Walters v Perton (Costs No 2)
[2023] VSC 785
•22 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S CI 2017 02326
| JANE ELIZABETH PERTON (as Trustee of the Port Eagle Investment Trust) | Plaintiff |
| v | |
| LYNNE MARGARET WALTERS | Defendant |
- and -
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S CI 2017 02159
| LYNNE MARGARET WALTERS | Plaintiff |
| v | |
| JANE ELIZABETH PERTON (who is sued in her capacity as the Executor of the Will and Trustee of the Estate of Donald Graeme Warring, deceased) | Defendant |
- and –
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2018 00225
| LYNNE MARGARET WALTERS | Plaintiff |
| v | |
| JANE ELIZABETH PERTON (who is sued as trustee of the Port Eagle Investment Trust and as Executrix of the Will and Trustee of the Estate of Donald Graeme Warring, deceased) | Defendant |
| - and – | |
| JANE ELIZABETH PERTON (as Trustee of the Port Eagle Investment Trust) | Plaintiff by Counterclaim |
| v | |
| LYNNE MARGARET WALTERS | Defendant by Counterclaim |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 12 July 2023, 16, 25 August 2023, 9 October 2023; final written submissions dated 1 and 2 November 2023 |
DATE OF JUDGMENT: | 22 December 2023 |
CASE MAY BE CITED AS: | Walters v Perton (Costs No 2) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 785 |
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PRACTICE AND PROCEDURE – Costs – Outstanding costs issues – Where costs judgment has already been delivered – Quantification of recoverable costs and disbursements – Allocation of costs and disbursements across two substantive proceedings that were heard together – Whether costs incurred following costs hearing and judgment are recoverable – Final costs orders to be made.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | R Garrett KC | Nedovic Lawyers |
| For the Defendant | D Farrands KC L Mills | Darrer Muir Fleiter |
HER HONOUR:
These reasons deal with the outstanding costs issues between Lynne Walters and Jane Perton across three related proceedings in this Court.[1] The issues arise from the will of Donald Warring (Lynne’s partner and Jane’s father) and his testamentary disposition of property. Don died on 4 February 2017. The home in which he and Lynne had been living (the Eaglemont property) was held by a trust of which Jane was trustee. Jane was also executor of the will.
[1]These reasons assume some familiarity with the issues arising across the three proceedings, as well as three sets of reasons published by Derham AsJ. I adopt the names and other definitions used in my principal and subsequent judgments.
In 2017, Jane, in her capacity as trustee, commenced an action to recover possession of the Eaglemont property (the possession proceeding). On 31 October 2017, Derham AsJ granted summary judgment in the possession proceeding and ordered Lynne pay Jane’s costs. In a later application, Lynne successfully obtained a stay on the execution of those costs orders, and obtained favourable costs orders in making the stay application.[2] Payment of those costs to Lynne was also stayed pending determination of two related proceedings.
[2]See Perton v Walters 2018 VSC 445.
Lynne commenced the first of those related proceedings in 2017 claiming further provision from the will under Part IV of the Administration and Probate Act (the Part IVproceeding). Lynne was successful in that claim, in which I ordered further provision.[3] The quantum of the Part IV provision was determined following a further hearing on 13 and 17 April 2023 (the April hearing) with reasons published 20 June 2023.[4]
[3]See Walters v Perton [2023] VSC 37 (‘Primary Judgment’).
[4]See Walters v Perton(No 2) [2023] VSC 335.
The second related proceeding, which Lynne also commenced, sought declaratory and other relief (the TEP proceeding). There were three principal issues in that proceeding:
(a) First, whether Don’s estate held a beneficial interest in the Eaglemont property.
(b) Secondly, whether Don’s estate held shares in the company through which he had conducted his business prior to retirement.
(c) Thirdly, whether Don’s interest, as registered proprietor of the land from which that company principally operated in Bell St, Heidelberg, was subject to encumbrance because it was mortgaged to support a guarantee of bank borrowings of the business.
The TEP proceeding was also determined by my reasons dated 9 February 2023.[5] Lynne was successful only on the third issue.
[5]Primary Judgment (n 3).
Within the TEP proceeding there were three existing costs orders relating to specific interlocutory issues that Derham AsJ also heard and determined:
(a) First, Lynne issued subpoenas for Jane to produce bank documents and financial information. Jane objected to production. Jane was unsuccessful in that objection and was ordered to pay Lynne’s costs.[6]
(b) Secondly, Jane applied for removal of Lynne’s caveat lodged over the Eaglemont property prior to trial. Prior to the hearing Jane informed the Court that she no longer pressed the application and was ordered to pay Lynne’s costs thrown away as a result.[7]
(c) Thirdly, an argument that Lynne raised for a preliminary determination of matters pursuant to r 47.07 of the Supreme Court (General Civil Procedure) Rules 2015. Lynne was unsuccessful in this application and ordered to pay Jane’s costs.[8]
[6]Walters v Perton [2019] VSC 356.
[7]Walters v Perton(No 2) [2019] VSC 542.
[8]Walters v Perton (No 3) [2019] VSC 733.
Following argument as to the appropriate costs orders during the April hearing, I published reasons as to costs (Costs Ruling).[9] In summary, I concluded that the issues regarding the approach for payment of costs were resolved as follows:
[9]Walters v Perton (Costs) [2023] VSC 380 (‘Costs Reasons’).
(a) The total costs of the Part IV and TEP proceedings be apportioned equally.
(b) Jane pay Lynne’s costs of the Part IV proceeding as a gross sum on an indemnity basis, fixing an amount for set fees but requiring further information regarding apportionment of disbursements.
(c) Jane pay Lynne’s costs of the TEP proceeding on a standard basis subject to a 20% reduction in costs overall to account for issues on which Lynne was unsuccessful. This reduction was not to apply to the three existing costs orders.
(d) The three existing costs orders in the TEP proceeding should not be vacated. They should each be paid on a standard basis. To avoid taxation, the parties should provide the Court with an assessment of these costs.
(e) The parties must provide further information before determination of the stay on the costs orders in the possession proceeding.
(f) Further information is required to determine the extent to which Jane is entitled to be indemnified from the estate in respect of her costs.
Pursuant to those reasons I made the following costs orders on 29 August 2023 in the Part IV proceeding:
6. The defendant pay the plaintiff’s solicitors’ fees of this proceeding, pursuant to r 63.07(c) of the Supreme Court (Civil Procedure) Rules 2015, fixed as a gross sum of $290,000, within 30 days of the date of this order.
