Appellant v Respondent

(a) Notice of Appeal from Associate Judge dated 29 July 2025.

(b) Amended Notice of Appeal dated 31 October 2025.

(c) Submissions for appeal from Associate Judge dated 7 November 2025.

(d) Submissions to reply dated 21 January 2026.

1. Ms Wee makes some legitimate complaints about the form and content of these documents, but it is unnecessary for me to deal with those matters given the conclusion that I have reached about the substantive matters raised on the appeal.
2. At the core of Mr Tan's complaint is his assertion that, on the evidence before her, the Costs Registrar ought to have required the production of the costs agreement and disclosure statements between Ms Wee and her solicitors in order to satisfy herself that the bill of costs did not seek to recover more than Ms Wee was liable to pay her solicitors in breach of the indemnity principle. This is described by Mr Tan as the 'overarching issue'.
3. Mr Tan submits that the decision of Judicial Registrar and, in turn the Associate Justice, are infected by this same error and overarching issue.
4. For the reasons that follow, Mr Tan's appeal cannot succeed.

1. The indemnity principle operates to prevent a costs claimant from recovering costs in an amount greater than they are liable to pay their solicitors.[1]
2. On 9 September 2024 (prior to the hearing on 13 September 2024) Mr Tan wrote to the Court stating, among other things:

... we require Monaco Lawyers to provide their costs agreement with Ms. Kwai Wee for the Cost Court's perusal during the taxation hearing. This is relevant to a number of matters as raised in the Grounds of Objections.

1. Mr Tan's email did not explain the basis for his assertion that the costs agreement would be relevant, nor how it would be relevant.
2. Mr Tan's Notice of Objection to the bill of costs which had been filed on 11 July 2024 contained the following submissions under the heading 'Costs Agreement Void' at [93] and [94]:

It should also be noted that retainer letters are likely be included in any affidavit for visibility on the Ms Kwai Wee's costs agreement with Monaco Lawyers, we do not know if their legal costs are void.

Application for this taxation is invoiced to the client at least $10,000 because Bill of Costs totalled $51,535 from $13,837 (Disbursements) $37,698 (Legal Costs) while based on paragraph 4 of Stefano Affidavit 14.12.2023 invoices up to 1 December 2023 totalled $28,675.

1. At page 30 of 241, Mr Tan included the following 'note':

NOTE:

The total invoices in Mr Stefano Del Monaco Affidavit 14.12.2023 include legal fees of $14,622 plus disbursements of $11,445 with GST as at 4 August 2023 amount to $28, 675. However the total from the Bill of Costs submitted for this application for taxation (WITHOUT AFFIDAVIT), ending at Line 397 is $35,138 being the sum of $11,981 for disbursements and $23,157.

Even if you double add GST to $28,675 which already includes GST, it will come to $31,542

Clearly, the Bill of Costs (WITHOUT AFFIDAVIT) submitted for the Costs Court's perusal is higher than the invoices for the client.

This discrepancy of $6,440 cannot be accounted by large line items such as Line 540 Drafting Bill of Costs Fee of $5,000 (04.01.2024), and Line 539 Due Diligence Fee of $1,494 (04.01.2024) which total $6,494, as they occur after 14.12.2023.

1. Then under the heading 'Disclosure Obligations', Mr Tan, at [95] of the Notice of Objection, stated:

If Monaco Lawyers fails to comply with its disclosure obligations, any void costs must be assessed or determined before they are required to be paid and before the law practice can bring proceedings to recover them. Section 178(1)(a) of the Legal Profession Uniform Law (LPUL), which governs solicitors in NSW and Victoria, stipulates that any concerned costs agreement will be void if a law practice contravenes the disclosure obligations of Part 4.3 of the LPUL. 20 Uniform Law, s 178(1):

1. The Costs Registrar responded to Mr Tan's email of 9 September 2025, by refusing his request for production of the costs agreement in the following terms:

The Applicant is not required to produce the costs agreement as no order has been made for production of it. This is an inter partes taxation in which costs are to be taxed pursuant to Appendix A of the Supreme Court (General Civil Procedure) Rules 2015 not by reference to the costs agreement. I am not satisfied that it is relevant to the taxation.

