Ullinger v Giles - [2013] WASC 117

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ULLINGER -v- GILES [2013] WASC 117

CORAM: MASTER SANDERSON

HEARD: 14 MARCH 2013

DELIVERED : 9 APRIL 2013

FILE NO/S: LPA 39 of 2012

BETWEEN: PAUL ROBERT ULLINGER
First Applicant
PAUL ROBERT ULLINGER as the next friend of ANASTASIA ULLINGER
Second Applicant
AND
GLEN BERNARD GILES
PETER ALBERT NEVIN
PHILIP JOHN PATTERSON
GARRY EVAN SAME t/as TAYLOR SMART
Respondents

Catchwords:

Costs - Application by party charged to set aside two costs agreements and for an extension of time to tax costs - Turns on own facts

Legislation:

Nil

Result:

One costs agreement set aside

Category: B

Representation:

Counsel:

First Applicant              :     Mr D F Beere
Second Applicant          :     Mr D F Beere
Respondents                 :     Mr P J Patterson

Solicitors:

First Applicant              :     Lane Buck & Higgins
Second Applicant          :     Lane Buck & Higgins
Respondents                 :     Taylor Smart

Case(s) referred to in judgment(s):

Brown v Talbot & Olivier (1993) 9 WAR 70
Jovetic v Stoddart & Co (1992) 7 WAR 208
Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112

