Frisken v Bitar Pty Limited

Catchwords: COSTS — appeal against costs assessment — leave sought to adduce expert evidence available at the initial costs assessment and at the costs appeal — evidence deliberately not adduced below — leave to adduce refused
APPEAL — appeal to Court from costs assessment — rehearing — nature of rehearing in statutory context

Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW), ss 89, 90
Supreme Court Act 1970 (NSW), ss 75, 75A
Uniform Civil Procedure Rules 2005, r 42.21

Cases Cited: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
Ex parte Australian Sporting Club Ltd; Re Dash (1947) SR (NSW) 283
Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98
Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73; [1931] HCA 34

Category: Procedural rulings

Parties: Daniel Frisken (First Plaintiff)
ACN 640543979 Pty Limited (Second Plaintiff)
Bitar Pty Limited (First Defendant)
Hebbel Constructions Pty Limited (Second Defendant)

Representation: Counsel:
P King (First Defendant)
Solicitors:
Yates Beaggi Lawyers (First and Second Plaintiff)
Speed and Stracey Lawyers (Second Defendant)

File Number(s): 2025/326200

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: The Court is dealing with motions associated with an appeal to the Court against a costs assessment. According to Mr Bumble in Charles Dickens’ Oliver Twist, “the law is an ass”. When dealing with appeals against costs assessments, the better analogy is of a dog chasing its tail – an exercise that necessarily adds to the costs in issue, and from which a satisfactory outcome is usually beyond reach.

2. The appeal was commenced by summons dated 25 August 2025. The first plaintiff (Daniel Frisken), and the second plaintiff (ACN 640 543 979 Pty Ltd), purportedly pursuant to s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) (hereinafter “the Act”), lodged an appeal to this Court against a decision of the Review Panel of 17 February 2025, which in turn, dealt with a costs assessment of a costs assessor of 8 August 2022.

3. An application for review was filed on 27 October 2022. The original application for a costs assessment was filed on 16 November 2020 and was determined by the assessor on 8 August 2022. The costs arise out of an order of Black J of this Court, on 25 June 2021.

4. Relevantly, the orders of Black J (proceedings 2014/269117) were:

“1. Pursuant to UCPR r 26.5(2), the Court certifies the accounts filed by the Receiver apart from

a. the professional fees, excluding counsel’s fees, charged by the firm Yates Beaggi for the work described in the Invoices described in Schedule A to these Orders; and

b. the photocopying charges included in those invoices.

(the Disputed Legal Costs and Disbursements)

…

5. Upon the Undertaking of the Receiver and Farshad Amirbeaggi/Yates Beaggi in the form of Annexure C to these Orders, the Court gives a direction to the Receiver that he would be justified in paying, in respect of the Disputed Legal Costs and Disbursements, no more than the lesser of:

a. the sum determined upon an assessment of the Disputed Legal Costs and Disbursements which is conducted pursuant to Part 4.3 of the Legal Profession Uniform Law (NSW) 2014 on the solicitor and client basis and with each of the First Plaintiff and the First Defendant to be parties to that application on the basis that they are third party payers within the meaning of s 171 of that Law and that they would have the opportunity to identify and be heard as to any objections to those costs and disbursements in that assessment; or

b. such other amount as is agreed between the Receiver, the First Plaintiff and the First Defendant.

6. Upon payment of the remuneration, and the Receiver’s outstanding and estimated future legal expenses as identified in the Receiver’s affidavit of 24 June 2021, the Receiver is to pay the balance, if any, of the monies he holds on trust for the partnership into Court in these proceedings or as otherwise directed by the Court.

…

9A. Without limiting the Receiver’s right to indemnity for remuneration and disbursements, the First Defendant pay the Receiver’s and the First Plaintiff’s costs of this application on an indemnity basis up to and including 26 April 2021, excluding the Receiver’s costs of the preparation of evidence as to his remuneration, as agreed or as assessed.

…

10. Costs (other than costs prior to 27 April 2021 and costs as between Hebbel and Bitar) be otherwise reserved.

11. Reserve liberty to all parties to apply limited to:

(a) the determination of claims against the monies to be paid into Court;

(b) if an assessor declines to, or does not, conduct the assessment on the basis contemplated by paragraph 5(a).”