7. The parties prepare a joint document for the Court to be filed by 29 September 2023. The document is to identify the outstanding quantification of disbursements in accordance with the reasons of the Court published 6 July 2023 listing the quantum of disbursements that have been agreed and those that remain in dispute.
Disbursements were not payable within the gross sum, as the question of attribution of disbursements to the Part IV proceeding and the associated TEP proceeding remained outstanding.
In the TEP proceeding I made the following order, also on 29 August 2023:
4.The parties prepare a joint document for the Court to be filed by 29 September 2023. The document is to identify the outstanding quantification of costs and disbursements in accordance with the reasons of the Court published 6 July 2023 listing those costs and disbursements that have been agreed and those that remain in dispute.
Since delivery of the Costs Ruling the parties have worked to refine the costs estimates and narrow the quantification issues in dispute. The intention of the approach as stated in the Costs Ruling was to minimise any further increase in costs beyond that which was absolutely necessary given the substantial costs already incurred in this dispute.[10]
[10]Ibid [69].
In the April hearing Lynne provided an estimate of her costs and disbursements across both the Part IV and TEP proceeding and had submitted that I fix costs in accordance with those estimates. The estimated costs, on an indemnity basis for both proceedings, were $419,300 plus disbursements of $246,050. Since that estimate, Lynne says she has incurred, and claims, a further $252,276 of fees and disbursements in the Part IV proceeding and $167,007 of fees and disbursements in the TEP proceeding. As can be seen below, the process of narrowing the amounts in dispute had limited success. Indeed, the additional costs claimed are substantial and resulted in agreement in round terms of only a further $56,000 in costs. In my view this did not achieve my stated aim of limiting the further accrual of costs.
The parties have made submissions outlining the further matters that are agreed and the matters remaining in dispute. The parties are content that I resolve the outstanding matters on the basis of their written submissions unless I find it necessary to hear further from them. The parties’ failure to achieve agreement or compromise on many matters that were either small in quantum or straightforward in contest is perhaps unsurprising given the long and bitter history of the dispute. I observe in particular the affidavit of Ms Dealehr and her exhibited email of 1 November 2023, demonstrating the difficulties she experienced in engaging in a discussion with a view to reaching a compromise on the disputed matters. It has required me to undertake a more detailed and arithmetical task than is desirable or that had been anticipated. That task is necessarily somewhat imprecise and impressionistic. It is an assessment rather than a mathematical exercise.
With that introduction, the outstanding issues fall broadly into two groups: first, disputes regarding costs and disbursements incurred prior to 14 March 2023 and secondly, those incurred from 14 March 2023 onwards. Lynne’s costs estimate before the Court at the time of the hearing as to quantum was contained in her affidavit sworn 17 March 2023. Those estimates formed the basis of her submissions in the April hearing,[11] and formed the basis of my Costs Ruling on 6 July 2023. The parties dispute an entitlement to legal costs incurred from 14 March 2023 onwards, or alternatively after the date of the costs judgment on 6 July 2023.
[11]Ibid [24]-[25].
I have the following material before me for the purpose of these reasons:
(a) From the plaintiff:
(i) Affidavits of Peter Nedovic sworn 23 August 2023 and 1 November 2023.
(ii) An Affidavit of Catherine Dealehr sworn 1 November 2023. This exhibited four substantive reports, and a fifth report which was an amended version of her third report. The first report dealt with costs issues prior to 14 March 2023. Principally the relevant matters are found in the first report and the amended third report.
(iii) An Outline of Submissions dated 1 November 2023 filed pursuant to orders made on 9 October 2023. The submissions are accompanied by a table summarising items agreed and those in dispute and providing agreed figures and disputed figures.
(b) From the defendant:
(i) Affidavits of Shane Dare sworn 23 and 24 August 2023 and 2 November 2023. The 2 November 2023 affidavit exhibits a letter and costs assessment from Ms Antonella Terranova of Castra Legal Costing.
(ii) Submissions dated 2 November 2023.
In addition to the gross costs sum already ordered and paid, the parties now agree on the following amounts:
# Proceeding Jane to pay Lynne to pay 1. TEP Caveat removal (total) $31,199.14 Subpoena issues (total) $16,668.81 2. Possession proceeding
(summary judgment)
Disbursements only $8,930.20
| # | Proceeding | Lynne’s quantification | Jane’s quantification | Difference |
| 1. | Pt IV Disbursements | $196,877.99 | $171,804.39 | $25,073.60[12] |
| 2A. | TEP (at 80%) | |||
| Costs | $141,836.31 | $117,380.56 | $24,455.75 | |
| Disbursements | $129,513.00 | $114,466.13 | $15,046.84 | |
| Total | $271,349.31 | $231,846.69 | $39,502.62 | |
| 2B. | O 47 separate trial | |||
| Costs | $8,000 | $12,888.34 | $4,888.34 | |
| Disbursements | $17,429.62 | $39,650.61 | $22,221 | |
| Total | $25,429.62 | $52,538.95 | $27,109.33 | |
| 3. | Possession proceeding | |||
| 3A. | Summary judgment costs | $33,557.18 | $35,517.18 | $2,000 |
| 3B. | Stay application | |||
| Costs | $46,158.20 | $25,885.96 | $20,272.24 | |
| Disbursements | $24,959.88 | $19,155.58 | $5,804.30 | |
| Total | $71,118.08 | $45,041.54 | $26,076.54 |
[12]This figure encompasses the late addition of counsel’s fee for 11 February 2023 at 50% of $9,900 attributable to the Part IV proceeding.
In relation to costs incurred prior to 14 March 2023, the following issues of quantification therefore remain for resolution:
In relation to costs and disbursements incurred from 14 March 2023, Lynne seeks the following:
(a) in the Part IV proceeding, on an indemnity basis: $252,266.78;
(b) in the TEP proceeding, on a standard basis: $167,008.38 (before applying the 20% reduction); and
(c) in the possession proceeding, $297 for an overlooked disbursement relevant to the stay application incurred prior to 3 July 2023.
