Hancock v Rinehart

The out-of-scope issue

1. In his report, Mr Matters set out, in paragraph 30, ten sub-categories of the claimed costs which in his opinion would not be allowed on assessment by reason that they were not costs of the removal application, but should be treated as general costs of the proceedings under (NSW) Uniform Civil Procedure Rules 2005, r 42.7, as costs of other steps or applications in the proceedings in respect of which no costs order had been made. The plaintiffs did not press for recovery under the 9 October order of the costs referred to in paragraphs 30.6, 30.7, 30.8, 30.9 and 30.10 of Mr Matters' report.
2. UCPR, r 42.7, provides as follows: Interlocutory applications and reserved costs 42.7 (1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including: (a) costs that are reserved, and (b) costs in respect of any such application or step in respect of which no order as to costs is made, are to be paid and otherwise dealt with in the same way as the general costs of the proceedings. (2) Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings.
3. The general costs of proceedings, as referred to in rule 42.7, are those costs of proceedings which are not the subject of a special costs order. Costs of an application include both costs of and costs incidental to the application. [2]
4. The removal application was not an interlocutory application in the proceedings, but part - indeed the foremost part - of the substantive principal relief claimed. Although ultimately formulated in the amended summons filed on 17 October 2011, it was presaged in the original summons, which claimed an order removing Mrs Rinehart as trustee of so much of the trust property as did not represent her proportionate beneficial interest.
5. The 9 October order was made - in circumstances where, although the main issue to that point was resolved by Mrs Rinehart seeking to be discharged, there remained outstanding issues on which she might succeed - so as to distinguish the costs which she was to pay on an indemnity basis (in respect of what had been the predominant issue in the proceedings up to that point), from the costs associated with the issues that remained alive (most notably, but not exclusively, the 2006 amendments issue, and the replacement trustee issue). It was not an order dealing with the costs of an interlocutory application, but with the costs of what had been the main issue in the substantive proceedings. In my view, the purpose of the reference to "costs of their application to remove her as trustee" was to draw a line between the costs of that issue and the costs of the remaining issues. But insofar as it went, it was intended to be a final order and to capture the general costs of the proceedings - including of steps and applications in them - so far as they related to the removal issue rather than the remaining issues.
6. Paragraph 30.1 of Mr Matters' report pertains to costs of the initial stages of the proceedings before the amendment of the summons to include expressly a claim for removal of Mrs Rinehart as trustee of the trust. From the outset, the plaintiffs' claim was in substance one for removal of Mrs Rinehart as trustee of the trust. [3] As has been mentioned, the original summons included a claim for removal, though not precisely as ultimately formulated. The urgent initial application and relief claimed was founded on the events of September 2011, which were also the foundation of the removal application, and the work to which those costs relate furthered the removal application. At the least, the steps taken before amendment of the summons were steps taken in the proceedings, incidental to the removal application, in respect of which no costs order had been made, and the associated costs should be viewed as general costs of the removal application. Those costs are within the 9 October order and should be included in the gross sum.
7. The costs referred to in paragraph 30.2 of Mr Matters' report, being costs of the plaintiffs' opposition to an application by Mrs Rinehart for a stay of the proceedings, in circumstances where the removal application was the main issue in the proceedings, were necessarily incurred to continue to prosecute the removal application and thus incidental to the removal application. Likewise the costs referred to in paragraph 30.3 of Mr Matters' report, being costs of the plaintiffs' opposition to an application for a stay of the substantive proceedings and for referral of those proceedings to mediation, and of applications in respect of discovery and subpoenas.
8. The costs referred to in paragraph 30.4 of Mr Matters' report, being costs of the plaintiffs' opposition to an application by Mrs Rinehart for a suppression order, and in relation to identification of a replacement trustee, and of making an application to compel Mrs Rinehart to reinstate trust distributions to the plaintiffs, were all costs of applications or steps taken in the proceedings which were more closely connected with the removal application than any other application for substantive relief, in respect of which no costs order was made. Although it might be said that selection of a replacement trustee was one of the remaining issues, at the time when the relevant costs were incurred difficulty in identifying a suitable and qualified replacement trustee was relied on by Mrs Rinehart as a ground of opposition to her removal. The application for reinstatement of distributions, though resolved without determination by the court, was concerned with Mrs Rinehart's discharge of her duties as trustee. Conformably with rule 42.7, those costs should be treated as part of the general costs of the removal application.
9. The costs referred to in paragraph 30.5 of Mr Matters' report, being costs of the plaintiffs' opposition to an application by Mrs Rinehart for a stay of the proceedings and referral to arbitration, were again necessarily incurred to continue to prosecute the removal application and were incidental to it.
10. Accordingly, all the so called "out-of-scope" costs that remained in issue should be allowed and included in the gross sum.

