WGOC & GH and Anor (No. 2)
[2007] FamCA 1103
•2 August 2007
FAMILY COURT OF AUSTRALIA
| WGOC & GH AND ANOR (NO. 2) | [2007] FamCA 1103 | |||
| FAMILY LAW – COSTS | ||||
| Family Law Act 1975 (Cth) | ||||
| APPLICANT: | WGOC | |||
| FIRST RESPONDENT: | GH |
SECOND RESPONDENT: | GJK |
| FILE NUMBER: | BRF | 1742 | of | 2000 |
| DATE DELIVERED: | 2 August 2007 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Barry J |
| HEARING DATE: | 12 July 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cooke of Counsel |
| SOLICITORS FOR THE APPLICANT: | Mills Oakley Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Ms Mazur, solicitor of Butler McDermott Lawyers |
COUNSEL FOR THE SECOND RESPONDENT: | Ms Carew of Counsel |
| SOLICITORS FOR THE SECOND RESPONDENT: | Bradley & Bray Solicitors |
| SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle, Solicitor appeared as agent for Legal Aid Queensland |
Orders
The amount of $792.00 be immediately disbursed to Legal Aid Queensland on account of the previous costs orders made in favour of the Third Respondent.
The amount of $141,226.25 be paid from the trust account of Bradley & Bray Solicitors to the trust account of Butler McDermott, lawyers for the First Respondent, such funds to be retained in the solicitor’s trust account pending the determination by the Full Court on the issue of the Wife’s costs of the proceedings (other than the appeal).
Butler McDermott be at liberty to invest the sum of $141,226.25 in such form as is considered most appropriate to gain the best return, subject to such investment being in accordance with authorised investments for trust accounts pursuant to Queensland law.
The amount of $139,495.12 is to be paid from the trust account of Bradley & Bray to Mills Oakley Lawyers for release to the Applicant after payment of any outstanding fees.
Pending further Order the balance of funds retained in the trust account of Bradley & Bray to be invested in such form as is considered most appropriate to gain the best return, subject to such investment being in accordance with authorised investments for trust accounts pursuant to Queensland law.
No Order to be made pursuant to paragraph 2 of the Applicant’s Application in Form 2 filed 20 June 2007.
Costs reserved.
IT IS NOTED that publication of this judgment under the pseudonym WGOC & GH and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF1742/2000
| WGOC |
Applicant
And
| GH |
First Respondent
And
GJK
Second Respondent
REASONS FOR JUDGMENT
On 1 July 2005 I made orders which read in part:
“23.That [EGOC] do all such acts and things and sign all such documents required by or prepared by the Wife as may be required to transfer to the Trustee with Power of Sale as referred to in paragraph 25 hereof, all of his interest in the property known as Unit [A] being Lot […] on Building Unit Plan […], County of [W], Parish of [N], Title Reference […] to be held on trust for sale.
24.That if [EGOC] does not comply with Order 23 hereof within 7 days of being required to do such act or thing or sign any such documents within 7 days of receipt, a Registrar of the Family Court of Australia at Brisbane is hereby authorised to do such act or thing or sign such documents for and on behalf of [EGOC].
25.That Mr [GJK] of […] Accountants, is appointed as Trustee with Power of Sale to sell the real property as soon as possible at a reserve price of $630,000 or such other amount as the parties may mutually agree in writing. In the event the property does not sell for the sum of $630,000 or the parties are unable to agree on a reserve price then the reserve price is to be such price as determined by the valuer, [Mr M].
26.That the Trustee with Power of Sale is authorised to expend up to $5,000 or such additional amount as the parties may mutually agree in writing, in placing the property in good order and condition for sale and in advertising and marketing the property for sale.
27.That upon completion of the sale, whether by auction or private treaty, the proceeds of sale are to be disbursed by the Trustee with Power of Sale as follows:
a.in payment of all costs, commissions and expenses of the sale including the expenses of the Trustee with Power of Sale and any monies expended in reimbursement pursuant to paragraph 26 hereof;
b.to discharge any encumbrance affecting the real property;
c.the balance to be paid in the following proportions:
(i)30 per cent to the Wife;
(ii)70 per cent to the Husband.
d.the distribution to the Husband of his share of the proceeds of sale is to be retained by the Trustee with Power of Sale until the determination of all issues relating to costs orders sought by the Children’s Representative and the Wife.