5. The costs assessment of 8 August 2022 was for $273,679.56. On review, the panel ordered costs of $364,266.76. The first plaintiff moves on a notice filed 28 November 2025 for leave to rely upon two affidavits and an accompanying exhibit pursuant to the provisions of s 89(4) of the Act, with costs of the motion to be the plaintiffs’ costs in the cause.

6. The first defendant moves the Court by notice filed 26 November 2025 for orders for security of costs in the sum of $50,000, a stay of the appeal until the plaintiff provides the security and an order for a lump sum cost of $5,500 (plus GST) in respect of a costs order made by the Court (Dhanji J) on 20 October 2025 and an order for costs of the motion.

7. As earlier stated, on 25 August 2025, the summons in this matter was filed which seeks orders setting aside the Review Panel orders and determining the costs independently of the determination of the costs assessor or the Review Panel.

8. The grounds of appeal are that the Review Panel erred in determining that Part 4.3 of the Act applied to the assessment of costs; erred in determining that the costs agreement was void and in determining that costs be assessed on the basis of quantum meruit; erred in undertaking the assessment on the ordinary basis (with some particulars as to periods during which indemnity costs should have been ordered); erred in determining that waiver occurred in relation to the protections and undertakings to the client; erred in the determination of hourly rates; and other grounds.

9. The appeal to this Court is taken under the provisions of the Act and, in particular, s 89(1) thereof. The terms of ss 89 and 90 of the Act are as follows:

89 Appeal on matters of law and fact

(1) A party to a costs assessment that has been the subject of a review under this Part may appeal against a decision of the review panel concerned to—

(a) the District Court, in accordance with the rules of the District Court, but only with the leave of the Court if the amount of costs in dispute is less than $25,000, or

(b) the Supreme Court, in accordance with the rules of the Supreme Court, but only with the leave of the Court if the amount of costs in dispute is less than $100,000.

(2) The District Court or the Supreme Court (as the case requires) has all the functions of the review panel.

(3) The Supreme Court may, on the hearing of an appeal or application for leave to appeal under this section, remit the matter to the District Court for determination by that Court in accordance with any decision of the Supreme Court and may make such other order in relation to the appeal as the Supreme Court thinks fit.

(3A) The Supreme Court may, before the conclusion of any appeal or application for leave to appeal under this section in the District Court, order that the proceedings be removed into the Supreme Court.

(4) An appeal is to be by way of a rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the review panel or costs assessor may, with the leave of the Court, be given on the appeal.

90 Effect of appeal on review panel decision

(1) If an appeal against a decision of a review panel under section 89 or an application for leave under that section in relation to a determination by a costs assessor is pending in the District Court, either the review panel or the District Court may suspend the operation of the determination or the decision.

(2) The review panel or the District Court may end a suspension made by the review panel. The District Court may end a suspension it made.

(3) A suspension ends when (as the case may be)—

(a) the appeal is determined, or

(b) the application for leave is dismissed, discontinued or struck out or lapses. [1]

10. As can be seen from the above extract, the legislature has prescribed that the appeal to this Court is by way of “rehearing” and fresh evidence or evidence in addition to or substitution for evidence before the Review Panel or costs assessor may, with leave, be adduced. The plaintiff seeks leave to adduce additional evidence. The evidence is not fresh.

11. The evidence on which the plaintiff seeks to rely is evidence from an alleged expert costs assessor, which relates to the original bill of costs. It does not relate to the assessment by the costs assessor. Nor does it relate to the assessment by the Review Panel.

12. The expert report was available to the plaintiff prior to the proceedings before the costs assessor and, necessarily, prior to the proceedings before the Review Panel. The plaintiff exercised a forensic judgment not to tender or rely upon the expert report.

13. The plaintiff, in purported reliance upon authority, submits that the appeal under s 89 “has little in common with an appeal by way of rehearing from a final judgment of a court of record”. The authority on which the plaintiff relies does not establish that proposition.

