New South Wales Supreme Court CITATION : Player v Bennett [1999] NSWSC 519 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 10424/99 HEARING DATE(S) : 25 May 1999 JUDGMENT DATE : 1 June 1999 William James Player (Appellant) PARTIES : Dalene Lorraine Bennett (Respondent) JUDGMENT OF : Master Harrison COUNSEL : Mr J B Harrington (Respondent) Mr W J Player SOLICITORS : (Appellant) CATCHWORDS : Leave to appeal decision of costs assessor ACTS CITED : Legal Profession Act 1987 (NSW) - s 208M Trustee Act 1925 (NSW) (as amended) CASES CITED : Busuttil v Holder & Anor (NSWSC, Master Greenwood, unreported 9 August 1996) DECISION : See para19 10 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON TUESDAY, 1 JUNE 1999 10424/99 - WILLIAM JAMES PLAYER v DALENE LORRAINE BENNETT JUDGMENT (Leave to appeal decision of costs assessor) 1 MASTER: The appellant by summons filed 24 February 1999 seeks leave to appeal against the decision of costs assessor, Mr Leonard Hattersley made on 10 February 1999 and seeks an order that his decision be set aside. The appellant relies on s 208M of the Legal Profession Act 1987 (NSW). The appellant is the former solicitor of the defendant. The appellant relied on his affidavits sworn 5 November 1997 and 21 April 1999 and the affidavit of Gillian Player sworn 30 March 1999. The respondent relied on her affidavits sworn 5 November 1997 and 16 April 1999. The respondent was cross examined. The appellant sought to call evidence from Mr Boulton a barrister who acted for the respondent. I declined to allow fresh evidence to be called (see separate judgment). 2 Section 208M of the Legal Profession Act 1987 (NSW) (the Act) provides: "(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." 3 In seeking to appeal under s 208M rather than s 208L, the applicant requires material, other than, or in addition to a point of law in order to be successful. This section provides that such an application requires leave in accordance with the rules of the court. 4 I have read Master Greenwood's decision in Busuttil v Holder & Anor (NSWSC, unreported 9 August 1996). In particular I agree with his comments on the applicable test for leave. He says: "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 v Philip Morris Inc (1981) 148 CLR 170 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 the 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." 5 The bill of costs that was assessed covered three areas of legal work namely the Family Provision Act application, the proceedings to restrain the sale of the "Chalet" as an asset in the estate and the requiring of the executor to file accounts. It was common ground between the parties that the thrust of the respondent's objections to the costs assessor, firstly, in relation to the Family Provision Act matter, was that he gave bad advice and drafted affidavits which contained inadmissible evidence; secondly, in relation to the proceedings to restrain the sale of the "Chalet", the defendant's brother's solicitor undertook most of the work and thirdly, in relation to the requiring of the executor to file accounts, the defendant's brother's accountant and solicitor undertook most of that work. The amount claimed in the bill of costs was $27,757.25. The amount allowed by the costs assessor was $9,848. 6 Not all of the costs assessor's reasons were challenged. It was not submitted that the appellant had not been given ample opportunity to respond to the respondent's submissions to the costs assessor. To this end the costs assessor stated that there was much correspondence going to the basis of the appellant's retainer and like matters and he had been anxious to ensure that each of the parties had a full set of all correspondence which had been exchanged between each one of them. 7 I had some difficulty with the manner in which the appellant presented his case. He directed his questions in cross examination to the respondent to certain documents - for example letters from Greaves Wannan and Williams dated 14 July 1997 and 21 May 1997 (pp 5-8 of bundle of exhibits). I have examined the costs assessor's file and copies of these letters do not appear on file. However, there is no correspondence passing between the costs assessor and the parties on that file. There is no evidence as to what documents were actually before the costs assessor except in so far as in the exhibits to the affidavit of the appellant which contain documents either referring to the costs assessment or were addressed to the costs assessor. The appellant has not established that letters from Greaves Wannan and Williams were ever tendered to the costs assessor so they cannot be taken into account in the application for leave to appeal. The appellant did not make out a case for these documents to be introduced as fresh evidence. 8 I shall refer to each of the three areas of work to which the bill relates and the corresponding reasons of the costs assessor in relation to each area and then consider whether leave to appeal should be granted. 9 In relation to the work carried out in relation to the Family Provision Act matter, the costs assessor in his reasons for determination dated 10 February 1999 stated: "It seems to me that the amount of profit costs sought by Mr Player referrable to the services provided by him in relation to the conduct of the Family Provision Act claim is approximately $13,700. Whilst I have considered each individual charge made by the him in his bill I have come to the view that I should not approach the making of his determination of what is a fair and reasonable amount to be allowed to Mr Player for his efforts by approving or disallowing or reducing the costs claimed by him on an item by item basis. For example, there are a vast number of items dealing with work done to create a number of affidavits filed in the proceedings on behalf of Ms Bennett. Much of the material in those affidavits appears to be inadmissible and irrelevant. I have come to the conclusion that it was preferable that he determine a fair and reasonable amount by way of a lump sum. In relation then to those costs claimed at $13,700.00 I determined that $7,700.00 is a fair and reasonable amount to be recovered by him for such costs. To that amount is to be added the disbursements of $2,425.75 incurred by him resulting in the sum of $10,125.75 from which was to be deducted the amount of $1,754 paid on account by Ms Bennett." 