28.That pending the completion of the sale the Husband pay all rates
and taxes and like apportionable outgoings of the real property as
they fall due and in the event the Husband fails to pay such
outgoings, the Trustee with Power of Sale is authorised to deduct
same from the Husband’s share of the proceeds of sale.
31.That the balance in the Heritage Building Society Account, after payment of the sum provided for in paragraph 30 hereof, is to be distributed 70 per cent to the Husband and 30 per cent to the Wife.”
The Husband filed an application in a case on 20 June 2007 seeking orders in the following terms:
“1.Pursuant to Rule 1.09 Family Law Act Rules, that it be directed that the funds held by the Second Respondent pursuant to the Order of His Honour Mr Justice Barry dated Friday, 1 July 12005 be dealt with as follows:
a.The amount of $792.00 be immediately disbursed to Legal Aid Office (Queensland) on account of the previous cost orders made in favour of the Third Respondent.
b.The amount of $141,226.25 be immediately disbursed to the Trust Account of Butler McDermott Lawyers, lawyers for the First Respondent, such funds not to be otherwise disposed of or dealt with until further Order of the Family Court or consent of the Applicant, whichever occurs first.
c.The amount of $204,955.62 (together with the accruals (if any) received on any part of the funds so invested) be deposited by the Second Respondent to the Trust Account of Mills Oakley Lawyers immediately and then dispersed (sic) as instructed by the Applicant.
d.The amount of $10,000 be retained in the trust account of the Second Respondent’s lawyers as Trustees for the Applicant and the First Respondent as security for the Second Respondent’s costs outstanding as at 20 April 2007.
2.That the Second Respondent and its solicitors deliver to the
Applicant and the First Respondent within 28 days of such order,
bills in such form which contain an explanation of the basis of such
costs, and sufficiently detailed to facilitate some broader
examination of its reasonableness together with a copy of the
retainer agreement between the Second Respondent and its lawyer
and agents.
3.The First and Second Respondents pay the Applicant’s costs of and incidental to the within Application to be assessed on a party and party basis.
4.That His Honour Mr Justice Barry excuse himself from the hearing of the above Application.
5. Such further or other Orders as this Honourable Court seems fit.”
The application to disqualify myself relates to a letter from the applicant’s solicitors to the Registrar of the Court dated 11 July 2007. I dealt with the terms of that letter at the time the application was made. I simply restate I have not been a member of any political party of any kind for at least the past 24 years. I have not belonged to any organisation such as a political Lawyers Association whether in Queensland or otherwise at any time of my life. To my knowledge no member of my family or myself has had a bumper sticker which supports a political party. Any other bumper sticker displayed is a matter personal to members of my family.
Material Relied on by the Husband
·Affidavit of instructing solicitor filed on 2 June 2007.
·Written submissions.
·Draft orders in terms identical to the application detailed above.
Wife’s Response
The Wife filed a response document on the day of hearing. In that document she seeks orders in the following terms:
“1(a)That the Husband direct and (sic) that funds held by the second respondent pursuant to the orders of his Honour Justice Barry dated 1 July 2005 be dealt with as follows:
A.that the amount of $793 be immediately disbursed to Legal Aid Office (Queensland);
B.that the amount of $141,226.25 be immediately and unconditionally disbursed to the trust account of Butler McDermott Lawyers, lawyers for the first respondent;
C.that the amount of $9,050.95 be immediately disbursed to the trust account of Butler McDermott Lawyers, lawyers for the first respondent on account of interest on previous costs orders made in favour of the first respondent;
D.that the balance of moneys held by the Trustee be held by them pending determination of any remaining costs issues relating to these proceedings and pending the appeal in respect of costs.
2.That the applicant pay the first respondent’s costs of and incidental to this application on an indemnity basis.