1. Shortly after its commencement on 13 September 2024, the hearing was stood down, for reasons that are unnecessary to traverse here. When it resumed, Mr Tan made no appearance. No argument is made on this appeal that Mr Tan was denied procedural fairness in the handling of the hearing. At the hearing, no further submissions were made substantiating Mr Tan's request for the production of the costs agreement and disclosure statements. The Costs Registrar proceeded to make her determination.
2. In the application for review before the Judicial Registrar, Mr Tan commenced his submissions alleging that there had been a breach of the indemnity principle and that the Costs Registrar had failed to deal with that issue by failing to require production of the costs agreement and any disclosure statement. Mr Tan argued before the Judicial Registrar that the Costs Registrar could not have been satisfied that the amount in the bill of costs were the extent of Ms Wee's liability to pay her lawyers.[2]
3. In support of that argument, Mr Tan identified the discrepancy described on page 30 of the objection, highlighting the difference between the amounts invoiced to Ms Wee in the relevant period as compared with the amounts claimed in the bill of costs. Mr Tan said that it was apparent that the amounts claimed in the bill of costs were greater than those invoiced, and that this should have been enough for the Costs Registrar to order the production of the cost agreement.
4. The Judicial Registrar concluded that Mr Tan had not made this argument before the Costs Registrar,[3] and on that basis alone, the application for review must fail.[4] At paragraph [33], the Judicial Registrar stated:[5]

At no stage did Mr Tan argue before the Costs Registrar that the production of the costs agreement would assist the Court in determining whether there was a breach of the indemnity principle.

1. In the hearing before the Associate Justice, Mr Tan submitted that the discrepancy amounted to evidence of a breach of the indemnity principle, and that the Judicial Registrar had fallen into error by finding that there was no such evidence. The Associate Justice addressed the matter in the following terms:[6]

I do not accept that Mr Tan has demonstrated that the Judicial Registrar fell into error. Mr Tan appears to have misunderstood the Judicial Registrar's ruling. The Judicial Registrar did not reach the conclusion that the discrepancy was not raised before the Costs Registrar. Rather, as stated at paragraphs 27 and 28 of the Judicial Registrar's decision, the Judicial Registrar found that Mr Tan had not argued before the Costs Registrar that the fact of these discrepancies was sufficient to justify an order for production of the costs agreement.

The Judicial Registrar's review of the notice of objections does not identify any matters that would justify production of the costs agreement. And further, at paragraph 33 of the Judicial Registrar's decision, the ground failed because it was not argued that the production of the costs agreement would assist the court. The Judicial Registrar said: 'At no stage did Mr Tan argue before the Costs Registrar that the production of the costs agreement would assist the Court in determining whether there was a breach of the indemnity principle.'

1. Mr Tan accepts that there are no passages in the objection which explain how the production of the costs agreement might assist the Court in determining whether there has been a breach of the indemnity principle. Mr Tan submits in this Court that the material before the Costs Registrar was alone sufficient to compel the conclusion that the circumstances of this case may give rise to a situation in which the indemnity principle might have been breached.
2. In this Court, Mr Tan did not submit that the evidence established that there was a breach of the indemnity principle, or that such a breach was likely on the available material. Mr Tan's position in this Court is to be compared with his submissions as recorded before the Judicial Registrar and the Associate Justice.
3. Mr Tan's appeal confronts insurmountable difficulties.

1. At every stage of this protracted saga, Mr Tan was entitled to an appeal or review in the nature of a rehearing. As was correctly observed in both the decisions of the Judicial Registrar and the Associate Justice, Mr Tan has always borne the onus of establishing factual, legal or discretionary error. The position is no different in these proceedings.
2. In Australian Coal and Shale Employees' Federation v The Commonwealth, Kitto J said:[7]

[T]he true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.

