Phillips v C B McDonough & Co
[2016] SASC 87
•23 June 2016
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; Rasch Nominees v Bartholomaeus [2013] SASCFC 105, considered.
PHILLIPS v C B MCDONOUGH & CO
[2016] SASC 87Appeal to a single Judge
PEEK J. Application pursuant to s 50(1)(b), Supreme Court Act 1935 and r 288(1)(b), Supreme Court Civil Rules 2006 for permission to appeal against orders of a Master of the Supreme Court, Judge Bochner.
Background
The Judge set out the relevant background in the following chronology:
·Klaudia Strazds (the deceased) died on 4 June 2012.
·Probate was granted to Mr Pylypenko on 19 March 2013, of the deceased’s will, dated 26 November 2003.
·Mr Pylypenko was one of the deceased’s sons.
·The relevant terms of the will were that the deceased left one-third of her residuary estate to her son, Mr Phillips, and one-third each to her two grandsons, sons of Mr Pylypenko.
·The deceased left nothing to Mr Pylypenko or to her daughter, Ms Sinclair.
·On 13 September 2013, Mr Pylypenko issued proceedings pursuant to Section 7 of the Inheritance (Family Provision) Act, seeking further and better provision from the estate of the deceased.
·Ultimately, Ms Sinclair and Mr Phillips were joined as plaintiffs to the proceedings.
·The matter resolved through negotiation in January 2014.
·One of the terms of settlement was as follows:
·The costs of the First Defendant (in his capacity as Executor of the estate) of this action be adjudicated or agreed as between solicitor and client and paid out of the estate upon the footing of an indemnity.
·Mr Pylypenko agreed to bear his own legal costs and disbursements as plaintiff.
·Throughout, Mr Pylypenko was represented by McDonough & Co in his capacity as executor (first defendant), and by Adelta Legal in his capacity as plaintiff.
·Otherwise, he has been represented by McDonough & Co generally in relation to the administration of the estate.
Mr Pylypenko, the executor, was entitled to be indemnified by the estate for two sets of legal costs for which he was liable to his solicitor, Mr McDonough. First, indemnity for his legal costs relating to the family provision proceedings[1] pursuant to the Court order dated 21 January 2014; second, indemnity for his legal costs incurred as executor and recoverable under the provisions of the will (to be referred to as “the two sets of legal costs”).
[1] Action no. SCCIV-13-1212.
On 25 July 2014, Mr McDonough wrote to the other parties to the family provision proceedings, in relation to the two sets of legal costs. He attached a draft account totalling roughly $15,300 in solicitor’s fees in relation to the total work he had already performed on both matters. He sought payment of the total amount of $15,600 (plus disbursements[2] and GST); the excess of $300 was to take into account anticipated further incidental fees to be incurred in attending to distribution and finalising the administration of the estate. It is important to note that Mr McDonough capped the total amount he sought for the two sets of legal costs at $15,600 (plus disbursements and GST), irrespective of whether he was, or would become, entitled to charge a larger amount.
[2] Disbursements totalled $70. See exhibit CBM1.
The other beneficiaries of the estate accepted the costs sought in Mr McDonough’s letter as reasonable, but Mr Phillips (who was then unrepresented) apparently did not. Relations between him and Mr McDonough deteriorated.
Mr Phillips eventually retained a solicitor, Mr Leventis, who on 13 February 2015 requested further and better details of the invoice for costs which had been provided the previous July. He suggested that the invoice lacked sufficient detail to properly advise Mr Phillips and was not in a suitable form to be adjudicated by the Supreme Court.
On 16 April 2015, Mr McDonough sent Mr Leventis a short form bill of costs, a copy of the tax invoice from Mr Cogan who prepared the invoice, a summary of the costs claimed and a copy of his trust account ledger. He again combined the two sets of legal costs.
On 25 May 2015, Mr Phillips filed an application for an adjudication of costs.[3] On 23 July 2015, Mr McDonough filed separate schedules in each matter.[4] The two separate schedules totalled roughly $21,300 in solicitor’s fees, representing the total amount of work done across the two matters (excluding GST, disbursements and the costs of the adjudication), but remained subject to Mr McDonough’s self-imposed cap of $15,600.[5]
[3] Commencing action no. SCCIV-15-584 (“the adjudication proceedings”).
[4] FDN 3 in the adjudication proceedings (relating to the estate administration); FDN 25 in the family provision proceedings.