The previous orders issue

1. Costs orders had been made prior to 9 October 2013 in respect of various interlocutory applications in the proceedings. All the relevant orders were made in favour of the plaintiffs, although not all were made against the first defendant, and in some cases the orders were for a proportion only (95% or 80%) and not the whole of the plaintiffs' costs. Mr Matters opined, and it was submitted for Mrs Rinehart, that the costs caught by these interlocutory costs orders were excluded from and not recoverable under the 9 October costs order.
2. I accept that a general costs order (such as I regard the 9 October order to be, though it excludes the costs of the remaining issues) does not supersede or affect extant special or interlocutory costs orders, unless the Court orders otherwise. [4] The 9 October order does not expressly otherwise provide. Given the general practice in this respect, I do not consider that the available contextual evidence permits an inference that the parties intended to displace the pre-existing orders. Had they done so, their agreement would have had to address questions in respect of orders previously made only against the fourth defendant HPPL, or the second defendant Ginia, as to whether the 9 October order was intended to displace those orders and substitute an order against the first defendant; or to make the first defendant also liable for the same costs. Had there been interlocutory costs orders adverse to the plaintiffs, it would not have affected them. Insofar as interlocutory orders in favour of the plaintiffs were made against other defendants, and insofar as they were on a partial basis, the 9 October order does not change who is liable, or (where relevant) the proportionate liability.
3. However, while that is so in respect of liability, the position is otherwise in respect of the basis of assessment. It is not uncommon for an indemnity costs order to be made after earlier costs orders have been made (on the ordinary basis), without first setting aside the earlier order. When an indemnity costs order is sought and made at the end of proceedings, for example where a party has bettered its offer of compromise, such an order is typically made as from the date of the offer, without specifically referring to or varying any extant interlocutory order made during that period, to the intent that all costs to which the party is entitled from the date of the offer be assessed on the indemnity basis.
4. As the plaintiffs submitted, a powerful indicator that, insofar as it deals with the basis of assessment, the 9 October order should be construed in that way is that otherwise, the benefit of the indemnity order to the plaintiffs would operate in inverse proportion to their diligence and success in obtaining interlocutory costs orders: the greater their success in obtaining interlocutory costs orders (on the ordinary basis), the more would be excluded from the final indemnity order. It is objectively improbable that such a result was intended.
5. Another indicator is that had the question of indemnity costs in respect of all aspects of the removal application not been resolved, it would have remained open to the plaintiffs to agitate in open court their misconduct allegations against the first defendant, the avoidance of which was plainly a factor in the first defendant's agreement to the 9 October order.
6. In my view, the subject order served dual functions. The first was to entitle the plaintiffs to their costs of the removal proceedings, including incidental applications and steps, insofar as extant interlocutory orders did not otherwise provide. The second was to provide that any costs which the plaintiffs were entitled to recover from the first defendant of and incidental to the removal proceedings, whether under the subject order or any earlier costs order, were to be assessed on the indemnity basis. Where the plaintiffs are entitled to only a proportion of costs, [5] it is that proportion of the costs in question, assessed on an indemnity basis. Where the first defendant is jointly liable with others for the plaintiffs' costs, [6] her liability (but not that of the other parties liable) is to be assessed on the indemnity basis. But where only another party - HPPL [7] or Ginia, [8] for example - has been ordered to pay the plaintiffs' costs, the 9 October order does not make the first defendant liable for them.
7. Thus the basis of the first defendant's liability under the various interlocutory costs orders is established, in each case, by the original interlocutory order (as to liability), and by the 9 October order (as to basis of assessment). While strictly each interlocutory order gives rise to a separate liability, [9] nothing would be served by a separate assessment under each order, and to do so would in part defeat the purpose for making a gross sum order. Accordingly, the gross sum should include the costs which the plaintiffs are entitled to recover from the first defendant under earlier costs orders, assessed on the indemnity basis. This will require some adjustments to the quantified claim to exclude costs for which only a party other than the first defendant is liable under a previous order, and to remove that percentage of costs for which the first defendant is not liable under a previous order against her.

