Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Stanizzo v Fregnan [2021] NSWCA 135 Hearing dates: 21 June 2021 Decision date: 02 July 2021 Before: Meagher JA; Simpson AJA Decision: (1) Dismiss the summons seeking leave to appeal filed 22 December 2020. (2) Note that no order is made as to the costs of that summons in favour of the respondent because the respondent was self-represented. (3) Dismiss the respondent's notice of motion filed 15 February 2021. (4) Note that no order is made as to the costs of that motion, with the intent that each party bear their own costs. Catchwords: APPEALS – leave to appeal – costs assessment – where alleged that lawyers acting for party with benefit of costs order did so pro bono – whether costs assessment applicant liable to pay lawyers' costs – no question of principle Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW), ss 76(1), 83, 85(2), 85(3), 88(1), 89 Supreme Court Act 1970 (NSW), s 101(2)(q). Category: Principal judgment Parties: Vincent Francis Stanizzo (Applicant) Karina Vivianna Fregnan (Respondent) Representation: Counsel: M Rollinson (Applicant) Respondent self-represented Solicitors: Applicant self-represented Respondent self-represented File Number(s): 2020/306309 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2020] NSWSC 1296 Date of Decision: 23 September 2020 Before: N Adams J File Number(s): 2019/320592 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: The applicant (Mr Stanizzo) seeks leave to appeal from the primary judge's order dismissing his appeal from a decision of the costs assessment review panel under s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW): Stanizzo v Fregnan [2020] NSWSC 1296. As those proceedings were with respect to the assessment of costs, leave is required to appeal to this Court: Supreme Court Act 1970 (NSW), s 101(2)(q). 2. The costs assessment was of costs ordered to be paid by Mr Stanizzo in proceedings between the parties in this Court: Fregnan v Stanizzo [2016] NSWCA 264. Those orders were that Mr Stanizzo pay, on an indemnity basis, Ms Fregnan's costs of a notice of motion filed in the underlying District Court proceedings in October 2015 and that he also pay her costs of the proceedings in this Court, assessed on the ordinary basis. 3. There follows a brief summary of the costs assessment as it has proceeded to this Court. Ms Fregnan claimed costs totalling $212,527. She did not provide a copy of her bill of costs to Mr Stanizzo before making her application for the assessment. The assessor determined the costs plus interest (and including a filing fee) at $48,622 and the costs of the assessment at $6,264. The latter were to be paid as to one third by Mr Stanizzo and as to two thirds by Ms Fregnan. In his reasons the costs assessor recorded that Ms Fregnan was represented in the District Court proceedings by a solicitor, Mr Paul Donnelly, who ceased to act towards the end of those proceedings and took no part in the appeal proceedings, in which Mr Ashok Kumar of counsel appeared without an instructing solicitor. He also recorded Mr Stanizzo's primary objection to the assessment of any costs involving the lawyers, namely that "Mr Donnelly and Mr Kumar acted for the costs applicant on a pro bono basis and that the costs applicant had no legal obligation to pay the fees of either Mr Donnelly or Mr Kumar." 4. The assessor wrote to Ms Fregnan and to Messrs Donnelly and Kumar seeking their responses to that submission. They separately rejected it. He did not, however, provide copies of that correspondence to Mr Stanizzo for comment or reply and concluded that in the absence of evidence that the lawyers did not act on a "strictly pro bono basis" they were entitled to be paid a fair and reasonable amount for their services. 5. Mr Stanizzo sought a review of the decision of the assessor under s 83 of the Legal Profession Uniform Law Application Act. His grounds of complaint included Ms Fregnan's "failure to give prior notice of [her] original application" and the assessor's failure to provide him with copies of the correspondence with Ms Fregnan and her lawyers. In undertaking its review the panel had all the functions of a costs assessor, was not bound by the rules of evidence and was able to inform itself "on any matter in the manner it thinks fit" (s 85(2), (3)). 6. In conducting its review the panel made further inquiries of Ms Fregnan and her lawyers, who denied the existence of any pro bono arrangement with respect to the payment of their fees. Mr Stanizzo was also given the opportunity to respond to that material. On 3 December 2018 the review panel issued two certificates of determination, the first reducing the costs assessed as payable by Mr Stanizzo to Ms Fregnan from $48,622 to $37,963 (including filing fees) and the other determining that the costs of the review panel of $8,036 be paid equally by Mr Stanizzo and Ms Fregnan (s 88(1)). 7. The appeal to the Supreme Court under s 89 was by way of rehearing and affidavit evidence of Mr Stanizzo and Ms Fregnan was read and relied on (Judgment [85]). 8. In this Court Mr Rollinson of counsel, appearing for Mr Stanizzo, identified the asserted error of the primary judge to be as follows. Ms Fregnan had the onus of establishing that she was liable to pay the costs of her lawyers. She sought to establish that by tendering costs agreements – one with Mr Donnelly dated 10 February 2015 and the other with Mr Kumar dated 29 August 2015. Those costs agreements provided for the payment of costs and contained no condition that they were to be paid only in the event that Ms Fregnan was successful and received a costs order in her favour. Accepting that the position was as recorded in the costs agreements, it was not open to Ms Fregnan to contend for a contingency fee arrangement or that the lawyers were entitled to payment by way of a quantum meruit. In those circumstances Mr Rollinson submitted that if the primary judge was not able to be satisfied that the agreements were effective, as is suggested at Judgment [115], the only remaining possibility was, as Mr Stanizzo contended, that the lawyers were acting pro bono. That was because there were indications in the evidence that Ms Fregnan was impecunious and would not have been in a position to pay the costs charged. 9. This argument does not take account of the other evidentiary material before the primary judge, which called into question the efficacy of the two costs agreements as recording the complete arrangements between Ms Fregnan and her lawyers. That evidence also showed that the legal work had been undertaken on the basis that the lawyers would be paid notwithstanding that Ms Fregnan would not be in a position to do so "until the matter was finished" (Judgment [110]). In the face of that evidence, whilst doubting that the written agreements with the lawyers accurately recorded their arrangements with Ms Fregnan, the primary judge was satisfied that under those arrangements she remained liable to pay their costs (Judgment [115]). It followed that Ms Fregnan was entitled to a "fair and reasonable amount of costs for the work concerned" (s 76(1)). 10. That being the position, there should be no grant of leave to appeal. The proposed appeal ultimately turns on a question of fact and involves no issue of general principle. Whether the evidence established a liability of Ms Fregnan for the lawyers' costs has been addressed twice, and on each occasion resolved in Ms Fregnan's favour. The primary judge is not shown to have erred in concluding that the relevant work was done on the basis that it would be paid for, at least when Ms Fregnan was in a position to do so, including as a result of a favourable costs order. Finally, although there were some procedural difficulties before the assessor in the resolution of that factual question, those difficulties were addressed before the review panel and were not repeated before the primary judge. 11. In the result, the summons seeking leave to appeal should be dismissed. As Ms Fregnan was self-represented in those proceedings there was no occasion for her to incur any recoverable expenses other than in respect of her notice of motion. That motion, filed on 15 February 2021, sought the summary dismissal of the summons and an order that Mr Stanizzo be declared a vexatious litigant. The relief sought by the first prayer was unnecessary and that sought by the second was not properly brought by way of motion in this Court in the proceedings for leave to appeal. Accordingly, that motion should be dismissed with no costs order in favour of Mr Stanizzo, as it was not the subject of any argument. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 July 2021