[5] The respondent capped its costs at $15,600 plus disbursements plus GST throughout the entire proceedings, and, of course, was required to do so. In Re R A Bell (1973) 60 LSJS 154, Master Boehm held at 157 that a solicitor could not recover the excess from a bill provided in response to a request for further detail with respect to a lump sum bill of a lesser amount.
The adjudication proceedings
On 20 October 2015, both the estate administration and the family provision costs matters proceeded to adjudication before the Judge. Her Honour adjudicated the two schedules of costs up to item 251 of the estate administration schedule (of 298 items) and up to item 84 of the family provision schedule (of 116 items). Her Honour ceased adjudication at these respective points as the total amount had reached $15,700, exceeding the cap of $15,600.[6] There was obviously little reason to continue the adjudication to the end of both schedules (and thus possibly burden the estate with further expense in relation to extra time spent on the adjudication).
[6] Roughly $11,900 with respect to the estate administration and roughly $3,800 with respect to the family provision proceedings.
Her Honour taxed off approximately $3,500 during the adjudication, with roughly $5,600 of solicitor’s fees – 26 percent of the total claimed fees – remaining unadjudicated upon and subject to GST. These figures of course exclude disbursements and the costs of the adjudication.
On 18 December 2015, the parties made submissions before the Judge as to who should pay the costs of the adjudication. Her Honour delivered judgment on 18 February 2016, finding that the costs of and incidental to the adjudication of each schedule should be borne by Mr Phillips on a party/party basis. Her Honour held that Mr Phillips’ behaviour was quite unreasonable and I will return to her Honour’s reasons in that regard below.
The applicant now seeks pursuant to s 50(1)(b) of the Supreme Court Act 1935 and r 288(1)(b) of the Supreme Court Civil Rules 2006 permission to appeal to a single Judge of this Court against the ruling on costs. On 17 May 2016 I heard the application, and reserved judgment. I now refuse permission to appeal. My reasons follow.
Principles governing the granting of permission to appeal
In Landmark Operations Ltd v J Tiver Nominees Pty Ltd, Bleby J (with whom Vanstone and White JJ agreed) said:[7]
[21] It is convenient to address first the principles applicable to an application for permission to appeal. In South Australian Government Financing Authority v Bank of New Zealand[8] the Full Court of this Court cited with approval the practice adopted in the Supreme Court of Victoria in BHP Petroleum Pty Ltd v Oil Basins Ltd.[9] In that case Fullagar J said:[10]
As this is an application for leave to appeal from interlocutory orders, the authorities show that this Court should address itself to two questions, as follows: (1) whether the correctness of the orders [appealed against] is attended with sufficient doubt to warrant their being reconsidered on appeal; and (2) whether substantial injustice will be caused to the applicant … if the orders [appealed against] stand: see, for example Niemann v Electronic Industries Ltd. [1978] VR 431, at p 433, per McInerney J, and at pp 441-2, per Murphy J. At p 441, Murphy J said, inter alia: “If the order was correct then it follows that substantial injustice could not follow. If the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation.”
[22] This is consistent with an earlier decision of this Court in Glenauchen Pty Ltd v Circuit Finance Pty Ltd[11] to similar effect. (Emphasis added)
[7] [2009] SASC 185.
[8] [2002] SASC 56, [13].
[9] [1985] VR 756.
[10] [1985] VR 756, 758.
[11] [2001] SASC 61, [3].
In Golden Editions Pty Ltd v Polygram Pty Ltd, Kiefel J (with whom Burchett and Tamberlin JJ agreed) said in the context of s 28, Federal Court of Australia Act 1976 (Cth):[12]
That there be shown to be an error at one point in the judgment does not mean that the appeal will succeed, even though it concerns a matter vital to the ultimate conclusion. For what needs be considered is what part, if any, it played in the process of reasoning to the conclusion, and even if it be found to have played some part, whether the same conclusion should have been reached without it, so that “substantial justice has nevertheless been done”: Churchill v Badenochs Transport Ltd (1971) 1 SASR 63 at 64-65, referred to with approval in Westpac Banking Corporation v Spice [1990] ATPR 51,386 at 51,399.
[12] (1996) 61 FCR 479, 483.