The YPOL rates issue

1. The costs agreement dated 20 May 2013 between YPOL and the plaintiffs provided for two levels of hourly rates for two of the lawyers involved; hourly rate 'B' represents about a 20% increase on hourly rate 'A'. Clause 21 of the costs agreement was as follows: 21 The following shall apply for the payment of our fees and disbursements whilst both of you remain parties to this retainer: 21.1 we will provide you with a draft invoice at the conclusion of each month which will contain our fees and disbursements (other than Significant Disbursements); 21.2 we request that you approve or raise any issues with each draft invoice within 14 business days (or such other time as agreed) of receipt of the draft invoice; 21.3 each draft invoice will be calculated by applying the rates in the 'hourly rate B' column in the schedule referred to above; 21.4 we will issue a final invoice (which will be made up of all the draft invoices) within 28 business days of the Invoice Date. The Invoice date will be the earlier of any of the following: (a) at any time before the resolution or determination of the Proceedings on which we receive a written instruction from each of you that you wish to pay the fees and disbursements the subject of the draft invoices; (b) the date on which this retainer is terminated; (c) the date on which the Proceedings are resolved by agreement; (d) the date on which the Proceedings are determined by a final judgment and/or orders by the applicable court or the expiry of any applicable period for appeal from such judgment or orders without any appeal step having been taken; 21.5 the final invoice will include all of the work and disbursements set out in the draft invoices provided to you up to that time and any work and disbursements incurred since the last draft invoice; 21.6 the fees in the final invoice will be calculated by applying the rates in the 'hourly rate A' column if the Invoice Date is on or before 30 days from the date of the final judgment of the primary judge (increase date); 21.7 the fees in the final invoice will be calculated by applying the rates in the 'hourly rate B' column if the Invoice Date is after the increase date; …
2. In the events which have happened, none of paragraphs (a) to (c) of clause 21.4 are applicable. For the purposes of paragraph 21.4(d), time to appeal from the substantive judgment and orders of 28 May 2015 expired on 25 June 2015. On 29 July 2015, YPOL issued to the plaintiffs an invoice (incorrectly dated 22 July 2015), covering work done during the period 23 May 2013 to 30 September 2013, charged at the higher hourly rate B. This invoice was paid in full by transfer from the YPOL trust account on 29 July 2015.
3. On 14 October 2015, YPOL wrote to the plaintiffs, seeking "clarification of an aspect of our retainer". It was explained that the first defendant had contended (in the context of the present application) that the plaintiffs were not liable to pay the higher rate B, because the Invoice Date as defined in paragraph 21.4(d) was before the "increase date". The plaintiffs were invited to confirm, as they duly did, that the words "Invoice Date" in paragraphs 21.6 and 21.7 were intended to mean the date of the final invoice.
4. Mrs Rinehart contended that, upon the proper construction of the costs agreement, YPOL was entitled only to the lower rate A. It was submitted that the Invoice Date was, in the events which had happened, the date specified by paragraph 21.4(d), namely 25 June 2015; that under clause 21.6 and clause 21.7, hourly rate A is to apply if the "Invoice Date" is on or before 30 days from the date of the final judgment of the primary judge; and the Invoice Date occurred before 30 days from judgment (27 June 2015); accordingly, hourly rate A applied.
5. For the plaintiffs, it was submitted that such a construction would produce the result that the higher hourly rate provided for in the YPOL retainer could never apply, because the 'Invoice Date' in paragraph 21.7 would always occur before the 'increase date' defined in paragraph 21.6, whereas it was clear from the structure of the retainer (and the provision of two different hourly rates) that the parties intended the higher rate should apply in certain circumstances; the parties to the YPOL retainer had proceeded in good faith on the basis that the term 'Invoice Date' in paragraph 21.7 was to be read as 'the date of the invoice'; and upon that construction, the higher hourly rate applies to all YPOL costs sought to be recovered under the subject order.
6. In my view, as a matter of construction of the costs agreement, the plaintiffs' submission must be rejected. First, "Invoice Date" (capitalised) in clause 21.6 and 21.7 is a defined term, picking up the definition in clause 21.4; the subsequent agreement between the plaintiffs and YPOL to the contrary flies in the face of the express terms of the costs agreement. Secondly, it is not correct that on the first defendant's construction the higher rate could never apply: if an appeal had been instituted by 25 June, the Invoice Date under paragraph 21.4(d) would have been the date on which the appeal was determined or time to further appeal from it expired, which would have been after the "increase date", being 27 June. Thirdly, those same circumstances illustrate the intended operation of, and give sensible effect to, the provision, by entitling YPOL to a higher rate of remuneration if their entitlement to issue a final invoice was delayed by the institution of an appeal. Fourthly, the plaintiffs' construction would leave to the discretion of YPOL whether to issue a final invoice before 27 June (in which case the lower rate would be payable) or delay it for just a few days thereafter (in which case the higher rate would be payable, for no reason other than YPOL's discretion to wait a few days before invoicing, and for no measure of increased risk or exposure). This capricious operation of the provision stands in stark contrast to its sensible application as described in thirdly, above. In my view, the plaintiffs' construction is untenable.
