Ground 1: The right to issue a fresh bill of costs.
52 The parties, in helpful written submissions, referred to a number of authorities. New South Wales, at one point, differed from England and the other States as to the right of a solicitor to withdraw and replace a bill of costs. However, it has now returned to the fold (cf Re Macnamara's Costs (1884) 1 WN 23; Ex Parte Steel (1898) 15 WN (NSW) 96; Re Sullivan Bros; Ex Parte Morris (1915) 32 WN (NSW) 127; Ex Parte Cameron; Re a Bill of Costs (1956) 73 WN (NSW) 393 at 396, discussed by Bowen CJ in Eq in Florence Investments Pty Ltd (supra) at pp 404-407). There is a rule (which is subject to the contractual arrangements between the parties) and there is an exception. The rule has been variously expressed. In Loveridge v Botham ((1797) 1 Bos. & Pul 49; 126 ER 772) the Court held that an attorney was not entitled to withdraw a bill of costs once delivered and substitute a bill for an increased amount (cf Re Edwin Sutherland & Co's Bill of Costs (1971) Qd R 318 at 322).
53 An elaboration upon the rule was provided in Re Thompson (1885) 30 Ch D 441 by Cotton LJ in these words: (at 448)
"Now, it has been well established that, when a solicitor sends in his bill, he gives the client to whom he sends it in a right to have that bill taxed. That rule was laid down to prevent any attempt being made by solicitors to impose on clients, who did not know what the proper charges were, by sending in a bill which would not stand taxation, and then, when taxation was insisted on or threatened, sending in another bill which they knew could stand taxation. The rule has been carried so far that even where objections have been made to particular items of a bill delivered, and the solicitors have, with the assent of the client, taken back the bill for the purpose of reconsideration and have struck out certain items, the Court has held that the bill to be taxed must be the bill as it was originally sent in and not the bill as amended. That was so decided in In re Heather."
54 Farwell J in Re Grant, Bulcraig & Co [1906] 1 Ch Div 124, said this, referring to taxation under the Solicitors' Act 1843: (at 127)
"There is an unbroken line of authorities since the passing of the Act which establishes that, for the purposes of taxation under the Act, and the costs thereof, the solicitor is bound by the bill that he has delivered."
55 In Florence Investments Pty Ltd v H G Slater & Co (supra), being an authority identified by the costs assessor in this case, Bowen CJ in Eq stated the rule in these terms: (at 401)
"If a bill of costs is sent to the client without any condition being stated, then the solicitor cannot, in the case of a taxable bill, afterwards withdraw it and send in an amended bill."
56 The qualification introduced into that definition, that the bill of costs must be a "taxable bill", is important. I will return to it shortly.
57 The policy behind the rule was identified by Hoare J in Re Edwin Sutherland & Co's Bill of Costs (supra) in these words: (at 322)
"Undoubtedly, one of the reasons for this approach is that were it not for some such general rule, it might well be open to solicitors to act oppressively in particular circumstances."
58 Tadgell J made a similar observation in Redfern v Mineral Engineers Pty Ltd [1987] VR 518, where he said this: (at 523)
"The courts' surveillance over costs as between solicitor and client is assumed with a view to preventing any unfair advantage by solicitors in their charges to their clients. It stems, it seems, from the notion that ordinarily a solicitor is presumed to be in a position of dominance in relation to his client as a result of his presumed knowledge of the law and of what may and may not be properly charged by way of fees. Were a strict view not taken it might be open to a solicitor to overreach his client or otherwise act oppressively towards him on the matter of costs. Considerations of public policy and undue influence combined to shape the attitude of the Courts of Equity, by which the general rules in relation to taxation of costs were formulated: Loveridge v Botham (1797) 1 Bos. & Pul. 49; 126 ER 772; cf the remarks of Lowe J in Woolf v Trebilco [1933] VLR 180, at pp 191-2)."
59 The rule, however, is subject to the qualification that the solicitor and client may contractually seek to provide otherwise. Their right to do so is itself subject to the Court's power to strike down a condition which is unfair. In Re Thompson (supra) the solicitors prepared a bill which they delivered, accompanied by a letter. The letter stated that there were certain charges which, owing to haste, had not been included in the bill. They were willing, however, to accept the sum stated in full discharge of their entitlement to costs. The letter stated, however, that if the sum was not paid within eight days, the solicitors reserved the right to withdraw the bill and deliver another. The client, nonetheless, insisted upon particulars of certain charges. The solicitors then purported to withdraw the bill and replace it with another bill. The Court held (Cotton and Lindley LJJ) that they could not do so because the particular condition was one that they could not impose. The headnote, nonetheless, sets out the following principle which the Court accepted:
"A solicitor may, when sending in his bill of costs to his client, reserve to himself the right to withdraw or alter it on condition, provided the condition is fully and clearly stated to the client: but if the solicitor has sent in his bill without any condition, or with a condition which he could not fairly impose, he cannot afterwards withdraw it or send in an amended bill."
60 In Florence Investments Pty Ltd v H G Slater & Co (supra), Bowen CJ in Eq cited Re Thompson as authority for the following proposition: (at 401)
"It is permissible for a solicitor, when delivering a bill to reserve the right to withdraw or alter it upon a condition, provided the condition is fully and clearly stated to the client."
61 In the same case, his Honour appeared to contemplate that it would be open to the solicitor to withdraw his account in the circumstances which he discussed in the following paragraph: (at 400)
" Whether bill was rendered on condition.
One question raised in the correspondence between the parties, and briefly argued before me, was whether the first bill had been rendered upon a condition of 'reasonably prompt payment'. It was argued that it had been rendered on this condition, that reasonably prompt payment had not occurred, and that the defendant had withdrawn the first bill in consequence. It was also contended that the plaintiff had rejected the first account when it asked for a detailed bill. For these reasons, it was said the plaintiff could not insist on taxation of the first account."