WENTWORTH v WENTWORTH (Executor of the Estate of the law G N Wentworth) [1998] NSWCA 257

WENTWORTH v WENTWORTH (Executor of the Estate of the law G N Wentworth)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

FITZGERALD AJA, PRIESTLEY and STEIN JJA 12 August 1998, 3 September 1998 [1998] NSWCA 257

TAXATION of costs — quantum of counsel's fees — relevant test to be applied is "necessary or proper" test — scale in Ritchie's Supreme Court Practice has no legitimacy or materiality for the determination of counsel's fees allowable on a party and party taxation.

Priestley JA I agree with Fitzgerald AJA. Stein JA I agree with Fitzgerald AJA.

Fitzgerald AJA This is an appeal by leave from part of a decision of Master McLaughlin on 30 October 1997, which confirmed an earlier decision of Taxing Officer Davidson on 29 November 1996. The respondent did not oppose the appeal, but the Attorney-General appeared by counsel to assist the Court.

The appellant had successfully claimed provision from the estate of her late father under s7 of the Family Provision Act 1982. In the Equity Division, the executor of the deceased's estate was ordered to pay the appellant's costs. That order was confirmed in this Court, which also ordered the executor to pay half of the appellant's costs of appeals brought by the appellant and the executor. Under Pt52, r23(2) of the Supreme Court Rules, she is entitled on a party and party taxation to "all such costs as were necessary or proper for the attainment of justice or for enforcing or defending [her] rights...". The present appeal relates only to fees paid by the appellant to her barristers on brief, for refreshers and as additional fees for preparation.

Each of the items charged by Counsel was held to be "necessary or proper". The amounts allowed on brief and for refreshers were based on the scale with respect to barristers' fees set out in Ritchie's Supreme Court Practice, to which 25% was added. For the additional preparation, an amount equivalent to a full brief fee (according to the scale) plus 25% was allowed for the appellant's Senior Counsel for each of two days, and an amount equivalent to a full brief fee (according to the scale) plus 25% was allowed for her Junior Counsel for one day. It was accepted that Senior Counsel has been paid for seven days' additional preparation and Junior Counsel had been paid for three days' additional preparation, that that work had been done, and, although this is not entirely clear, that the additional preparation was "necessary or proper" having regard to the "complexity and voluminous documentation" involved.