7. However, the plaintiffs submitted that even if their construction were wrong, they were entitled to recover under the costs order on the basis of what they actually bona fide had paid to their own solicitors, even if it were not strictly recoverable as between YPOL and them.
8. As the plaintiffs acknowledged, a litigant to whom costs are awarded cannot recover more than the amount that he or she has paid - or is liable to pay, if payment has not been made - to his or her own solicitors. That principle, commonly referred to as 'the indemnity principle', follows from the compensatory nature of an award of costs, and is as relevant on an assessment on the indemnity basis as it is on the party/party basis.
9. There are circumstances in which a litigant may recover, under a costs order, costs actually bona fide paid to its solicitor in satisfaction of a genuine claim for costs, even if the litigant was not legally obligated to pay some of those costs. [10] However, those circumstances are constrained. [11]
10. In Catto, the principal question was "whether the indemnity costs to which the defendants are entitled are the amounts which they actually expended in defending the plaintiffs' claims, or are only those amounts which their respective solicitors could have enforced in an action against them, ie, the amounts which they were legally obliged to pay". [12] White J, with whom Vanstone and Anderson JJ agreed, held that the amount recoverable under the indemnity costs order was the amount actually expended by the successful party, regardless of whether that amount included costs which were not "strictly enforceable" against the successful party by its solicitors. [13] His Honour considered that approach to be: consistent with the notion that costs are awarded to a party by way of indemnity. They are 'intended to reimburse a litigant for costs actually incurred"': Cachia v Hanes (1994) 179 CLR 403 at 414. [14]
11. Relying chiefly on cases in which litigants had been held entitled to recover as against the other party costs paid to the litigant's uncertificated solicitor which that solicitor, being uncertificated, would not have been able to enforce, his Honour observed that "in analogous circumstances litigants have been held to recover costs already paid in connection with the litigation, even where their solicitors could not have enforced the claim for those costs", [15] and that to conclude otherwise would have "the effect that the successful [party], even though entitled to indemnity costs, will be substantially out of pocket" in circumstances where "[t]hey have paid, apparently in good faith, the amounts claimed by their solicitors", where "those amounts were claimed pursuant to arrangements entered into (again apparently in good faith) between the [successful party] and their solicitors" (emphasis added). [16] His Honour reasoned that "there is no reason why, in relation to indemnity costs, full effect should not be given to the compensatory function of the costs order''. [17]
12. In my view, however, it can make no difference in this respect whether the inter partes costs order is on the ordinary or indemnity basis; the "indemnity principle" applies in either event. The question is whether the fact that the costs (1) have actually been paid as between client and solicitor, and (2) were paid bona fide, means that they can be recovered against the other party under the inter partes order, notwithstanding that they could not have been enforced by the solicitor against the client.
13. The question was considered in Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 6), [18] in which Flick J held that where a solicitor cannot enforce a costs agreement as against a client, costs which had not been paid as at the date of the costs order in favour of the client are not recoverable pursuant to the order, even if paid thereafter, and notwithstanding that the costs order is expressed to be on the indemnity basis: The Fact of Payment - The Catto Point 32 At one stage of these proceedings Mr Rickus placed at the forefront of his contentions the fact that he has actually paid his legal practitioners the moneys they have claimed. The Trustee placed at the forefront of its submissions the fact that fees were paid after the costs order had been made and that, accordingly, those fees were not recoverable. 33 This particular contention and what became known as the "Catto point" was a reference to the decision of the Full Court in Catto v Hampton Australia Ltd (In Liq) [2008] SASC 231 ("Catto"). The plaintiff's claim had there been dismissed and the plaintiff had been ordered to pay the defendant's costs on an indemnity basis. The principal question was whether the indemnity costs to which the defendants were entitled were the amounts which they actually expended in defending the plaintiff's claims or only those amounts which their respective solicitors could have enforced in an action against them. The plaintiff contended that there could only be recovery of those amounts which the defendants were legally obliged to pay their legal representatives. The relevant rule of court (sub-r 6(d)) referred to costs "incurred". 34 In the present proceeding Mr Rickus' contention was simple - he obtained in his favour an order that costs be paid on an indemnity basis. In the present case it is common ground that such moneys as have been charged by the solicitors and paid by Mr Rickus have not been excessive but are costs reasonably and necessarily incidental to the conduct of the litigation. Irrespective of whether or not any agreement as to the payment of fees was legally enforceable against him, Mr Rickus has paid those moneys. The fact that those moneys have been paid after the order for costs was made, he contends, assumes no relevance.