14. The legislature has deliberately chosen to provide that the appeal is by way of rehearing. The capacity to adduce fresh evidence and evidence in addition to or in substitution for the evidence before the Review Panel or costs assessor, is part of the process by which the appeal is a “rehearing”.

15. The submission distinguishing the process of this appeal from the procedure prescribed by s 75A of the Supreme Court Act 1970 (NSW) does not withstand scrutiny nor withstand appropriate analysis. The Court, under s 75A, on appeal after a hearing deals with the appeal by way of “rehearing”. [2] In that process the Court may receive further evidence. [3]

16. Further, the Court is given the power and/or jurisdiction to make any order or give any direction which ought to have been given or made or which the nature of the case requires. [4]

17. Moreover, the requirement to show special grounds for the receiving of further evidence applies only in circumstances where there has been a trial or hearing on the merits. Otherwise, the Court may receive such further evidence under s 75A as principle would provide.

18. By the provisions of s 75A(6), the Court on appeal under s 75A, has the powers and duties of the Court, body or other person from whom the appeal is brought. The analogy between s 75A of the Supreme Court Act and s 89 of the Act discloses the similarity in the provisions between each section.

19. The similarity is appropriate. The provisions of s 75A of the Supreme Court Ac**t apply, except to the extent of any inconsistency, to an appeal of the kind that would be taken against a cost assessment. [5] In Kostas, the High Court was dealing with an appeal from the then Consumer, Trader and Tenancy Tribunal, not a court.

20. The nature of a “rehearing” which is the term deliberately utilised by the legislature to describe the nature of the appeal under s 89 of the Act, is the subject of much authority. The term is one of precision, and the delineation of different appeals has been the subject of authority for a very long time.

21. In Lacey, [6] the High Court dealt with that which was described, relevant to those proceedings, as three kinds of appeal and said:

“Appeals being creatures of statute, no taxonomy is likely to be exhaustive. Subject to that caveat, relevant classes of appeal for present purposes are:

1. Appeal in the strict sense - in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance.

2. Appeal de novo - where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error.

3. Appeal by way of rehearing - where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance.” [7] [Footnotes omitted.]

22. As is clear from the above extract, the classification of appeals is qualified by the necessity to examine the statutory scheme in each case, and the comments make clear that the above taxonomy is not exhaustive. Sir Frederick Jordan CJ classified appeals by six variations, some of which are judicial review proceedings and would not, currently, be classified as appeals at all. The three above classifications are categories that are most often used and are understood by courts and the legislature. [8]

23. In Coal and Allied, supra, the High Court referred to the nature of different appeals, and for present purposes, it is informative to extract that further passage. The passage is in the following terms:

“12 It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.

13 If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.

14 Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.

15 The provision considered in Brideson [No 2] conferred power on the Commission to take further evidence, a provision which is indicative of an appeal by way of rehearing. It also required the Commission to ‘make such order as it [thought] fit’. The latter requirement indicated that the Commission's appellate powers were not constrained by the need to identify error on the part of the primary decision-maker, but, rather, that the Commission was obliged to give its own decision on the evidence before it. [9] [Footnotes omitted.]

24. In Gazecki v McCabes, [10] the Court of Appeal considered the nature of a costs appeal under s 89 and said:

“Sixthly, the court is not given specific powers, but rather is said to have ‘all the functions of the review panel.’ The effect of this provision is by no means clear. The functions of the review panel are set out in s 85 of the Application Act, and involve reviewing ‘the determination of a costs assessor’: s 85(1). For that purpose, the review panel has ‘all the functions of a costs assessor … and is to determine the application … in the manner that a costs assessor would be required to determine an application for costs assessment’: s 85(2). The review panel is not bound by the rules of evidence and may inform itself on any matter in the manner it thinks fit: s 85(3). There is a degree of awkwardness in conferring on a court required to determine an appeal against a decision of a review panel all the functions of the review panel, which involve review of the decision of a costs assessor. That language may affect what is meant in s 89(4) by an appeal ‘by way of a rehearing’.” [11]

