Whalen v McCarthy
[1999] NSWSC 336
•15 April 1999
CITATION: Whalen v McCarthy [1999] NSWSC 336 CURRENT JURISDICTION: Common Law FILE NUMBER(S): 12338/98 HEARING DATE(S): 9 March 1999 JUDGMENT DATE:
15 April 1999PARTIES :
Peter McCarthy t/as McCarthy Killalea
John Whalen
(Appellant)
(Respondent)JUDGMENT OF: Master Harrison
COUNSEL : Miss E Cohen
Mr D Cowan
(Appellant)
(Respondent)SOLICITORS: Mr Joe Mannix of Dixon Holmes du Pont
(Respondent)CATCHWORDS: Appeal decision of costs assessor ACTS CITED: Legal Profession Act - S 208 CASES CITED: Attorney General v L G Smith & Anor (NSWCA unreported, 4 November 1998)
Attorney General of New South Wales & Anor v Kennedy Miller Television Pty Ltd (1997-1998) 43 NSWLR 729
Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639
Busuttil v Holder & Anor (Master Greenwood, unreported, 9 August 1996)DECISION: See para 34
21
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
THURSDAY, 15 APRIL 1999
12338/98 - JOHN WHALEN v PETER McCARTHY t/as
JUDGMENT (Appeal against decision of costs assessor)
McCARTHY KILLALEA
1 MASTER: By summons filed 25 September 1998 the appellant seeks to appeal against the decision of costs assessor, Frank Riley made on 14 September 1998. The appellant relied on his affidavit dated 2 November 1998. The respondent did not rely on any affidavit evidence.
2 The background facts are as follows:3 The appellant seeks orders that the whole of the determination or decision of the costs assessor Frank Riley issued on 14 September 1998 in respect of the application by the plaintiff for an assessment of costs in that proceedings No 90377/98 (the determination) be set aside on the basis that the decision is erroneous in law. The appellant also seeks that leave to appeal be granted on the grounds that the determination is unconscionable, unfair, unjust, unreasonable. If an order is made setting aside the whole of the determination, the appellant seeks that the court substitute the fair and reasonable costs of the defendant, or alternatively return the proceedings to the costs assessor for further assessment.
(1) In May 1997, the appellant John Whalen retained Peter McCarthy of McCarthy Killalea a firm of solicitors (the respondent) to act for him in relation to a dispute between shareholders and himself . These disputes ultimately led to proceedings being instituted in the commercial division of this court.
(2) The appellant signed a costs agreement which is undated. The agreement stipulated that the respondent would charge at the rate of $200.00 per hour (para 3). The estimate of the solicitor’s charges for completing the work was estimated to be about $50,000 and estimate of the expenses that the respondent would incur would total about $60,000. The work was estimated to be completed by April 1998 (para 3). However the type of work to be undertaken was not particularised. The respondent was to send a complete bill for charges and expenses at the end of each month while the work was in progress and/or when the work was completed (para 5). The appellant was required to pay barristers’ fees, faxes, photocopying, mail, telephone and courier expenses (para 2). This document is referred to in this judgment as the “costs agreement”.
(3) On 23 June, 1997 Darvat Pty Ltd (ACN 003 957 962), the plaintiff commenced proceedings numbered 50142/97 against Modular Manufacturers Pty Limited (ACN 002 826 217) as first defendant, Waterproofing Manufacturing Pty Limited (ACN 070 883 484) as second defendant, John Stewart Whalen as third defendant (the appellant in these proceedings) and Judith Anne Whalen as fourth defendant.
(4) On 12 September, 1997 the plaintiff’s motion seeking summary judgment against the defendants was heard. Hunter J dismissed the motion.
(5) On 2 December 1997, the respondent forwarded a notice of ceasing to act to the appellant.
(6) On 8 December 1997, the matter was heard before Giles CJ. The appellant appeared unrepresented and the judgment given was not in his favour.
4 The grounds of appeal in the summons were stated to be:5 Section 208L of the Legal Profession Act provides:
(1) The costs assessor erred in failing to apply the proper principles governing the assessment of costs.
(2) The costs assessor erred in failing to give reasons for the determination.
(3) The costs assessor erred in awarding $25,000 profit costs to the defendant which represented 125 hours work at the rate of $200.00 per hour.