3. Such further orders as this Honourable Court deem meet.”
Material Filed in Support of Respondent Wife’s Orders
·Affidavit of Wife’s solicitor, Kassandra Neilson filed 12 July 2007.
Second Respondent
The second respondent is an accountant. He was appointed Trustee with Power of Sale pursuant to the terms of the orders of 1 July 2005 to effect the sale of the A Unit.
The second respondent sought orders in the following terms as detailed in a response to an application in a case filed 12 July 2007:
“1.The applicant pay the second respondent’s costs of and incidental to the application filed 20 June 2007 on an indemnity basis.
2.That the second respondent be indemnified in respect of all costs and outgoings in relation to fulfilling his role as Trustee in this matter.
3.Such further or other order as this Honourable Court may deem meet.”
Material Relied on by Second Respondent
·Affidavit of Trustee, GJK filed 11 July 2007.
·Affidavit of Mark Donald Bray, solicitor for the Trustee filed 11 July 2007.
The matter proceeded before me on the papers on 12 July 2007. The applicant husband and the second respondent were each represented by Counsel. The respondent wife was represented by her solicitor.
Brief History
The matter proceeded to trial on child and property issues over eleven days in June 2005. The Husband was not legally represented at that time. After judgment was delivered the Wife sought an order for costs. On 4 May 2006 I made an order that the Husband pay the Wife’s costs of the proceedings.
The Husband appealed the property settlement determination. The matter was heard by the Full Court (Finn, Coleman and May JJ) on 20 and 21 February 2006. On 23 June 2006 the appeal was dismissed.
By way of separate appeal the Husband also appealed the order for costs made on 4 May 2006.
This matter has not yet been determined by the Full Court. Although the solicitor for the Husband suggests in correspondence that the Full Court is awaiting submissions from the Wife the reality is, as I understand it, submissions are awaited by way of reply from the Husband. The time for lodgement of such submissions is well past.
At the commencement of the hearing before me, by consent, orders were made for the Trustee to pay the sum of $792 to Legal Aid Queensland being costs of the Independent Children’s Lawyer. Such an order was made and the legal representative from the Legal Aid Queensland was given leave to withdraw.
Sale of the A Unit
The Trustee entered into a contract of sale for the unit on 12 September 2006 for the sum of $685,000. Settlement occurred on 13 November 2006. After payment of commission and various other expenses the balance of $607,937 was deposited to the trust account of solicitors, Bradley & Bray on 24 November 2006.
The distribution statement as to moneys expended to date is set out as annexure 2 to the affidavit of GJK. The distribution statement is in the following terms:
“ Distribution Statement [GH] & [WGOC]
Sale Price $685,000.00
LESS Order 26:
Advertising $ 1,732.08
Repairs $ 1,270.50 $ 3,002.58
$681,997.42
LESS Order 27(a):
Shrapnel Downing & Elks
costs and outlays (inc GST) $ 9,048.60
Bradley & Bray
costs and outlays (inc GST) $ 6,090.46
Commission on Sale $19,332.50
Valuation fee $ 550.00 $ 35,021.56
$646,975.86
LESS Order 27(b):
Release fees on Writs - $ 118.50
Body Corporate levies
paid - $44,489.49
Less $13,624.57 [1 July 2005
order date] to 13 November 2006 (settlement) $ 30,746.42
TOTAL SETTLEMENT MONIES $616,229.44
[GH] (30% of $616,229.44) $184,868.83
[WGOC] (70% of $616,229.44) $431,360.61”
Issues to be Determined as Sought by Husband
1(i)Whether the amount of $141,226 being the amount calculated pursuant to a costs assessment order of 1 May 2007 be immediately disbursed to the trust account of Butler McDermott Lawyers, to be retained in their trust account. The solicitors for the Wife argued they should be free to release the funds to the Wife.
1(ii)Whether the sum of $204,955 should be deposited to the trust account of Mills Oakley the Husband’s solicitors and then disbursed in accordance with the Husband’s instructions.
1(iii)Whether $10,000 should be retained as security for costs of the second respondent.
2Whether an order should be made in terms of paragraph 2 of the Husband’s application requiring the Trustee and the solicitor for the Trustee to provide further details as to how their accounts are calculated.