14. Ultimately, the point was not dispositive and his Honour addressed it "albeit briefly", [19] as follows: 36 Subject to that qualification as to brevity, it is considered that where a solicitor may not enforce a fees agreement as against a client, fees which have not been paid as at the date of a costs order being made in his favour are not recoverable pursuant to that order even if paid thereafter. 37 Catto, it is considered, is a decision confined to the factual circumstances where fees have been paid prior to the making of an order and also to the construction and application of the statutory rule there in question. …
15. After examining the judgment of White J in Catto, his Honour observed: 38 His Honour was obviously not there concerned with a factual situation where fees had not been paid prior to the making of an order. But that fact is a fact of importance. In the decision of TNT Bulkships v Hopkins (1989) 98 FLR 352 ("TNT Bulkships") (to which White J refers) Kearney J also referred to Re Hope (1872) LR 7 Ch App 766 and the following observations of Willes J in that case: "No doubt [the client] might have refused to pay [his uncertificated solicitor] the costs incurred, but he was bound in honour to pay them and if he had done so … he had a right to recover them from the person who had been ordered to pay." (emphasis Kearney J's.) After referring to this passage, Kearney J went on to observe at 359: Re Hope shows that the position is different if the client has already paid moneys to his unqualified solicitor on account of his costs of the action. Those moneys can be recovered on taxation. And in TNT Bulkships, it should be further noted, the fact that the solicitors were not admitted in the Northern Territory precluded them from recovering costs incurred in litigation in that jurisdiction.
16. His Honour then referred to the judgment of Barrett J (as his Honour then was) in Wentworth v Rogers [2002] NSWSC 709: 39 The general principle that costs awarded are intended to indemnify a successful party who has incurred a liability and the limited circumstances in which there may be recovery where the solicitor has no right of recovery against the client, has been emphasised by Barrett J in Wentworth v Rogers [2002] NSWSC 709. His Honour there said (without alteration): Costs orders - the indemnity principle [35] It is appropriate to look next at the provisions in Division 6 dealing with the quite separate and distinct subject of costs awarded by courts. That examination needs to be undertaken against the background of the general principle that costs awarded by order of a court are intended to indemnify (commonly only partially) a successful party who has incurred a liability for costs in relation to the proceedings. The existence of a liability of the client to pay costs lies at the centre of this concept, but it is clear that costs may in certain special and limited circumstances be recovered under an order for costs even where there is no right of recovery by the lawyer against his or her client. A common case is where the lawyer is an employee and represents his employer's interests in court without right to or expectation of reward apart from the salary which is payable regardless of the nature or quantity of legal work undertaken: see the comprehensive treatment of this subject in the judgment of Davies AJ in Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333. Another instance is where a lawyer resorts to self-help by performing legal work in proceedings in which he or she is a party. In Atlas v Kalyk [2001] NSWCA 10, the Court of Appeal held that the decision of the High Court in Cachia v Hanes (1993) 179 CLR 403 as to self-represented litigants generally did not disturb that court's earlier recognition of the lawyer self-help exception in Guss v Veenhuissen (No 2) (1976) 136 CLR 47. [36] Apart from special circumstances and exceptions of this kind, absence of the lawyer's right to recover remuneration from his or her client will mean that a costs order in favour of the client will be unproductive. The matter is dealt with succinctly in the following passage in the judgment of Hamilton J in Grynberg v Muller; Re Estate of Bilfeld [2002] NSWSC 350: …
17. Although admittedly described by his Honour as "nothing more than a tentative conclusion", [20] his Honour's reasoning provides a persuasive explanation and reconciliation of the cases with the indemnity principle. It is supported by the judgments of Willes J in Re Hope [21] and Kearney J in TNT Bulkships v Hopkins. [22] Contrary to the plaintiffs' submissions, in my judgment there is a sound rationale for selection of the date of the costs order as determinative: before that date, a litigant incurs and pays costs at his or her own risk; after that date, the litigant knows that the other party, liable under the costs order, has an interest in the amount of the costs liability, and the litigant ought not be treated as effectively entitled voluntarily to enlarge that liability.
18. The plaintiffs had not paid YPOL when the 9 October costs order was made. On that basis, the Catto exception does not apply. Moreover, even now, YPOL remain unpaid in respect of work done after 30 September 2013, so that an amount remains payable to them, out of which any adjustment on account of overpayment for the earlier period could be adjusted. And while there is no challenge to the bona fides of the payment and the subsequent arrangements between YPOL and the plaintiffs in respect of the applicability of the higher rate, as a matter of construction of the costs agreement it is so untenable that I would in any event regard it as outside the Catto exception, which should be limited to payments made not merely bona fide but also reasonably.
19. It follows that the amount of the claimed costs that is attributable to the application of the higher hourly rate for YPOL should be disallowed, and excluded from the gross sum.