(4) The costs assessor erred in law in failing to have regard to the oral agreement between the plaintiff and the defendant that payment would be made at the end of the proceedings (s 208B).
(5) The costs assessor erred in law in failing to have regard to the outcome of the matter (s 208B(f)).
(6) The costs assessor erred in law in failing to have regard to the skill labour and responsibility displayed on the part of the solicitor responsible for the matter (s 208B(a)).
(7) The costs assessor erred in law in failing to have regard to the quality of the work done and whether the level of expertise was appropriate to the nature of the work done (s 208B (c)).
(8) The costs assessor erred in law in failing to provide to the plaintiff for examination and comment the whole of the material provided to the costs assessor upon which the assessment was based.
“208L Appeal against decision of costs assessor as to matter of law
(1) A party to an application who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the Supreme Court, appeal to the Court against the decision.
(2) After deciding the question the subject of the appeal, the Supreme Court may, unless it affirms the costs assessor’s decision:
(a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or
(b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application.
(3) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.”
6 A history of the costs assessment is as follows. There was detailed correspondence between the costs assessor and the parties, some of which is summarised below. On 22 February 1997, the appellant lodged an application for an assessment of costs with the registry. On 2 April 1998, the costs assessor wrote to the parties informing them that he had a copy of the costs agreement (referred to earlier in this judgment). He also had a document entitled “Memorandum of Costs and Disbursements re Modular Manufacturers ats Darvat” dated 30 September 1997 (the memorandum) before him. The Memorandum claimed solicitor’s costs of care, skill and consideration $20,000, conferences with appellant (25 hours x 200), telephone attendances (30 x 70), conferences with Counsel 10 hours at $200 and court appearances on motions 5 hours x $250, and court appearances $750. It also claimed faxes, telephone, typing, photostats, couriers, DX and postage in the sum of $3,600 and barristers’ fees for Ms Stenmark $2,300 and Mr Shields $850 and it was noted (wrongly) that these had been paid. A further sum of $1,500 was due to Mr D Studdy of Counsel and $300 to Mr B Cheney. The solicitor was seeking a total amount of $36,500. The costs assessor also stated that he was in possession of respondent’s time costing sheets. These time sheets provide a date when the service was rendered and whether the attendance was a telephone call, conference, letter or in relation to the preparation of court documents. They did not give any information as to the subject of the attendance. The costs assessor noted that time sheets could not be reconciled with the memorandum or to the costs agreement. He identified that there was no reference in the costs agreement to a charge for care, skill and consideration or for typing and paralegal costs. The costs assessor further noted that there was no dispute merely to the rate of charge specified in the costs agreement, that is costs of $200 per hour. He requested that in future each party was to give the other copies of any submissions or documents made or produced to the costs assessor.
legal analysis but acknowledged that most of the work was done between June and October. Additionally the appellant complained that barristers were changed from time to time and expense incurred although he did not give reason as to why this occurred.
7 In his letter of 2 April 1998 to the parties the costs assessor requested both parties to submit any comments which they desired to make in respect of the respondent’s time sheets and other documents or any of the issues such as the amount of payments that the appellant had made to the respondent.
8 The appellant responded by letter of 22 April 1998 acknowledging that he had most of the documents that were in the appellant’s file except any documents prepared after he had left for China in November. He also made a detailed response to the time sheets of McCarthy Killalea. The appellant highlighted that the time sheets did not show the subject matter of work undertaken and referred to the lack of the solicitor’s communication. He disputed that the solicitor had performed detailed
9 The costs assessor wrote to the parties again on 4 May 1998 requesting their response to three questions. In his letter to the parties dated 7 June 1998 he stated:
“For the purposes of the assessment I am required by section 208A of the Legal Profession Act to consider -10 Without this detailed information being provided, the costs assessor was faced with a difficult task. He could not request the respondent to provide a more detailed bill of costs but could ask for particulars (see s 207 of the Legal Profession Act and Attorney General v L G Smith & Anor (NSWCA unreported, 4 November 1998)). The costs assessor attempted to overcome this problem by requesting that the respondent produce some further documents including a chronology, the provision of specific particulars, records retained in relation to disbursements and briefs to counsel and any copies of transcripts held. Some further documentation was provided to the costs assessor which included time sheets and chronology. The costs assessor in his letter dated 20 June 1998 to the parties pointed out the purpose and substance of attendances were generally unexplained and even their relationship to the chronology enclosed with the respondent’s letter was not clear. The appellant and the respondent subsequently agreed that the respondent had paid $17,000 to the appellant.
whether it was reasonable to carry out the work to which the costs relate;
whether the work was carried out in a reasonable manner; and
the fairness and reasonableness of the costs in relation to that work.
