Supreme Court New South Wales Medium Neutral Citation: Berrigan Doube Lawyers Pty Ltd t/as Berrigan Doube Lawyers v Millar Eagger Pty Ltd t/as ME Engineering [2016] NSWSC 235 Hearing dates: 4 March 2016 Date of orders: 04 March 2016 Decision date: 04 March 2016 Jurisdiction: Equity Before: Beech-Jones J Decision: (1) That the time for the filing of the summons be extended up to and including 20 October 2015. (2) That leave to appeal to raise a mixed question of fact and law under s 40(1) of the Local Court Act 2007 (NSW) be refused. (3) That the summons be dismissed. (4) Order that the plaintiff pay the defendant's costs of the proceedings on an indemnity basis. Catchwords: APPEAL FROM LOCAL COURT – Presiding Magistrate's finding as to the reasonableness of the quantum of professional fees – weight to be placed on expert reports – admissions as to reasonableness of professional fees – alleged failure to provide adequate reasons. Legislation Cited: - Local Court Act 2007 – s 39(1), s 40(1) - Uniform Civil Procedure Rule 2005 (NSW) – 50.3(1)(c) Cases Cited: - Australian Broadcasting Tribunal v Bond [1990] HCA 33, 170 CLR 321 - Campbelltown City Council v Vegan [2006] NSWCA 284, 67 NSWLR 372 - Chaina v Presbyterian Church (NSW) Property Trust (No 24) [2013] NSWSC 167 - Chaina v Presbyterian Church (NSW) Property Trust (No 25) [2014] NSWSC 518 - Diamond v Simpson No 2 [2003] NSWCA 78 - Kostas v HIA Insurance Services Pty Limited [2010] HCA 32, 241 CLR 390 - Sayed v Deng [2012] NSWSC 851 - South Sydney Council v Walsh No 2 [2003] NSWCA 111 Category: Principal judgment Parties: Berrigan Doube Lawyers Pty Ltd – Plaintiff Millar Eagger Pty Ltd – Defendant Representation: Counsel: Ms . McGing (Sol) – Plaintiff K. Ginges – Defendant Solicitors: Berrigan Doube Lawyers Pty Ltd – Plaintiff Burt & Allen – Defendant File Number(s): 2015/306708 Judgment (revised from ex tempore) 1. The plaintiff in these proceedings, Berrigan Doube Lawyers Pty Ltd ("Berrigan") is a law firm that retained the defendant engineers, Millar Eagger Pty Ltd trading as ME Engineering ("Millar"), to provide an expert's report for use in litigation. Berrigan was the defendant in proceedings in the Local Court brought by Millar to recover its professional fees for preparing the report. The Local Court upheld Millar's claim. Judgment for $69,114 with interest from August 2014, together with costs, was entered against Berrigan. 2. Berrigan now appeals the Local Court's judgment to this court. Sub-section 39(1) of the Local Court Act 2007 (NSW) confers on Berrigan a right of appeal against the judgment on a question of law. Although it is not entirely clear, it seems that, to the extent necessary, Berrigan also seeks leave to appeal on a mixed question of fact and law pursuant to s 40(1) of the Local Court Act. 3. The sole issue in dispute in the proceedings brought by Millar was the quantum of professional fees, and in particular, whether the time it spent and charged for was reasonable in all the circumstances. The Presiding Magistrate held that it was. Berrigan's grounds of appeal attack his Honour's conclusion. 4. Berrigan also seeks a short extension of time to bring its appeal pursuant to Uniform Civil Procedure Rule 50.3(1)(c). Berrigan was one day late in filing its summons. The extension of time was not opposed, and will be granted. 5. To address Berrigan's grounds of appeal, it is first necessary to set out the background to its dispute with Millar, and then summarise the Presiding Magistrate's judgment. Background 1. The engineer principally responsible for the preparation of Millar's report was Mr Rick Millar. Mr Millar gave evidence before the Local Court. The solicitor who had day-to-day carriage of the preparation of the expert's report on behalf of Berrigan was Mr Gairbhin Cooper. Mr Cooper did not give evidence. Apparently he was interstate. Instead, Berrigan called evidence from the principal lawyer who had overall responsibility for the conduct of the litigation that Millar was providing a report for, Mr John Cheng. Berrigan also called an expert engineer, Geoffrey Covey, who reviewed the time spent by Millar in preparing the report. 2. The following narrative was taken from material that was tendered in the Local Court, which does not appear to have been in dispute. It should be noted that it was never suggested to Rick Millar that the time that was invoiced for was not the time actually spent on preparing the reports. Instead, as I have stated, the sole issue was the reasonableness of the amount that was charged, and in particular, the reasonableness of the time that was spent. 