment (s208J(3) of the 1987 Act or s268(5) of the 2004 Act), also provides an appeal against the decision: s208L. The Act must be read as a whole. To the extent possible, the section should be construed in a way which provides for a consistent and harmonious application of the statutory intention.

“A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the Court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the union of the statutory scheme.” ( Project Blue Sky v ABA (1998) 194 CLR 355 at 381-382, [70]).

55 The statutory scheme is that a Costs Assessor examines a bill of costs and determines what is fair and reasonable in relation to the work that was carried out, the manner of its exercise and the amount of costs: see s208A of the 1987 Act. Further, the Costs Assessor may determine whether a particular cost agreement is unjust in the circumstances and, in so doing, may have regard to a number of factors including the form of the agreement: see s208D of the 1987 Act.

56 Once the determination is made, the costs assessor issues a certificate: s208J of the 1987 Act. Section 208K of the 1987 Act makes clear that the costs assessor’s determination is binding on all parties and no appeal or other review lies in respect of the determination, “except as provided by this Division”. The expression “this Division” includes the provisions granting both a review to a panel and the appeal to the Supreme Court. The finality of the assessor’s determination is therefore expressly subjected to the right of appeal to the Supreme Court of New South Wales.

57 Moreover, the provisions of s208J(3) do not provide that the costs assessor’s certificate is a judgment. Nor does it provide that the Court shall issue a judgment on the basis of the costs assessment. It provides that “on the filing of the certificate in the office or registry of a court having jurisdiction…and with no further action, [the certificate is] taken to be a judgment of that court”. This means that for all purposes, and subject to the other provisions of the Act, the certificate is on its filing taken to be a judgment of the Court; this does not make it a judgment of the Court as such. Subsection 208J(3) is a deeming provision which creates a fiction for the purpose of the enforcement of the costs assessment. Indeed, the provisions of the subsection seem more concerned with the accrual of interest at a particular rate than giving the certificate of assessment the effect of a judgment of the Court.

58 The fact that the certificate of assessment is taken to be a judgment of the Court for the purposes of the Act does not mean that the certificate of assessment, once filed, ceases to be a certificate of assessment and is thereby incapable of being appealed pursuant to the provisions of the Act.

59 It is most artificial to separate out the common law jurisdiction and the provisions of the statute. Were it necessary to rely on the common law and apply it unaided by the statute to the question of the powers to re-open the judgment, it would seem that the costs assessment, taken as it is as a judgment of the Court, would be a judgment of the kind, at best, made in chambers and subject to one of the exceptions referred to earlier relating to reopening judgments entered. Further, were it otherwise it would, at its highest, be a judgment of the Registrar and subject to appeal under the provisions of the Supreme Court Act.

60 In those circumstances the clear intention of the legislature to allow for an appeal to the Supreme Court from a costs assessment would give rise to an exercise of discretion by the Court, were it otherwise not entitled to reopen the judgment, to make such orders as were necessary to overcome that restriction. Such orders would include the granting of an extension of time to appeal, or leave to appeal, from the entering of the judgment so as to enable its quashing, were the appeal otherwise successful. It could also include the making of an order staying the enforcement of the judgment, if all of the above steps were unavailable.

61 However, it seems that the terms of the statute itself, when properly construed, grant to the Court by necessary intendment a power to deal with a costs assessment on appeal (assuming all other preconditions are satisfied). The costs assessment, which would otherwise be taken as a judgment of the Court, if quashed, would no longer exist and would no longer be taken to be a judgment of the Court.

62 The process of entering a judgment giving effect to the costs assessment is an unnecessary and in this case confusing alteration of the status of the costs assessment, which alteration has no effect. The costs assessment is not a judgment. On its filing it does not become a judgment. On its filing it is taken as a judgment; a fiction is created, which fiction does not bring about all of the restrictions which would otherwise apply to a judgment entered.

63 This is not to say that a costs assessment once certified can, forever, be the subject of challenge. The privative clause, albeit of limited effect, which is embodied in s208K of the 1987 Act, renders the costs assessment final except in relation to an appeal as provided by this Division. Such an appeal is either an appeal to a review panel in accordance with the Act or an appeal to the Supreme Court under s208L. Such an appeal to the Supreme Court must be made in accordance with the rules of the Supreme Court in order for it to operate as an exception to the finality of the costs assessment. That would involve, for example, compliance with relevant provisions of the Rules. I do not need to decide those issues in this application, because the plaintiff in these proceedings has complied with all of the Rules of the Supreme Court in lodging the appeal in question.