The JW&S retainer issue

1. When these proceedings were instituted, there were three plaintiffs, Hope Welker (now the third defendant) then being a co-plaintiff. Those three plaintiffs instructed Johnson Winter & Slattery solicitors, who acted for them until about March 2013, when Hope ceased to be a plaintiff and became a defendant, consequent upon which JW&S were compelled to cease to act for the plaintiffs. The evidence, such as it is, [23] indicates that as between solicitor and client, JW&S rendered costs totalling $1,293,366.64, which have been paid in full, Bianca having contributed $184,000 (14.22%), John $759,226.70 (58.7%) and Hope $350,139.94 (27.07%). On the present application, John and Bianca seek to recover the whole of JW&S's costs, insofar as they fall within the scope of the 9 October order; in this respect the claim includes JW&S professional costs of $353,391.50 and disbursements of $224,943.79 - a total of $578,335.29.
2. The first defendant contends that the amount claimed in respect of JW&S's costs and disbursements should be reduced by one-third to reflect Hope's liability for one-third of them. The plaintiffs submit (1) that John and Bianca are liable for the full amount of costs incurred under the JW&S retainers, and moreover (2) that the subject order concerns "the plaintiffs' costs", and that as Hope was until 12 March 2013 a plaintiff her costs up to the date she ceased to be a plaintiff are "the plaintiffs' costs" within the order, it being irrelevant that only two of the three initial plaintiffs now seek to recover those costs.
3. As to the second point, although JW&S were retained by John, Bianca and Hope, the 9 October 2013 costs order was not intended to and does not benefit Hope. The subject order, in referring to the "plaintiffs' costs", was plainly intended to refer to the costs of those who were plaintiffs at the date of the order, namely John and Bianca, and not to Hope who was no longer a plaintiff. I do not accept that because Hope was a plaintiff when those costs were incurred, the order entitled the plaintiffs to recover costs which she has paid or for which she and not they are liable.
4. As to the first point, much attention was given in argument to whether the retainer of JW&S was joint or several. There were two written retainers, one dated 6 September 2011 by Hope and Bianca, and the other dated 12 September 2011 by John. Neither contained any express term as to whether liability was joint or several. There is a rebuttable presumption that where a number of parties to an action enter into a single retainer with a solicitor, each is presumed to be jointly liable for the costs incurred by that solicitor; [24] but where distinct parties enter into individual retainers with the same solicitor, the presumption is reversed and each party is liable for its own share of the solicitor's costs, being the amounts specifically attributable to that client and a proportionate share of the general or common costs. [25] In such a case (of several retainers) there is a rule of thumb that in the absence of material being put before the court to show that some other liability was assumed by the persons who severally retained the solicitor, each pays or is entitled to an equal amount of costs, [26] and the same probably applies to a joint order for costs. [27]
5. In this case, given the nature of the proceedings, the common interest of Hope, John and Bianca in them deriving from their status as beneficiaries, and the fact that they acted in concert in bringing and prosecuting the proceedings such that it can properly and accurately be said that they were jointly represented by JW&S, it should be concluded that the presumption of several retainers was rebutted and that although John signed a separate letter of retainer there was nonetheless a joint retainer. [28] But even if that were not so, Bianca and Hope having entered into a single retainer with JW&S, prima facie they are jointly liable for the total costs incurred under that retainer, but each would have a right of contribution against the other. John had a separate retainer, and prima facie he is separately liable for the costs incurred under that retainer. Together, that would have the consequence that the two plaintiffs between them were liable for the whole of the costs incurred with JW&S, but Bianca would have a right of contribution against Hope.
6. Although in some circumstances a party is regarded as having incurred, and may recover against another party in respect of, costs that are in fact paid by a third party which is for relevant purposes identified with the party - such as an employer, an insurer or a trade union - so long as the party is responsible or liable for those costs, and even though the third party is also liable, [29] the position as between multiple party clients is otherwise: although each of the multiple plaintiffs may be liable to their solicitor for the whole of the costs common to all of them, as between themselves, each is liable to contribute one share and ultimately liable to pay only one share, and as party/party costs are an indemnity only, one share is all that the defendant may be required to pay to one plaintiff. The position in this respect was illustrated by Young J (as his Honour then was) in Longreach Oil v Southern Cross, as follows: This passage was applied by the English Court of Appeal in Ellingsen v Det Skandinabiske Co [1919] 2 KB 567 at 569. After citing this passage the court said: "As the principle of allowance of costs is that the successful party is to be recompensed for liability he has reasonably incurred in defending himself, if he is only liable to his solicitor for half of certain joint items he cannot be allowed the whole of them, even though by some separate agreement he has made himself liable for the other half, primarily the liability of another and unsuccessful defendant." In Keen v Towler (1924) 41 TLR 86, 87 Lord Darling said: "One must assume, in the absence of evidence to the contrary, that all these four plaintiffs are solvent, and that no special arrangement was made between them as to their liability to their solicitor for costs. On this assumption, although each of the four plaintiffs may be liable to the solicitor for the whole of the costs common to all of them, still, as between themselves, each is liable to contribute one-quarter. On this it follows that ultimately each of the plaintiffs is only liable to pay one quarter of the common costs, and that, therefore, as costs are given as an indemnity only, one-quarter is all that the defendant should be called upon to pay to one plaintiff. To order the defendant to pay to the successful plaintiff more than that one-quarter would be to order him to pay an amount in relief of the amount that the unsuccessful plaintiffs ought to pay."
7. Thus however one views the retainer, it seems to me, ultimately, as between themselves, John and Bianca were liable for, and are entitled to recover in respect of, only that proportion of JWS's costs as is referable to them, and not for that proportion referable to Hope. In this case, the interests of the three then plaintiffs were identical, and it is unlikely that there were any significant costs attributable to the separate representation of any one of them. Had JW&S's costs not been settled and paid, one would apply the "rule of thumb" referred to by Young J to conclude that the plaintiffs were liable to JW&S for, and should recover from the first defendant in respect of, two-thirds of the JW&S costs that fall within the scope of the 9 October order.
8. However, as the JW&S costs have been settled and paid, the amount each has actually incurred can be ascertained, which warrants a departure from the "rule of thumb". John and Bianca are entitled to recover in respect of that proportion (72.92%) of the JW&S costs that are within the scope of the 9 October order which they have paid, but not the proportion that Hope has paid. That means that the 27.07% referable to Hope - prima facie equivalent to $156,555.36 - should be disallowed, and excluded from the gross sum.