3. Up until May 2003, Berrigan were the solicitors on the record for the members of the Chaina family. That family were the plaintiffs in proceedings against the Presbyterian Church (NSW) Property Trust. The proceedings concerned the tragic death of the son of Mr and Mrs Chaina on a bush camp conducted by The Scots College. One part of at least the parents' claim was that, as a result of their son's death, a commercial opportunity to purchase a factory in Lithgow to manufacture cleaning products was not taken up. 4. Berrigan, on behalf of the Chainas, was seeking to obtain an engineer's report concerning the processes, machinery and equipment that the parents had available to them prior to their son's death in order to assist in demonstrating the likelihood that they could have successfully pursued the manufacturing business. To that end, in September 2011 a solicitor from Berrigan, Mr Cooper, contacted Mr Millar concerning his preparedness to provide an expert's report. On 1 November 2011, a letter of instruction was sent to Mr Millar. On 11 November 2011, Mr Millar sent an email providing an estimate of the cost of preparing the report at $25,000. His email advised that his charge-out rate was $250 per hour, and that the staff member who would assist him would charge $225 an hour. 5. On 1 December 2011, Mr Millar sent a more detailed quote that identified the scope of the work, which reiterated the estimate of $25,000, re-stated the charge-out rates and confirmed that GST was additional to the quoted rates. His email stated that "all claims will be supported by timesheets". 6. In relation to payment terms, Mr Millar's email stated: "We understand the work will be invoiced on completion for payment on or before the 30th June 2012 following the conclusion of the case by settlement or judgement [sic] from the Court. For the deferral of payment you offer an uplift for receiving payment beyond our standard terms of cost plus 25%, i.e. an invoice of $25,000 will be increased to $31,250. Based on invoice prior to Xmas and standard payment date of end of January the proposed delay is nominally five months. Earlier payment will be reduced pro-rata at 5% per month. Later payments beyond 30th June will incur a further interest charge of RBA rate + 5.5%, calculated daily and accrued monthly (start date being the 30th June 2012)." 1. On 9 December 2011, Berrigan confirmed that it accepted the quote. In particular, it confirmed that the firm accepted responsibility to make payment to Millar. 2. On 6 January 2012, Mr Millar advised Mr Cooper that he had finished the report, although he raised a number of issues he wanted to discuss further. On 9 January 2012, Mr Millar completed the report and sent it to Mr Cooper by email. 3. According to Mr Millar's statement, he had a conference with Mr Cooper on 23 January 2012 during which they discussed the issues raised in the email dated 6 January 2012. Mr Millar claimed that during that conference he told Mr Cooper that Millar had "used the estimated hours to date". This evidence was not contradicted in the Local Court, although Mr Cheng denied that Mr Cooper had told him about Mr Millar's statement. As I will explain, it is clear that the Presiding Magistrate accepted Mr Millar's evidence. 4. Between January 2012 and May 2012, Mr Millar awaited receipt of a report from another expert, namely, Mr Van Dyke. Mr Millar was sent a draft of that report on 24 May 2012 and a final version on 1 June 2012. 5. In his witness statement Mr Millar said that on 15 June 2012, Mr Cooper requested that Mr Millar add a section in his report about the packaging of industrial products. On 22 June 2012, Mr Millar sent a revised draft report. His first draft sent in January was 20 pages long. This draft was 31 pages. Mr Millar also stated that this version did not include a section on what was described as the "industrial relaunch". 6. On 29 June 2012, Mr Millar sent an invoice to Berrigan claiming $31,075 in costs exclusive of GST. Attached to the invoice was a document entitled "activity slip", which broke down the invoice to identify the time spent by each staff member on each day. This was accompanied by a very brief description of the work undertaken. In an email sent shortly afterwards, Mr Cooper acknowledged receipt of the invoice, stating, "I will forward this to the clients and speak to you again in the first half of next week". 7. Mr Millar stated that throughout July 2012, "by exchange of emails with Mr Cooper, I made various revisions" to the report. This led to Mr Millar providing five revised reports. The final version of the report appears to have been sent on 28 July 2012. It was 42 pages in length. 8. On 27 July 2012, a further invoice was sent seeking $15,100 in fees plus GST. This invoice was also accompanied by an activity report breaking down the time spent in the manner I have already described. 9. The undisputed evidence was that at no stage were any complaints made to Millar in relation to the invoices prior to the commencement of litigation to recover the fees owing. 