Such principles apply a fortiori in the case of a proposed appeal against an order in relation to costs alone. In Rasch Nominees v Bartholomaeus,[13] Stanley J (with whom Gray and Sulan JJ agreed) set out the principles involved when a court is asked to interfere with an order for costs. His Honour said:
[52] The judge had a general discretion as to costs[14] and the basis for awarding costs.[15] The manner in which an appeal against the exercise of a general discretion should be determined is well established. In an appeal against a decision the subject of a general discretion, an appellate court will only intervene where clear error has been shown of the nature identified in House v King.[16] It is not enough that the judges composing the appellate court consider that, if they had been in the position of the trial judge, they would have taken a different course.[17] There is a strong presumption in favour of the correctness of the decision appealed from and that the decision should be affirmed unless the appeal court is satisfied that it is clearly wrong.[18] A decision regarding costs will only be interfered with if the appellate court is satisfied that there is an identifiable error or if the exercise of the discretion was so unreasonable as to require the appellate court to substitute its own discretion.[19](Emphasis added)
[13] [2013] SASCFC 105.
[14] Supreme Court Civil Rules 2006 (SA) r 263.
[15] Supreme Court Civil Rules 2006 (SA) r 264.
[16] [1936] HCA 40, (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).
[17] House v King [1936] HCA 40, (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).
[18] Kazar Pty Ltd v Kargarian; Re Frontier Architects Pty Ltd [2011] FCAFC 136 [52], (2011) 284 ALR 237, 250.
[19] Hutchinson v Ellis [2010] SASCFC 71 [17] (Gray J), citing Norwest Refrigeration Services Pty Ltd v Baine Dawes (WA) Pty Ltd (1984) 157 CLR 149, 176 (Brennan J).
The present application for permission to appeal
The grounds upon which the applicant relies for the application for permission are as follows:
1. The failure of the learned Judge to have adequate regard to the requirement of a legal practitioner under the Legal Practitioners Act to provide itemised details of costs is a serious error of law and/or omission relating to a fundamental obligation of legal practitioners.
2. The [applicant] says the above error is an obvious error.
3. The adjudication proceedings had the effect that for the first time the respondent legal practitioner provided itemised details of costs separately for the Inheritance (Family Provision) Proceedings and the administration of the estate generally.
4. The effect of the orders for costs made by the learned Judge is that the [applicant] is required to pay the respondent legal practitioner’s costs relating to the provision of itemised details of costs, which had not been provided before the adjudication proceedings, and which a legal practitioner ordinarily under the Legal Practitioners Act is required to pay at its own cost.
5. It is in the interests of justice for permission to be granted.
6. It is substantially unjust for the [applicant] to be required to pay the costs of the respondent legal practitioner in the adjudication proceedings having regard to all of the relevant circumstances, particularly the obligation of a legal practitioner under the Legal Practitioners Act to provide itemised details of costs at the legal practitioner’s own expense.
Section 41 of the Legal Practitioners Act 1981
The statutory provision applicable to these proceedings is s 41 of the Legal Practitioners Act 1981 in force as at 30 June 2014.[20] That provision appears thus:
41—Bill of costs to be delivered
(1)A person cannot bring an action for the recovery of legal costs or appropriate money in or towards satisfaction of a claim for legal costs unless a bill specifying the total amount of those costs, and describing the legal work to which the costs relate, has been delivered to the person liable to the costs either personally, or by post addressed to the person at the person's last known place of business or residence.
(2)The person liable to legal costs may at any time within six months after delivery of a bill of costs under subsection (1) request the person claiming to be entitled to the costs to provide a statement showing in detail how the amount of the costs to which the bill relates is made up.
(3)A person of whom a request is made under subsection (2) must comply with the request.
Maximum penalty: $750.
(4)Where the defendant to an action for the recovery of legal costs has made a request of the plaintiff under subsection (2), and the plaintiff has not complied with the request, the court must, at the request of the defendant, stay the action until the plaintiff has complied with the request. (Emphasis added)
[20] On 1 July 2014, a different form of s 41 was substituted and schedule 3 was added. However, those provisions do not apply here because the relevant retainer from which the costs obligations here arise was entered into before the amendments of 1 July 2014, and, as such, the former s 41 applied at the time when the request for “a statement showing in detail how the amount of the costs to which the bill applies is made up” was made. The effect of sch 2 cl 9 of the Legal Practitioners (Miscellaneous) Amendment Act 2013 is that it was only after 1 July 2015—the first anniversary of the commencement of the new provisions—that the former s 41 ceased to apply to all retainers and sch 3 cl 34 instead applied. However, here the former s 41(2) applies because the relevant person attempted to exercise his rights under that subsection before 1 July 2015.
At the hearing, the applicant sought to amend his notice of appeal by changing the reference to “s 34 of Schedule 3 of the Legal Practitioners Act” in proposed ground 2 to “s 41 of the Legal Practitioners Act as it applied up to 30 June 2014”. It was agreed by both parties that the applicable section was the latter historic provision, reproduced above. I proceed on the basis that the proposed ground 2, if permission were granted, would refer to s 41 as in force up to 30 June 2014.