MASTER SANDERSON: By application brought on 25 September 2012 the first and second applicants (whom I will refer to collectively as 'the parties charged') sought against the respondents (whom I will refer to collectively as 'the practitioner') the following orders:
(1)an extension of time within which to have certain bills of costs rendered by the practitioner to the parties charged taxed;
(2)an extension of time within which to have two costs agreements entered into between the parties charged and the practitioner set aside; and
(3)an order setting aside those costs agreements.
During the course of his submissions counsel for the parties charged acknowledged the most important aspect of the application was to have the costs agreements set aside. He accepted if the agreements stood and an extension of time was granted to tax the bills rendered pursuant to those agreements there was unlikely to be any actual benefit to the parties charged. Save with respect to one aspect of the application that is clearly correct. Accordingly I propose to deal first with the question of whether the costs agreements ought be set aside.
The parties charged and the practitioner entered into two costs agreements. The first of these agreements was entered into on 31 March 2009 and related to an oppression action under the Corporations Act 2001 (Cth) Mr Ullinger was bringing against certain members of his family. This agreement can conveniently be referred to as 'the first Costs Agreement'. Prior to entering into that agreement Mr Ullinger was given a document referred to as 'Costs Disclosure Statement (July 2008 v2)'. A copy of this document appears as annexure PRU2 to the affidavit of Mr Ullinger sworn 14 September 2012. A copy of the first Costs Agreement also appears as part of that annexure. The first Costs Agreement and the Costs Disclosure Statement expressly state they were made under the provisions of the Legal Practice Act 2003 (WA) (the 2003 Act).
Under the Legal Profession Regulations 2009 (WA), reg 123A(1), a law practice may, during the relevant period, make a costs agreement under s 221 of the 2003 Act as if that section had not been repealed. If a law practice chooses to make a costs agreement under the 2003 Act during the relevant period, then reg 123A(2) provides that:
(2)If a costs agreement is made as referred to in subregulation (1) between a client and a law practice during the relevant period -
(a)Part 13 Division 2 of the 2003 Act applies to and in relation to the agreement as if that Division had not been repealed; and
(b)Part 13 Division 3 of the 2003 Act applies to and in relation to the taxation and recovery of the legal costs the subject of the agreement as if that Division had not been repealed; and
(c)section 273 of the 2008 Act does not apply to legal costs the subject of the agreement; and
(d)Part 10 Division 6 of the 2008 Act does not apply to the agreement or the law practice in relation to the client for the matter the subject of the agreement; and
(e)Part 10 Division 7 of the 2008 Act does not apply to bills for legal costs the subject of the agreement or the recovery of those legal costs; and
(f)Part 10 Division 8 of 2008 Act does not apply to the assessment of legal costs the subject of the agreement.
The 'relevant period' is defined under reg 121 as a period starting on the commencement date and ending 30 June 2009. Therefore on 31 March 2009 the practitioner was entitled to enter into a costs agreement pursuant to s 221 of the 2003 Act. The relevant divisions of the 2003 Act therefore apply as if those divisions had not been repealed.
The right of a client to review a costs agreement and apply to have it set aside is provided for under s 222 of the 2003 Act. Section 288 of the 2008 Act is the equivalent. It is somewhat more extensive than its predecessor. Under s 222(2) of the 2003 Act the Supreme Court may cancel a costs agreement if, in the opinion of the court, the costs agreement is unreasonable. Pursuant to s 288(2) of the 2008 Act the Supreme Court has the same discretion to set aside or cancel a costs agreement if it finds the agreement is not fair or reasonable. Section 288(3) provides seven, non‑exclusive factors, the court may have regard to in determining whether a costs agreement is fair and reasonable.
The starting point in considering any costs agreement is the decision of Seaman J in Jovetic v Stoddart & Co (1992) 7 WAR 208. His Honour said:
[W]hatever else may be embraced by the words of the section, an agreement is unreasonable for the purposes of s 59 if the client can show objectively that it came into being in circumstances which were unreasonable to him, or that its terms are unreasonable to him, or that its effect upon him is unreasonable (220).
(His Honour was dealing in the Jovetic case with s 59 of the Legal Practitioners Act 1893 (WA). The wording of that section is different from the wording of the section we are dealing with here. But the authorities have consistently referred to this statement of principle as the starting point in any enquiry.)
In Brown v Talbot & Olivier (1993) 9 WAR 70, Ipp J quoted the above passage with approval. His Honour then went on:
By these remarks his Honour identified three categories in respect of which an agreement might be regarded as unreasonable for the purposes of s 59. He made it plain, however, that he was not intending to suggest that an agreement would be regarded as unreasonable only if it were to be unreasonable in regard to one or more of those categories. It may well be, in a given case, that if each of the three categories identified is looked at in isolation, without reference to the circumstances within the other categories, none independently leads to a conclusion of unreasonableness. Nevertheless, it is quite possible that, despite such a conclusion when the categories are considered separately, an agreement may be unreasonable when all the relevant factors are considered as a whole.
Further, depending on the circumstances, a particular category may be linked with another, and the reasonableness of one may not be capable of assessment without reference to another. In such a case an inquiry into discrete categories would be inappropriate (75).