64 The defendant further refers to the provisions of s208KF (2)(c) of the 1987 Act, or its equivalent in the 2004 Act, to show that the review panel assessment is expressly given the effect of overtaking any judgment that is taken to have been effected in relation to a certificate of the Costs Assessor. However, the absence of such a provision in relation to an appeal to the Supreme Court does not mean that an appeal to the Supreme Court does not also have that effect. A review panel, not being a court and not having the status of the Supreme Court, could not overtake or override a judgment of the Supreme Court of New South Wales without an express statutory power. On the other hand, it is far more likely that the statute envisages that the Supreme Court already has such power as is necessary to give effect to any judgment it may make on appeal and an express grant of that power is unnecessary. Further, the provisions of s208KF(2)(c) show an intention in the legislature that even if judgment has been entered, it may be reopened (or overtaken) and that the cost assessment does not merge into the judgment.

Conclusion on Competency

65 The rule of law that the Supreme Court (or any other court) will not reopen a judgment once entered does not prevent an appeal that complies with the Act and the rules of the Supreme Court from proceeding even though the certificate of the costs assessor has been filed and “judgment entered”. This is because the provisions of s208K of the 1987 Act do not provide that a certificate of a costs assessor is a judgment, nor that judgment be entered, but rather that for the purposes of the Act in enforcement of cost assessments, a certificate is taken as a judgment. Second, construing the Act consistently, the costs assessment is final subject to an appeal which has been filed in accordance with the rules of the Supreme Court. In those circumstance, those provisions of Act granting a right of appeal prevail over the provisions relating to the finality of the certificate and the enforcement of the certificate as a judgment of the Court. In any event, the certificate of assessment, even though it is taken as a judgment of the Court, never loses its status as a costs assessment and may be subject to appeal in accordance with the provisions of the Act itself.

66 Further, were this construction incorrect, the common law would allow the reopening of the judgment because the judgment is one equivalent to a judgment made in chambers and as such the subject of a common law exception to the inability to re-open.

Leave to Appeal

67 Even if that latter argument be incorrect, were I otherwise convinced of the merit of the appeal, I would exercise my jurisdiction and discretion to allow an extension of time to enable the plaintiff to appeal the judgment entered. This action would allow its quashing and/or reopening; and, further, to the extent necessary, a stay on the enforcement of the judgment entered.

68 The appeal to the Supreme Court is either an appeal as of right where a party is dissatisfied “with a decision of a Costs Assessor as to a matter of law arising in the proceedings” or an appeal with leave. Not every error of law amounts to “a decision … as to a matter of law arising in the proceedings”.

“The word ‘decision’ is important. It includes an opinion of the Tribunal on a question of law upon which the determination is based, but it is not enough that an error of law has occurred in the course of the hearing before the Tribunal. In Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354, Kirby P held that when the Tribunal denied procedural fairness by relying on matters not the subject of evidence or argument, it had made an error of law but had not made an error in deciding a question of law: the other members of the Court did not think there had been a denial of procedural fairness” ( Hutchison v RTA [2000] NSWCA 332 at [33]; citations omitted but should be referred to).

69 In this instance a direct question of law was put to the Costs Assessor, namely the construction of the contract. That question of law was the subject of a specific decision by the Costs Assessor. In those circumstances I have no difficulty in determining that there was a decision as to a matter of law arising in the proceedings and that therefore there is an appeal, as of right, pursuant to the terms of s208L of the 1987 Act.

70 If I be wrong in that approach, I would grant leave to appeal pursuant to the terms of s208M of the 1987 Act.

71 On the above basis, I find the appeal competent and I deal with the merits of the appeal.

Function of a Costs Assessor

72 Seemingly overlooked in the submissions before the Court was the role and function of a Costs Assessor. A Costs Assessor is not an officer of the Court. A costs assessment, as made clear earlier, involves the adjudication by the Costs Assessor of what is fair and reasonable. It does not determine the lawfulness or otherwise of a bill of costs or the costs agreement that underpins it. An amendment to the bill of costs made by the Costs Assessor is predicated upon the satisfaction of the Assessor that the disputed costs are unfair or unreasonable. In so doing, the Costs Assessor may have regard to the criteria adumbrated in s208B of the 1987 Act. That of course includes the relevant costs agreement but s208B lists the additional matters to be considered by the Costs Assessor over and above those listed in s208A of the 1987 Act. Section 208B allows the Costs Assessor to determine whether a term of a particular costs agreement is unjust in the circumstances and in so doing the Costs Assessor is to have regard to the public interest.