1. In House v R, Dixon, Evatt and McTiernan JJ considered that a review of an exercise of unfettered discretion can only succeed on the following basis:[8]

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

1. These principles were correctly stated by the Judicial Registrar and the Associate Justice. In the absence of reasoned explanation for her ruling, an appellate court must be satisfied that the Costs Registrar's ruling was wrong in law, unreasonable or plainly unjust having regard to the facts and circumstances of the case, and that the erroneous ruling results in a substantial wrong affecting the outcome of the proceeding.
2. In the present case, the material before the Costs Registrar does not support the conclusion that her ruling was infected by legal error, was unreasonable or plainly wrong or that a substantial wrong has resulted. Rather, the ruling made by the Costs Registrar was open to her on the available material, and resulted in no substantial wrong to Mr Tan.
3. Mr Tan advances four grounds of appeal, but in the course of written submissions and oral argument, the overarching question posed by Mr Tan is central to the resolution of those grounds. The overarching issues involve the answer to the following questions:

(a) What must be established by an applicant seeking production of a costs agreement in the context of an assertion that there may be a breach of the indemnity principle?

(b) In light of the material before the Costs Registrar, was it open to her to refuse Mr Tan's request for production of the costs agreement?

1. An application to the Costs Court for costs to be taxed is made in accordance with r 63.38 of the Rules. The Costs Court may direct the party claiming costs to lodge any documents in the claimant's possession that will be required for the purpose of evidence on the taxation. The provision confers a discretion on the part of the Costs Registrar to call for the production of documents which will be required. The Costs Registrar did not require production of the costs agreement under r 63.38 on her own motion.
2. In response to the request made by Mr Tan, the Costs Registrar refused to require production of the costs agreement. Any application for the production of documents (such as a costs agreement or disclosure statement) must be justified by the party seeking production.
3. The Court of Appeal in Shaw v Yarranova Pty Ltd ('Shaw') said:[9]

The principles governing an application for an order that documents be produced are not different from those governing applications for access to documents produced in answer to a subpoena. So where an application is made in the Costs Court that the party in whose favour a costs order has been made produce documents asserted to be relevant to the application of the indemnity principle, the applicant must identify a legitimate forensic purpose for which access is sought, and establish that it is 'on the cards that the documents will materially assist his case. There will be no legitimate forensic purpose if, 'all the party is doing is trying to get hold of the documents to see whether they may assist him in his case.' The court must both be satisfied that the documents are relevant to an issue and that there is something in the material then before the court that makes it appear likely that the documents will materially assist the applicant.

1. Mr Tan submitted that Shaw should be distinguished on its facts. He said that the case was concerned with the production of invoices and emails, and not with the production of a costs agreement. In Shaw, an application for the production of the costs agreement had also been made and allowed, and so the appeal was only concerned with the production of the broader category of documents. According to Mr Tan, the passage in Shaw should be read as applying narrowly to invoices and emails, and not the production of costs agreements.
2. I do not agree. It is clear that the passage in Shaw to which I have referred addresses the general principles applicable to a request for the production of documents before the Costs Court.
3. It was for the Costs Registrar to determine whether there was sufficient evidence before her to be satisfied that Mr Tan was pursuing a legitimate forensic purpose, such that the production of the costs agreement was likely to advance the contention that the indemnity principle had been or, as Mr Tan would now have it, may have been, breached.
4. The starting point is that it was for Mr Tan to have identified a legitimate forensic purpose for which access was sought to justify the Costs Registrar making an order for the production of the costs agreement. In the present case, the point sought to be advanced by Mr Tan is that the costs agreement may be relevant to establishing whether the indemnity principle might have been breached.
5. In Shaw, the Court said:[10]

Once it is recognised that it will ordinarily be presumed in the case of a solicitor who acts on the record for a party that there is a retainer and that the party for whom the solicitor acts is liable for the solicitor's costs notwithstanding that the party is indemnified by another for the payment of those costs, there was nothing before the Costs Judge that made it likely that any of the material sought by the applicant would advance the contention that the indemnity principle had been displaced. The evidence did not raise the likelihood that the costs that had been or were to be paid were less than those that had been taxed.