His Honour referred to the statutory scale of costs and its importance in the solicitor/client relationship. His Honour linked that scale with a practitioner's duty of disclosure. He said:
In my opinion, any agreement which seeks to remove the limit imposed by the scale will be regarded as unreasonable if full disclosure is not made of the limits and benefits provided by the scale and the effect and consequences of the proposed agreement. The obligation to make a full and frank disclosure of this kind is an integral part of the duty owed by lawyers to their clients (77).
His Honour went on to set out what he described as the material circumstances which might influence a client in deciding whether or not to enter into an agreement entitling a client to depart from the scale. His Honour listed the matters which in his view should be expressly disclosed to a client:
(a)The fact that the remuneration of solicitors was governed by statutory scales which limited the amount of solicitors' and counsel's fees which could be recovered, irrespective of the amount of time devoted by the solicitors to the proceedings: ... .
(b)The fact that the scales limited both the costs which the client could recover from the opposing party to the proceedings (if the client were to succeed in the case), and the costs recoverable from the client by the client's solicitors: ... .
(c)The principles underlying the charging of fees under the scales, and also the basis of the proposed charging under the contemplated agreement.
(d)Estimates, if they could reasonably be made, of the approximate amount of the solicitors' fees and counsel's fees (as between solicitor and client) which would be recovered on taxation under those scales, and the approximate amount recoverable under those scales from the opposing party ... .
(e)An estimate, if that were reasonably possible, of the amount which the client would have to pay the solicitors under the proposed agreement if the litigation were to prove successful (and costs were to be recovered from the opposition) and, also, the amount which the client would have to pay if the litigation were to be unsuccessful: ... .
(f)Whether (if it were not reasonably possible to give estimates of the kind referred to in sub‑paragraphs (d) and (e) above) there was a real risk of the costs under proposed agreement being more - and significantly more, if that were the case - than under the appropriate scale (77).
It is common ground between the parties Mr Ullinger was given a Costs Disclosure Statement which he signed and the Client/Lawyer Costs Agreement which he signed. It is Mr Ullinger's position he was not provided with any other advice with respect to the first Costs Agreement other than these two documents. In his affidavit of 14 September 2012 he puts the position this way:
At the time I was requested to sign that document [the first Costs Agreement] I was not given any advice as to whether a costs determination applied to the costs chargeable by the Respondents. Indeed, until instructing my current solicitors I was unaware as to what a costs determination was. Nor was I advised that I had the right to negotiate the costs agreement and I simply assumed that I was obliged to sign the agreement which of course I did (par 10).
In opposition to this application the practitioner has filed an affidavit of Philip John Patterson sworn 8 March 2013. At par 59 of that affidavit Mr Patterson notes the Costs Disclosure Statement and the first Costs Agreement were entered into by Mr Ullinger on 31 March 2009. He does not suggest any further oral advice was provided by him or any other member of the practitioner firm at the time of signing the first Costs Agreement. What we are left with then are the terms of these two documents. The question is whether the disclosures found in these documents are sufficient.
The Costs Disclosure Statement is a four page document which has nine clauses. The introductory words are as follows:
Before entering into a retainer agreement with a client, we are required by the Law Society's Professional Conduct Rule 18 of December 2005 to provide this statement, incorporating the matters as per the numbered headings below.
Clause 1 is headed 'Basis of Calculating Professional Fees'. It sets out what are described as 'usual hourly rates' for a partner, senior lawyer, junior lawyer, articled clerk and clerk. It is explained in the clause that charges will be based on the time costing model and rates of charge might vary from time to time. There then follows three further sub‑clauses. They read as follows:
(e)In some (but not all) areas of the law, scale of costs is published by the Legal Costs Committee detailing the costs that legal practitioners may charge for professional services. We will provide a copy of any relevant scale upon request.
(f)A scale of costs, to the extent it may apply, in most but not all matters, would result in the legal fees being lower than the fees that will be charged using our standard hourly rates. In some matters the scale of costs applicable may result in the legal fees being higher than the fees that could be charged using our hourly rates.
(g)If there is an applicable scale of costs and we are entitled to charge more for certain items of work under the applicable scale of costs than under written costs agreement we may enter into, then we reserve the right to use the applicable scale of costs either in whole or in part (where appropriate) as the basis of calculating our legal fees.
Clause 2 deals with the method of calculating disbursements. Clause 3 deals with billing arrangements including interim accounts, and cl 4 acknowledges the client's right to receive an itemised account if a request for such an account is received within 30 days of a bill being rendered.
Clause 5 refers to s 221 of the 2003 Act and sets out, in my view accurately, the effect of the section. Clause 6 acknowledges a client's right to review costs by taxation, and cl 7 deals with 'Other Matters Required by Law To Be Disclosed to a Client'. In cl 7 reference is made to the costs agreement and the client is advised to carefully read the document before signing it. The clause points out the client has the right to obtain independent legal advice before signing any costs agreement. Clause 7(b) is in the following terms:
