Renton Resources Pty Ltd v Johnson Winter & Slattery - [2005] SASC 231

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
RENTON RESOURCES PTY LTD & ANOR v JOHNSON WINTER & SLATTERY
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice Layton)
1 July 2005
PROFESSIONS AND TRADES - LAWYERS - REMUNERATION - TAXATION OF COSTS AND FEES - GENERAL PRINCIPLES - UNUSUAL AND UNNECESSARY COSTS AND EXPENSES
PROCEDURE - COSTS - APPEALS AS TO COSTS
Appeal from a decision of a Master of the Supreme Court - appellants sought to have the retainer agreement with the respondent, a firm of solicitors, set aside as not being fair or reasonable - Master found that the retainer agreement was fair and reasonable, and declined to set it aside - Master refused to order a taxation - on appeal the appellants also sought to have fees charged by respondent while acting as agents for another firm of solicitors included in the taxation - held: retainer agreement fair and reasonable - question as to some charges rendered - Master erred in not ordering a taxation - appeal allowed - order for a taxation in relation to all accounts rendered after the retainer agreement entered.
Legal Practitioners Act 1981 s42, referred to.
Re Raven; Ex parte Pitt (1881) 45 LT 742, applied.
McNamara Business and Property Law v Kasmeridis (2004) 90 SASR 151, considered.

RENTON RESOURCES PTY LTD & ANOR v JOHNSON WINTER & SLATTERY
[2005] SASC 231
Full Court: Vanstone, Anderson and Layton JJ

VANSTONE J I agree that the appeal should be allowed and with the reasons given by Anderson J.
ANDERSON J This matter involves a dispute about solicitors’ fees claimed by the respondent (“JWS”) for representing the appellants in litigation in the Supreme Court of South Australia.
The appellants sought a review of the costs claimed by JWS under s42(1)(b) of the Legal Practitioners Act 1981 (“the Act”). They have appealed to the Full Court from the decision of a Master of the Supreme Court, given on 28 September 2004. In that decision the Master found that there were two separate written agreements between the appellants and JWS. He found that the second of these agreements was to pay a fixed sum and he therefore refused the appellants’ application for a taxation of the costs.
Background
Initially the appellants were represented by Cridlands in the Northern Territory and then by Mallesons Stephen Jaques (“Mallesons”) in Perth, with JWS acting as Adelaide agent for Mallesons from about October 1999. In September 2001 the appellants decided to instruct JWS directly, and on 22 October 2001 the second appellant, Mr Renton, signed a retainer letter provided by JWS (“the retainer agreement”). This was referred to as the first agreement.
The terms of that retainer included a statement that:
We will charge on the basis of time spent on your work. Unless we agree other hourly rates with you, we will charge the following rates [a schedule of hourly rates followed]…
The time we charge for includes time spent on interviews, preparing or reading documents or correspondence, telephone calls, attending at meetings, undertaking research and travelling in the course of undertaking work for you…
You should note that our usual hourly rates may result in you paying more on a time basis for our services than if we charged on the relevant Court scale of costs.
Whilst agreeing to the terms, Mr Renton wrote to Mr Johnson, the partner at JWS with conduct of the matter, expressing his concern about the potential for the costs of the litigation to blow out. On 22 October 2001 Mr Renton wrote:
We trust that you understand that we are not a large corporation with unlimited resources and you are mindful of our needs to keep costs to a minimum.
In particular we request that thought be given to providing services in the most cost effective way in addition to delegating work to ourselves wherever possible.
Please itemise all accounts and agree that we shall not be held responsible for expenses where work has not been carried cost effectively.
On 25 October 2001 Mr Johnson replied to that letter by email stating, “I confirm the terms as set out in that letter”.
On 12 February 2002, when the matter was being prepared for trial, Mr Johnson emailed Mr Renton, stating that:
We would like to make some provision for the fees of senior counsel. We request that you deposit $20,000 in our trust account on account of his fee. We ask that you do so by Friday 15/2. If there is a problem with this please let us know.
In fact Mr Renton was only able to raise $10,000 at that time, but indicated he would make arrangements to pay the balance as soon as possible.
By 15 February 2002 the appellants were in arrears in their payments to JWS. The appellants’ trial regarding a valuation dispute commenced in the Supreme Court before Wicks J on 18 February 2002, and continued until 27 February 2002 when it was adjourned until 15 July 2002.