25. The proposition is also clear that, on a rehearing, the appellant must show error of a kind that warrants intervention. The error that must be disclosed is one that may arise as a consequence of the different evidence that is before the appeal, but nevertheless, error must be disclosed. [12]

26. In SZVFW, [13] Gageler J (as his Honour the Chief Justice then was) said:

“For practical purposes, the difference between correction of error on an appeal in the strict sense and correction of error on an appeal by way of rehearing lies in the temporal perspective that the appellate court is required to adopt in examining the correctness of the judgment under appeal. An appellate court determining an appeal in the strict sense is required to determine the correctness of the judgment under appeal at the time that judgment was given: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial and on the law as it then stood. An appellate court determining an appeal by way of rehearing, in contrast, is required to determine the correctness of the judgment under appeal in retrospect: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial supplemented by any further evidence that the appellate court may allow to be adduced on the appeal, and on the law as it stands when the appellate court gives judgment on the appeal.” [14] [Footnotes omitted.]

27. There are a number of aspects that require comment. First, a number of the grounds of appeal seem to suggest proceedings in the nature of a hearing de novo rather than a rehearing. Second, that which is clear from the provisions of s 89 of the Act is that the hearing before the Court is not a hearing de novo and is not an opportunity for one or other aggrieved party to start afresh.

28. As earlier stated, the suggested additional evidence is that which was available to the plaintiff prior to the original costs assessment and prior to the Review Panel proceedings. By available, it should be understood that the evidence was in existence and in the possession of the plaintiff.

29. A forensic decision was taken not to adduce the evidence. It matters not what the reason for the forensic decision was. The appeal to this Court is not an opportunity to restart the whole of the proceedings.

30. Furthermore, the expert report relates to the original bill of costs, not the determination by the costs assessor or the determination by the Review Panel. Its relevance is marginal and restricted to the exercise that may become necessary after the determination of whether the appeal is to be successful.

31. In the circumstances, leave to adduce the evidence sought to be adduced is refused. If or when the plaintiff is successful on the issue of the determination of the merits of the appeal, the issue may be revisited by the appropriate court or judge.

32. I deal next with the issue of the motions for security of costs. Costs are within the discretion of the Court and an order for costs or security for costs is a matter to be determined by the Court in the exercise of that jurisdiction. The discretion must be exercised judicially.

33. Costs, including security for costs, is not a punishment for the party ordered to give security. The order for the payment of security is a means by which a respondent to proceedings, in this case, can have some comfort that the exercise will, if unsuccessful, be compensated by an appropriate order for costs. Security for costs is dealt with, at least in part, by the terms of Uniform Civil Procedure Rules 2005 (“UCPR”), r 42.21.

34. In these proceedings, Mr Frisken, the first plaintiff, is the appointed receiver and manager of the partnership between Hebbel Constructions and Bitar Pty Ltd in respect of the property development business. The second plaintiff is a corporation which is not trading. The first plaintiff was discharged as receiver of the partnership on 15 July 2021, having provided an undertaking as to the receivership costs on 25 June 2021.

35. The second plaintiff, as previously stated, no longer trades but was previously trading as the law practice of Yates Beaggi Lawyers. The evidence before the Court is that the company now trading as Yates Beaggi Lawyers is a different company from the second plaintiff in these proceedings and that different company is generating significant annual profits. There is no suggestion that the second plaintiff, who is not trading, is generating profits or has assets. Indeed, the contrary is the case as inferences available from the evidence discloses.

36. The affidavit of Peter Stewart Speed of 2 December 2025 refers to the inability of the second plaintiff, while operating as the law practice, as at 5 September 2022, to pay an amount of $16,929 that was outstanding for just short of one month. Those fees were paid by a defendant. Further, the affidavit of Mr Speed refers to the affidavit of Mr Amirbeaggi of 5 September 2022 in which it was stated that they were “unfunded in relation to the matter”.