(b)Clients should be aware that:
i.there may be other solicitors willing to act for the client at a lower cost or who may not require a costs agreement;
ii.the fees chargeable by us may be higher than the fees chargeable under the applicable scale (if any);
iii.the hourly rate for any person working on the matter may vary depending on the nature of the work, the urgency, complexity or skill required;
iv.the client has the right to seek independent legal or financial advice concerning the meaning of the terms of any proposed written costs agreement;
v.on presentation of a lump sum account by us to the client, the client may, within 30 days of the client receiving the account, ask us to provide further details and we will do so at no additional cost to the client;
vi.if the client is not satisfied with the detailed account given to the client by us, the client may ask us within 30 days to review the bill in the Supreme Court of Western Australia and we will not make any additional charge for the purpose of preparation of that bill;
vii.if a review is sought of an account presented by us and substantial reduction is not made in that account, the client may be ordered by the court to pay the costs incurred by us in preparing and filing the bill and attending to that review;
viii.if the client requests the bill to be reviewed, the Firm has the right to withdraw the account and render a substituted account, which may be higher than that already presented to the client
ix.In relation to litigation:
1.If successful in a court or tribunal in which an applicable scale applies:
a.the successful party, subject to the court's or tribunal's discretion, may be entitled to an order for costs against the unsuccessful party;
b.but any costs awarded to the client in litigation are unlikely to fully reimburse the client for the total expenditure incurred on legal costs payable to us;
2.If the client is unsuccessful, the successful party will usually be entitled to an order for costs against the client.
Clause 8 deals with 'Matters Required by Rule 18.3 (Where Required)' (a reference to the Law Society's Professional Conduct Rules). There then follows an estimate of costs which in this case was put at $3,000. There is an estimate of disbursements put at $500. Mr Patterson is nominated as the practitioner who will have primary conduct of the matter. Clause 9 is the 'Acknowledgement' where Mr Ullinger acknowledges having received a copy of the document and to 'have read, understood and accepted its terms'.
There then follows the first Costs Agreement. Once again this is a four page document which runs to 17 paragraphs. The first 11 clauses are under the heading 'General'. The only clause in this section which is presently relevant is cl 10 which is in the following terms:
The terms of this agreement will also apply to all future instructions which you may give us either on your own behalf or on behalf of any other person, corporation or association.
Clause 12 appears under the heading 'Charges for Legal Services' and sets out the charges for a partner, senior lawyer and so on and reflects precisely what is found in the Costs Disclosure Statement. (Clause 12 refers to the time costs model and the possibility of the actual rates charged being higher than those specified in cl 12.) Clause 14, cl 15 and cl 16 appear under the heading 'Expenses, Disbursements' and outlines the likely charges. Reference is made to the possibility of engaging counsel and cl 15 says if that step is taken it will only be after consultation with the client and counsel's fees will be charged as a disbursement. Clause 17 is headed 'Initial Amount Required on Account of Costs and Disbursements'. No amount is stated. There then follows a heading 'Retainer Agreement Acknowledgment'. Two of the five paragraphs appearing under that heading are presently relevant. They are:
B.Taylor Smart advised that the costs and disbursements calculated in accordance with this agreement may exceed or not be allowable under the statutory scale which would otherwise apply to this work and that in litigious matters these costs insofar as they exceed or are not allowed by that scale will not be recoverable from the other party.
C.Taylor Smart advised that independent legal advice may be taken about this agreement before it is signed.
In my view when the Costs Disclosure Statement and the first Costs Agreement are taken together and looked at objectively the parties charged were properly informed as to their rights. It must be born in mind things had moved on since Ipp J's decision in Brown v Talbot & Olivier. That case was decided 20 years ago. Although the principles are relevant at the date the case was decided there was no such thing then as a disclosure statement. Even the use of costs agreements was not widespread. That does not in any way diminish the need to satisfy the requirements set out by Ipp J in his decision. It is merely an acknowledgement that the idea of full and frank disclosure had taken hold and solicitors as part of their professional ethical obligations were required to make such disclosure. In this case that is exactly what they did.
Taking each of Ipp J's disclosure requirements in turn, the fact that remuneration of solicitors was governed by statutory scales is acknowledged, the fact that time costing will be used as a basis for charging is acknowledged and the disclosure statement expressly says the charges levied may be higher than those claimed under the statutory scale.
Clause 7(b)(ix)(1)(b) advises if an action on behalf of a client is successful the costs recovered may not cover the costs charged to the client. The fact a time costing regime is used is acknowledged and the costs per hour of each person who might be working on the file is specified. An estimate of costs is provided although, as it turned out, this estimate was well under what was actually charged. But there is no evidence to suggest the estimate was not reasonably made as at the date the first Costs Agreement was entered into.