The possession proceeding – stayed costs orders
Lynne seeks her costs of the stay application in the possession proceeding on an indemnity basis. Lynne had previously submitted that the stay on both costs orders should be made permanent. In the written submissions her position is now that the order made by Derham AsJ ought be changed such that she recover her costs on an indemnity basis. This submission is made on the basis that Jane’s conduct in evicting Lynne in the face of Jane’s legal advice that Lynne had a moral right to the provision of accommodation warrants the Court marking its disapproval by an indemnity costs order.
As before, Jane submits that the stay should be lifted and the costs orders should be quantified, both on a standard basis.
Accordingly, it appears now the parties agree that the stays ordered by Derham AsJ not be made permanent. The dispute is narrow in compass. In relation to the stay order that Lynne pay Jane’s costs incurred in obtaining summary judgment, the proceeding before the Costs Court was almost ready to be heard. A taxable bill had been provided and objections made. As a result, the parties now agree on the disbursements and the difference on professional fees is just $2,000. Essentially, Jane claims that the sum arrived at following the reduction for objections made gives the figure of $35,557.18. Lynne’s figure allows for some further deductions at taxation. In light of the substantial agreement I propose to allow professional fees at $34,557.18. There is no good reason why the parties could not have agreed on this compromise. Together with agreed disbursements, the costs order in Jane’s favour would be in the sum of $43,487.38.
Lynne’s figures at 3B in the table above at [17] are those calculated on the indemnity basis she seeks. If costs are to be awarded on a standard basis, the parties agree as to the quantum at $45,041.54.
The costs ordered by Derham AsJ were payable on a standard basis. In the reasons delivered on 14 August 2018, his Honour chronicled the events post judgment for possession and set out matters in which he was critical of Jane’s conduct in not disclosing the source of the funds used by the Trust to purchase the Eaglemont property.
It is not clear to me whether an application was made and refused for indemnity costs at the time of the orders or whether standard orders only were sought. Either way, it is not appropriate to revisit the basis of those orders now. I am not in a position to exercise a costs discretion in relation to an application heard and determined by another judicial officer. I have made an order for costs on an indemnity basis in relation to the Part IV proceeding in recognition of aspects of Jane’s conduct in the relevant proceeding before me. Therefore the position regarding Lynne’s costs on the stay application is that she is entitled to costs on a standard basis as ordered. By agreement as to calculation these are $45,041.54 (subject to changes discussed later in this ruling).
This would mean that in the possession proceeding Lynne is responsible for $43,487.38 of Jane’s costs, and Jane is responsible for $45,041.54 of Lynne’s costs, which means Jane should pay Lynne $1,554.16 (subject to changes discussed later in this ruling).
Although the parties indicated that I should deal with the question of lifting or maintaining the stay, it was not explicit that I would necessarily fix the costs. As a result I would order that the stay be lifted. If the parties wish to resolve those costs matters in accordance with their agreement and otherwise these reasons it seems there would simply remain a need to finally and formally make orders dismissing the proceeding and any necessary orders as to costs.
The Part IV proceeding – to 14 March 2023
The first major dispute is the quantum of disbursements apportioned to the Part IV proceeding, centring primarily on counsel’s fees. There are two aspects: the amount of counsel’s fees and the allocation of those fees between proceedings.
Lynne claims disbursements of $196,877.99. Jane accepts disbursements of $171,804.39. The dispute therefore is over a sum of $25,073.60.
Jane submits that all counsel fees that have been claimed as charged should be allowed at scale, particularly as there is no written cost agreement in accordance with the Legal Profession Uniform Law.
Lynne’s senior counsel has charged $9,000 per day/$900 per hour exclusive of GST. This was above scale for work done between 2017 and 2019.[13] From 2020 the applicable scale exceeded $9,000 per day and the amounts charged were within the appropriate scale exclusive of GST. Ms Dealehr has determined that Lynne’s counsel’s fees were $55,647 prior to the commencement of the TEP proceeding (as charged in the Part IV proceeding), and $225,541 subsequent to the commencement of the TEP proceeding (to be attributed 50% to the Part IV proceeding).[14]
[13]Exhibit CD-1, Affidavit of Catherine Mary Dealehr sworn on 1 November 2023 in Walters v Perton S CI 2017 02159, Table 7, which states the scale for Senior Counsel is as follows: in 2017 - $8,421; in 2018 - $8,539; and in 2019 – $8,770.
[14]Ibid, Table 3.
In the Part IV proceeding, given the award of indemnity costs, the amounts as charged are recoverable. Ms Dealehr expresses the opinion that although some amounts are above scale, the amounts charged are fair and reasonable. I observe that the amounts are not substantially in excess of scale and in some cases exceed it only because of the allowance for GST. I also observe that for much of the proceeding, counsel appeared without a junior. I will allow counsel’s fees as charged rather than at scale across both proceedings. The amounts charged, and the obligation to pay GST on the provision of those legal services, is a reasonable expense. To the extent necessary to do so, I will certify those fees.
In Annexure B to Jane’s submissions dated 24 August 2023, Jane sets out her explanations of the disputed allocation of disbursements to the Part IV proceeding. These are dealt with in turn below.
(a) Item 1: Lynne allocates $4,180 to the Part IV proceeding. Jane submits that $3,520 is properly apportioned to the possession proceeding as the fee slip makes clear that work was drawing defences in that proceeding. I accept this submission.
(b) Item 2: Lynne allocates $550 to the Part IV proceeding. Jane submits that the fee slip relates to advice on the Harman undertaking and should be re-allocated to the stay application in the possession proceeding. I agree. This amount is to be added to the agreed disbursements of the stay application.
(c) Item 3: Lynne allocates $1,430 to the Part IV proceeding. Jane submits that some work relates to the Harman undertaking ($550). I agree. This too will be added to the agreed disbursements of the stay application.
(d) Item 4: Lynne allocates $2,000 to a fee from ‘Tim North QC’ on 9 May 2018, prior to engaging Mr Garratt KC. Jane submits that this should be disallowed because Mr North did not appear in the proceeding and has only charged for initial reading and conference. The Part IV disbursements are to be paid on an indemnity basis. Counsel’s fees are recoverable on an indemnity basis unless they are of an unreasonable amount or have been unreasonably incurred.[15] Therefore, I will allow senior counsel’s fee at $2,000.
[15]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.30.1(1).