1. Mr Tan takes issue with this passage on two counts. First, Mr Tan says that he was not required to establish the likelihood that the indemnity principle had been or would be displaced. Rather, he says that he was only required to establish that there was a sufficient basis upon which it could be said that the indemnity principle may be breached. Second, despite his second ground of appeal, Mr Tan said in argument before me that he does not contest the existence of a retainer, or the liability of Ms Wee to pay costs. He says instead that his objection was concerned with the extent of liability. He says, further, that where the extent of liability is in issue, the costs agreement may be relevant, citing Kuek v Devflan Pty Ltd[11] ('Kuek') which in turn cites Wentworth v Rogers.[12]
2. Mr Tan submitted in this Court, and before the Associate Justice and the Judicial Registrar, that the costs agreement is relevant because if it contained a contractual limitation upon the liability of Ms Wee to her solicitors, the indemnity principle may be displaced. He also says that there was sufficient information before the Costs Registrar to satisfy her that there may be a breach of the indemnity principle.
3. Mr Tan relied upon the decision of the Court of Appeal in Kuek for the proposition that the material required to support an application for the production of the costs agreement need only be sufficient to suggest that the indemnity principle might be displaced,[13] and that this statement was to be contrasted with the passage in Shaw which states that evidence is required to 'raise the likelihood that the costs that had been or were to be paid were less than those that had been taxed'.[14] Mr Tan also relied upon the Queensland decision of Allen v O'Donnell (No. 2) ('Allen').[15]
4. The distinction sought to be pressed by Mr Tan is without foundation when considered in the context of the facts in Kuek. In Kuek, the evidence established a clear basis for an argument that the indemnity principle may have been breached. In that case, there was ample evidence that the costs claimant's lawyers had not been retained on a commercial basis.[16] The costs claims for each of the four separate stages of the proceedings were identified, noting that the last stage (being an appeal) represented 60% of the costs claimed. On the strength of that material, it was submitted by the paying party that it was inconceivable that the costs claimant would have engaged their lawyers on a commercial basis for the last stage had they known their costs liability would be as claimed in the bill of costs. It was submitted that it was highly probable that the costs claimants had entered into agreements with their lawyers to limit their costs. The submission was bolstered (in part) by the invoices for disbursements, such as counsel's fees.
5. The following passage in Shaw addresses the position in Kuek:[17]

By contrast, in Kuek v Devflan Pty Ltd there were circumstances placed before the Costs Judge which gave him reason to order the production of retainer letters and costs agreements. The material was there sufficient to raise the likelihood that the party/party costs may have exceeded the successful party's actual liability to its lawyers. But there must be evidence before the Costs Court that renders it likely that the indemnity principle has either in whole or part been displaced.

[emphasis added]

1. The decision in Shaw has been applied in subsequent decisions_._ For example in ACN 096 450 770 v Mathieson Nominees[18] ('Mathieson'), Derham AsJ said:[19]

Where a party liable (or prospectively liable as in this case) for the costs of another party calls for the production of documents asserted to be relevant to the application of the indemnity principle, the applicant must identify a legitimate forensic purpose for which access is sought, and establish that it is 'on the cards' that the documents will materially assist his case. There will be no legitimate forensic purpose if, 'all the party is doing is trying to get hold of the documents to see whether they may assist him in his case.' For the [notice to produce] to be valid to require production of the documents sought, the Court must be satisfied that the documents are relevant to an issue and that there is something in the material before the court that makes it appear likely that the documents will materially assist the applicant.

1. In Mathieson, there was no evidence that the indemnity principle had been displaced and the notice to produce was set aside as a fishing expedition.[20]
2. Insofar as Mr Tan relies upon the decision in Allen, it must be observed that the Court in Allen embraced Shaw in the following terms:[21]

In considering circumstances in which production of a costs agreement should be ordered, Redlich and Mandie JJA said in Shaw v Yarranova Pty Ltd:

"...The principles governing an application for an order that documents be produced are not different from those governing applications for access to documents produced in answer to a subpoena..."

Their Honours went on to identify that in situations such as this, an applicant must identify a legitimate forensic purpose for which access is sought and establish that it is "on the cards" that the documents will materially assist his case.