10. In September 2012, Mr Millar and Mr Cooper exchanged emails in relation to the collection of the documents relied upon in preparing the report. It follows from what I have just stated that there was no complaint made at this time, either about the amount of the invoice or the time spent in preparing the reports. 11. On 13 March 2013, Mr Millar emailed Mr Cooper chasing payment of the invoices. On the same day Mr Cooper emailed Mr Millar, requesting that he make himself available in July and August 2013 to give evidence. On 1 May 2013 Mr Millar responded, reminding Mr Cooper of the outstanding invoices. 12. On 16 May 2013, Mr Cooper sent an email to persons retained by the firm in the Chaina proceedings, which included Mr Millar. He advised that Berrigan had ceased to act on behalf of the Chainas, and asked them to direct further correspondence to their new solicitors. Mr Cooper added as a "personal note" that "we [the firm] appreciate both your willingness to help the Chaina family as well as the excellent work that you have provided to date". 13. During the course of 2013, the report prepared by Mr Millar was sought to be tendered in the Chaina proceedings. However, it was rejected by Davies J because the assumptions relied upon by Mr Millar were not proven (see Chaina v Presbyterian Church (NSW) Property Trust (No 24) [2013] NSWSC 167). 14. On 23 May 2014, Davies J published his principal judgment in the Chaina proceedings: Chaina v Presbyterian Church (NSW) Property Trust (No 25) [2014] NSWSC 518~. 15. On 6 June 2014, Mr Millar wrote again seeking payment of his invoices. On 11 June 2014, Mr Cheng replied that, as the case was still "ongoing in relation to interest and costs", Berrigan were not in a position to make payment. Mr Millar responded on 18 June 2014, reminding Mr Cheng of the terms on which payment was required pursuant to the quote provided in December 2011. 16. Mr Cheng replied to this in an email dated 18 June 2014. His email stated, inter alia: "I appreciate that you have done a lot of good work for this family and extended your payment terms to facilitate the family's needs. Unfortunately, with the Chainas refusing to pay our bills, we simply do not have enough funds to pay for your invoices to date. Despite working tirelessly for the Chainas for 2 years, we have not received our professional fees from them. This firm is a two partner firm and our monetary resources [are] limited. We cannot afford to pay contractors which are engaged for a client if the client does not pay our fees." 1. Mr Millar responded on 24 June 2014, again seeking payment. He wrote again on 5 August 2014. 2. On 14 August 2014, Mr Cheng sent an email to Mr Millar's assistant, which stated the firm did not have funds to pay the account. He also stated: "As per our phone call today, I confirm that we will be in a position to arrange payment of your outstanding fees through the security which we have obtained from Bartercard dollars. I will be happy to arrange a transfer of 100% of the fees owing + interest owed on the account." 1. As its name implies, the Bartercard system appears to be some form of bartering system between professional firms whereby amounts owing are paid by the provision of services. 2. Mr Millar responded on 21 August 2014, rejecting Mr Cheng's offer. Judgment appealed from 1. Before the Local Court, Millar relied on the above narrative of events as demonstrating that Berrigan had, in effect, conceded that the time spent by Millar in preparing the report was reasonable. 2. As stated, Berrigan tendered a report from Dr Covey which considered the time required by a reasonable engineer to prepare the report prepared by Millar. Dr Covey undertook his assessment by reference to three methods, namely the so-called "Tongue methodology", which is not necessary to describe further, Dr Covey's personal experience in preparing similar reports, and finally, by considering the time required for the individual tasks which he understood were involved in the preparation of the report. Using these three methods, Dr Covey arrived at the figures of 90 hours, 120 hours and 84 hours respectively. The two invoices rendered by Millar reflected approximately 200 hours of professional time. 3. Millar calculated the amount it was entitled to recover as at 31 August 2014 at $69,114. This was comprised of the combined total of its two invoices exclusive of GST, namely $46,175, an uplift of 25 per cent of that amount, namely $11,544, and the balance in interest. It appears that, mistakenly, Millar had not sought recovery of GST. 4. In his judgment, the Presiding Magistrate accepted that Millar bore the onus of demonstrating that the time spent by its staff in preparing the report was reasonable. His Honour found in Millar's favour on two separate bases. First, his Honour made his own assessment of the work that was reasonably required to be performed by Millar in preparing its report. Before any allowance for uplift and interest, his Honour found that amount to be $50,750, which exceeded the equivalent figure invoiced by Millar. Second, his Honour found that the conduct of Berrigan amounted to an admission as to the reasonableness of the time spent by Millar in preparing the report and the amount invoiced. 