The applicant contends that the first time the respondent complied with s 41 was on 23 July 2015, when the two new schedules were filed in the Court. However, as the respondent pointed out in submissions, her Honour addressed the right to have sufficient details upon request in her reasons thus:
[24] I am satisfied that the invoice rendered by Mr McDonough complies with this provision.
[25] It is perhaps artificial, given the way that this matter proceeded, to seek to identify the provisions of the Supreme Court Civil Rules 2006 (SA) or Legal Practitioners Act applicable to this matter. This is because different provisions apply to the two different files operated by Mr McDonough. Strictly speaking, the costs of the [family provision] file (SCCIV-13-1212) should be governed by Rule 271 and following of the Rules. The estate administration file, as a bill between solicitor and client, should be governed by Section 41 of the Legal Practitioners Act. What Mr McDonough did was to combine the two bills into one invoice dealing with both matters. In one sense, this does not matter for the following reasons:
·The costs of the executor in both matters are payable from the estate on an indemnity basis – hence the method of charging is the same;
·Whether governed by Section 41 or the Rules, it would be expected that Mr McDonough would present the beneficiaries (and the executor) with a claim for costs for agreement prior to proceeding to an adjudication; and
·The draft invoice rendered by Mr McDonough on 25 July 2014 complied with Section 41. While it did not contain the detail required of a schedule in taxable form, it clearly identified how the costs were made up, identifying the date on which activity occurred, the initials of the person performing the work and a brief description of the work performed.
[26] Thus debating now whether the invoice complied with one provision or another is, in my view, pointless. Suffice to say, in my view, whatever the relevant provisions strictly were, they were complied with. The invoice provided sufficient detail, whether on the basis of Section 41 or Rule 271, for those responsible to pay those costs to make an informed judgment about the invoice. (Emphasis added)
The Judge was thus satisfied that the draft account of 25 July 2014, originally attached to the letter from Mr McDonough, enabled the applicant to make an informed judgment about the invoice. The respondent notes, correctly, that this finding is not challenged in the proposed grounds of appeal. Her Honour recognised the right of the applicant to require the respondent to provide an itemised bill, and addressed the extent of compliance.
The Judge again mentions at [33.4] that the applicant had sufficient information to consider the account before commencing adjudication proceedings, and that it was obvious that the invoice ran the two files together and charged the amount sought from the estate. As the respondent submitted, her Honour exercised her discretion on costs at the end of the process, having regard to the circumstances before and during the adjudication proceedings, including its outcome.
In my view, what is very significant is that the applicant did not inspect the solicitor’s file until very near to the adjudication hearing and that such an inspection would, if done earlier, have resolved many of the disputes, as it did in fact do after that belated inspection had occurred (see her Honour’s reasons at [33.5]).[21]
[21] In email correspondence with Mr McDonough between 13 February 2015 and 19 March 2015, Mr Leventis indicated he sought to inspect the files which were, at the time, with Mr Cogan; however, when Mr Cogan completed his short form bill of costs, provided to the applicant on 16 April 2015 and filed in action no. SCCIV-13-1212 on 21 April 2015, no inspection pursuant to r 271(3), Supreme Court Civil Rules 2006 took place until 15 October 2015.
But irrespective of whether the applicant is technically correct or incorrect in his argument that s 41 requires greater detail than was given before the adjudication proceedings, the fact remains that had the original invoice been rendered in the form of two separate bills, each at the level of detail for which the applicant now contends, then either of two events would have occurred. Either the two bills would have been paid in full or, if adjudication had been required, they would have been adjudicated at a total significantly in excess of $15,600 (in accordance with the adjudication that has taken place of the two itemised bills that the plaintiff has been now required to submit). Either of those alternatives would have meant a worse outcome for the estate, and therefore the applicant.
This might not have been determinative if the attitude taken by the applicant to the bill actually rendered had been a reasonable one. However, the Judge found that Mr Phillips acted quite unreasonably. Her Honour said:
[33] Taking into account the factors set out above, and the surrounding circumstances of this case, I am of the view that it was unreasonable for Mr Phillips to require adjudication of the fees sought by Mr McDonough. There are a number of factors that I take into account in reaching this decision:
·While Mr Phillips was not represented for much of the time that this dispute has been ongoing, failure to obtain legal advice does not, in itself, excuse unreasonableness.