[emphasis added]

1. To the extent that it might be said that Allen departs in some other way from the Court of Appeal's decision in Shaw, the position in Shaw is binding on this Court, and in my view, there is no reason to doubt its correctness.
2. Mr Tan submits that the Associate Justice misconstrued the standard of satisfaction required to justify an order for production of the costs agreement. Mr Tan submits that the Costs Registrar need not to have been satisfied that the material establishes that it is 'more likely than not' that Ms Wee's liability for her solicitor's costs is less that the amount assessed on a taxation.
3. The short answer to this ground is that Associate Justice did not frame the test in this way. Rather she referred to the relevant parts of Shaw, quoting the following passage which, in reference to Kuek, states:[22]

The material was there sufficient to raise the likelihood that the party/party costs may have exceeded the successful party's actual liability to its lawyers.

1. Even though not quoted by the Associate Justice, the passage goes on to say:[23]

But there must be evidence before the Costs Court that renders it likely that the indemnity principle has either in whole or part been displaced.

1. The Associate Justice whose decision is the subject of the appeal before me, summarised the principles correctly as follows:[24]

(a) there must have been sufficient material before the Costs Registrar that renders it likely that the indemnity principle had been displaced either in whole or in part; and

(b) the Court must be satisfied that the documents sought to be produced are relevant to that question, and appear likely to materially assist the applicant.

1. To the extent that Mr Tan's appeal involves the contention that this statement by the Associate Justice is wrong as a matter of law, it cannot succeed.
2. The test articulated by the Associate Justice correctly stated the position in Shaw.
3. That said Mr Tan faces the additional difficulty that:

(a) as the Judicial Registrar found, and the Associate Justice accepted, Mr Tan did not establish or argue before the Costs Registrar any of the matters which he later sought to advance in each subsequent appeal.

(b) even if he had made those arguments, the conclusion reached by the Costs Registrar not to require production of the costs agreement would have remained open.

1. Although Mr Tan pressed on this appeal that the central issue was whether the Costs Registrar, Judicial Registrar and Associate Justice below had misunderstood the test to be applied in Shaw, and the standard of evidence which must be established to justify production of documents, in fact the central question on this appeal is whether Mr Tan can be said to have properly raised the matters for consideration by the Costs Registrar at all.
2. The Costs Registrar was seized of two separate threads of information:

(a) the first was a request for the production of the costs agreement in the email of 9 September 2024. The request stated nothing more than that Mr Tan alleged the potential relevance of the costs agreement to a number of the objections made by him in a 241 page document. On no view can the email be described as rising to the level of describing a legitimate forensic purpose in exploring the operation of the indemnity principle; and

(b) the second was the description of discrepancy between the bill of costs claimed on a party/party basis and the invoices contained in the affidavit of Ms Wee's solicitor. Mr Tan said before this Court that from this discrepancy an inference might be drawn that the indemnity principle has been breached. He said that if the bill of costs claimed was more than that invoiced to the client, an inference might be drawn that the client's fees were capped in some way, such that liability was less than the bill of costs.

