Phillips v C B McDonough & Co - [2016] SASC 87

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Application)
PHILLIPS v C B MCDONOUGH & CO
[2016] SASC 87
Judgment of The Honourable Justice Peek
23 June 2016
PROCEDURE - COSTS - APPEALS AS TO COSTS - WRONG EXERCISE OF DISCRETION
PROFESSIONS AND TRADES - LAWYERS - REMUNERATION - TAXATION AND ASSESSMENT OF COSTS - COSTS OF TAXATION
Application for permission to appeal against orders of a Master of the Supreme Court.
The applicant was a beneficiary of a deceased’s estate. The respondent, as solicitor for the executor of the estate, was entitled to be indemnified out of the estate for two sets of legal costs: with respect to the family provision proceedings and with respect to the administration of the estate. The respondent wrote to the beneficiaries, attaching a draft invoice which combined both sets of costs. The respondent capped its claim for costs irrespective of any entitlement to a larger amount. The other beneficiaries accepted the costs as reasonable, but the applicant objected to the draft invoice and applied for adjudication before a Master. New schedules were filed, separating the matters and totalling more than the cap as to costs. The Master ceased the adjudication when the costs allowed exceeded the cap.
The Master heard submissions as to who should pay the costs of the adjudication. Her Honour ruled that the applicant had behaved unreasonably in bringing the application and should be personally liable for the costs of the adjudication on a party/party basis.
The applicant contends that the Master did not give adequate regard to the requirement in s 41, Legal Practitioners Act 1981 (as at 30 June 2014) to provide itemised details of costs, and that the first time this was done was after adjudication proceedings were commenced.
Held (refusing permission to appeal):
1. Even if there be an error as to the extent of the requirements in s 41 in this case, such error was not productive of injustice here having regard to the true respective entitlements of the parties and the unreasonableness with which the applicant acted. The Master would have come to the same view and hence come to the same final disposition, even if she had taken the view of the requirements of s 41 concerning the level of detail as contended for by the applicant.
2. The Master would still have found the applicant to have behaved unreasonably even if the lack of separation were to be found to result in technical non-compliance with s 41.
3. None of the proposed grounds of appeal has a reasonable prospect of success.
Legal Practitioners Act 1981 s 41, sch 3 cl 34; Legal Practitioners (Miscellaneous) Amendment Act 2013 sch 2 cl 9; Supreme Court Act 1935 s 50(1)(b); Supreme Court Civil Rules 2006 rr 271(3), 288(1)(b), referred to.
Re R A Bell (1973) 60 LSJS 154; Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 185; Golden Editions Pty Ltd v Polygram Pty Ltd (1996) 61 FCR 479

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Phillips v C B McDonough & Co

Details

AGLC: Phillips v C B McDonough & Co [2016] SASC 87
Case: [2016] SASC 87
Decision Date: 23 June 2016

CaseChat Overview and Summary

The case of Phillips v C B McDonough & Co involved a dispute concerning the assessment and taxation of legal costs. The applicant, Phillips, was appealing a decision made by Her Honour regarding the costs of taxation. The nature of the dispute centred on whether the applicant had acted unreasonably in not providing separate bills for the costs claimed, as required by section 41 of the relevant legislation. This was an appeal against the refusal of an order granting permission to appeal the costs decision.

The legal issues before the court were whether the applicant had properly understood the claim for costs without requiring separate bills and whether the applicant's conduct constituted unreasonable behaviour. Additionally, the court had to consider whether the lack of separation in the bills resulted in non-compliance with the statutory requirement and whether the applicant's conduct warranted an appeal given the absence of demonstrated injustice.

The court found that the applicant could properly understand the claim for costs without requiring separate bills and that the applicant had behaved unreasonably. It was noted that the applicant's failure to provide separate bills did not necessarily result in technical non-compliance with the statute. Furthermore, the court concluded that the applicant's conduct was unreasonable, and this conclusion would have been reached even if there had been non-compliance with section 41. The court held that the applicant's grounds of appeal lacked a reasonable prospect of success, and there was no demonstrated injustice to warrant permission to appeal.

The court ultimately refused permission to appeal, finding that the applicant's appeal did not demonstrate an error of law or sufficient injustice to justify overturning the original costs decision. The court emphasised the need for demonstrable injustice in granting permission to appeal in cases concerning only costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

PEEK J

Her Honour decided that the applicant could properly understand the claim for costs without requiring separate bills and had behaved unreasonably. It is clear that her Honour would still have (correctly) found the applicant to have behaved unreasonably even if the lack of separation were to be found to result in technical non-compliance with s 41. Conclusion I conclude that none of the proposed grounds of appeal has a reasonable prospect of success. Particularly in a case concerning a ruling as to costs only, there must be demonstrable injustice to the applicant to warrant permission being granted, regardless of the asserted presence of an error of law. I am by no means persuaded that error of law is here demonstrated, but on an assumption that it is, the present case clearly does not warrant a grant of permission to appeal for the reasons stated above. Order Permission to appeal is refused.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Full text does not contain this section.