At around this time Mr Renton was told by Dr Baxter, a partner of JWS who was acting as junior counsel in his matter, that Mr Dougall Ross, the junior solicitor who was also working on the valuation dispute, had only recently been admitted as a barrister and solicitor. One of the appellants’ complaints about the fees charged by JWS is that Mr Ross was billed as an ‘associate’ for some time prior to his admission. Although the actual rate charged varied somewhat, the rate most commonly billed for Mr Ross was $160 per hour, the ‘associate’ rate in JWS’s fees schedule. Mr Renton had questioned the schedule of fees at an earlier stage, and was informed by Mr Johnson that junior solicitors were charged at the associate rate of $160.
On 23 April 2002 Mr Renton sent a letter to JWS putting forward a payment proposal for the outstanding fees. The relevant part of that letter stated that:
In order to overcome current difficulties, I wish to put forward a payment proposal comprising of an immediate remittance of $12,629.33 followed by ongoing weekly instalments of $2,000 per week to settle the outstanding accounts and continue the matter through to a successful conclusion.
This proposal was not accepted by JWS at that stage.
On 29 April 2002 Mr Johnson wrote to Mr Renton seeking payment of $93,814 owing to JWS at that time. In particular, Mr Johnson pointed out to Mr Renton that:
As you know, the trial of this matter is set to recommence in the week beginning 15 July 2002.
As far as the balance of the account is concerned and any further accounts to be rendered, we would be satisfied if you could enter into some payment plan which would see the account paid in full by one week before the resumption of the trial, namely 8 July 2002.
On 2 May 2002 Mr Renton wrote to Mr Johnson, stating:
It is my understanding from your letter that you reject my request for support and will not be satisfied unless the account is settled in full, one week prior to the resumption of the trial…
At our meeting in September I expressed my concerns with costs and a number of other matters in relation to the conduct of the file, and gave instructions accordingly. I confirmed these instructions in my letter 22/10/01…
I believe that many issues have not been handled cost effectively and this has contributed to the present situation.
In June 2002 Mr Renton informed the respondent that another firm of solicitors would be representing him. He was, however, concerned to retain Mr Walsh QC as senior counsel for the balance of the trial.
On 14 June 2002 Mr Johnson sent an email to Mr Renton accepting Mr Renton’s offer to satisfy the debt to JWS by instalments of $2,000 per week. The email stated:
[MSOffice1]I confirm that Strachan Carr are now acting for you in this matter.
I confirm that we have no objection to Stephen Walsh QC continuing to act for you and he is willing to do so providing you have reached a satisfactory arrangement with us.
The outstanding indebtedness of Renton Resources Pty Ltd and you to this firm is $68,813.65. In addition there are unrendered fees and disbursements which amount to $2,286.09 (including GST). We propose rendering an account for that amount at some further stage. We have not charged for any time spent in negotiating fees with you or the termination of our retainer.
Accordingly we would ask that you acknowledge the total indebtedness of yourself and Renton Resources Pty Ltd in the amount of $71,099.74.
We note that you are not able to pay the account in full at this stage despite the terms of our retainer. You have proposed that you will pay off the debt at the rate of $2,000 per week.
We confirm that we are willing to accept that proposal and would wish to receive the first payment by no later that Friday 21 June 2002 and thereafter by Friday of each week. If your financial circumstances change and you are able to pay a greater amount we would of course want you to do so.
We also confirm that our instructions having been terminated, we will do no further work but we are willing to assist you, your solicitors or counsel if we are able to do so and will make no charge for that. We will of course have to make a charge for any disbursements incurred by us.
We confirm that we have delivered to you documents requested. If you require any other documents please do not hesitate to ask.
Please confirm acceptance of this arrangement as we have undertaken to advise Stephen Walsh that matters between us are settled.
On 21 June 2002 Mr Renton replied by email, stating:
I wish to confirm my acceptance of your arrangement based on my understanding that the following matters are agreed:
1. The file will be made available to Strachan Carr as required.
2.Monies received are used to settle disbursements as discussed, in particular the account of Stephen Walsh QC.
Decision of the Master
In proceedings before the Master the appellants sought to have the costs claimed by JWS reviewed pursuant to s42(1)(b) of the Act.