(e) Item 5: Lynne allocates $3,575 equally across the Part IV and TEP proceedings. Jane disputes this on the basis that only $825 overlaps across the two proceedings and the remaining $2,750 relates solely to the TEP. Counsel’s fee slip identified an amended statement of claim ($2,750), which relates to the TEP proceeding, and a summons and affidavit in support, which relate to the stay on the bankruptcy proceeding and leave to amend the pleading. I accept Jane’s submissions as to apportionment. Instead of $1,785.50 being allocated to each proceeding, I will allocate $412.50 to the Part IV proceeding and $3,162.50 to the TEP proceeding.
(f) Item 6: Lynne allocates $3,960 of counsel’s fees from 22 June 2018 equally between the Part IV proceeding and the stay application in the possession proceeding. Jane submits that, because it does not identify the proceeding, it should be reallocated to the overlapping TEP/Part IV proceedings. I disagree. I accept the allocation, which would be clear from the advice to which it refers.
(g) Item 7: Lynne allocates $7,372.90 to photocopying and scanning costs equally across the overlapping TEP/Part IV proceedings. Jane submits that these are part of professional fees and are not claimable as third party disbursements but rather part of the gross sum already fixed for professional fees. Reproduction of documents is identified in the Supreme Court Scale of Costs at Item 4. It allows an amount at the discretion of the Costs Court. I accept the submission that the cost of scanning and copying properly form part of solicitors’ fees rather than disbursements and are therefore accounted for in the gross costs sum ordered and as part of the already assessed TEP fees.
(h) Items 8 & 9: Lynne allocates a total of $2,970 for counsel’s fees incurred regarding the issue of subpoenas in July/August 2019. Jane submits that these fees should be allocated to the TEP proceeding because that is the proceeding in which the subpoenas were issued. While it is true that the subpoenas were issued in the TEP proceeding, the Court granted leave to issue them during the application to stay the bankruptcy proceeding, and they were largely directed at financial circumstances regarding encumbrance of the Bell St property that Don provided as security for business borrowings. They were thus critical for the resolution of the Part IV proceeding. As I said relevantly in the Costs Ruling at paragraph [78]:
[G]iven that the bankruptcy application sought to have a strategic effect on the Part IV proceeding, I would include the allowance estimated in Lynne’s costs associated with that application as falling within the Part IV costs, and not the TEP costs.
I accept that these fees properly are allocated to the Part IV proceeding.
(i) Item 10: Lynne allocates $2,970 to the TEP proceeding. Jane submits that half of this amount relates to the preliminary question determination and should be apportioned to that application. Based upon the description in the relevant fee slip, I accept Jane’s submission.
(j) Items 11-13: Lynne allocates a total of $8,910 equally across the Part IV and TEP proceedings. Jane submits that each relates solely to pleadings in the TEP proceeding and should be allocated entirely to that proceeding. I accept this submission.
The total sum of the amounts in Annexure B is $37,917.92. Of this amount:
(a) $3,932.50 was agreed to be allocated to the Part IV proceeding.
(b) $4,970 will remain allocated to the Part IV proceeding.
(c) $5,830 will be reallocated from the Part IV proceeding to the TEP proceeding.
(d) $4,620 will be reallocated from the Part IV proceeding to the possession proceeding, including $1,100 that are disbursements in the stay application and will increase the amount payable by Jane in respect of that application, resulting in a total of $46,151.54.
(e) $3,686.46 will be disallowed from the Part IV proceeding.
(f) $7,727.50 was agreed to be allocated to the TEP proceeding.
(g) $1,485 will be reallocated from the general TEP proceeding to the separate trial for the preliminary questions determination.
(h) $3,686.46 will be disallowed from the TEP proceeding.
(i) $1,980.00 will remain allocated to the possession proceeding.
As set out in the table at paragraph [17], Jane says Lynne’s disbursements should amount to $171,804.39, while Lynne seeks $196,877.99. Jane’s figure does not include the late addition of counsel’s fee for 11 February 2023, which I will accept. That means the disputed amount would be $20,123.60. The total value of the disputed (and now resolved) amounts in Annexure B to Jane’s submissions dated 24 August 2023 is $19,106.46, which leaves a $1,017.14 discrepancy.
Jane also disputes amounts set out in the 2 November 2023 Castra report of Ms Terranova[16] at paragraph 1(d)(ii) in the Part IV section: ‘Further items for photocopying in Disbursement Table that are disputed as disbursements: 6-7; 12; 22; 34; 48; 55; 64 and 121’, to which Jane refers in her 3 November 2023 submissions. In total, those amounts allocated to the Part IV proceeding (other than Item 64 – $7,373.92 – which is already accounted for), come to $2,409.33. Problematically, this is more than the discrepancy.
[16]Exhibit SWD-8, Affidavit of Shane Dare sworn 2 November 2023 in Walters v Perton S CI 2017 02159.
I am inclined to disallow these claimed scanning and photocopying costs as disbursements, as I did so with the larger figure. However, I will not go beyond the discrepancy amount. Accordingly I will disallow the remaining discrepancy of $1,018.14. This means that, of the total amount of $196,877.99 that Lynne seeks for disbursements, I will disallow or reallocate $15,153.60. I will order Jane pay Lynne $181,724.39 for Lynne’s disbursements in the Part IV proceeding before 14 March 2023.
TEP proceeding
Fees are in dispute in two aspects of the TEP proceeding. First, there is one remaining interlocutory costs order in relation to the separate question application. Secondly, putting to one side the three interlocutory costs orders, there is the quantum of fees and disbursements payable on a standard basis and subject to a 20% reduction.
Jane has an order for costs in her favour in the separate question application. The quantum of those costs is set out in the affidavits of Shane Dare sworn 24 and 30 August 2023. This discloses solicitors’ fees of $12,888.34, counsel’s fees of $59,736.92 and other disbursements (being transcript) of $439.78. All figures include GST. Some reduction was warranted for items not solely related to the separate question, both as to counsel’s fees and solicitors’ fees. Ms Terranova’s report, dated 2 November 2023, ‘moderates’ counsel’s fees to $39,650.61. This appears to includes correction of some errors in the earlier information together with a reduction for work unrelated to the separate question.[17]
[17]Specifically Ms Terranova notes that Counsel’s fees identified in paragraph 8 of Mr Dare’s affidavit of 24 August 2023, items 1,10,11,12 and 13 appear to relate to matters other than the separate question.
Lynne’s position was that solicitors’ fees be $8,000, and counsel’s fees be $17,429.62.