5. In relation to the first method, his Honour accepted that Dr Covey was qualified and that he gave reliable evidence. However, his Honour identified a significant limitation of his report, namely that: "… due to time pressures [Dr Covey] was not appraised of much of the extra work the plaintiff did (not having available to him the six draft versions before the final one which he did have) and for that reason it would in any case be necessary to adjust upwards the amount of time that should be found to be reasonable." 1. His Honour sought to quantify the work undertaken by Millar additional to that that was assessed by Dr Covey. His Honour identified four areas of work as being additional, namely, the section on packaging industrial products, the work involved in cross-referencing reports, what his Honour described as "substantial work considering and incorporating" the reports of Dr Van Dyke provided in June 2012, and the preparation of the five revised reports in July 2012. 2. At various points in the judgment his Honour purported to quantify these individual components. However, ultimately his Honour took the lowest figure nominated by Dr Covey, namely, 84 hours, allocated two-thirds of that work at Mr Millar's charge-out rate and one-third at the lesser rate for other professional staff, and multiplied the resultant figure "by 2.5 to recognize the fact that the plaintiff performed much additional work including several revisions of its report". Although one of the grounds of appeal concerns the weight attached to Dr Covey's report, they otherwise do not attack this aspect of his Honour's reasoning. 3. In relation to the second method, his Honour started with the proposition that a conclusion that a party had admitted the reasonableness of the amount invoiced and time spent could be drawn from the lack of challenge after the receipt of accounts. His Honour then reached that conclusion, stating as follows: "… when one takes together the fact of a lack of any such challenge, the fact the defendant twice spoke gratefully of the quality of the work …, and the fact that the defendant offered to pay the full amount due by way of bartercard payment, in my view there is an admission that the work was properly done and time properly and reasonably spent." 1. At this point three further matters should be noted about his Honour's judgment. First, his Honour rejected a complaint by Berrigan about Millar's failure to provide time sheets, as referred to in the original quotation. His Honour accepted Millar's explanation that after the expiry of a predetermined period such time sheets were destroyed. His Honour drew no inference adverse to Millar from that destruction. While his Honour noted that the failure to provide the time sheets may have been a breach of the parties' agreement, his Honour was not satisfied that breach was causative of any loss, and otherwise noted that there was no cross-claim by Berrigan. 2. Second, his Honour considered and rejected a complaint by Berrigan that Millar had failed to disclose a likely increase in its costs beyond the amount it originally quoted. His Honour noted, and appears to have accepted, Mr Millar's account of his conversation with Mr Cooper in January 2012. His Honour also noted that Millar sent an invoice in June 2012 which was in excess of the estimate, and that Berrigan requested further work be done in July 2012. His Honour considered this indicative of Millar having disclosed that the cost estimate had been exceeded. 3. Third, his Honour rejected a complaint that the work performed by Millar after April 2012 was not authorised. His Honour accepted that Mr Cooper had in fact authorised the work and that Mr Cooper had sufficient authority to bind Berrigan. First Ground of Appeal: No admission by Berrigan 1. Berrigan's first ground of appeal is that the Presiding Magistrate erred in concluding that it had admitted that the time charged for by Millar was reasonable. 2. As formulated in Berrigan's summons, this ground does not raise a question of law. However, Berrigan's written submissions contend that it was "not open" to the Local Court to find that it had made an admission in the terms found by the Presiding Magistrate. This should be taken as a contention that there was no evidence before the Presiding Magistrate capable of amounting to an admission. Such a contention does raise a question of law (see Kostas v HIA Insurance Services Pty Limited [2010] HCA 32, 241 CLR 390 at [90] per Hayne, Heydon, Crennan and Kiefel JJ; Australian Broadcasting Tribunal v Bond [1990] HCA 33, 170 CLR 321 at 326 per Mason CJ). 