In Relation to Paragraph 1(i) - Whether The Amount Of $141,226 Being the Amount Calculated Pursuant To A Costs Assessment Order of 1 May 2007 be Immediately Disbursed to the Trust Account of Butler McDermott Lawyers, to be Retained In Their Trust Account.
The Husband has appealed the costs order made on 4 May 2006. The decision of the Full Court is pending. An amount of $174,868.83 has been disbursed to the Wife (refer paragraph 8 of the affidavit of GJK). This represents 30% of the balance of the sale price less $10,000 presumably retained on account of contingencies.
During the course of the hearing of this matter I was informed the Wife has only received approximately $18,000 of this sum. The balance has been utilised to pay legal fees on a solicitor and client basis together with outlays such as Counsel’s fees. The costs assessment order in the sum of $141,000 issued on 1 May 2007. There has been no application for a stay of this order pending the determination of the appeal. There has been no application by the Husband seeking to set aside the costs assessment order.
If the amount of $141,000 is lodged with the Wife’s solicitors trust account and then disbursed in whole or in part to the Wife, as I understand her financial position, she is unable to offer any form of security for repayment of the amount in the event that the Full Court determines that the Husband has no liability for costs or a liability in a lesser sum than is contained in the costs assessment order.
On balance it is preferable the amount be retained in the Wife’s solicitors trust account pending the determination of the Full Court on this issue.
I propose to make an order authorising the solicitors for the Wife to invest such sum at the best rate obtainable in a bank account or an interest bearing deposit provided such investment is in accordance with the authority to invest trust moneys under Queensland law.
The Question of Interest
This matter does not fall for determination at this particular point in time.
It was only raised in the response document filed on the day of the hearing.
Law to be Applied
Section 117B of the Family Law Act 1975 (Cth) provides:
“117BSubject to any order made by the court under subsection 2, where, in proceedings under this Act, a court makes an order for the payment of money (other than an order for the payment by way of maintenance of a periodic sum) interest is payable, at the rate prescribed by the applicable rules of court, from –
(a) the date on which the order is made; or
(b)the date on which the order takes effect, whichever is later, on so much of the money as is from time to time unpaid.”
A Court that makes an order for the payment of money as mentioned in subsection 1 may order that interest is not payable on the money payable under the first mentioned order or may order:
(a)That interest is payable at a rate specified in the order being a rate other than the rate prescribed by the applicable rules of court; or
(b)that interest is payable from the date specified in the order, being a date other than the date from which the interest would be payable under subsection 1.”
The current rate of interest in accordance with the Rules is 10.75%.
In relation to section 117B the two points in time identified in the paragraphs reflect the general law positions in relation to interest on costs. That is, paragraph (a) is a reference to the common law position that interest runs from the date judgment is recorded; whereas paragraph (b) is a reference to the position in equity that interest runs from the date of taxation (refer TA Field Pty Ltd v Frigmobile of Australia Pty Ltd [1978] 2 New South Wales Law Reports 488 and Minister Administering the Environmental Planning & Assessment Act 1979 v Carson [1994] 35 New South Wales Law Reports 342).
I would be of the preliminary view that interest cannot accrue until the principal sum is known. The principal sum is not necessarily known simply by delivering a copy of the bill of costs to the payee litigant. In the case of a costs order the sum owing is only quantifiable when the costs assessment order issues. In this instance on 1 May 2007. This is a view I express without having had the benefit of full argument on the subject. I do not propose to make any order or ruling at this particular point in time.
In the Wife’s affidavit filed 12 July 2007 at paragraphs 11, 12 and 13 the Wife sets out how the claim for interest is calculated:
“11.The wife has sought payment of interest of $3,851.70 in respect of the Assessment Orders of 19 December 2006 and 1 May 2007 as referred to in annexures “KN4” and “KN5” hereto.
12.In respect of the Assessment Order of 1 May 2007, interest has been calculated as follows:
A. On the amount of $141,226.25 at a rate of 10.75%
(from 23 February 2007 to 10 July 2007) $5,739.98.