73 It is unnecessary to finally determine the issue, but it would seem that the Costs Assessor is not exercising the judicial power of the State. The Costs Assessor is dealing with an administrative task and creating rights rather than enforcing them. The rights created by the Costs Assessor are dependent upon the Costs Assessor’s determination of what is fair and reasonable and the public interest and are not determined by the lawfulness of conduct or of a costs agreement. The procedure of a Costs Assessor was succinctly summarised by his Honour Kirby J in Ryan v Hansen (2000) 49 NSWLR 184, from 191. As is made clear by his Honour, there is no requirement for a hearing before the Costs Assessor.

74 In the instant proceedings the fundamental issue between the parties is not the amount of any such costs, the propriety of any work performed or whether the work and/or costs were fair and reasonable, but rather whether the terms of the contract embodied in the costs agreement, properly construed, entitle the defendant to any money whatsoever. In other words, that which was determined by the Costs Assessor, relevant to present purposes, was the proper construction of the costs agreement as to whether or not “success” had been achieved and therefore whether costs were payable under the contract.

75 Such an exercise is not an exercise contemplated by the Act as one which is within the jurisdiction of a Costs Assessor. The underlying assumption in the Act is that work was performed for which a bill has been rendered and monies are payable. A bill that is rendered but is not payable because of the very terms of the contract embodied by the costs agreement is not one which can be the subject of an assessment pursuant to the terms of the Act.

76 In other words, in circumstances such as this, where the issue between the parties is whether, as a matter of the construction of the contract, the condition precedent for the payment of any legal fees has been satisfied, that issue should be determined before the matter is referred to a Costs Assessor.

77 In this instance the Costs Assessor has certified costs, and for that purpose has construed the Conditional Costs Agreement. The construction exercise performed by the Costs Assessor was not an exercise performed for the purpose of determining whether such a provision was fair and reasonable (bearing in mind the criteria to which the Assessor may have regard) but rather for the purpose of determining as a question of law the proper construction of the contract and whether, as a matter of fact, the circumstances have been met which provide for fees to be payable. That is an issue of law on the construction of a contract and not the determination of fair and just fees on a costs assessment.

78 If a Costs Assessor issues a certificate which is dependent primarily upon a determination of the proper construction of the Costs Agreement and that construction is incorrect, the exercise of the Costs Assessor is without jurisdiction and voidable, if not void.

79 It is for a court of competent jurisdiction to determine finally the construction of the contract. It would be different if the construction of the contract was but one step in the determination by the Costs Assessor as to what was fair and reasonable. The latter may well be an error of law within the jurisdiction conferred by the Act. The former, however, is a jurisdiction that is not conferred on the Costs Assessor and any assessment dependent upon such a finding would not be a costs assessment as prescribed by the Act.

80 This may well mean that any such “costs assessment” or “certificate” would not be one to which was accorded the status as being taken as a judgment of the Court and enforceable as such.

The Second Costs Agreement

81 As already stated, the payment of any amount under the conditional costs agreement is dependent upon “success”. “Success” is defined in the costs agreement.

Success

82 The definition of “success” has been set out earlier in this judgment. I do not here repeat it.

83 The defendant submits, in my view correctly, that there are clearly and unambiguously “only two distinct outcomes: either no liability for any legal fees if no success achieved or payment of all fees at the premium rate if success is deemed to have been achieved.” Further, the defendant submits that Clause 2F is to be read conjunctively or in its entirety; it is unambiguous. The defendant submits that the definition of success requires there to be a nett balance on the award in favour of the claimant in an arbitration, as, they say, there was. The defendant submits that all that is required is for there to be

“sufficient funds to be recovered from the respondent [in the arbitration] to enable payment of the conditional costs or part thereof. The happening of that cannot be doubted since the award is $8449 (sic) in favour of the arbitration Claimant, and equally clearly, indicates on its face sufficient funds recovered to enable payment of part of the conditional costs”.