It is the case that no estimate of the amount which the client would have to pay the solicitors under the proposed agreement if the litigation were to prove successful or unsuccessful was provided to the parties charged. But in the circumstances of the case, when the first Costs Agreement was entered into, it was not clear litigation would be necessary. What the practitioner was engaged to do was to protect the parties charged interests held in a corporation where it was alleged by the parties charged that fellow shareholders were engaged in oppressive conduct. The evidence makes clear it was intended negotiations would take place. It is the case that eventually proceedings were issued and the matter was resolved at mediation. But in my view it was not reasonably possible to offer an assessment of, and to what extent, the parties charged would be out of pocket after litigation at the time the first Costs Agreement was entered into.
The Costs Disclosure Statement and the first Costs Agreement taken together make plain there was a real risk of costs under the agreement being more than under the appropriate scale. No fair reading of the two documents could leave a party in any doubt as to those matters.
Two things need to be borne in mind when looking at the Costs Disclosure Statement and the first Costs Agreement. First the solicitor/client relationship while fiduciary in nature involves a commercial transaction. The client is engaging the solicitors for their legal expertise and should expect to pay a price - perhaps a high price - for doing so. When confronted with documents which detail the nature of the commercial relationship it is incumbent upon a client to read those documents and weigh up whether or not he or she wishes to sign up. In that sense entering into a costs agreement with a solicitor is no different from entering into any other commercial transaction. While the law goes some way to protect a client in his commercial dealings with a solicitor it is still the client who must make the decision to enter into the costs agreement and it is incumbent upon him to look out for his own interests.
Second, and building on the first point, it is clear there is only so much a solicitor can do. In this case the practitioner drew the attention of the parties charged to the fact there was in existence a statutory costs scale which may prescribe lower fees than those anticipated by the costs agreement. The parties charged were told they could have a copy of the scale if they so wished. They were invited so seek independent legal advice or other expert advice if they had any doubts. One might reasonably ask what further information or advice the practitioner could offer. The answer must be none.
In my view there is no basis upon which the first Costs Agreement could be set aside. That being so there is no point in considering whether or not the time in which to bring the application should be extended. Whatever the determination on that question the prime relief sought by the parties charged is not available.
Turning then to the second Costs Agreement. On or about 5 October 2009 Mr Ullinger instructed the practitioner to assist him in matters relating to a workers' compensation claim. It is worthy of note that from the first the parties accepted this was a claim under the Workers' Compensation and Injury Management Act 1981 (WA) (the WC Act). On or about 10 November 2009 the practitioner sent to Mr Ullinger a 'Client/Lawyer Costs Agreement (August 2009)' and a 'Costs Disclosure Statement (August 2009)'. A copy of the documents appears as Annexure PJP66 to Mr Patterson's affidavit. Mr Ullinger acknowledged receipt of the Costs Disclosure Statement by signing a copy of that document and dating it 13 November 2009. He signed a copy of this second Costs Agreement on 16 November 2009. By the time these documents were signed the provisions of the 2008 Act were operative. Accordingly both documents are in a slightly different form to the earlier disclosure statement and the first Costs Agreement.
As to the circumstances in which the second Costs Agreement was entered into Mr Ullinger in his affidavit of 14 September 2012 says:
Prior to the execution of the costs agreement I was not given any advice as to whether any determination applied go [sic] the costs in respect to this matter or given any advice that I had the right to negotiate the costs to be charged in the costs agreement (par 29).
In his affidavit Mr Patterson goes into somewhat more detail as to the circumstances in which the practitioner acted for the parties charged in relation to the workers' compensation matter. Subsequent to receiving instructions the practitioner communicated with the workers' compensation insurer. On or about 3 December 2010 and without reference to the practitioner Mr Ullinger filed an application to resolve a dispute under pt XI of the WC Act. It was not until on or about 5 January 2011 the practitioner became aware the application had been filed. Thereafter the practitioner acted for Mr Ullinger in the proceedings. On 16 March 2011 the proceedings were settled with Mr Ullinger receiving a lump sum payment.
As at the date the parties entered into the second Costs Agreement s 87 of the WC Act was in force. That section reads as follows:
87.Solicitor-client costs, limits on agreements as to
(1)This section applies to an action for damages independently of this Act if Division 2 applies to the awarding of damages in the action (whether or not an award of damages is affected).
(2)An agreement is not to be made for a legal practitioner to receive, for appearing for or acting on behalf of a person -
(a)in an action to which this section applies; or
(b)in respect of an application for a declaration under section 11 of the Workers' Compensation and Rehabilitation Amendment Act 1993,
any greater reward than is provided for by any costs determination (as defined in the Legal Profession Act 2008 section 252).
(3)An agreement is void -
(a)if it is made contrary to this section; or
(b)if it would have been contrary to this section if it had been made after the commencement of section 4 of the Workers' Compensation and Rehabilitation Amendment Act 1993.
