White v Paul Weston as Trustee of the Bankrupt Estate of Byron Ward Thompson
[2013] NSWDC 261
•19 April 2013
District Court
New South Wales
Medium Neutral Citation: White v Paul Weston as Trustee of the Bankrupt Estate of Byron Ward Thompson [2013] NSWDC 261 Hearing dates: 18/4/2013 Decision date: 19 April 2013 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) I dismiss the appeal.
(2) I confirm the decision of the Costs Review Panel of 12 November 2012.
(3) I order the plaintiffs to pay the defendant's costs of these proceedings.
(4) I direct each of the plaintiff, Mr White, and the defendant, Mr Weston, (by his solicitors), to notify Mr Libut within 7 days that he has 14 days from today to make any written submission (limited to no more than 2 pages), to be sent to my Associate, with a copy to be sent to each other party, as to whether he ought not be liable to the costs proceedings as he was not a party to the application to the Review Panel.
(5) If such a submission is received, then any party has a further 7 days to file and serve any submission in response. That response is to be limited to no more than 2 pages.
(6) After all submissions, if any, are received, consideration will be given as to whether the order for costs should be amended.
(7) Mr White made an application orally and without any supporting material for leave to appeal under s 385 of the Legal Profession Act. I reject this application, without prejudice to any application made in the proper form.
Catchwords: APPEAL - assessment of party/party costs - reassessment by Costs Review Panel - appeal from Review Panel - whether costs awarded were unreasonably high - fair and reasonable costs - comparison with other party's costs - comparison with costs in other proceedings Legislation Cited: Evidence Act 1995, s 97
Legal Profession Act 2004, s 382, s 384, s 385Category: Principal judgment Parties: Julian John White (first plaintiff)
Romeo Medina Libut (second plaintiff)
Paul Weston as Trustee of the Bankrupt Estate of Byron Ward Thompson (defendant)Representation: Ms M Castle (defendant)
Brown & Partners (defendant)
File Number(s): 2012/384319 Publication restriction: No Decision under appeal
- Date of Decision:
- 2012-11-12 00:00:00
- Before:
- Stephen John Lancken (Costs Assessor)
Marilyn Filewood (Costs Assessor)- File Number(s):
- 2011/369873
ex tempore Judgment
Julian John White and Romeo Medina Libut were parties to a property development joint venture with Byron Thompson. A dispute arose in 2003. The litigation was protracted. Since 2003 12 costs orders against Mr White and Mr Libut have been assessed, which gives some indication of the extent of the litigation.
The dispute before me arises out of an application by Mr White and Mr Libut to trace joint venture funds to a property in which Mr Thompson and his wife, Jennifer Thompson, each had an interest. The application was unsuccessful, being rejected on the basis of an Anshun estoppel presumably arising out of an earlier decision between the parties.
Mr White and Mr Libut unsuccessfully appealed to the Court of Appeal. The respondents to the appeal were Mr and Mrs Thompson and Mr Thompson's trustee in bankruptcy, Mr Paul Weston.
The Court of Appeal ordered Mr White and Mr Libut to pay the respondents' costs of the appeal. Mrs Thompson's lawyers claimed costs of $23,886. Those costs were compromised at an agreed amount of $18,600. Unlike Mrs Thompson, Mr Weston had briefed counsel in the appeal, perhaps reflecting the additional circumstance that Mr Weston undertook the primary role in resisting the appeal, a matter accepted by Mr White in oral submissions.
Mr Weston claimed a total of $78,418.09 in costs, including disbursements and counsel's fees. The matter of the quantum of costs was not resolved between the parties but proceeded to an assessment. The costs assessor determined the fair and reasonable costs to be $59,871.83 and ordered Mr White and Mr Libut to pay the costs of the assessment, being $7,691.64.
It appears Mr White alone sought a review of the assessment. The Costs Review Panel determined to affirm the costs assessment and also determined that Mr White pay the costs of the review, being $1,394.04.
Mr White and Mr Libut commenced these proceedings to appeal and set aside the decision of the Review Panel.
There are three grounds of appeal. In effect, those grounds assert that the costs awarded were unreasonably high because the Review Panel failed to give sufficient weight to three matters:
(a) that the appeal was a simple matter decided on the basis of an estoppel;
(b) that Mr Weston had a history of claiming excessive costs; and
(c) the costs of Mrs Thompson were small by comparison.
The basis of the appeal to this Court does not appear on the amended costs appeal or on its predecessor, the summons commencing an appeal, other than to state that "The plaintiff appeals from the whole of the decision below".