Consideration
The fee slips identified as relating to the separate question application (leaving aside the four matters that Ms Terranova identifies as unrelated) include something in the order of 14 hours of preparation and research over and above time settling submissions and the 6.5 hours of preparation included in the brief fee. In my view, it is likely that much of this preparation would not be recoverable on a standard basis. In round terms I would allow solicitors’ fees of $11,000 and counsel’s fees at $26,000, both inclusive of GST.
Insofar as disbursements generally are in dispute, other than the allocation matters identified above, the issue is whether counsel’s fees on scale or as charged are recoverable. My reasoning at [31] means that counsel’s fees are as charged.
Each party has taken a different approach to quantifying the solicitors' fees. Ms Dealehr began from the starting point of total fees across both the TEP and Part IV proceedings on a standard basis at $398,156. She then apportioned 50% to the TEP proceeding ($199,078) and claimed 80% to arrive at an amount of $159,262.[18] Subsequently, allowing for the excluded costs associated with the three interlocutory costs orders, this sum was adjusted to $141,836.[19]
[18]Exhibit CD-1, Affidavit of Catherine Dealehr sworn 1 November 2023, Table 8.
[19]Exhibit SWD-8, Affidavit of Shane Dare sworn 2 November 2023, 6 ‘TEP Proceding: Costs (excluding existing Costs Orders)’ Item 2(a)(i).
Ms Terranova (of Castra legal costing) begins from the starting point that costs calculated on an indemnity basis for the TEP proceeding are $290,000. From there, fees covered by the three costs orders are excluded. These reduce the amount by $43,564.41.[20] The balance is adjusted downwards, first to account for recovery on a standard basis and then to apply a reduction to 80% of that figure. The final figure allowed by the Castra method is $117,380.
[20]$14,102 and $6,698 agreed and $22,764.41 being Lynne’s fees associated with the Order 47 application (as assessed by ALCG; see Exhibit CD-1, Affidavit of Catherine Dealehr sworn 1 November 2023, Table 6).
In my view, the Castra method is consistent with the methodology proposed in my reasons. The figure, excluding the fees of the interlocutory costs orders, is therefore $246,435.59 on an indemnity basis. Allowing 30% deduction to bring the amount to costs on a standard basis ($172,505.91), and then applying a 20% reduction to that figure, arrives at $138.003.93.
Counsel’s fees in the TEP proceeding, consistent with my earlier comments, should be calculated as charged and reduced by 20%. As calculated by Ms Dealehr this would amount to $129,513.[21] This figure must be adjusted based on changes to the disbursements allocated to the TEP proceeding as set out above in paragraph [32]. Therefore, it will increase by $4,664 (80% of $5,830) and it will decrease by $4,137.17 (80% of $1,485 and $3,686.46), which means in total it will increase by $526.83, amounting to $130,039.83.
[21]This figure encompasses 80% of the late addition of 50% of the $9,900 counsel fee on 11 February 2023.
Counsel’s fees in the stay application of the possession proceeding are agreed at $19,155.58, noting that I determined costs should be awarded on a standard basis. This must be increased by $1,100 to account for the changes in paragraph [32], amounting to a total of $20,255.58.
Therefore in summary the following costs and disbursements prior to 14 March 2023 are payable:
| # | Proceeding | Jane to pay | Lynne to pay |
| 1. | Part IV | ||
| Disbursements | $181,724 | ||
| 2A. | TEP (General) | ||
| Costs | $138,004 | ||
| Disbursements | $130,040 | ||
| Total | $268,044 | ||
| 2B. | TEP (Caveat removal) | ||
| Costs | $14,103 | ||
| Disbursements | $17,096 | ||
| Total | $31,199 | ||
| 2C. | TEP (Subpoena issues) | ||
| Costs | $6,698 | ||
| Disbursements | $9,970 | ||
| Total | $16,668 | ||
| 2D. | TEP (Rule 47.07 application) | ||
| Costs | $11,000 | ||
| Disbursements | $26,000 | ||
| Total | $37,000 | ||
| 4A. | Possession (Stay Application) | ||
| Costs | $25,886 | ||
| Disbursements | $20,256 | ||
| Total | $46,142 | ||
| 4B. | Possession (General) | ||
| Costs | $34,557 | ||
| Disbursements | $8,930 | ||
| Total | $43,487 | ||
| Grand Total | $543,777 | $80,487 | |
| $463,290 |
Accordingly, Jane is required to pay Lynne an additional $463,290 for costs and disbursements incurred prior to 14 March 2023 in the related proceedings.
Costs incurred after 14 March 2023
There is a dispute as to the allowance for fees and disbursements from the 14 March 2013. This stems from the submissions and eventual costs orders made in accordance with reasons delivered on 6 July 2023. Lynne has approached costs on the basis that the fixed sum ordered in the Part IV proceeding was a fixed sum for fees and disbursements to 14 March 2023 and that fees incurred from that date were to be paid on the same basis: that is, 50% of the overall fees on an indemnity basis, subject to quantification. On this basis 50% of the fees incurred from 14 March 2023 were attributed to the TEP proceeding and were to be paid on a standard basis, less 20% in accordance with the costs ruling. Disbursements were to be allocated as appropriate.
Jane disputes this approach, submitting that the fixing of fees in the ruling of 6 July 2023 fixed all fees in the proceeding and therefore Lynne is not entitled to any further fees or disbursements after this date.
For the reasons that follow I have concluded that:
(a) Fees in the Part IV proceeding were fixed as a global sum save for two matters:
(iii) fees in preparation for the April hearing; and
(iv) fees associated with the proper apportionment of disbursements between the TEP and Part IV proceedings.
(b) Fees in the TEP proceeding (which were not fixed by a gross sum costs order) incurred from 6 July 2023 will be allowed but not in the amount claimed.
(c) Disbursements allocated to the Part IV proceeding subsequent to 14 March 2023 will be allowed but not in the amount claimed.
(d) Disbursements in the TEP proceeding will be allowed but not in the amount claimed.
Plaintiff’s submissions
Lynne submits that the costs ruling delivered on 6 July 2023 was based upon evidence as to costs incurred prior to 14 March 2023. At that date the issues between the parties remained as to the quantum of the Part IV proceeding, the form of final relief, and costs. She says preparation for and the cost of sitting days on 13 and 17 April 2023 were not included in the estimates. Lynne submits that she is entitled to her costs from 14 March 2023 on the basis that they are not accounted for in the costs ruling dated 6 July 2023. She submits that Jane has not made any application to disallow those further costs, nor by implication should the Costs Ruling be interpreted as disallowing costs or disbursements after this date.