Neither the memorandum of 30 September 1997 nor the time sheets contain sufficient particulars of the work done to indicate the nature or purpose of the work and permit an assessment of the related costs in accordance with section 208A. The time sheets list many attendances without any accompanying information which might explain their purpose or function, beyond the fact, in some instances, that the attendance involved a conference with the client or with counsel.
11 On 22 August 1998, the costs assessor wrote to the parties. He said that he had completed an assessment of the costs, the subject of this application, on the terms noted below. It relevantly stated:
“1. …12 The parties subsequently agreed to the costs assessor assessing both the memorandum (dated 30 September 1997) and the time sheets which claimed for work done until 11 December 1997.
2. …
3. The Applicant has disputed the costs charged in the memorandum dated 30 September, 1997, not merely as to the rate charged, and I have previously indicated my view (paragraph 6 of my memorandum dated 2.4.98) that I am not precluded by Section 208C(1) from assessing the costs the subject of the application.
4. …
5. …
6. My determination of the Respondent’s costs (ie., profit costs as distinct from disbursements) has been made on the basis of the information provided in the time sheets and the hourly rate of $200.00 disclosed in the costs agreement. I have made deductions from some items considered to exceed what was fair and reasonable in the circumstances to which they related. I have made no allowance for a “care skill and consideration” loading additionally to the hourly rate disclosed as there was no provision made for such a loading in the costs agreement. In respect of disbursements I will not allow claims for typing or para-legal charges as they were not disclosed in the costs agreement as intended extra charges to the hourly rate or as anticipated disbursements.”
13 On 13 September 1998, the costs assessor wrote to the parties. He stated:
“1. I have been notified by the Applicant that he agrees to my assessing the costs claimed by the Respondent up to and including December 1997. I have accordingly assessed the costs claimed by the Respondent to 11 December, 1997.15 On 14 September 1998 the costs assessor issued a certificate of determination of costs. The application was determined by substituting for the disputed costs as a fair and reasonable amount of costs to be paid to the practitioner the sum of $35,460. The certificate noted that credit had been given by the practitioner to the client for the sum of $17,000 paid on account and that the amount thus payable by the client to the practitioner was $18,460.
2. The four barristers whose fees are claimed by the Respondent in the summary of disbursements included in his time sheets have confirmed the fees claimed are still owing to them. Ms Stenmark has submitted an additional memorandum of fees but I have allowed only the fees claimed in the time sheets.
Counsels’ fees -
3. The amount of profit costs allowed in my determination is $25,000.00. The disbursements allowed by me are as follows:
B.A. Shields 2,500.00
A. Stenmark 3,815.00
D. Studdy 2,735.00
R. Cheney 350.00 9,400.00Photocopying 700.00
Less deduction for filing fee 365.00
Facsimiles 500.00
Couriers & mail 250.00
35,825.00
Amount determined as per
certificate attached $ 35,460.00 ”
16 On 14 September 1998, the appellant wrote to the costs assessor and asked him to publish reasons for his decision so that he might be fully able to understand the basis of the decision.
17 On 16 September 1998, the costs assessor wrote to the parties. He stated:
“In response to the Applicant’s enquiry of 14 September 1998 I advise as follows:-18 The appellant did not pursue the costs assessor’s offer in relation to reasons.
1. The amendment to the Legal Profession Act which will require the giving of reasons for an assessment has not yet been proclaimed to commence. Under the existing general law costs assessors should give reasons if requested to do so after the issue of their Certificate of determination, but the law does not require a full statement of reasons in the form of a judicial determination.
2. I have in my memoranda throughout the assessment proceedings indicated the basis on which I was dealing with the assessment and if either party wishes to have further information I ask that it be made the subject of a specific request.