1. On an application for the production of any document before the Costs Registrar, Mr Tan was required to establish that it was likely that the documents he sought would materially assist the Costs Registrar.
2. Mr Tan did not argue or explain the forensic purpose he sought to advance by the production of the costs agreement before the Costs Registrar. As the reasons before the Judicial Registrar and the Associate Justice record, and the hearing before me confirms, the legitimate forensic purpose said to arise on the limited material before the Costs Registrar requires considerable explanation. It is not, as Mr Tan would suggest, obvious or straightforward that the combination of the discrepancy described in the objection discloses a legitimate forensic purpose justifying an order for the production of the costs agreement.
3. Mr Tan submits in substance that it ought to have been obvious that he had raised the possibility that the indemnity principle may have been breached, and that it was then incumbent upon the Costs Registrar to satisfy herself that it had not been breached.
4. It cannot be said that the possibility of a breach of the indemnity principle was squarely or explicitly raised. It might be said (as the Associate Justice found) that the discrepancy raised by Mr Tan's Notice of Objection was 'in the context of the indemnity principle'.[25] That is the best that can be said about the description of the discrepancy in the Notice of Objection. The Notice of Objection contains no mention of the indemnity principle, or any connection between the discrepancy and the indemnity principle on the one hand, and the costs agreement, for which production was sought, on the other. Even accepting the Associate Justice's characterisation of the discrepancy, favourable as it is to Mr Tan, the material fell a long way short of justifying an order for the production of the costs agreement.
5. Mr Tan says that it was not incumbent upon him to 'spoon feed' the Costs Registrar. I reject the premise of that submission. Mr Tan's argument depends upon presuming that it was for the Costs Registrar to draw the connection between the discrepancy and his request for production of the costs agreement, and then infer a legitimate forensic purpose for the request, and be satisfied that it was likely that the production of the costs agreement would assist Mr Tan in his case.
6. The authorities make clear that a party seeking the production of a document bears the responsibility of establishing, on the material presently available, the legitimate forensic purpose sought to be advanced by the production of the document, including how the production of the document will materially assist the Court in the resolution of the issues. The material before the Costs Registrar was silent as to the purpose of the production of the costs agreement. Mr Tan's purpose for seeking production of the costs agreement was only explicitly advanced for the first time before the Judicial Registrar on the application for review of the Costs Registrar's decision.
7. It was reasonably open to the Costs Registrar, on the limited material before her, to reach the conclusion that the production of the costs agreement was not relevant to the assessment of party/party costs, as no forensic purpose had been disclosed on the material, nor had it been demonstrated how the production of the costs agreement would likely assist Mr Tan.
8. The Judicial Registrar was right to conclude that the submissions made to him were not made to the Costs Registrar, and consequently, there could be no error on the part of the Costs Registrar in failing to deal with an argument that was not put to her. This finding was correctly affirmed by the Associate Justice, whose decision is the subject of the appeal before me.[26]
9. In all the circumstances, this was and is, a sufficient basis upon which to dispose of the appeal.

1. Both the Judicial Registrar and the Associate Justice went further to consider whether the Costs Registrar's decision ought to have been different, in the event that the detailed submissions of Mr Tan as to the purpose of requiring production of the costs agreement had been ventilated before the Costs Registrar.
2. The Judicial Registrar concluded that Mr Tan's Notice of Objection did identify a discrepancy between the costs claimed and those invoiced.[27]
3. The Judicial Registrar's reasons went on to observe that:[28]

Even if the argument had been made before the Costs Registrar, it is not a basis for production of the costs agreement. With respect to Mr Tan, his argument misunderstands the application of the indemnity principle. The principle prohibits the party entitled to costs from recovering more than what they have been charged by their own solicitor. Consideration of a possible breach of the indemnity principle occurs at the conclusion of a taxation of costs.

The proper question in this case is whether the amount allowed on taxation exceeds the amount Ms Wee has been charged by her own solicitor. In this case, there is no evidence that Ms Wee has recovered more on a party/party basis than what she has been charged by her solicitor.

Simply pointing to a discrepancy between the party/party bill of costs and the invoices at a particular point in time, well before the amount actually recoverable is determined, is not evidence of a breach of the indemnity principle.

It is not clear whether Mr Tan is actually arguing a breach of the indemnity principle, which can be determined by an examination of the invoices, or whether he simply wanted production of the costs agreement for a "forensic purpose". What is clear is that a costs agreement in and of itself will not provide any assistance as to whether the indemnity principle has been breached. Knowing the basis of charge, for example, will not determine whether the client has ultimately been charged less by their solicitors than the amount recovered as between parties. I find that error has not been established by this ground of review.

[emphasis added]

1. The Judicial Registrar then expressed the view that simply pointing to a discrepancy between the costs claimed on a party/party basis and the invoices at a particular point in time (and before the completion of the taxation process) is not sufficient evidence of a breach of the indemnity principle.[29] I take the Judicial Registrar to have meant that such a discrepancy is a factor which might be relevant to the application of the indemnity principle, but that a discrepancy of the kind identified by Mr Tan, standing alone at a point in time well before the taxation of the cost claimant's bill of costs, does not compel the conclusion that the production of the costs agreement would materially assist or advance the case.
2. In substance the Judicial Registrar was of the view that it was open for the Costs Registrar to have concluded that the discrepancy was not, by itself, evidence of a breach of the indemnity principle, and that even if it may have been, it was also open for the Costs Registrar to have concluded that the production of the costs agreement would be of no material assistance in determining whether the indemnity principle was breached before there had been an assessment of the party/party costs as claimed against the scale.
3. The Judicial Registrar's logic is compelling. At the very least, the explanation of the position substantiates a basis upon which it would have been reasonably open for the Costs Registrar to decline Mr Tan's request on the available material, rendering impossible a conclusion that the Cost Registrar's decision was in error.

