Mandikos v HopgoodGanim

[2013] QDC 315

DISTRICT COURT OF QUEENSLAND

CITATION:

Mandikos v HopgoodGanim [2013] QDC 315

PARTIES:

MICHAEL NICHOLAS MANDIKOS
(applicant)

v

HOPGOODGANIM  
(respondent)

FILE NO/S:

3574/2013

DIVISION:

Civil  

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

29 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

29 October 2013  

JUDGE:

Samios DCJ

ORDER:

Order as per the draft

CATCHWORDS:

PROCEDURE - appointment of cost assessor- where respondent’s solicitor contends that the applicant’s proposed cost assessor’s fees are excessive

Legislation

Legal Profession Act 2007

Uniform Civil Procedure Rules

COUNSEL:

Mr Robinson for the applicant

Mr Betros (sol) for the respondent

SOLICITORS:

 Londy Lawyers for the applicant

HopgoodGanim for the respondent

1. The applicant applies for orders that 18 bills of costs, delivered to him by the respondent solicitors, be assessed, and that Glen Robert Walter be appointed as the cost assessor.  The applicant retained the respondent solicitors to act for him in relation to certain proceedings in the Family Court in early May 2011.  The retainer was terminated in September 2012.  During the course of the retainer, the respondent solicitors delivered 18 bills.  The total of the professional fees charged is $352,648.12.  There is no dispute on the hearing of the application before me today that an order should be made that the bills of cost delivered by the respondent solicitors to the applicant be assessed and that a cost assessor be appointed.

1. In all respects, the application complies with the requirements of the Legal Profession Act 2007 and the UCPR. The primary objection, it seems to me, that has been made in correspondence between the solicitors acting for the parties is that Mr Walter, who is proposed as the costs assessor by the applicant, has a fee which is contended by the respondent solicitors to be excessive. The concern is that, as this is likely to be a very large exercise and will involve the cost assessor spending many hours to complete the task, that therefore, at Mr Walter’s full hourly rate, a significant sum of money could be expended or charged, at least.

1. On the other hand, what is contended is, on behalf of the respondent solicitors, that Mr Skews, who is proposed as the cost assessor, his fee, said in the correspondence to be $220 per hour plus GST, is, in effect, $242.  That is much less than Mr Walter’s hourly rate.  I am not persuaded that necessarily the difference between those two fees can be said to be excessive.  Those are the fees of those two persons, one of whom might become the cost assessor.  It does not follow, in my opinion, that because one is more than the other, it could be said to be excessive.

1. I accept the submission made by Mr Robinson, who appears on behalf of the applicant today, that the relevant question is how many hours will the cost assessor take, not what is his hourly rate.  That is, the skill and the experience of the cost assessor is important.  I accept that it is correct that a highly experienced cost assessor, as a general proposition, could be expected to be quicker in conducting the assessment than a less experienced one.  Further, in my view, a more experienced cost assessor may give more insight into what is in dispute between the parties and hopefully be able to resolve matters rather than leaving them to be in dispute, which would then protract the dispute.

1. In this respect, I do accept that Mr Walter does have the skill and experience as a cost assessor that outweighs that of Mr Skews.  That is, in addition, beside their history and qualifications, I accept that Mr Walter is solely practising in the area of costs, whereas Mr Skews, on the other hand, would appear to be operating as a sole practitioner in a general practice as a sole solicitor.  I am not suggesting, though, any deficiency in Mr Skews.  I am merely pointing out that, as between the two, it is Mr Walter that, in my opinion, on balance, has the greater claim to experience and expertise and capacity to give his undivided attention to this problem once he is seized of it.

1. In that regard, I also accept Mr Londy’s affidavit to the effect that it is Mr Walter’s practice to get on with these things.  Mr Skews may not have answered that claim;  however, I have more confidence that, in this case, the applicant comes to court armed with the evidence that persuades me that it is Mr Walter, on balance, that has the experience, the qualifications and is going to get on with this.  It is, in my opinion, desirable from the point of view of the administration of justice that disputes like this are progressed as expeditiously as possible.  I am mindful, of course, that argument might be made that, as the fees have been paid, there is no urgency.

1. However, that might be from the point of view of the respondent solicitors.  From the applicant’s point of view, if he is correct, then there is some urgency to get on with this and resolve this.  I also note that some people who have been involved with the files have left the firm.  Again, that proves the point about getting on with it, because by the time it is resolved, others might not be available to easily give their instructions about relevant issues.  In addition, I do not accept that the respondent solicitors have shown to me today some good reason or some reasonable reason to reject Mr Walter, and it is for these reasons that I have mentioned, then, above I come to the view that there will be orders made that the applicant is entitled to have made here today, with the addition that I would appoint Glen Robert Walter as the cost assessor. 

1. Perhaps I didn’t express any reasons, but I certainly think, for the reasons referred to in Mr Robinson’s submissions, the costs of today’s application should be reserved.  So there will be an order, then, as per the draft initialled by me and left with the papers.