3. The applicant has asked if there is a difference “between the 30th September date and the December date.” As I pointed out in my memorandum of 14 September, 1998, having received notification of the Applicant’s approval to my assessing the Costs claimed by the Respondent after 30 September, 1997, I proceeded to assess the costs claimed to 11 December, 1997. I made my assessment after perusing the documents produced to me by the Respondent including the briefs to Counsel and other material constituting the Respondent’s file. The fees payable to the four barristers also included fees for work done after 30 September 1997.
Of the $25,000.00 determined for the Respondent’s profit costs in total about $5,000.00 was attributed to the period 30 September to 11 December, 1997.”
19 I turn to the second submission as to whether the costs assessor failed to give reasons for his determination. The appellant’s counsel referred to Attorney General of New South Wales & Anor v Kennedy Miller Television Pty Ltd (1997-1998) 43 NSWLR 729. This case was decided on the assumption that a costs assessor was exercising an administrative function not a judicial one. The issue for determination in the appeal was “whether or not a costs assessor may be required to give reasons for his decision made by him when assessing costs, when the person seeking those reasons is obviously enough contemplating an appeal to the court, either, in respect to the question of law, or an application for leave to bring a general appeal.” At p 733 Priestley JA (with whom Handley JA and Powell JA agreed) referred to Sperling J’s conclusion “that a costs assessor is bound to give reasons for his determination, specifying the items which have been reduced, by what amount and for what reason in each instance.” Priestley JA stated that the process described by Sperling J (referred to above) set out seemed a workable method. Priestley JA came to the view that Sperling J’s suggestions were not impractical and need not result in costs assessments taking significantly longer to do, or costing significantly more.
“One thing that both the submissions at the hearing and those continued in the statement have made plain to me is that there is scope for policy guidelines to become established governing the way in which reasons are provided. Sperling J’s suggestions already go some distance towards that. Some matters mentioned in the statement indicate that something more detailed may be required in the interests of keeping costs and time wasting to a minimum. Whether or not that is so does not arise for decision in the present appeal, where the question is the general one in respect of which leave was granted, is there an obligation upon costs assessors to give reasons for their determinations? As I have already said, my opinion is that the answer is clearly yes.”
20 The defendant referred me to Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639. At p 640 Mahoney P stated that the general principles which determine what form a judge’s judgment must take are, in this court, well settled. They are:
“A judge of a superior court and a court where decisions are subject to appeal or review ordinarily should give reasons for the orders he makes. There are qualifications and exceptions to this. Reasons, or detailed reasons, need not be given in some interlocutory or practice decisions. Until comparatively recently, the High Court of Australia did not ordinarily give reasons in leave applications. Ordinarily this Court does not give reasons, or detailed reasons, in granting or refusing applications for leave to appeal to it. Where the court is to give reasons and what reasons are to be given will be affected by the nature of the case and, amongst other things, what has been made apparent to the parties in the course of the argument of proceeding. The imposition of inflexible rules would impede the effective, efficient, timeous and just disposal of the work of the court concerned.21 The defendant submitted that the costs assessor disclosed his thinking to the parties as he went along and he recorded what was done and why and these letters should be taken as forming part of his reasons and that these reasons were adequate in all the circumstances. It is my view that I am bound to follow the decision in Kennedy Miller as it specifically deals with the issue as to whether or not a costs assessor should provide reasons. Indisputably Priestley JA held that a costs assessor is bound to give reasons. He also held that the costs assessor should specify what items have been reduced, by what amount and for what reason in each instance. The costs assessor has given reasons for determining issues at various stages as he is entitled to do. He had indicated that he proposed to disallow the item referring to care, skill and consideration and those items relating to typing and paralegal costs. However in his letter dated 22 August 1998 at para (6) the costs assessor stated that he has made deductions for some items which he considered to exceed what was fair and reasonable but he did not stipulate which items, or by what amount he made these deductions. The reason he made deductions on unspecified items was because those items exceeded what was fair and reasonable in the circumstances to which they related.
