In the matter of Tresdar Pty Ltd (No 4)

[2019] NSWSC 1456

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Tresdar Pty Ltd (No 4) [2019] NSWSC 1456
Hearing dates:	On the papers
Decision date:	24 October 2019
Jurisdiction:	Equity - Corporations List
Before:	Rees J
Decision:	(1) Order pursuant to section 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the plaintiff is to be entitled to a specified gross sum in the amount of $952,000 including GST in respect of his costs of these proceedings.
Catchwords:	COSTS — Application for costs to be fixed in a gross sum — Quantification — No issue of principle — Costs fixed.
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98
Cases Cited:	In the matter of Tresdar Pty Limited [2019] NSWSC 179 In the matter of Tresdar Pty Limited (No 2) [2019] NSWSC 544 In the matter of Tresdar Pty Limited (No 3) [2019] NSWSC 1112
Category:	Costs
Parties:	Brendan Leonard Samuels in his own right and in his capacity as trustee of the deceased estate of Fleur Samuels (Plaintiff)   John Powell Keefe (First Defendant) Tresdar Pty Limited ACN 003 225 536 (Second Defendant)
Representation:	Solicitors: Keith Redenbach Legal (Plaintiff)   The First Defendant did not make submissions on this application.
File Number(s):	2017/384519

Judgment

1. HER HONOUR: On 27 August 2019, I determined that this was an appropriate case to make a lump sum costs order but was unable to do so on the basis of the limited evidence before me: In the matter of Tresdar Pty Limited (No 3) [2019] NSWSC 1112. These reasons assume familiarity with that decision, as well as the principal judgment (In the matter of Tresdar Pty Limited [2019] NSWSC 179) and my reasons for ordering costs to be paid on an indemnity basis (In the matter of Tresdar Pty Limited (No 2) [2019] NSWSC 544). Since Tresdar (No 3), the plaintiff’s solicitor has filed further evidence in support of the application, which has been served on the first defendant, John Keefe. On 29 August 2019, I made orders in chambers for Mr Keefe to serve any affidavits or submissions in reply by 12 September 2019, but none have been received.

2. The plaintiff’s solicitor, Keith Redenbach, has now supplied the fee notes for his firm and also invoices rendered by the expert accountant and counsel. I have reviewed the invoices. It is apparent from the invoices that the expert accountant was retained months before the solicitor and, indeed, he referred the matter to the solicitor. The solicitor was retained on 21 May 2017 and, on 25 May 2017, a conference was held with senior counsel. Junior counsel who appeared at trial was briefed in November 2017, before proceedings were commenced in December 2017. It is apparent from the pleadings and affidavit evidence that counsel was involved from the outset in drafting these documents. Senior counsel who appeared at trial was briefed in April 2018, before the hearing of the only substantive interlocutory application in June 2018 before Gleeson JA. The matter was heard in February 2019.

3. Mr Redenbach has reviewed the legal fees sought in his earlier affidavit and made some corrections. In summary, the fees incurred (including GST) were:

Senior counsel’s fees	$76,560.00
Junior counsel’s fees	$165,412.50
Expert accounting fees	$156,994.46
Solicitor’s fees	$678,146.22
Court filing fees	$4,920.00
$1,082,033.18

Mr Redenbach says that the plaintiff has already paid almost all of these invoices, leaving only $12,000 of his fees unpaid. I do not know whether the plaintiff has taken any steps to have the fees assessed, or intends to do so.

4. Mr Redenbach, has pointed to various factors which resulted in the legal fees being higher than one might otherwise expect. Two key witnesses had passed away, being the plaintiff’s parents, the late Mr Paul Samuels and Mrs Fleur Samuels. The other key witness, Mr Keefe, was someone about whom the plaintiff’s solicitor had serious doubts as to his integrity. Those doubts proved to be well-founded. Consequently, it was necessary to piece together what had happened without the assistance of a ‘live’ witness as the plaintiff, Brendan Samuels, was a young man when many of these events occurred and did not know what had happened.

5. Documents were recovered from the storage units of the deceased witnesses and were in a poor and disorganised state. Some of the documents were locked in a suitcase. It was often necessary to carefully examine the provenance and authenticity of the documents as their custodian for a long period had been Mr Keefe. The inability to discuss the documents with their authors, who had either passed away or was Mr Keefe, meant that the solicitors had to review intensively the documents and interview surrounding witnesses. Mr Redenbach had two paralegals who assisted in this task. I can well appreciate the time that may have taken, having since reviewed the documents carefully myself.

6. I remain disquieted by the proportions between the solicitor’s fees and those of other legal practitioners and the expert accountant. The solicitor’s fees comprise two thirds of the total bill in circumstances where, as far as I could see, the expert accountant and counsel did the ‘heavy lifting’ in this matter. However, as I said in Tresdar (No 3) at [22]:

But my main concern is to ensure that Mr Samuels, who has already been the subject of fraud at the hands of Mr Keefe, is not left out of pocket by reason of any gap between what Mr Keefe is ordered to pay Mr Samuels in legal costs and what Mr Samuels is obliged to pay Mr Redenbach or his counsel.

7. I summarised the principles relevant to fixing a sum for this type of order in Tresdar (No 3) at [14]–[17], which I adopt here. Having seen the accountant’s work, I am prepared to allow his fees in full. Counsel’s fees, both junior and senior, totalled some $240,000, and having had the benefit of their efforts, allow their fees in full. Making as many allowances in the plaintiff’s favour as I feel comfortable making on the evidence before me as to the solicitor’s fees, and having in mind that I am to calculate costs on the indemnity basis, I fix a lump sum for the solicitor’s fees of $550,000 which is double counsels’ fees with an additional allowance to reflect the time consumed in finding and sorting through old records in the manner described by Mr Redenbach. With some rounding, this makes a total lump sum costs order of $952,000.

8. For these reasons I make the following order:

1. Order pursuant to section 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the plaintiff is to be entitled to a specified gross sum in the amount of $952,000 including GST in respect of his costs of these proceedings.

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Decision last updated: 24 October 2019