Further, Lynne submits that there is nothing that would prevent her from recovering the costs necessarily incurred in taking the steps needed to appropriately quantify her costs beyond 14 March 2023. She submits that these costs have been ‘magnified’ by the delay in Jane’s appointment of a cost consultant and her failure to provide the costs consultant with adequate authority to narrow issues in dispute.
As to the quantification of solicitors’ fees, Lynne submits that overall she has incurred 164.80 hours to 6 July 2023 and a further 336.4 hours to 25 October 2023.
Lynne says that these costs include those incurred in relation to Jane’s foreshadowed application for a stay on payment of the further provision. Jane’s instructions were conveyed to the Court on 12 July 2023 that refinancing was necessary in order to make the payment.[22] Lynne says this caused her lawyers to incur additional costs and disbursements including the issue of subpoenas and Notices to Produce. Jane abandoned the foreshadowed stay application without explanation on 25 August 2023 and, on 29 August 2023, paid the further provision in accordance with the orders. Lynne says that additional work is costed at 34.4 hours.
[22]Transcript of Proceedings, Walters v Perton (Supreme Court of Victoria, S CI 2017 02159 and S ECI 2018 00225, Justice Forbes, 12 July 2023) 7.17-8.10.
Lynne also includes 4.5 hours charged in relation to a foreshadowed appeal. I will put that to one side as appeal costs given that Jane has now filed an appeal.
Lynne also includes 4.1 hours charged in relation to work incurred in response to Jane’s submissions regarding the lack of entitlement to costs from 14 March 2023. Given the mixed success, it is not reasonable that this be included as an additional cost to the cost quantification generally.
Defendant’s submissions
Against this, Jane submits that the application for a gross sum costs order did not provide any estimate of future fees and Lynne filed no additional evidence updating the costs incurred at the time of hearing on 13 April 2023. Therefore, for the period up until 6 July 2023 when the costs ruling was published, Jane submits that Lynne is seeking to re-agitate an issue already determined. This is reflected in order 6 of the orders made on 29 August 2023, as set out above. The Court on that day declined to make an order that Lynne sought that would have permitted the Court to separately address the quantum of fees and disbursements payable from 14 March 2023.[23]
[23]Defendant, ‘Defendant’s Submissions in relation to Outstanding Costs Issues’, Submissions in Walters v Perton S CI 2017 02159 and S ECI 2018 00225, 2 November 2023, [38].
Beyond 6 July 2023, Jane submits that the Costs Ruling did not reserve any determination of costs incurred after that date in either the Part IV or TEP proceeding and that the Costs Ruling has conclusively fixed or capped the costs payable to Lynne’s solicitor.
Consideration
Lynne’s submission as to the quantum of her costs and disbursements in the Part IV and the TEP proceeding between 14 March 2023 and 25 October 2023 totals $419,275 before applying the 20% deduction for costs and disbursements incurred in the TEP proceeding.[24] This sum is comprised of:[25]
[24]Exhibit CD-7, Affidavit of Catherine Dealehr sworn 1 November 2023; replicated Plaintiff, ‘Outline of Submissions of Lynne Walters’, Submissions in Walters v Perton S CI 2017 02159 and S ECI 2018 00225, 1 November 2023.
[25]Exhibit CD-7, Affidavit of Catherine Dealehr sworn 1 November 2023.
In the Part IV proceeding, assessed on an indemnity basis:
(a) $88,145.50 incurred between 14 March and 6 July 2023, consisting of costs of $49,832.50 and disbursements of $38,313.00;
(b) $134,303.74 incurred between 7 July and 25 October 2023, consisting of costs of $86,477.75 and disbursements of $52,507.08; and
(c) an additional $25,136.24 for costs and disbursements incurred in relation to the stay application for further provision, the foreshadowed appeal and the argument about the entitlement to costs from 14 March 2023 (noting the last two have not been included in this consideration).
In the TEP proceeding, assessed on a standard basis:
(d) $58,921.59 incurred between 14 March and 6 July 2023, consisting of costs of $36,621.84 and disbursements of $22,299.75;
(e) $106,175.29 incurred between 7 July and 25 October 2023, consisting of costs of $65,196.63 and disbursements of $40,979.66; and
(f) an additional $1,911.50 for costs and disbursements incurred in relation to the foreshadowed appeal and the argument about the entitlement to costs from 14 March 2023 (noting these are both disallowed).
In total, Lynne’s solicitors claim 501.2 hours across both proceedings for the period 14 March to 25 October 2023. The calculation and attribution of hours reflects an instruction to Ms Dealehr that my orders fixed a sum in the Part IV proceeding only to 14 March 2023. All subsequent work has been calculated on the basis of a 50% attribution to each proceeding with Part IV fees claimed on an indemnity basis and TEP costs at 80% standard basis.
The order did not make such a limitation fixing costs only until 14 March 2023. It fixed the fees for the proceeding on the basis of estimates provided by Lynne’s lawyers. It fixed an overall sum for that proceeding on an indemnity basis. By not fixing disbursements I accept that some additional work was required on this question and should be allowed. The remaining issue in the Part IV proceeding was a limited one: the proper attribution of disbursements to that proceeding.
It is necessary to return to the costs submissions prepared for the hearing on 13 and 17 April 2023 and what was said during the hearing.
In the TEP proceeding, by submissions dated 28 February 2023, Lynne dealt with costs issues in paragraphs [164]-[172] and also addressed the recovery of costs on an indemnity basis. By submissions dated 27 March 2023 in the Part IV proceeding, Lynne addressed costs:
[42] It is submitted that it is open to the Court, in the exercise of its powers under the CPA, to revoke or vary (as the case may be) the interlocutory costs orders previously made in either proceeding and to replace them with orders, as the facts are now known, which further the overarching purpose. Those orders would be that Jane pays Lynne’s costs of the Part IV proceeding and the TEP proceeding on an indemnity basis. Lynne’s costs of the Part IV proceeding on an indemnity basis are approximately $665,000 (comprising Counsel’s fees and other disbursements of $246,050.02, and solicitors costs of $419,300). Lynne seeks an order that Jane pays this sum, less ten percent (10%), rounded to $590,000. It is submitted that the interests of justice are better served by one embracing order in each proceeding in place of so many individual orders.