3. Both the written submissions in support of the ground and the oral submissions made by Ms McGing on behalf of Berrigan took issue with his Honour's reliance on the two instances in which it was said that Millar was "thanked" by Berrigan for providing its services, namely, the emails of 16 May 2013 and 18 June 2014, which I have described. It was contended that these emails went no further than merely amounting to an acknowledgment of the completion of the reports and that they said nothing about the amount of work involved in their preparation. 4. The written and oral submissions made on behalf of Berrigan also contended that no reliance could be placed on Mr Cheng's offer to pay "100 per cent of the fees" through the Bartercard system. It was contended that this was some form of settlement proposal. Otherwise, Berrigan contended that no reliance could be placed on the absence of any complaint about the invoices or the accompanying indication of the time spent, principally because, it was said, the obligation to pay the invoices was deferred until the end of the litigation. 5. None of these matters come close to establishing that it was not open to his Honour to conclude that Berrigan, by its conduct, had admitted the reasonableness of the charges or the time spent. Three points should be noted. First, it is clear from his Honour's judgment that his Honour relied upon the combination of all three matters as ultimately constituting an admission. Thus, in his judgment his Honour explained that "without more", merely thanking an expert for the quality of their work would not constitute admission as to the reasonableness of the time involved. However, his Honour explained at length that in this case there was more, namely, the complete absence of any complaint over a long period concerning those invoices, the listing of the time that was involved in preparing the report in the activity reports accompanying the invoices, and the offer to pay. 6. Second, the suggestion that, as payment had been agreed to be deferred, no inference was capable of arising from the complete lack of any complaint as to the content of the invoice is baseless. It is in fact very doubtful whether Berrigan's assumption that the payment of the invoices was deferred beyond the publication of final judgment is correct. Certainly, Millar was not operating on that understanding. It instead was operating on the basis that payment was only deferred to 30 June 2012. However, even if Berrigan's position was correct, that does not mean that an inference cannot arise from a party's failure to complain about the content of an invoice sent before the obligation to pay arises. Whether or not such an inference will arise depends upon the relevant business context and the nature of the communications between the parties. 7. In this case, the business context involved the dealings between a solicitor and an expert witness retained by that solicitor. Ordinarily, a high level of trust and candour can be expected between such persons. Moreover, it can be expected that solicitors, in discharge of their duties to their clients whom it is expected will ultimately pay for the expert's report, will scrutinise to a reasonable degree such invoices and any listing of time that accompanies them. 8. It was, in these circumstances, certainly open to his Honour to conclude that the complete absence of any complaint whatsoever by Berrigan about the time spent by Millar as revealed by its invoices was eloquent of Berrigan's acceptance that the time spent was reasonable. 9. Third, I have set out the relevant terms of the email from Mr Cheng dated 14 August 2014 offering payment by Bartercard. While the email can be construed as some form of attempt to reach a compromise, the only basis upon which a compromise is suggested is because of an inability on the part of Berrigan to make a cash payment. The email does not suggest that a basis for compromise is some dispute about the reasonableness of the time spent by Millar in preparing its reports. 10. In these circumstances, it was certainly open to the Presiding Magistrate to treat that email as an acceptance that the full amount was owed by Berrigan to Millar and that, implicitly, Berrigan admitted that the charges in the invoices were reasonable. 11. It follows that I reject the first ground relied on by Berrigan. It was open to his Honour to find that the invoices were payable by reason of an admission on the part of Berrigan that "the work was properly done and time properly and reasonably spent". Second Ground: The Presiding Magistrate erred in finding that Millar discharged its onus of proof 1. The second ground relied on by Berrigan is that the Presiding Magistrate: "… erred in finding that the respondent proved the onus that the invoices were reasonable as such a finding was not available on the evidence, given that time sheets and supporting material was not produced by the respondent." 