37. By leave of the Court, Mr Amirbeaggi responded to the affidavit of Mr Speed of 2 December 2025, by a further affidavit of 9 December 2025. The explanation for that which was referred to in the immediately preceding paragraph was to the effect that the first plaintiff “was not in funds, and was not in a position nor able to meet payment of tax invoices … in relation to the matter”. The payment of the $16,929 was required to be met from day-to-day cash flow.

38. No evidence is adduced, in response to the issues raised as to the inability of the second plaintiff (and the first plaintiff) to fund or meet the costs that may be ordered against them, which suggests that either plaintiff is capable of meeting the costs. The inference is that such evidence does not assist the plaintiffs’ case on this application.

39. Impecuniosity of an individual is not a basis upon which security for costs ought to be ordered. However, the same cannot be said of a corporation, particularly in circumstances where it is admitted that the corporation is no longer trading. The circumstance, which I accept, that the law firm is now operating through another corporate entity does not assist in relation to the capacity of the second plaintiff to pay the costs of the defendant if ordered to do so.

40. Further, it is clear, given the receiver status of the first plaintiff and his liability, not under the costs order but by reason of an undertaking to the Court, that the first plaintiff is, in effect, suing for the benefit of the corporation. Again, there is no evidence to counter the inference available that the first plaintiff will be unable to pay the costs of the defendant if ordered to do so.

41. In those circumstances, the provisions of UCPR r 42.21(d) and (e) apply. Even if they were not to apply, then in the exercise of the discretion of the Court, the Court determines that security of costs should be provided. I do not consider that the appeal has a high probability of success. It is a real possibility that there shall be a costs order against the plaintiffs.

42. Further, as a result of the basis upon which the first plaintiff sues and the inferences available as to the funds available to the second plaintiff, there is a real need in the interests of facilitating the just, quick and cheap resolution of the real issues between the parties to order security for costs.

43. The Court is required to assess independently the amount of security that should be forthcoming and the manner in which the costs of these motions should be resolved. I earlier remarked as to the never-ending nature of costs appeals and applications. Such issue informs the exercise of discretion as to the costs of these motions.

44. The evidence and experience in litigation points to the claimed security being more than reasonable. The court will order security of $50,000.

45. The costs of these motions must be dealt with bearing in mind that costs ordinarily follow the event. The defendants/respondents to the plaintiffs’ motion have been successful and have been successful on their own motions. They are entitled to be compensated for their costs. Nevertheless, if the plaintiffs are successful on the “substantive” appeal, it seems unjust for them to be liable for the defendants’ costs of these ancillary orders. In the circumstances, it is just for costs to be the defendants’ costs in the cause.

46. For the above reasons, the Court issues the following orders and directions:

47. The Court refuses leave to file in evidence in the appeal the affidavit of Mr Amirbeaggi affirmed 28 November 2025, and refuses leave to rely on the said affidavit.

48. Leave is granted to file and rely upon the transcript of proceedings before Black J in relation to this matter.

49. Over and above any other order of the Court, the plaintiffs shall, pursuant to UCPR r 42.21 provide security for the defendants’ costs of the appeal in the sum of $50,000.

50. The aforesaid security shall be provided by payment into Court within fourteen days of the date of this order.

51. This appeal is stayed until the plaintiffs have complied with the order for payment into Court of security of costs.

52. In all other respects, the motions of the plaintiffs and defendants are dismissed.

53. The costs of and incidental to all motions dealt with by the Court in this hearing shall be the defendants’ costs in the cause.

**********

Endnotes

Legal Profession Uniform Law Application Act 2014 (NSW), ss 89 and 90.

Supreme Court Act 1970 (NSW), s 75(5).

Ibid at s 75A(7).

Ibid at s 75A(10).

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32.

Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10.

Ibid at [57].

Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73; [1931] HCA 34; Ex parte Australian Sporting Club Ltd; Re Dash (1947) SR (NSW) 283 (Jordan CJ); Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 (hereinafter referred to as “Coal and Allied”).

Ibid at [12]-[15] (Gleeson, Gaudron and Hayne JJ).

Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98.

Ibid at [42] (Basten JA, with whom Leeming JA and Simpson AJA agreed).

Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114.

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30.

Ibid at [31] (Gageler J).