On 13 and 17 April 2023, I heard evidence and submissions as to the quantum of the Part IV claim and the issue of costs generally. The evidence on that occasion included cross-examination of Mr Dare in respect of the attribution and calculation of costs. Mr Nedovic had been cross-examined during the trial. The closing submissions dealt with the competing positions as to the costs of the proceedings. In relation to the overall position regarding costs, Lynne submitted that the Court should make an order for payment of a fixed amount of discounted costs claimed in the two proceedings totalling $985,000, being the sum of $590,000 in the Part IV proceeding and $395,000 in the TEP proceeding.[26] In making this submission, Lynne said that the sums did not include costs incurred preparing for and conducting the hearing that commenced on 13 April 2023.[27] Those amounts are not separately identified in the subsequent documents.
[26]Transcript of Proceedings, Walters v Perton (Supreme Court of Victoria, S CI 2017 02159, Justice Forbes, 13 and 17 April 2023), 129.10; 130.12-14 (Costs Transcript).
[27]Costs Transcript 129.14.
In my view the costs associated with the two day hearing as to quantum of the Part IV claim are not caught by the gross costs sum ordered because that issue was specifically raised by counsel and excluded at the time the orders were sought. Although I did not accede to the quantum of the fees fixed, I did accept that fixing fees was an appropriate method. Given that the estimate was stated not to take account of these additional costs that are clearly principally related to the Part IV proceeding, the additional costs are not caught by the fixed sum ordered.
Lynne claims 164.8 hours of solicitors’ fees over the 14 March – 6 July period – which is slightly more than 10 hours per week – at $604.64/hour in the Part IV proceeding and $444.44 in the TEP proceeding prior to the further 20% reduction. I will allow an allocation for costs incurred in preparation for the April hearing and with respect to the April hearing, but nothing further with respect to costs incurred in the Part IV proceeding until 6 July 2023. I would accept that a greater than average amount of work would have occurred in the three week period in preparation for the April hearing, so I will allow a further sum of $25,000 costs for solicitors’ fees in the Part IV proceeding up until 6 July 2023.
Regarding disbursements in the Part IV proceeding in the period to 6 July 2023, Ms Dealehr’s amended third report identifies three fees totalling $21,978 allocated to the Part IV proceeding (a large fee on 17 March of $17,820 and small fees on 20 June and 6 July) and five fees totalling $32,670 overlapping across the Part IV and TEP proceedings (26 March, 11 April, 12 April, 13 April and 17 April 2023). I presume the 17 March 2023 fee is associated with the further evidence that was due on the same date, so I will allow that amount. I will also allow $4,158 for the fees charged on 20 June and 6 July 2023 (the date of the subsequent judgments). Regarding the overlapping costs, which I presume relate to the 13 and 17 April hearing: this hearing was about the quantum of further provision. In my view it related exclusively to the Part IV proceeding. I will allow counsel’s fees of $30,000 in the Part IV proceeding (rounding up for two days’ hearing and a total of one day preparation at $9,900), and I will also allow for other disbursements totalling $431.24.[28]
[28]Exhibit CD-3, Affidavit of Catherine Dealehr sworn 1 November 2023, Table of Disbursements 14 March – 4 September.
Therefore, in the Part IV proceeding between 14 March and 6 July 2023, I will order Jane pay Lynne an additional $77,409 for costs and disbursements.
The work involved in opposing the foreshadowed application to stay payment of the further provision is a cost that could not have been anticipated at the time the estimate was provided to the Court. I would allow costs for solicitors’ fees of $16,087.50,[29] counsel’s fees of $5,940 and a filing fee of $127.20, for a total of $22,145.[30]
[29]This is the figure in the Summary of Costs and Disbursements Agreed and Remaining in Issue as at 1 November 2023, which is different to the figure on page 3 of the ALCG 4th report, to which it refers. I will adopt the figure in the table, as this is the more up-to-date figure.
[30]As identified in Exhibit CD-3, Affidavit of Catherine Dealehr sworn 1 November 2023, Table of Professional Fees and Table of Disbursements/Senior Counsel Fees.
Lynne’s costs incurred in the Part IV proceeding from 6 July 2023 to 25 October 2023, other than costs incurred in relation to the foreshadowed stay application, the foreshadowed appeal and other minor dispute regarding future costs, would only have been incurred with respect to additional work needed to identify and allocate disbursements. In my view, Lynne’s allocations for these costs are excessive. That work had been completed by the time of Mr Dealehr’s first report dated 8 August 2023..[31] I will allow $17,500 for solicitors’ fees – a figure representing an allowance of between 10 and 15 hours work including an allowance for photocopying and scanning costs, which I have disallowed as a disbursement.
[31]Exhibit CD-1, Affidavit of Catherine Dealehr sworn 1 November 2023, 2.
I turn next to Lynne’s disbursements claimed from 6 July 2023 to 25 October 2023, other than those in the foreshadowed stay application, the foreshadowed appeal and other minor disputes. Lynne claims $24,832.50 for counsel’s fees charged across both proceedings on 29 August 2023, which presumably relates in part to a mention on 25 August, and possibly additional mentions on 16 August and 12 July, and possibly work done in advancing the spreadsheet. I will allow a lesser amount of $14,850 representing three half days of counsel work. I will allocate 70% of this figure to the Part IV proceeding ($10,395) and 30% to the TEP proceeding ($4,455), which are roughly the proportions Lynne suggests. Similarly, I will allow $4,950 (one half day) for counsel’s fees charged on 13 October 2023, which I deduce relate solely to the 9 October mention. I will allocate $2,475 to each proceeding. Further, I will allow counsel’s fees of $330 in each proceeding for 25 October 2023.
I will make orders for payment of the ALCG reports, totalling $15,873.96 (representing 50% of the full cost) in each proceeding. I will not reduce the disbursement of the ALCG reports by 20% in the TEP proceeding given the central role played by Ms Dealehr in seeking to resolve the costs issues and the invaluable assistance derived from her reports in resolving the present disputes on the papers. I will allow further disbursements of $571.89 in each proceeding for transcript and Infotrack search fees, but I will not allow additional payment for the subpoena filing in the Part IV proceeding or the caveat withdrawal in the TEP proceeding, as these have already been agreed or dealt with. I will not allow the amount charged for photocopying and scanning as a disbursement but have included an allowance in the additional fees.