Where reasons are to be given, it is necessary for the court to determine what is a sufficient statement of the reasons why its orders were made. What will be sufficient reasons will depend, of course, upon the reason why it is necessary to detail them and the circumstances of the particular case. As appears from the cases to which I have referred, the court must have regard to the need of the parties to know what will affect their rights of appeal or review, the natural desire of parties to know why they have won or lost, and in some cases why the particular orders that were made were made. In some cases, the issues may appear, or may have become, unarguable; in such cases there is no need to deal with it: see QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd (1996) ALJR 281; 131 ALR 433, where the apparently unarguable was held arguable. There may occasionally be public interest to be served in recording the conclusions which the court has reached and the reasons for them: thus, in disciplinary cases such matters are ordinarily recorded to enable the court to deal effectively with applications for reinstatement, re-admission or the like.”
22 Normally a costs assessor would give one set of reasons at the conclusion of the assessment. However as this costs assessor adopted a course of giving reasons as he proceeded with the assessment, when the appellant requested reasons for his determination, the costs assessor stated that if further information was required, it be made subject of a specific request. In that same reply the costs assessor answered the specific concerns raised by the appellant. The costs assessor made it clear during the assessment process the reasons why he disallowed the items which related to care, skill and consideration, paralegal and typing costs. He was entitled to do. However, the costs assessor has not specifically referred to the items where he made deductions and by what amount in his reasons to date but has stated the reason why he made these deductions namely they exceeded the amounts he considered were fair and reasonable. If a request to provide reasons is made to the costs assessor in relation to these items, he is obliged to furnish same. He is not required to replicate his reasons. It has to be borne in mind that the purpose of providing reasons is to explain why particular deductions have been made and some of these are deductions known to the parties. The costs assessor has not refused to provide reasons. The appellant, rather than seek these reasons from the costs assessor, elected to institute this appeal. It is my view that the stance the costs assessor took in relation to his reasons does not amount to an error in law.
23 The appellant also submitted that the costs assessor failed to apply the proper principles governing the assessment of costs but did not demonstrate which proper principles were not applied. The appellant also submitted that the costs assessor failed to give the appellant opportunities to make written submissions in relation to the material which was supplied to the costs assessor but has not been supplied to the appellant. It is my view that this ground has not been made out. The costs assessor must not determine an application for assessment unless he has given the parties a reasonable obligation to make submissions in relation and has given due consideration to the submissions made (s 208). The costs assessor wrote to the parties initially informing them what documents he had before him and thereafter asked for the parties to send copies of their submissions and supporting documentation to the other party. He consulted each party and asked for submissions each step of the way.
24 The appellant submitted that the certificate of determination (S 208J) is defective in that it does not mention that the costs assessor required the appellant to pay $9,400 worth of counsels’ fees prior to enforcement. This was not raised in the grounds of appeal. It is my view that the costs assessor has stipulated this in his letter dated 13 September 1998, paragraph (4). There is no provision in this certificate for the costs assessor to stipulate how much a solicitor owes a third party. It is my view that the failure of the certificate to reveal that the respondent is to pay $9,400 worth of counsels’ fees is not an error of law. If enforcement action is to be taken in the court the certificate of assessment must be re-filed - see Supreme Court Rules Part 40 r 12.
25 The appellant’s third submission is that by allowing $25,000 profit costs the costs assessor allowed 125 hours work at the rate of $200 per hour. This does not demonstrate any error of principle. The appellant’s fourth submission is that the costs assessor should have had regard to the oral agreement between the solicitor and client that payment would be made at the end of the proceedings. However, s 188(4) of the Legal Profession Act provides that a costs agreement is void if it is not in writing or evidence in writing. The appellant says that although the costs agreement must be in writing that does not mean that oral arrangements between the parties can not be taken into account by the costs assessor. The oral agreement according to the appellant was that he was required to pay the solicitor’s costs at the conclusion of the proceedings. This agreement stipulated that solicitor’s costs were to be paid monthly while the work was in progress and/or when the work was completed.
26 The alleged oral agreement does not sit comfortably with a copy of the respondent’s letter which was before the costs assessor. In this letter dated 27 October 1997 by the respondent addressed to the appellant it stated that the appellant’s costs situation is accelerating weekly and his method of “drip payment” is not keeping pace with counsels’ fees and that other than a small administrative charge of $1,100 no payment had been made to that firm in 5 months. By that I infer that the respondent means the solicitors’ fees as opposed to counsels’ fees. There was a dispute before the costs assessor as to when payments for solicitor’s fees were due. The costs assessor was entitled to prefer the respondent’s version that the agreement as to payment of solicitor’s fees was set out in the written document. The appellant has not demonstrated that the costs assessor fell into error.