Section 42(1) of the Act provides that:
(1)     On the application—
(a)     of a person claiming to be entitled to legal costs; or
(b)     of a person who is liable to pay, or who has paid, any legal costs,
the Supreme Court may tax and settle the bill for those costs.
JWS, in contrast, submitted that it was s 42(6)(a) and (7) that applied.
Sections 42(6) and (7) provide that:
(6) A legal practitioner may make an agreement in writing with a client for—
(a)      payment of a specified amount by way of legal costs (which may—but need not—consist of a daily, hourly or other time-related rate for professional work carried out by the legal practitioner on the client's behalf); or
(b)      payment of legal costs in accordance with a specified scale; or
(c)      subject to any limitations imposed by the Society's professional conduct rules or the regulations—payment of a contingency fee to be calculated on a basis set out in the agreement on fulfilment of a condition stated in the agreement.
(7) The Supreme Court may, in proceedings under this section, rescind or vary an agreement under subsection (6) if it considers that any term of the agreement is not fair and reasonable.
Before the Master, JWS submitted that there were two binding agreements in writing between their firm and the appellants, the first being the retainer agreement, and the second consisting of the emails of Mr Johnson and Mr Renton dated 14 June 2002 and 21 June 2002 respectively. Those emails, which deal with the payment plan and the $71,099.74 owing to JWS, are set out earlier in these reasons. JWS submitted that this second agreement was an agreement for a specified amount, and because of this there was, in effect, nothing to tax.
The Master states in his reasons that:
I am in these reasons considering whether or not there are any and if so what agreements in writing to which s 42(6)(a) applies. If there are any such agreements should they be varied or rescinded by the operation of s 42(7) of the Legal Practitioners Act.
His Honour found that the retainer letter described above constituted such an agreement and that none of the terms were not fair and reasonable. He therefore declined to vary or rescind anything in that agreement.
In relation to the second agreement, the Master found that the emails of 14 June 2002 and 21 June 2002, as well as a letter from Strachan Carr to JWS dated 13 June 2002, which is exhibit AFJ 12 of the Affidavit of Mr Johnson sworn on 9 July 2004, also constituted an agreement for the purposes of s42(6)(a)[MSOffice2]. He again found that none of the terms were not fair and reasonable. The Master ordered that the appellants pay JWS $71,099.74, the amount that was still outstanding at the time of judgment, and declined to direct a taxation pursuant to s42(1)(b) of the Act. In refusing to direct a taxation, his Honour stated:
In my view therefore the obligation of Renton Resources and Renton to pay legal costs is crystallised finally by the agreement contained in exhibits AFJ12 to 14 of document 72 for the reasons I have given and the agreement is neither unfair nor unreasonable. There is no basis upon which to direct a taxation. I consider that JWS is entitled to an allocatur in the amount of $71,099.74.
Appeal to the Full Court
In broad terms Mr Keith, counsel for the appellants, argued that the Full Court should direct a taxation of the solicitor/client costs pursuant to s42, and that the taxation should proceed on the Supreme Court scale on the basis that the retainer relied upon by the respondent should be set aside or rescinded.
The appellants also sought to include in any taxation the costs incurred while JWS acted as agents for Mallesons, and submitted that under the terms of s42, they were entitled to seek to tax this portion of the bill, as Mr Renton was “a person..…who has paid any legal costs” within the meaning of s42(1)(b) of the Act.
On 26 April 2005 JWS filed a Notice of Alternative Contentions stating that:
Upon the hearing of the appeal the Respondent will contend that the judgment of the learned Master should be upheld for the reasons given by him, and in the alternative, and additionally also, upon the following grounds:
1.That the agreement constituted by Exhibits AFJ 12 to 14 of the affidavit of Anthony Francis Johnson of 9 July 2004 (AB:47-56) is an agreement whereby the Appellants agreed to pay a lump sum by way of costs for legal services rendered by the Respondent [AB: 374, para 15-30].
2.That the appropriate allocatur should issue pursuant to R101.17 for the said lump sum.
I will deal with the substance of this contention shortly.
The Second Agreement
In relation to the second agreement, Mr Keith submitted that at its highest it might be an agreement varying the terms of the retainer agreement, but that the documents did not establish a separate agreement. He also submitted that the lack of consensus on the appellants’ request that moneys received be used to settle disbursements and in particular counsel fees, showed an absence of agreement. Even if there were an agreement, Mr Keith submitted that it would not be a genuine lump sum agreement as contemplated by s42(6)(a) of the Act. The $71,099 was simply a calculated amount, based on the hourly rates set out in the initial retainer agreement.