Therefore, in the Part IV proceeding from 6 July to 25 October, including with respect to the foreshadowed stay application, I will order Jane pay Lynne further costs and disbursements of $69,291.
I turn now to the costs incurred in the TEP proceeding from 14 March 2023. Lynne has claimed 82.4 hours for professional fees incurred between 14 March and 6 July 2023 in the TEP proceeding. However, it is unclear what work was required in the TEP proceeding until I published the Costs Ruling. Accordingly, I will disallow those costs claimed.
Lynne seeks costs for 147.4 hours of professional fees incurred in the TEP proceeding for the period from 6 July 2023, which, on a standard basis are calculated at $65,195.65.[32] In relation to the further fees incurred in assessing the costs of the TEP proceeding, it is necessary to identify and quantify the costs of the three applications that were the subject of the interlocutory costs orders. It is appropriate that Lynne recover an amount for the work involved, which post-dated the Costs Ruling. Doing the best I can from the information before me, I will allow an amount of $12,500 representing between 25 and 30 hours work on a standard basis in preparing information and instructions to Ms Dealehr. As this amount deals with the interlocutory costs orders in favour of Lynne it is not subject to the further reduction by 20%.
[32]Exhibit CD-6, Affidavit of Catherine Dealehr sworn 1 November 2023, (from a total hours of 336.4).
I will separately allow an additional $30,000 for the professional fees incurred in relation to the TEP proceeding from 6 July 2023, including an allowance for photocopying, printing and scanning, and other than with respect to the interlocutory costs orders. Reduced by 20% this amounts to $24,000.
As for disbursements incurred after 14 March 2023 in the TEP proceeding, I make the following observations:
(a) Without further information, I am currently unable to allow the $9,900 charged on 17 March 2023 for counsel’s fees in the TEP proceeding, as unlike in the Part IV proceeding it is not clear to what this relates.
(b) I have separately dealt with the overlapping counsel fees from 26 March to 17 April 2023, which I have allowed in the Part IV proceeding only.
(c) I have separately dealt with counsel fees on 29 August, 13 October and 25 October 2023, for which, for the TEP proceeding, I will allow $4,455 ($3,564 after 20% deduction), $2,475 ($1,980) and $330 ($264) respectively, amounting to $5,808.
(d) I have separately dealt with the remaining disbursements, for which, for the TEP proceeding, I will allow the full amount of $15,873.96 for the ALCG report, and $571.89 for other disbursements, amounting to $457.51 after the 20% reduction, for a total of $16,331.47.
Accordingly, I will currently allow a total of $22,139.47 for disbursements incurred in the TEP proceeding after 6 July 2023.
This means that I will order Jane pay Lynne $58,639 for Lynne’s costs and disbursements incurred in the TEP proceeding after 6 July 2023.
Finally, Jane returns to the outstanding question of the effect of the Costs Ruling on the fair and reasonable fees of Lynne’s solicitor that are not the subject of a costs order against Jane. That is, whether the fees payable to Lynne’s solicitor at $290,000 in each of the Part IV and TEP proceedings operate as a cap in relation to fees incurred. As is hopefully clear by these reasons, the Costs Ruling did not have the effect of fixing costs up until 14 March 2023 and leaving the balance of costs to accrue unchecked. The costs estimates were no doubt informed estimates provided on the basis of work done to date and anticipating finality. The fees are therefore intended to be capped for work to that time. There is likely to be an indemnity component to the costs incurred prior to that time in the TEP proceeding that, consistent with my ruling, be contained within the fees amounting to $290,000 and for disbursements.
As to fees and disbursements in the Part IV proceeding after that date, these reasons prescribed any additional costs.
There are fees and disbursements in the TEP proceeding after this date that are not caught by the estimate, there being no fixed sum ordered in that proceeding. Similarly, I have made appropriate allowances for further fees and disbursements incurred in the exercise of identifying and quantifying costs after that date that, in the exercise of my discretion I consider fair and reasonable. I am willing to certify in relation to counsel’s fees after this date when assessing the costs payable by Jane.
Other than by reference to these estimates of fees referred to in the previous paragraph, I have not otherwise been asked to deal with costs as between solicitor and client in the TEP proceeding. Nor have I been asked to address costs in the possession proceeding other than to amounts involved in the stay application. I note that costs of the possession proceeding otherwise had been finalised prior to February 2022.
In relation to the Part IV proceeding, Lynne provided an initial costs estimate in writing (Exhibit J) dated 14 April 2017. Anticipating a straightforward Part IV claim resolving at an early mediation, the fee estimate provided was $20,000, inclusive of $5,000 for counsel’s fees. No further written estimates were provided by way of disclosure statements or estimates. Nor was a fee estimate disclosed in relation to the TEP proceeding. Despite this Mr Nedovic gave evidence that he had orally kept his client informed of the increasing costs, albeit there is no written record of this before the Court. Nor is there a cost disclosure from counsel.
Jane asks rhetorically whether further information is required to clarify a determination as to Lynne’s fees payable to her solicitor. This is not a matter in which anything is required of Jane. It is a matter between Lynne and her solicitors subject to the Court’s inherent jurisdiction to ensure that legal practitioners are renumerated in a manner that is fair, reasonable and proportionate. At present there is no basis upon which to assess that, as between solicitor and client in the TEP proceeding, any further amount to be charged would be fair and reasonable.
In the event that fees charged for work prior to 14 March 2023 exceed the sum of $580,000 across both proceedings, or that disbursements for that period exceed the actual cost of disbursements allowed but recovered in a reduced amount, or in the event that recovery of additional fees and disbursements incurred after that date are sought, then the Court must be persuaded that any further amount is fair, reasonable and proportionate. The cost of that task will be borne, at least initially, by the solicitors seeking additional amounts.
Proposed orders
I will invite the parties to submit a joint form of order.
The orders I propose making are as follows:
(a) In the Part IV proceeding, Jane pay Lynne $328,424. ($181,724 in the period to 14 March 2023, $77,409 in the period 14 March to 6 July 2023, and $69,291 in the period 6 July to 25 October 2023.)
(b) In the TEP proceeding, Jane pay Lynne $337,550. ($278,911 in the period to 14 March 2023, and $58,639 in the period from 14 March to 25 October 2023.)
(c) In the possession proceeding, Jane pay Lynne $2,952. ($2,655 in the period to 14 March 2023, and $297 in the period from 14 March to 25 October 2023).
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