13.Accordingly, the wife still seeks payment of $9,591.68 in interest to date. File records indicate that the wife has not received payment of interest despite requests for same.”
At this point in time I simply record that the Wife’s claim for interest on outstanding costs is noted.
In Relation to Paragraph 1(iii) - the Amount of $204,955 be Deposited by the Second Respondent to the Trust Account of Mills Oakley Lawyers and Then Dispersed (Sic) As Instructed by the Applicant
The order made on 1 July at paragraph 27(d) is in the following terms:
“The distribution to the husband of his share of the proceeds of sale is to be retained by the Trustee with Power of Sale until the determination of all issues relating to costs orders sought by the children’s representative and the wife.”
I accept that by the making of consent orders on 12 July 2007 in relation to the Independent Children’s Lawyer’s costs that aspect has been finally determined.
However all issues relating to the costs orders of the Wife have not been finalised. The issue of interest is unresolved as discussed above. The issue of costs of the hearing of 12 July 2007 has not been determined. The Full Court may award separate costs for the preparation of written submissions to the Full Court on that separate appeal.
The Husband now says $45,000 (and not $10,000) should be set aside to cover contingencies and the balance calculated at $204,000 be distributed to his solicitor’s trust account for release to him.
The Wife says there should be no distribution to the Husband under the terms of paragraph 27(b) of the order of 1 July 2005 until all matters surrounding her costs are resolved.
Counsel for the Second Respondent expressed the view it would be appropriate to retain $50,000 on account of future contingencies.
Calculations
I have noted what I perceive to be an error in the accounting of the entitlements by the Trustee. The order of the 1 July 2005 provided in paragraph 28 that:
“Pending the completion of the sale the Husband pay all rates and taxes and like apportionable outgoings of the real property as they fall due and in the event the Husband fails to pay such outgoings, the Trustee with Power of Sale is authorised to deduct same from the Husband’s share of the proceeds of sale.”
In the context of the evidence in the case, it was the Husband’s responsibility to pay all arrears by way of Body Corporate fees, rates adjustments and the like, not simply that small amount of such outgoings for the period from 1 July 2005 until sale. It was a notorious fact that the Husband had been in dispute with the Body Corporate for many years. The view that I took on the evidence was the Husband could have been renting the property or could have had the use of the property if he so desired. The Wife had no control whatsoever as the property was technically registered in the name of the Husband’s brother. It was for this reason that I inserted paragraph 28.
When I consider the distribution statement annexure 2 to the affidavit of the Trustee, I note that after payment of advertising, repairs, accountants and solicitors’ costs commission on sale and the valuation fee a net amount of $646,975.86 was available for distribution. From this sum the Trustee has deducted the sum of $30,746.42 being the release fees on the writs of execution lodged on the title together with the apportionment of the arrears of Body Corporate levies. He then calculates the Wife’s entitlement at 30% of $616,229.
In my view the Wife’s entitlement is 30% of $646,975 which I calculate to be $194,092.50. Deducting this sum from the amount available for distribution to the parties of $646,975.86 leaves the Husband’s entitlement at a notional $452,883.36. However, from this sum the following deductions are required to be made:
·Payment of Body Corporate fees $ 30,746.42
·Payment of child support arrears $ 26,710.28
·Payment of Wife’s appeal costs $ 49,705.15
·Reservation of contingency payment for
Wife’s costs of trial assessed at $141,226.25
·Reservation of interest charges on outstanding
costs (estimate only) $ 15,000.00
·Amount to be retained on account of
costs of hearing for 1st and 2nd
Respondents for hearing on12 July 2007 and
other outstanding costs to date of the Trustee and
solicitors for the Trustee $ 50,000.00
This would leave an amount of $139,495.12 available for distribution to the Husband.
The order of 1 July 2005 was final in its terms however the order made pursuant to paragraph 27(d) is an order made pursuant to the injunctive powers of the Court (section 114). I was requested to freeze the Husband’s entitlement until the issue of costs has been determined. There is commonly viewed a distinction between an order and an injunction - an injunction of its very nature may be lifted or varied as circumstances alter.