10 The appellant did not challenge the costs assessor's method of lump sum assessment. In relation to the Family Provision Act matter, it was common ground that the letter by Mark Boulton dated 5 June 1998 was before the costs assessor. Mr Boulton was the respondent's barrister instructed shortly before the trial was due to commence in the Family Provision Act matter. In that letter Mr Boulton stated that: "… The defendant's counsel furnished a list of objections to various affidavits/portions of affidavits. This document was returned to Mr Player (I believe) when I returned the Brief. I agreed with nearly all of the objections. From recollection, the bulk of the affidavits prepared by Mr Player were inadmissible and my firm view was that even if Mrs Bennett was successful in the case, she would not have been awarded costs for the preparation of those affidavits. …" 11 A copy of the list of objections was before the costs assessor. The appellant by his letter dated 15 June 1998 put his submissions in relation to the affidavit to the costs assessor. On the evidence before the costs assessor he was entitled to take the opinion of the barrister, Mr Boulton into account. It was open to the costs assessor to come to the conclusions that he did. I see nothing wrong in the costs assessor's approach in relation to his assessment of the Family Provision Act component of the bill of costs. 12 In relation to the proceedings to restrain the sale of the "Chalet" the costs assessor stated: "I am of the opinion that in the events which occurred - see Reasons for Judgment of Mr Justice Hulme of 9 December 1994 Ms Bennett should not be required to pay the costs incurred by Mr Player in relation to items 78 and 177 inclusive and I have accordingly disallowed the cost charged for those items in the sum of $3,719.00. It is significant that assuming that Mr Player was entitled to take some action to recover some part of those costs from the estate relying upon the costs order made by Mr Justice Hulme he took no such action. One could assume that the benefit of such costs order had been totally lost by reason of the estate now having been administered." 13 In relation to the Equity proceedings to restrain the sale of the "Chalet" as an asset of the estate, items 78 to 177 were disallowed. These items relate to costs of the lodging of the caveat and the application before Hulme J on 9 December 1994. Gregory Fox (the respondent's brother) took proceedings pursuant to s 81 of the Trustee Act 1925(NSW) (as amended) seeking an order for the removal of a caveat. The defendant in those proceedings (and respondent in these proceedings) is Mrs Bennett. Hulme J stated that "the defendant's conduct had been quite unreasonable and that she was not entitled to lodge a caveat". His Honour also considered that the plaintiff's behaviour fell short of exemplary so ordered the plaintiff to personally pay the two third of the defendants' costs on the basis of one representation. 14 There is a letter from the respondent addressed to the costs assessor dated 10 August 1998 where she states that the idea to lodge a caveat came from the appellant but he did not discuss with her whether she in fact had a caveatable interest. She claimed that no explanation was given to her by the solicitor as to what a caveatable interest was and she later learned that she did not have one. The respondent submitted that the solicitor should not be allowed those costs. The respondent also made another submission that her solicitor's role in the application before Hulme J was minor and her brother's solicitor had a more active role. The appellant put his version of the events before the costs assessor, although I can only locate the appellant's letter of 21 September 1998 which does not specifically cover his version of the events which led to the lodging of a caveat. It is my view that on the competing versions of events, the costs assessor was entitled to come to the view that he did the appellant has not shown that any error has been made by the costs assessor. 15 However, in relation to the "Chalet" proceedings, the costs assessor stated that the appellant could have taken some action to recover the costs from the estate relying upon the costs order made by Hulme J. This statement appears to be incorrect as it was Mr Gregory Fox who had to personally pay the costs. The further statement by the costs assessor that the benefit of such costs order had been totally lost by reason of the estate now having been administered is also incorrect. The costs assessor's assumption the estate had been administered is incorrect and is not relevant if the costs are not to be paid from the estate. Nevertheless, I do not regard these incorrect statements to be material factors that caused the costs assessor's to deduct the sum of $3,719 but rather one further reason as to why some costs claimed should be deducted. The costs assessor based his decision to deduct that sum on the reasoning of Hulme J which I take to mean, His Honour's findings that there was no caveatable interest. The costs assessor accepted the respondent's submissions that it was her solicitor's decision to adopt this wrong course and therefore should not be liable for those costs. 16 In relation to the requiring of the executor to file accounts the costs assessor stated: "I am of the opinion that no retainer existed between Ms Bennett and Mr Player for the performance by him of these services for which he charged her substantial fees. I specifically requested Mr Player to furnish to me explanations in the terms of numbered paragraph 1 of my letter to him of 17 November 1998. No explanation was forthcoming from him but Ms Bennett specifically denied giving such instructions to him - see her letter to me undated by referring to my letter to Mr Player. Thus I have disallowed all of those costs claimed by Mr Player dealing with his intervention into the estate accounts issues" 17 In relation to the requiring of the executor to file accounts, the costs assessor's reasons are self-explanatory and I cannot find any error in his reasoning. 18 I have reached the conclusion that there has not been an error on the face of the record. I have also come to the same conclusion after examining the evidence before the costs assessor that there has been no error made by him. The costs assessor deducted $5,000 from the Family Provisions Act component of the bill, $3,719 from the "Chalet" component of the bill and did not allow the costs claimed for requiring the executor to lodge accounts. Even if I am wrong in finding that there has been no error in one or more of these components of the bill, it is my view that there is no substantial injustice done to the appellant if the determination of the costs assessor is allowed to stand. It is my view that the appellant having not provided explanations to the costs assessor as requested and not having provided the supporting documentation to the costs assessor now seeks a second hearing to rectify these short comings. This course of action is without merit. For these reasons, leave to appeal is refused. The summons is dismissed with costs. Costs should follow the event. 19 The orders I make are: (1) Leave to appeal is refused. (2) The summons filed on 24 February 1999 is dismissed. (3) The appellant is to pay the respondent's costs. ********** Last Modified: 06/07/1999 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.