Mr Howard, counsel for the respondent, when asked to point to the terms of the suggested second agreement, said that they were:
(a)     JWS would not prevent counsel from continuing to act;
(b)     An outstanding indebtedness was acknowledged;
(c)     JWS would provide assistance in the changeover;
(d)     Documents would be made available;
(e)     The terms of the agreement would be confirmed.
The articulation by Mr Howard of the terms of the second agreement makes no reference to the appellants’ request that the moneys received be used to settle disbursements. He suggested that this clause was severable from the agreement.
Section 42(6) requires an agreement in writing for the payment of a specified amount by way of legal costs. The question of what was an agreement in writing for these purposes was discussed by Fry J in Re Raven; Ex parte Pitt (1881) 45 LT 742 at 743 as follows:
What is an agreement in writing? It must be a document which shall show all the terms of the bargain between the parties and show by writing the accession of both parties to those terms.
This passage was cited and applied by White J in McNamara Business and Property Law v Kasmeridis (2004) 90 SASR 151.
In my view the terms which have been articulated by Mr Howard have not all been reduced to writing in the emails alleged to constitute the second agreement. At best, many of the terms would have to be implied. Further, the second agreement does not stand alone and is dependent upon the existence of the retainer agreement even to make sense of the matter which is being referred to. There also appears to be uncertainty about whether one of the conditions which has been set out in one of the relevant emails allegedly forming the documentation of the second agreement, was part of the terms of that agreement. Item 2 of the email of Mr Renton of 21 June 2002 refers to monies being used to settle disbursements and adds the words "as discussed", which terms have clearly not been reduced to writing and would require oral evidence.
Having regard to these matters I do not consider that "all the terms of the bargain between the parties" as referred to by Fry J, have been reduced to writing as is required by s42(6) of the Act. This does not mean that the documentation could not be regarded as a variation in writing to the retainer. The clear subject matter of the variation concerns the payment by instalments instead of monies being immediately due and owing as otherwise required by the retainer.
When analysed like this, there is considerable force in the appellants’ contention that all that really happened was a variation or adjustment to the original retainer agreement. The amount of $71,099.74 the subject of the alleged second agreement, purports to be an amount calculated pursuant to the retainer agreement. It was a calculation made by JWS of what it asserted it was entitled to for its fees.
Mr Howard further argued that when Mr Renton entered into the agreement he did so:
…in a position where he had been dealing with large firms incurring large fees over a period of some two to three years before he entered into the agreement, well aware of costs and the expenses which were likely to be involved.
Mr Howard conceded that his argument did not go so far as to preclude all argument between the parties about the appropriateness of the $71,099.74 as legal costs properly chargeable by JWS. He submitted that if there were an effective agreement for a lump sum, it would not prevent the court from ordering a taxation because it was merely a lump sum determined by using the terms of the retainer agreement. He submitted that in the circumstances of this matter it was not appropriate to do so. Mr Howard argued that the appellants were effectively seeking relief in the supervisory or equitable jurisdiction, and were doing so without “clean hands”. In support of this proposition Mr Howard emphasised that Mr Renton had delayed making a complaint about the level of fees until after JWS had agreed to hand over the file to the appellants’ new solicitors.
It is not clear from the affidavit evidence when Mr Renton first started to have concerns about the amount of JWS’s fees, or at what stage a complaint about this was made. Certainly the appellants and JWS had been in negotiation about the fact that fees were in arrears since February 2002. In his letter to Mr Johnson dated 23 April 2002 Mr Renton at least adverted to the fact that he had concerns about the level of fees charged, when he said:
You will recall our September 2001 meetings and my appointment letter of 22 October 2001 where I advised that I did not have unlimited resources and sought a “roadmap of expenses” in order to ensure my budget remained on track.
After tallying all expenses to date I now find that my direct legal expenses in relation to this matter are currently in excess of $180,000 (indirectly $220,000) with an anticipated further 5 days of trial in order to complete the matter.
As a direct result of this extreme cost blowout and other recent unexpected expenses I unfortunately now find myself in the position where I need to ask for your support in this matter.