1. In his Amended Notice of Appeal dated 31 October 2025, Mr Tan addressed four grounds of appeal. In the interests of completeness, it is appropriate to address each of the grounds as framed.

1. By the combination of grounds 1 and 3, Mr Tan contended that the Associate Justice had misapplied Shaw, and wrongly accepted that the standard of satisfaction required to be achieved by the Costs Registrar in considering whether to make orders requiring the production of a document was too great.
2. The grounds of appeal were developed in writing and oral argument. For the reasons already stated, the appeal on these grounds is dismissed.

1. In the course of written submission and oral argument before me, it is apparent that ground 2 was largely abandoned, and ground 4 was significantly de-emphasised.

AsJ Steffensen erred with the application of Paragraph 27 of Shaw which is concerned with the existence of liability while the focus here is on the extent of liability. It is not by default for a retainer to be automatically presumed where lawyers act on the records. In the present case, the Cost Applicant did not categorically state that none exist. The issue here is that Cost Registrar simply said that none was required prior to taxation as it is not relevant to taxation

1. In oral argument Mr Tan said that he did not dispute the presumption that there was a retainer, but rather that the dispute was concerned with the extent of liability under the retainer.
2. Counsel for Ms Wee observed that in light of that concession, the ground need not be addressed, but that it should be observed that the ground of appeal is entirely answered by the passages in paragraphs [17] to [19] of Shaw, which conclude at [19] as follows:[30]

Courts generally accept the existence of a contract of retainer when a solicitor has performed work on behalf of a person with his or her knowledge and assent, in circumstances which are consistent with that person being the solicitor's client. The existence of a contract of retainer and the liability of the client for the solicitor's costs will be presumed, and the party who challenges the existence of the retainer in such circumstances bears the onus of establishing the absence of it.

1. Ground 4 is framed as a complaint that the overall totality of the costs are not proportionate to the matters in dispute in the original litigation. It is said that, independently of the discrepancy identified in the objection, the lack of proportionality might also be another reason to conclude that the indemnity principle is breached. About this ground two things might be said. First, this matter was not raised before the Costs Registrar. Second, an argument advanced in similar terms was ventilated before the Associate Justice but was then abandoned.[31] For those reasons alone the ground cannot succeed.

1. Accordingly the appeal is dismissed with costs.

[1] Shaw v Yarranova Pty Ltd [2011] VSCA 55, 3 [8] (The Court) ('Shaw'), citing Cachia v Haines [1994] HCA 14; (1994) 179 CLR 403, 410 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ) and Harold v Smith [1860] EngR 516; (1860) 157 ER 1229, 1231 (Branwell B).

[2] Kwai v Tan (Costs Court, Conidi JR, 28 April 2025) 7 [23] ('Conidi JR Ruling').

[6] Ex tempore ruling, Kwai Wee v Adrian Tan (Costs Court, S ECI 2024 02373, Steffensen AsJ, 15 July 2025), pages 76-77 ('Steffensen AsJ Ruling').

[7] [1953] HCA 25; (1953) 94 CLR 621, 627.

[9] Shaw, 11 [26] (The Court) (citations omitted).

[11] [2011] VSCA 25, 23-24 [59]-[60] (Hansen JA).

[12] [2006] NSWCA 145; (2006) 66 NSWLR 474, 498 [103] (Basten JA).

[15] [2021] QSC 149.

[17] Shaw, 12 [28] (The Court) (citations omitted).

[18] [2017] VSC 559.

[19] Ibid, 11-12 [31] (citations omitted).

[20] Ibid, 12-13, [32], [35] (Derham AsJ).

[21] Allen, 10 [27]-[28] (Crow J) (citations omitted).

[22] Ibid, page 70, citing Shaw, 12 [28] (The Court) (citations omitted).

[24] Steffensen AsJ Ruling, page 77 line 26.

[30] Shaw, 8 [19] (The Court) (citations omitted).

[31] Steffensen AsJ Ruling, page 75, line 24.