·Mr Phillips, or those representing him, did not inspect Mr McDonough’s files until almost the date for adjudication. A simple inspection of the files would have made it clear that the invoice rendered was for both files, and would have assisted in resolving the matter. Once inspection did occur, the objections claimed dropped significantly. Inspection at an early stage would no doubt have led to either resolution of the dispute, or would have significantly shortened the duration of it.
·The invoice initially submitted by Mr McDonough was in draft form and as such, did not require immediate payment, rather negotiation if the amount was not satisfactory to the beneficiaries. At no time was any counter-offer made by Mr Phillips, nor were his concerns articulated in a way that allowed Mr McDonough to address them. In fact, I note that the first correspondence from Mr Phillips to Mr McDonough, that is before me (dated 19 September 2014) is in such inflammatory terms that it is not surprising that the matter deteriorated. From this early date, Mr Phillips appeared determined to take the matter to adjudication while also threatening to refer the matter to the Legal Profession Conduct Commissioner. While it is the right of a person in Mr Phillips’ position to demand that matters such as this proceed to full adjudication, it does not make it reasonable that they do so.
·Mr McDonough in fact replied to this letter, and provided the information sought, save that he sought further information as to the queries about the account in a way that was not unreasonable. In effect, he attempted to have Mr Phillips articulate the specific items in relation to which he sought further detail; Mr Phillips did not do this. As I have already found that the draft invoice presented by Mr McDonough met the requirements of Section 41, I am of the view, firstly, that Mr Phillips already had sufficient information to consider the account, and, secondly, given the nature of his request it was not unreasonable for Mr McDonough to seek to clarify it, and narrow its scope.
·Even after Mr Phillips instructed solicitors, no inspection of Mr McDonough’s file was made until October 2015, well after the notices of dispute were filed and only five days before adjudication. As I have already stated, simple inspection would have resolved many of the issues in question, and did in fact do so.
·In addition, Mr Leventis sought to delay the final distribution of the estate, in circumstances that had no bearing on the dispute at hand. I do not understand why Mr Leventis sought to prevent final distribution in circumstances where the only outstanding issue was solicitors’ costs. The refusal to allow the distribution was always without explanation, and accompanied by threats of legal action, including an injunction.
·The correspondence from both Mr Phillips and Mr Leventis made frequent threats of legal action and disciplinary action against Mr McDonough in circumstances where they failed to articulate their real concerns in a way that could be addressed by Mr McDonough.
·While these last two factors do not relate specifically to the costs dispute, they indicate the difficult and unhelpful attitude taken by Mr Phillips and his solicitor in relation to this matter.
[34] Thus I am of the view that Mr Phillips behaved unreasonably throughout and should bear the costs of the adjudication, given that the amount allowed on adjudication is in excess of the amount sought by Mr McDonough throughout this entire dispute. These costs should not come out of the estate, as it would not be fair to penalise Mr Christian Pylypenko and Mr David Pylypenko in this way, given that they have since at least October 2014 agreed to payment of Mr McDonough’s fees as sought.
Her Honour’s reasons clearly demonstrate that even if there be an error as to the extent of the requirements of 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. A technical failure of the respondent to comply with s 41 (if that be so) would not per se lead to the conclusion that it was reasonable for the applicant to bring adjudication proceedings which, on their face, were obviously doomed to fail in establishing a lesser entitlement than the capped amount originally claimed for the two sets of legal costs.
I conclude that it is clear that her Honour would have come to the same view as to those matters, 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.
I come to the same conclusion concerning the applicant's further submissions that the first time details of costs were separated into the two different matters was when the separate schedules were filed on 23 July 2015. As is made clear in her Honour’s judgment, the charging would have been the same if separate bills had been rendered—the costs of both the estate administration of the family provision proceedings were to come out of the estate on an indemnity basis. Her Honour found that there was no reason for consternation about the lack of separate invoices and that this was not an issue that should have caused difficulty to the applicant:
[27] May I also say that I do not understand why it has caused such consternation that the bills were run together in this way. The costs of the executor, incurred as a result of both the [family provision] proceedings and the administration of the estate, were payable on an indemnity basis from the estate. Whether they were formulated as one bill/invoice or two, the amount sought and the items charged were the same. While Mr McDonough did not specifically identify that this is what he had done (and indeed, it may be that it was not a conscious decision on his part; he may have just prepared a bill for all of the fees he sought to charge to the estate without analysing it in this way), it was obvious from his letter dated 25 July 2014 and the draft invoice that this was the case, and that he sought the sum of $15,600.00 plus disbursements plus GST, regardless of the final amount of work done to finalise the estate. (Emphasis added)
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.
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