I think that, although Mr Renton was being coy in relation to not making an initial complaint about the fees, he is not defeated by lack of clean hands given all of the circumstances relating to a reasonable desire to have continuity in the smooth running of his litigation. I cannot see that the delay in making the complaint caused any prejudice to JWS in any event.
Retainer Agreement
The appellant submitted that the retainer agreement itself was not fair and reasonable when considered in the context of the way in which it had been applied by JWS. Mr Keith submitted that the retainer agreement should be rescinded or varied pursuant to s42(7) of the Act and further that the issue of fairness and reasonableness was a matter which was appropriate to be considered having regard to the manner of its implementation.
Mr Keith in his argument as to the implementation of the agreement pointed to certain charges, which were said to be unusual, and he submitted that they would not be recoverable under the Supreme Court scale of costs. These charges included:
·Research including research of Supreme Court Rules;
·Internal conferences between professionals within JWS;
·In-house counsel attendances upon instructors;
·Duplicate attendances;
·Double handling, including multiple charges for drafting and settling documents.
As indicated earlier, the appellant also complained about the level of charges made for Mr Ross, prior to his admission, and for Dr Baxter in his role as junior counsel. In relation to Dr Baxter, it was pointed out that while senior counsel charged at the rate of $2,500 for a full day, or $250 per hour (exclusive of GST), Dr Baxter was charging as a partner of JWS at the rate of $280 per hour (exclusive of GST) whenever he did work whether in or out of court. Mr Keith submitted that it was unusual for junior counsel to charge more than senior counsel, and that the failure of JWS to disclose this, or to advise that junior counsel at the independent bar might have been briefed at a lower rate, was an example of the unreasonableness of the retainer.
In addition, Mr Keith submitted that the failure of JWS to provide a “road map” of procedures and associated costs or any estimate of the total cost, when Mr Renton had requested these, was a factor making the retainer unreasonable. He argued that s42(7) allows the court to consider the effects of the terms of an agreement, and not just whether the actual document or documents containing the terms is not fair and reasonable.
The appellants further submitted that the respondent’s accounts show a disregard for the terms of the retainer agreement, in particular that:
·Mr Johnson would have personal conduct of the file;
·The file would not be passed to junior staff other than for the purpose of cost effective document preparation;
·Services be provided in the most cost effective way.
The appellants therefore sought to have both the retainer agreement and the second agreement, if it existed, set aside as not fair and reasonable. If the court were to decline to set the agreements aside, the appellants sought to have all of JWS’s accounts taxed, and asked the Full Court to provide guidance to the taxing Master as to what type of charges would be allowable.
Mr Howard responded by submitting that the questions of fairness and reasonableness pursuant to s42(7) were matters to be determined as at the time the agreement was struck. He submitted that Mr Keith’s argument confused the manner of performance of the agreement with the issue required to be determined under s42(7), namely whether any term of the agreement was not fair and reasonable. He further submitted that the questions of fairness and reasonableness under s42(7) required consideration, as at that time, of the circumstances of the parties, the expression of the terms and the explanations provided to the client, as well as the reasonableness of the amounts to be charged. Any later dispute between the parties as to the level of the fees charged pursuant to that agreement was a matter for taxation, rather than one raising the issue of rescission or variation under s42(7). Mr Howard submitted that neither the retainer nor the second agreement, if any, was not fair and reasonable in the relevant sense.
It seems to me that Mr Howard’s submissions are correct. The criticisms which the appellants have in relation to the retainer agreement are appropriately matters of taxation, rather than issues which concern the circumstances in which the agreement was entered into or any particular term or terms of the agreement.
In my view the appellants have not demonstrated that the retainer agreement should be rescinded or varied. However, the Master should examine the bill of costs to determine whether charges have been made in accordance with its terms. The matters which should be examined include those referred to earlier in paragraphs 40-43 inclusive.
I find that the learned Master erred in declining to order that the matter go to taxation.
Taxation of Costs
It was argued that this court should give some guidance to assist the Master upon the taxation. It is my view that only the broadest guidance can be given by this court, and arguably no specific guidance should be given in the absence of a detailed consideration of the accounts rendered. The Master should tax costs by reference to the schedule of fees provided in the retainer agreement. In the event that there are deficits or omissions in that schedule, the Master should not be constrained to address them only by reference to the Supreme Court scale of costs, having regard to the fact that a commercial arrangement between the parties was reached.