The general discount issue

1. The first defendant submits that there should be a further global percentage reduction of 15%, for two main reasons: first, because on assessment, even on the indemnity basis, a successful party invariably recovers something less than its actual costs, typically 15% where the assessment is on an indemnity basis; and secondly, the necessarily broad-brush approach of the court to assessment on a lump sum basis - involving some risk that the sum includes costs that would not be recovered on assessment - coupled with the savings to the costs creditor in time and costs through avoiding a detailed assessment, and the loss to the costs debtor of the opportunity to scrutinise and object to a detailed bill, has resulted in a practice of applying a discount on lump sum assessments. [30]
2. While it is undoubtedly the usual practice of the court when making a lump sum costs order to apply a discount for the reasons mentioned, that does not mean that the Court must apply a percentage discount to the sum sought by the successful party, [31] and the Court "must be astute not to cause an injustice to the successful party" by applying "an arbitrary 'fail safe' discount on the costs estimate submitted to the court". [32] Thus if the court can be confident that there is little risk that the sum includes costs that might be disallowed on assessment, the case for a discount is seriously undermined.
3. Where a gross sum is assessed on an indemnity basis, and there is no evidence of unreasonableness, it may be inappropriate to apply any discount, [33] although one may nevertheless be appropriate if there is evidence that the successful party "errs on the side of excessiveness [as in excessive use of legal services]". [34]
4. Mr Matters' evidence was to the effect that a party typically recovers only around 85% of its actual costs under an assessment on an indemnity basis. The reduction is typically the result of some items being excluded on the basis that the costs are outside scope and not properly recoverable under the relevant order, and other items being reduced on the basis that the quantum of the charge was unreasonable. (Notably, Mr Matters would apply a lower discount if the Court accepted (as I have) that the higher hourly rate for YPOL should be disallowed). The plaintiffs' solicitor Mr Price gave evidence that, on an assessment on an indemnity basis, he would expect the plaintiffs to recover 85-95% of their actual costs.
5. It is important to note that the starting point for this exercise is the amount of the solicitor/client bill, before exclusion of matters as "out-of-scope" or "unreasonable". In this case, the first defendant has had the benefit of a detailed bill and the opportunity, which has been exercised, to review and challenge it, item-by-item, assisted by an expert costs consultant. As a result, the sum claimed by the plaintiffs has been revised down on several occasions, as "out-of-scope" items have been identified and removed. Thus, the "out-of-scope" issues have already been addressed. In this respect, the process for which the discount is ordinarily intended to provide has in fact taken place.
6. Because this is an indemnity order, the first defendant bears the onus of proving unreasonableness, [35] and any doubt about the reasonableness of the amount charged for a particular item is to be resolved in favour of the plaintiffs. [36] Notwithstanding the availability of a detailed itemised bill, the first defendant has not identified any element of unreasonableness: there is no suggestion by the first defendant that the plaintiffs have been excessive in their use of legal services, or that the rates charged by the solicitors and barristers retained by the plaintiffs were excessive, or that it was unreasonable for the plaintiffs to have retained any of those advisors. That no assertion of unreasonableness has been made, where the first defendant bears the onus, is significant. It is also unsurprising - given that, in the context of this litigation and the resources with which the plaintiffs were confronted, they have adopted a relatively economical approach to the litigation.
7. In my judgment, in the context of this case, involving as it does an indemnity order where the defendant bears the onus of establishing unreasonableness, where the defendant has not been deprived of the opportunity of objecting to a detailed and itemised claim but to the contrary has had and taken advantage of ample opportunity to scrutinise it both for "out-of-scope" and for unreasonableness; where "out-of-scope" issues have been resolved or addressed above; where there has been not a single suggestion of unreasonableness; where the result of this application includes the disallowance of the higher YPOL rates; and where the plaintiffs' conduct of the case was self-evidently relatively economical in the circumstances; the possibility that the claim includes further items which might be disallowed on assessment is sufficiently remote as not to warrant a further general discount.