1. As formulated, this ground does not raise any question of law but simply a question of fact. In effect, it seeks to re-argue the proposition rejected by the Presiding Magistrate that the absence of the time sheets and supporting material meant that his Honour could not be properly satisfied that the time spent was reasonable. 2. There was nothing as a matter of law that meant his Honour was precluded from making the relevant finding because the time sheets and supporting material were not produced. As I have said, his Honour addressed and rejected the submission that some inference adverse to Millar should be drawn because those time sheets were not able to be produced. 3. Ultimately, the absence of the time sheets and the supporting material was simply the product of the failure of Berrigan over a long period to raise any issue with Millar about the reasonableness of their charges and the time spent in preparing the reports. This ground does not raise a question of law but simply a question of fact. I reject it. Third Ground: Whether Dr Covey's report was determinative 1. Berrigan's third ground contends that the presiding magistrate erred in failing to find the expert report of Dr Geoff Covey determinative on the question of reasonableness. The written submissions repeat this by contending that his Honour was obliged to consider that the report was determinative "in the absence of relevant evidence to the contrary adduced by the respondent". 2. The proposition that Dr Covey's evidence was determinative needs only to be stated to be rejected. At all times the question as to whether or not the amount invoiced was reasonable was a question of fact that was exclusively for the Presiding Magistrate to answer. 3. I have already described his Honour's reasoning in relation to Dr Covey's report. His Honour afforded great weight to Dr Covey's expertise and his evidence, but also identified some significant limitations upon the approach he adopted, given he was subject to time constraints and the instructions Dr Covey was given. 4. The Presiding Magistrate's consideration of Dr Covey's evidence afforded the appropriate deference to that of an expert, but ultimately treated it as other evidence that was to be considered in the matter. This ground does not raise any question of law. It is solely a complaint of fact. I reject this ground. Fourth Ground: Failure to provides time sheets 1. The fourth ground raised in Berrigan's summons is that the Presiding Magistrate erred in finding that Millar's failure to provide time sheets, while a breach of contract, was not capable of sounding in damages. There were no written or oral submissions directed to this ground. It is, for the reasons given by the Presiding Magistrate, unsupportable. No damage was identified by Berrigan as a result of any failure to provide time sheets. Berrigan did not raise any cross-claim alleging that it suffered any damage by reason of that failure. I reject this ground. Ground 5: Failure to provide adequate reasons 1. Berrigan's fifth ground is that the Presiding Magistrate failed to give adequate reasons in relation to the calculation of loss and/or damages suffered by the respondent, Millar. The written submissions in support of this ground assert that his Honour's reasons appear to be statements of conclusions in that his Honour apparently: "… considered that the circumstances were in and of themselves plainly suggestive that the applicant was entitled to payment of the invoices issued, and that no further analysis or explanation was warranted once the expert report of Dr Covey was deemed flawed." 1. A contention that the Local Court did not provide adequate reasons is capable of raising a question of law for the purposes of s 39(1) of the Local Court Act (see Campbelltown City Council v Vegan [2006] NSWCA 284, 67 NSWLR 372 at [31], [33] and [130].) However, a complaint that reasons were inadequate is not a basis for re-agitating the merits of the Local Court's reasons. 2. In this case, I have explained the two separate bases upon which his Honour upheld Millar's claim. In my view, far from being merely statements of conclusion, the 10 pages of reasons given by his Honour more than adequately explained the basis for his ultimate finding. 