I believe I have the power to release funds to the Husband notwithstanding the costs of the Wife have not been finally resolved. With the sum of $50,000 retained there may be an order for the Wife’s costs of contesting the costs appeal although I note that that appeal was heard on the papers. No estimate has been put forward by the Wife’s solicitors as to what such costs, if awarded, would be.
In the whole of the circumstances I propose to order the release to the Husband the amount of $139,495.26.
In Relation to Paragraph 1(iv) – That $10,000 be Retained as Costs of the Second Respondent
This is not relevant in light of the determination above.
In Relation to Paragraph 2 – The Request for the Second Respondent and its Solicitors to Deliver Detailed Accounts
The Trustee has rendered a bill of costs in the form of a taxation invoice. The invoice is addressed to ‘[GH] and [WGOC] Family Law Matter – Care of Bradley & Bray’.
The amount has been disbursed to the Trustees. The actual costs amount to $8,150. The balance relates to outlays for valuation fee, cleaning and repairs to the apartment and such like.
On my understanding accountants do not have a professional body which supervises costs to which members of the public may have redress in the event of a dispute about fees.
If an accountant is owed fees he or she presumably sues in the State Magistrates Court to recover such amount. If a client of an accountant claims he/she is overcharged an election can be made to challenge the account in the State Magistrates Court.
I see nothing contentious in the accountant’s fees. The task entailed attendances to receive instructions and consent to a willingness to be appointed by the Court in the first place. Thereafter there had to be attendances to obtain full instructions as to the task at hand. The accountants had to obtain a valuation and thereafter liaise with the real estate agents to supervise the sale generally. The conveyance was complicated by the fact that there was a writ of execution on the title deed lodged by the Body Corporate. That had to be paid out to allow settlement to proceed. The Trustee also had to liaise with the Child Support Agency to meet payment of a demand from the Agency in relation to a child support debt outstanding by the Husband.
I understand the Husband wishes to challenge the payment of the Body Corporate judgment debt by the Trustee. Presumably the Husband or his brother were served with process by the Body Corporate prior to the writ of execution being lodged. It seems to me it is a matter that has been outstanding for a lengthy period of time between the Husband and/or his brother and/or the Body Corporate. It is not a matter which impacts on the Trustee. He had to effect a sale in accordance with directions from the Court. In order to do so the amount owing had to be paid out. If the Husband wishes to take action against the Body Corporate he is at all times able to do so.
The fees of the Trustee have been paid equally by the Husband and Wife. For her part the Wife does not challenge the reasonableness of the fees of the Trustee or the solicitors for the Trustee.
I do not propose to make an order in the terms as requested. It is quite apparent the work that has been done by the Trustee and the charges of the Trustee do not in any way appear excessive. If the Husband wishes to take the matter further presumably he is at liberty to litigate in the State Magistrates Court or the Small Claims Tribunal asserting that he has been overcharged. I note his liability is only for one half of the total of the Trustee’s fees.
Fees of Bradley & Bray Solicitors Acting for the Trustee
I find it was appropriate for the Trustees to engage solicitors to act on behalf of the Trustee on the sale. Indeed I would be somewhat surprised if they had not taken this step. Problems were likely to arise from the fact the title deed was in the name of EGOC and not in the name of the Husband. It is not clear to me whether EGOC signed the conveyancing documents or a Registrar of the Court signed in his place. It was not just a simple conveyance. The matter was further complicated by the writ of execution on the title deed lodged by the Body Corporate. The Trustee acted pursuant to a Court order. The Trustee engaged Bradley & Bray. The fees rendered by Bradley & Bray are annexure 2 to the affidavit of Mark Donald Bray. Those fees detail with considerable specificity how the costs were incurred. The costs have been assessed and prepared by professional costs assessors. I note, for example, that a total of sixty-one letters were written for a charge of $28 per letter. I see nothing untoward about the item cost of $28. I can only infer that the sixty-one letters written is indicative of the fact that the matter was complicated. I cannot envisage that the solicitors engaged in correspondence simply for the sake of doing so.
I fail to see what further particulars could possibly be required. I would have thought the charges for the work involved were eminently reasonable.