JWS Agency Fees
The final issue is whether or not any taxation of costs should date back to a period prior to the retainer agreement, namely, prior to October 2001 when JWS were acting as agents for Mallesons. The question is whether, notwithstanding that JWS were acting as agents and did not have a direct contractual relationship with the appellant, the appellant is nonetheless entitled to tax all their costs including the JWS agency fees. The argument put by Mr Keith has appeal, namely, that the Supreme Court has jurisdiction with regard to any legal costs incurred within the State whether by way of an agency with an interstate firm or otherwise. According to his argument, it does not matter that there was no direct contractual relationship between JWS and Renton.
I think that s42(1)(b) of the Act does cover the field where a person or organisation that has actually paid the legal costs incurred in relation to legal work performed in the State, seeks a taxation. JWS agency fees therefore would be eligible to be included in a taxation.
The above discussion certainly satisfies the issue of jurisdiction. There is a further matter, namely whether the application for taxation should be directed to Mallesons in relation to the agency fees charged by JWS, rather than JWS alone. This Court does not have sufficient information about the relationship and the conditions agreed between Mallesons and JWS to be able to determine whether this is appropriate, but prima facie, the existence of the agency relationship would suggest that Mallesons should appropriately be a party to any taxation.
The complaints that are made by the appellants in relation to JWS’s fees do not necessarily apply to those charged while JWS were acting as agent for Mallesons. The appellants made no complaints specific to those agency fees, and many of their complaints about the fees generally are based on a failure by JWS to have regard to Mr Renton’s request that fees be minimised where possible.
In particular, while I have earlier found that delay is not a bar to the appellants seeking to challenge JWS’s fees generally, the delay in relation to the agency fees is more significant. JWS billed Mallesons for work done in relation to Renton Resources between November 1999 and September 2001. These charges were then included in Mallesons’ accounts to the appellants under the heading “Disbursements not incurred as your agent – Johnson Winter & Slattery - Agents Fee”, and this was followed by the relevant amount in each case. Although the total fee was specified, it was not itemised. No evidence was tendered to suggest that the appellants challenged these charges at any earlier point of time. In addition, by choosing to retain JWS after receiving a number of accounts from Mallesons, which included JWS agency fees, the appellants appear to have acquiesced in relation to those accounts. In these circumstances I find that the taxation should be limited to those accounts rendered after the retainer agreement was entered into in October 2001.
Conclusion
I am not satisfied that the terms of the retainer were not fair and reasonable when that retainer was entered into. In particular, Mr Renton had experience in this same litigation having dealt with two previous firms by the time he came to deal with JWS, and knew generally the types of charges and attendances which would be necessary.
It was conceded by the respondent that the jurisdiction of this court to order a taxation cannot be ousted by an agreement between solicitor and client regarding fees.
There was no second agreement pursuant to s42(6) for the reasons already expressed and the discussions merely evidenced a variation to the original retainer in relation to the time for payment.
I consider that some of the methodology in calculating fees, the rates at which various work was charged out, and who actually performed the work indicates a possible breach of the retainer agreement and that that is sufficient to warrant this Court allowing the appeal and ordering a taxation in relation to the fees.
For the reasons I have given the Master was in error in declining to direct a taxation. The taxation should not be limited to the Supreme Court scale. I would therefore allow the appeal and order a taxation in relation to all accounts rendered after the retainer agreement in October 2001.
LAYTON J I am of the view that the appeal should be allowed for the reasons given by Anderson J.
In addition to the views expressed by Anderson J as to broad guidance which the Court may give to the taxing Master, I add the following. In my view, the Master should not be bound to tax on the Supreme Court scale of costs. The retainer agreement does not restrict itself either by way of the amount or by the items, to those which are set out in the Supreme Court scale of costs. The scale of costs will of course provide guidance as to the type of services which are recognised as appropriate for lawyers to charge, but it is not limited to those specific items as described nor any qualifications expressed in the scale of costs. A primary consideration on a taxation of costs under a retainer, absent any term being regarded as unfair and unreasonable or some uncertainty, is whether legal professional services have been provided which are reasonable and appropriate and whether the amount charged accords with the retainer agreement. The taxation of costs for a retainer would usually be taxed in accordance with its expressed terms.
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