Nowhere in either the Costs Disclosure Statement or the second Costs Agreement is it made plain that costs that could be charged by the practitioner were limited by the WC Act and any costs determination made under that Act. In fact the second Costs Agreement nominates rates for various persons - partners, senior solicitors and so on - which could not possibly be charged under the relevant determination. Although I express no concluded view on the matter it would seem to me strongly arguable the second Costs Agreement is void by operation of s 87 of the WC Act. But even if that is not correct the failure to mention the provisions of the WC Act in my view means the second Costs Agreement ought be set aside.
The remaining question is whether time ought be extended to allow the application to set aside to be brought. In Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112 Master Newnes (as he then was) outlined six factors which were relevant to an application to extend time. These were:
1.the purpose of the relevant provisions of the Act is to protect a client against excessive charges by a practitioner and to enable a client to be satisfied that bills of costs are not excessive, whilst imposing time limits to prevent a client from unfairly taking advantage of the provisions to delay the obligation to pay proper costs, and to avoid frivolous objections;
2.the reasons for the delay;
3.whether there are valid reasons for believing that a refusal to enlarge time might result in injustice to the client;
4.whether there is evidence suggesting that the bill might be excessive;
5.the nature and degree of prejudice to the practitioner;
6.the practitioner's reasons for opposing the enlargement of time (if it is opposed), it being of importance that as an officer of the Court the practitioner be seen to be acting honestly, ethically and with proper motives and not acting merely to prevent taxation of the bill taking place [101].
In this case the circumstances are such there is every reason for granting the extension of time. There is real reason to believe the second Costs Agreement is void. If that is so the parties charged have been overcharged. If the time is not enlarged there is reason to believe injustice to the parties charged will result. The parties charged do provide some explanation as to why it has taken time to bring this application. Without going into those reasons in detail it can be said they are not particularly convincing. That is a factor against granting the enlargement. There is no particular prejudice to the practitioner.
Weighing all these matters in the balance it is clear time should be enlarged and the second Costs Agreement ought be set aside. I will make orders accordingly.
On 19 March 2010 Mr Ullinger instructed the practitioner on behalf of himself and his daughter in relation to a claim for compensation arising out of a motor vehicle accident. On 23 March 2010 the practitioner sent a 'Client/Lawyer Costs Agreement (February 2010)' and 'Costs Disclosure Statement (February 2010)' to Mr Ullinger, and the same documents to Mr Ullinger's daughter. A copy of those documents appears as Annexure PJP73 to Mr Patterson's affidavit. It appears those documents were never signed by Mr Ullinger personally or by him on behalf of his daughter. In his affidavit Mr Ullinger says there was no costs agreement (par 39). He does not refer to ever receiving the documents Mr Patterson says were sent to him and by inference he does not acknowledge they were signed and returned to the practitioner. It would seem then there is in existence no signed costs agreement in relation to the motor vehicle accident. It is clear the practitioner intended there should be such an agreement but there is nothing to suggest such agreement was actually reached. It was not submitted the fact accounts were rendered consistent with the proposed costs agreement meant there was part‑performance and the parties charged were bound by the unsigned costs agreement terms.
It is the case the first Costs Agreement by cl 10 refers to any future instructions by the parties charged to the practitioner and applies the first Costs Agreement. But the parties clearly did not contemplate the first Costs Agreement would apply in relation to the motor vehicle accident. That is why the practitioner sent out to the parties charged a new agreement. Moreover, it is by no means clear the accounts rendered by the practitioner in relation to the motor vehicle accident referred back to the first Costs Agreement.
In my view there is no costs agreement covering the motor vehicle accident and therefore there is nothing to be set aside.
The question then remaining is whether the parties charged should have an extension of time within which to have the bills in relation to the motor vehicle accident taxed. In my view they should. Given it appears the bills were prepared by reference to the unsigned costs agreement there is reason to believe the parties charged may have been overcharged. That is a powerful reason for granting the extension of time. To refuse to extend time might result in an injustice to the parties charged. There is no prejudice to the practitioner. Once again the explanation provided by the parties charged for the delay in having the bills taxed is not entirely satisfactory. But weighing all matters in the balance I am satisfied there ought be granted the extension of time sought by the parties charged.
The result then is as follows:
(1)In relation to the first Costs Agreement I am not satisfied it ought be set aside. That being the case there is no point in granting an extension of time and the application for the grant of extension of time and the application to set aside the first Costs Agreement will be dismissed.
(2)I am satisfied the second Costs Agreement is unreasonable and should be set aside. I would also grant an extension of time to bring that application and consequently an extension of time within which to have the bills in relation to the workers' compensation matter taxed.
(3)In relation to the motor vehicle accident accounts I am not satisfied there was any costs agreement and therefore no order setting aside any agreement can be made. I am satisfied there should be an extension of time within which to tax the bills in relation to the motor vehicle accident.
The parties ought confer to see whether a short minute of orders can be agreed. If not, each party should submit a minute they say reflects these orders. I will hear submissions in relation to costs.