In the matter of Stay v Stay B 1986 of 1993 I had to deal with a not dissimilar situation where a solicitor had been appointed by the Court to act as Trustee with Power of Sale. The Husband objected to the solicitor’s fees (in that instance about $38,000). I held (paragraph 24):
“24.Whilst I have fleetingly revisited the issues relevant to my determination of 3 May 2001 and 27 June 2001, I believe their relevance to this application is limited to the question of whether the Trustee is justified in charging the fees he has. Courts of equitable jurisdiction have traditionally held that Trustees who have performed badly or who have committed a breach of trust, may incur a reduction in remuneration or even loss of remuneration altogether: Polly Peck International Pty Ltd v Nadir (No.2) [1992] All ER 769.”
Subsequently in my determination at paragraph 42 I held:
“42.If the Court had appointed a real estate agent to dispose of the property and his commission was in dispute it could not be suggested the agent’s charges were to be determined under the scale of costs applicable to court proceedings. It is fortuitous that Mr Wilson is a lawyer. The Trustee is entitled to be remunerated at commercial rates for work carried out at the request and direction of the Court. The position is analogous with the fees of a liquidator appointed by a Court in winding up proceedings. The Court retains the right to approve the liquidator’s charge in the event they are challenged but they are not assessed under the Court’s scale of costs.”
The Husband has standing to take up with the Legal Services Commissioner the issue of overcharging by Bradley & Bray (refer Casey v Quabbea & Allianz [2006] QCA 187). Again, I note his liability is limited to one half of the fees claimed. The Wife is legally represented and her lawyers do not seek to challenge the fees.
I do not propose to make orders as sought by the Husband in paragraph 2. The Husband and Wife may consider themselves fortunate that the Trustee exercised a degree of initiative and did not deem it necessary to refer the matter back to Court when confronted with an order from the Child Support Agency or the costs assessment order of the Wife’s appeal or other outgoings which have been paid. Had the matter been referred back to Court by way of a special application it would have been deemed an incidental expense of the appointment of the Trustee and costs would have been payable out of the estate, or more likely the Husband’s share of the estate.
Orders Sought by the Wife
(a)That the amount of $792 be immediately disbursed to Legal Aid Queensland – done.
(b)The amount of $141,226.25 be immediately and unconditionally disbursed to the trust account of Butler McDermott Lawyers, lawyers for the first respondent – done but not to be paid unconditionally for reasons given previously.
(c)The amount of $9,050.95 be immediately disbursed to the trust account of Butler McDermott Lawyers, lawyers for the first respondent on account of interest on previous costs orders made in favour of the first respondent.
The issue of interest cannot be determined until the Full Court decision is handed down. If the appeal on costs is dismissed I have expressed the view that interest would be payable from the date of the costs assessment order until such amount is paid. There is also interest which accumulated on the other items of costs. I do not propose to make any order in relation to this aspect at this point in time but such outstanding interest will be ultimately payable from the moneys withheld.
(d)The balance of moneys be held by the Trustee – not relevant in view of previous rulings. I propose to direct the Trustee to invest the moneys retained on behalf of the parties in an interest bearing deposit in terms similar to the order made in relation to the sum of $141,000.
Orders Sought by the Trustee
(a)That the applicant pay the second respondent’s costs of and incidental to the application filed 20 June 2007 on an indemnity basis.
I will need to hear the parties on the issue of costs after this decision has been delivered. There may be offers to settle and/or there may be aspects to which I have not adverted. It is premature to make such an order until the decision has been handed down.
(b)That the second respondent be indemnified in respect of all costs and outgoings in relation to fulfilling his role as Trustee in this matter.
I am not willing to make an order in such broad terms. The Court has a vested interest in ensuring Trustees appointed to give effect to Court orders are able to claim proper commercial remuneration for such services. There is no reason why a Trustee should be left out of pocket for carrying out a task imposed by a Court. However cumbersome it may be it will be necessary for the Trustee to seek approval from the parties for payment of outstanding amounts and in the event the parties are unable to agree, then by further referral of the issue to this Court.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.
Associate
Date: 2 August 2007
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