84 The above submission ignores two salient facts. First, the arbitrator’s award, while providing for the payment of $8499 in favour of the plaintiff in these proceedings, at the same time did not allow costs and required the plaintiff to pay half of the costs of the arbitration. The costs of arbitration are disbursements for the purpose of the costs agreement. Half of the costs of the arbitration was significantly more than $8499. As a matter of fact the nett balance of monies awarded by the arbitrator did not result in any nett gain, even of an insignificant amount, to the arbitration claimants. However, it may be that the costs of the arbitration may not be allowed to be brought to bear in determining the net balance of monies pursuant to the terms of clause 2F.

85 Clause 2 must be read as a whole and the conditional costs agreement conditions read consistently. Paragraph D of those conditions requires the payment of “all fees incurred prior to this date strictly in accordance with the terms and conditions of the Costs Agreement then obtaining… and these overdue fees shall be paid upon the receipt of payment pursuant to the Arbitrator’s Award or by way of settlement, and FURTHER these overdue fees shall be payable whether or not the arbitration is successful”.

86 Condition F(i) requires the satisfaction of two conditions: a nett balance of monies awarded by the arbitrator; “and sufficient monies are recovered from the respondents to enable payment of the conditional fees or part thereof”. The submission of the defendant in these proceedings reads out of that provision the word “sufficient”. On one view it reads out all words after and including “and”.

87 On the submission of the defendant, any nett balance in favour of the plaintiff would suffice to satisfy the provisions of Condition F. Condition F(i) must be read in conjunction with Condition D. There was a pre-existing costs agreement which required payment of fees whether or not success had been obtained. Those fees were paid but the monies paid were recoverable or that part of that money referable to the particular proceedings was able to be claimed as part of the costs of the proceedings before the Arbitrator. Those fees were significantly more than $8499. Sufficient monies would be recovered to enable payment of the conditional fees if and only if an amount of money was received which would cover the overdue fees referred to in condition D (whether or not already paid). If and only if those prior fees were recovered (or a nett amount greater than the prior fees recovered) could an amount over and above those fees enable payment of part of the conditional fees payable pursuant to the agreement of 30 September 2004.

88 It would also be necessary for any such amount to cover the disbursements referred to in Condition C. It is not suggested that the $8499 would cover disbursements or the previous fees and therefore no amount of the $8499 would go towards the conditional fees.

89 The construction put by the defendant, and the Costs Assessor, ignores the priority of amounts allocated by the Conditional Costs Agreement from any award which requires: first the payment of any disbursements; and, second, the allocation of monies from the award to pay any outstanding fees or overdue fees referable to any earlier costs agreements. No part of the $8499 would survive the payment of disbursements and therefore insufficient monies were recovered from the respondents to enable payment of any part of the conditional fees charged in the agreement of 30 September 2004.

90 On the above construction it is unnecessary for me to deal with the issue of whether or not monies that are awarded are by that fact alone “recovered”.

Conclusions

91 For the above reasons, the appeal is competent and appropriate orders may be made by the Court. Further, an error of law has occurred in a decision of the Costs Assessor, being an error of law on a decision as to a matter of law arising in the proceedings.

92 Pursuant to the terms of Uniform Civil Procedure Rules r36.1 and otherwise, I make the following orders:

(i) Appeal against the determination of Costs Assessor Salier of 4 July 2006 between the parties hereto is allowed;
(ii) The certificate issued by Costs Assessor Salier on 4 July 2006 is set aside;
(iii) The judgment dependent upon the said Costs Certificate, purportedly entered on 12 July 2006 and taken out on 27 July 2006, is set aside;
(iv) The Court declares that no fees are payable pursuant to the terms of the Conditional Costs Agreement between the parties dated 30 September 2004;
(v) The defendant shall pay the plaintiff’s costs, as agreed or assessed, of the Costs Assessment before Costs Assessor Salier;
(vi) The defendant shall pay the plaintiff’s costs of and incidental to these proceedings, as agreed or assessed.
(vii) An Indemnity Certificate pursuant to the Suitors’ Fund Act 1951 is issued to the defendant for any costs arising out of these orders.
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