3. If there is any basis for criticism of his Honour, it is that there was no narrative of the background facts set out in his Honour's reasons. However, as I have stated, in large part the relevant facts were not in dispute, and to the extent that they were in dispute it is clear his Honour made findings accepting Mr Millar's evidence. Otherwise, it is not correct to state that his Honour deemed Dr Covey's report to be "flawed". Instead, his Honour set out what he considered were the limitations on Dr Covey's instructions and sought to accommodate them by identifying the additional work performed by Millar and then, as best as his Honour could, calculating what were the reasonable costs of preparing the expert report ultimately produced by Millar. 4. His Honour's reasons adequately set out the basis for his Honour's finding. I reject the fifth ground as set out in Berrigan's summons. Leave to Appeal 1. As noted, although it is not entirely clear, it seems that Berrigan also seeks leave to appeal on a mixed question of law and fact (Local Court Act, s 40(1)). Counsel for Millar, Mr Ginges, opposed leave being granted. One matter raised by Mr Ginges in opposition to this ground concerns the alleged refusal of Berrigan to concede that any amount was owing for Millar's fees. Mr Ginges submitted that, on any view, an amount between $30,000 and $35,000 before interest and uplift was owing to his client. He pointed to a passage in the transcript before the Local Court in which Mr Cheng had refused to concede any liability. 2. Ultimately, Mr Ginges submitted that the question of leave should be approached on the basis that the amount truly in dispute was not the judgment that was entered in his client's favour, but a lesser sum of between $20,000 and $30,000. He submitted that that amount, being the true amount in dispute, was a factor that strongly militated against the grant of any leave to appeal on a mixed question of fact and law, bearing in mind my observations in Sayed v Deng [2012] NSWSC 851. 3. There is considerable force in Mr Ginges' submissions in this regard, however, it is not necessary to reach a final view on them. The only real contention of substance made by Berrigan on this appeal was its attack upon the Presiding Magistrate's conclusion that it had admitted the reasonableness of the charges. I have already rejected that attack, and consider it was open to the Presiding Magistrate to find that they had made that admission. 4. Moreover, from having reviewed the material, I consider that even if his Honour's ultimate finding in that regard did constitute a finding of mixed fact and law, Berrigan's prospects of success in disturbing it if leave were granted are very low. A review of the history of the dealings between Berrigan and Millar reveals that Mr Cooper was intimately involved in dealing with Mr Millar in the preparation of the report, and that Mr Millar sent invoices which clearly stated the amount that was being invoiced for and the time spent in preparing the reports. Despite ample opportunity to do so, at no point did Berrigan raise even a single query as to the time spent or the amount invoiced. 5. In my view, the prospects of success for Berrigan in disturbing the finding of reasonableness, even if leave were granted, are so low that a grant of leave is not warranted. I am reinforced in this by the fact, as I have already stated, that Berrigan made no substantial attack on the alternative basis upon which his Honour upheld Millar's claim, namely the adoption of a bottom-up approach which relied on one of Dr Covey's estimates and then factored in amounts for the additional work that his Honour identified was undertaken by Millar of which Dr Covey was not aware. 6. Accordingly, leave to appeal to raise a mixed question of fact and law is refused. Conclusion 1. It follows that the appeal will be dismissed. The Court makes the following orders: 1. That the time for the filing of the summons be extended up to and including 20 October 2015. 2. That leave to appeal to raise a mixed question of fact and law under s 40(1) of the Local Court Act be refused. 3. That the summons be dismissed. Costs [The parties addressed on costs.] 1. Following the pronouncement of judgment, Mr Ginges sought an order that Berrigan pay Millar's costs of the proceedings in this Court on an indemnity basis. An order for costs on that basis was made by the Local Court because Millar had exceeded an offer of compromise that it made in April 2015. 2. Mr Ginges has drawn my attention to South Sydney Council v Walsh (No 2) [2003] NSWCA 111, in which the Court of Appeal adopted the remarks of Stein JA in Diamond v Simpson No 2 [2003] NSWCA 78 to the effect that an offer of compromise made at trial continues for the purpose of consideration of costs on appeal. Accordingly, he submits that his client, having been vindicated, should get its costs on an indemnity basis. Ms McGing did not express any opposition to that course in light of the dismissal of her client's appeal. 3. Accordingly, the Court orders that the plaintiff pay the defendant's costs of the proceedings on an indemnity basis. ********** 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: 14 March 2016