The entitlement to appeal arises from s 384 of the Legal Profession Act 2004 in subdivision 6 of division 11 of part 3.2. It is also informed by s 382 of the Act. Those provisions state:
"384 Appeal against decision of costs assessor as to matter of law
(1) A party to an application for a costs assessment 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 District Court, appeal to the Court against the decision.
(2) After deciding the question the subject of the appeal, the District 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.
..."
"382 Appeal against determination of panel
(1) Subdivision 6 (Appeals) applies in relation to a decision or determination of a panel under this Subdivision as if references in Subdivision 6 to a costs assessor were references to the panel.
(2) Subject to subsection (1), the panel's determination of an application for review of a costs assessor's determination is binding on all parties to the assessment that is the subject of a review and no appeal or other review lies in respect of the determination."
Accordingly, the right to appeal a determination of the review panel is limited to appealing "a decision...as to a matter of law" of the review panel.
Section 385 of the Act allows a party to seek leave of this Court to appeal the determination. Such an application might allow a wider contest about the review panel's determination but is only available if the Court grants leave.
In the circumstances where Mr White and Mr Libut "appeal" rather than "seek leave of the Court to appeal" and appeal "the decision" rather than "the determination", I have treated the proceedings as an appeal under s 384 of the Act rather than an application for leave to appeal under s 385 of the Act. Mr White (who was self-represented and who, by consent, was granted leave to appear for Mr Libut on Mr Libut's written request, Mr Libut not otherwise appearing) made no submission to the contrary. Mr White did not seek leave and conducted the appeal recognising the constraints imposed by s 384. I should note that nothing I have said should indicate that leave would have been granted if it had been sought.
It follows that for an appeal to succeed it is necessary that a decision of the review panel on a matter of law is identified and successfully challenged. Whether Mr White was able to do this is considered in respect of the three grounds of appeal.
(a) The simple estoppel in the Court of Appeal
Mr White raised this same ground before the review panel in challenging the costs assessment. In submissions before the review panel Mr White asserted:
"From Matter 2685 of 2003 arose Matter 4817 Of 2008 in order for the Court to determine a single legal issue - that of the beneficial ownership of said Somersby property which the Court had allowed to be held in Mr & Mrs Thompson's names with Court freezing orders. A single issue to which Brown & Partners and counsel took the minimalist legal defence of estoppel. A minimal cost and minimal legal thought defence, a procedural technicality based only upon our November 2005 pleadings before Justice Gzell which, after a 3 day hearing they were fortunate enough to win.
Said decision of Justice Windeyer was then appealed and has given rise to the costs which we now seek to have reviewed. The appeal argument and associated costs are therefore even more basic than the 3 day hearing with whatever argument Mr Libut and I may tender being met with a simple one line 'so what, its all irrelevant' argument 'just look at the November 2005 pleadings'."
The review panel dealt with this argument in the following terms:
"This is more or less an argument by the Review Applicant that the Appeal was a simple one and did not justify the amount of fees allowed by the Costs Assessor. It does not persuade the Review Panel that the assessment should be set aside. The appeal proceeding involved a number of Notices of Motion as well as a hearing on 13 April 2011. There were as far as the Panel can see at least 6 interlocutory appearances. It is also notes that the Appellant was self-represented and adjournments were sought at the Appellant's request so that they could obtain legal representation. The amounts allowed by the Costs Assessor were $38,000.00 (approximately) for professional costs including GST and $21,000.00 (approximately) for disbursements. These amounts do not of themselves seem to the Review Panel to indicate fees and expenses that are not fair and reasonable, however the Review Panel then embarked on a consideration of the other 'Grounds' and the basis of the assessment. The Review Panel does not consider that the Certificate of Assessment should be set aside on this ground."
It is apparent that the review panel considered the argument of Mr White. It noted that the appeal comprised "a number of notices of motion", "at least six interlocutory appearances", "a hearing" and that "adjournments were sought at the appellant's request". It appears that against this background the alleged simplicity of the appeal was insufficient of itself to persuade the review panel that the total amount of costs assessed were other than "fair and reasonable". I can find no fault with the approach or reasons of the review panel on this point. Further, I doubt if any decision as to a matter of law is contained in this part of the review panel's reasons, and Mr White could not identify one. The panel considered the argument, identified factual reasons why it was not persuasive, and rejected it. I make no comment about whether the Anshun estoppel point rendered the Court of Appeal proceedings one of simplicity.
(b) The excessive costs in other proceedings
As with the previous ground, Mr White raised this ground before the review panel also. He submitted:
"It should first be noted that solicitors Brown and Partners acting on behalf of Mr Weston, who is Mr Thompson's voluntary bankruptcy trustee, have pursued twelve other Costs Claims against us to date. The % discount on costs claimed to costs assessed & awarded have varied from 35.21% to 75.21%."