27 The appellant submitted that the costs assessor was entitled to have regard to the matters set out in s 208B in relating to the assessment of costs. Section 208B provides:
“Additional matters to be considered by costs assessors in assessing bills of costs
In assessing what is a fair and reasonable amount of costs, a costs assessor may have regard to any or all of the following matters:
(a) whether the barrister or solicitor complied with any relevant regulation, barristers rule, solicitors rule or joint rule,
(b) whether the barrister or solicitor disclosed the basis of the costs or an estimate of the costs under Division 2 and any disclosures made,
(c) any relevant advertisement as to the barrister’s or solicitor’s costs or skills,
(d) any relevant costs agreement (subject to section 208C),
(e) the skill, labour and responsibility displayed on the part of the barrister or solicitor responsible for the matter,
(f) the instructions and whether the work done was within the scope of the instructions,
(g) the complexity, novelty or difficulty of the matter,
(h) the quality of the work done,
(i) the place where and circumstances in which the legal services were provided,
(j) the time within which the work was required to be done.”
28 There is no evidence that the costs assessor erred in this regard. It is noted that the costs assessor deducted the whole of the amount the respondent claimed for care, skill and responsibility. The appellant also submitted that the costs assessor failed to provide to the appellant for
examination and comment the whole of the material provided to the costs assessor upon which the assessment was based. The appellant did not demonstrate any documentation that was before the costs assessor that was not before the appellant. This submission fails.
29 Alternatively the appellant sought leave to appeal on the basis that the determination was unconscionable, unfair, unjust, unreasonable and excessive.
30 Section 208M provides:
“Appeal against decision of costs assessor by leave
(1) A party to an application relating to a bill of costs may, in accordance with the rules of the Supreme Court, seek leave of the court to appeal to the court against the determination of the application made by a costs assessor.
(2) A party to an application relating to costs payable as a result of an order made by a court or a tribunal may, in accordance with the rules of the court or tribunal, seek leave of the court or tribunal to appeal to the court or tribunal against the determination of the application made by a costs assessor.
(3) The Supreme Court or court or tribunal may, in accordance with its rules, grant leave to appeal and may hear and determine the appeal.
(4) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.
(5) After deciding the questions the subject of the appeal, the Supreme Court or court or tribunal may, unless it affirms the costs assessor’s decision, make such determination in relation to the application as, in its opinion, should have been made by the costs assessor.”
31 In Busuttil v Holder & Anor (Master Greenwood, unreported, 9 August 1996) Master Greenwood discussed the appropriate test for leave in costs assessment matters. He stated:
error on the record, and as the solicitor’s costs have been reduced to nearly half that were claimed I cannot see that a substantial injustice has been done to the appellant if the determination of the costs assessor is allowed to stand. I am not satisfied that leave to appeal should be granted.
“Thus whilst each application for leave to appeal is to be determined on its merits and I heed the statement of the High Court in Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 170 at 177, 180) that it is “unnecessary and unwise to lay down rigid and exhaustive criteria” for the grant of leave to appeal, as the circumstances of different cases are ‘infinitely various.’” I can see nothing in what is before me that leads me to a conclusion that I ought to look to the question of leave other than to apply criteria of an obvious error on the face of the record and substantial injustice done to the appellant if the determination of the costs assessor is allowed to stand.”
32 As previously stated the memorandum claimed costs of $36,500 to 30 September 1997. The amount appearing on the time costing sheets from 30 September 1997 to 11 December 1997 were taken into account by the costs assessor. They amount to a further sum of $8,924. In all the respondent sought payment of $43,624 for his costs. This component was reduced to $25,000, just a little over half of what was claimed. Aside from issue of the adequacy of the costs assessor’s reasons which I have held amounted to an error of law, I cannot see any other obvious
33 The appellant has not discharged his onus of proof. I am not satisfied that the costs assessor has erred in law nor that leave to appeal should be granted. The appeal is dismissed. The summons is dismissed with costs.
34 The orders I make are:
(1) The appeal is dismissed.
(2) The summons is dismissed.
(3) The appellant is to pay the respondent’s costs.**********
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