Mr White also provided a table showing a comparison of the costs claimed and the costs assessed on 12 occasions. The review panel dealt with this ground in the following terms:
"Other costs assessments between the same parties in relation to different matters, and the amounts reduced by costs assessors in those matters are not appropriate facts to be considered by the costs assessor or by the Review Panel. The Review Panel does not consider that the Certificate of Assessment should be set aside on this ground."
It is apparent that the review panel has decided that the results of costs assessments in other matters are not relevant to the factual determination of the fair and reasonable costs in the Court of Appeal. It is arguable that this decision is a matter of law.
Although it is accepted by the review that the other costs assessments are "between the same parties", that is not at all clear to me. The material before me indicates that the other assessments were between Mr White and Mr Libut on the one hand, and Mr Thompson (and perhaps also Mrs Thompson) on the other. In other words, they concern Mr Thompson's costs, but the review panel was concerned with an application by Mr White (apparently alone, rather than with Mr Libut, although I attribute no significance to this in respect of the present issue) in respect of the costs of Mr Weston. Mr Weston appears never to have been a party to previous costs orders.
I accept, and it seems to be common ground, that Mr Weston used the solicitor previously used by Mr Thompson. However, the fact that in previous costs assessments Mr Thompson's costs were reduced by a larger percentage than were Mr Weston's (using the same solicitor) in the present case does not seem to me to be probative of whether the reduced amount of Mr Weston's costs properly represented the fair and reasonable costs of the appeal (cf s 97 of the Evidence Act 1995).
I do not see how previous assessments should indicate a greater than the approximately 25 per cent reduction resulting from the assessment of the claimed costs of Mr Weston here. It would require an assumption, not based on any evidence, that in every case Mr Weston's solicitor claimed costs that exceeded those which are fair and reasonable by a certain minimum percentage greater than 25 per cent.
Indeed, in my view it would be an error of law to reduce the costs claimed by reason of statistical analysis of Mr White irrespective of the particular work done, the services performed, the charge out rates applied and the costs claimed. The review panel must determine whether the costs are fair and reasonable by a consideration of these and perhaps other matters, not by considering statistical results in other cases showing the differences between costs claimed and costs assessed.
(c) Mrs Thompson's costs
The third ground was also submitted to the review panel in the following terms:
"It should also be noted that Mrs Thompson's solicitors Peninsula Law who were co-defendant in matter 4817 of 2008 and co-respondent in our appeal only claimed $23886.70 in total for their Appeal costs and such was simply then settled by negotiations for $18,600.00 - They did not even bother with counsel as partner Mr Bingham did all representation willingly as it was so easy no doubt. Even without counsel fees their settled total makes Brown & Partners present assessment appear to still be excessive."
The review panel rejected the proposition that Mrs Thompson's costs were comparable to Mr Weston's. It raised two relevant features of Mr Weston's costs - that counsel was briefed, and that "the carriage of the substantive response to the appeal" was undertaken by Mr Weston's solicitors. Mr White accepted both of these matters in oral submissions.
Accordingly, the review panel considered this point and decided it adverse to Mr White. I doubt if any matter of law is involved in that decision. If there is, it appears to be answered correctly. The costs of one appeal respondent do not determine the fair and reasonable costs of another, at least where only one briefs counsel and takes the primary conduct of resisting the appeal. In submissions Mr White recognised that Mrs Thompson gained some benefit without cost from the counsel briefed by Mr Weston's solicitor.
In the result, I can find no error in the way the review panel has dealt with the three matters raised before me as grounds of appeal. Certainly I am not satisfied that there was any question of law wrongly decided in respect of these three matters. Accordingly, I propose to dismiss the appeal and affirm the decision of the Costs Review Panel. The plaintiffs must pay the costs.
Accordingly:
(1) I dismiss the appeal.
(2) I confirm the decision of the Costs Review Panel of 12 November 2012.
(3) I order the plaintiffs to pay the defendant's costs of these proceedings.
(4) I direct each of the plaintiff, Mr White, and the defendant, Mr Weston, (by his solicitors), to notify Mr Libut within 7 days that he has 14 days from today to make any written submission (limited to no more than 2 pages), to be sent to my Associate, with a copy to be sent to each other party, as to whether he ought not be liable to the costs proceedings as he was not a party to the application to the Review Panel.
(5) If such a submission is received, then any party has a further 7 days to file and serve any submission in response. That response is to be limited to no more than 2 pages.
(6) After all submissions, if any, are received, consideration will be given as to whether the order for costs should be amended.
(7) Mr White made an application orally and without any supporting material for leave to appeal under s 385 of the Legal Profession Act. I reject this application, without prejudice to any application made in the proper form.
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Decision last updated: 29 January 2014
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