Interest on costs

1. Ultimately, the first defendant did not oppose an order under (NSW) Civil Procedure Act 2005, s 101(4), for interest on costs. The plaintiffs' proportion of the JW&S costs was paid in full not later than 21 November 2012, and it is appropriate that so much of the gross sum as is referable to the JW&S costs bear interest from 22 November 2012, as the plaintiffs propose. The YPOL disbursements were paid by 7 January 2014, and so much of the gross sum as is referable to those disbursements should bear interest from 8 January 2014. Most, but not all, of the YPOL costs were paid by 29 July 2015; some (in respect of work done since 30 September 2013) have not yet been paid. So much of the gross sum as is referable to YPOL's paid costs (that is, work up to 30 September 2013) should bear interest from 30 July 2015. Interest should be calculated at the rates provided for by UCPR, r 36.7, for interest on unpaid judgment debts.

Conclusion

1. My conclusions may be summarised as follows:
2. All the so-called "out-of-scope" costs that remained in issue are allowed and should be included in the calculation of the gross sum.
3. The gross sum should include the costs which the plaintiffs are entitled to recover from the first defendant under earlier costs orders, assessed on the indemnity basis. This will require some adjustments to the quantified claim so as to exclude costs for which only a party other than the first defendant is liable under a previous order, and to remove that percentage of costs for which the first defendant is not liable under a previous order against her.
4. The amount of the claimed costs that is attributable to the application of the higher hourly rate for YPOL is disallowed and should be excluded from the gross sum.
5. As the proportion of the JW&S costs that the plaintiffs have paid can be ascertained, they should recover that proportion (prima facie 72.92%) of the JW&S costs that are within the scope of the 9 October order. That means that the 27.07% attributable to Hope - prima facie equivalent to $156,555.36 - is disallowed and should be excluded.
6. In the circumstances of this case, no further general discount is appropriate.
7. I will therefore make orders: 1. fixing the amount payable under the order of 9 October 2013 (and including the earlier costs orders under which the plaintiffs are entitled to recover costs from the first defendant) for the amount claimed, subject to the adjustments indicated above; 2. including in the amount so payable an amount representing interest at the rates provided for by UCPR, r 36.7, for interest on unpaid judgment debts, from 22 November 2012 on so much of the gross sum as is referable to JW&S costs and disbursements, from 8 January 2014 on so much of the gross sum as is referable to YPOL disbursements, and from 30 July 2015 on so much of the gross sum as is referable to YPOL's paid costs (that is, work up to 30 September 2013).
8. I direct that the plaintiffs bring in short minutes to give effect to this judgment at a time to be fixed, when I shall also hear the parties on the costs of this application.

Endnotes

1. Amended Notice of Motion filed 31 August 2015.
2. Wentworth v Wentworth (NSWCA, Priestley, Clarke JJA and Grove AJA, 21 February 1996, unreported) at 17 per Clarke JA.
3. As was recognised in Welker v Rinehart (No 2) [2011] NSWSC 1238 (7 October 2011) at [5].
4. G E Dal Pont, Law of Costs, 3rd ed, [14.28].
5. For example, order 5 of 2 February 2012 (Welker & Ors v Rinehart & Anor (No 5) [2012] NSWSC 45 (Ball J)) and order of 7 November 2012 (Welker v Rinehart [2012] NSWSC 1637 (Brereton J)).
6. See for example order of 18 September 2013 (Hancock & Anor v Rinehart & Ors [2013] NSWSC 1352 at [135] (Bergin CJ in Eq)).
7. For example, orders 1 and 2 of 22 December 2011 (Welker & Ors v Rinehart & Anor (No 4) [2011] NSWSC 1636 at [45] (Brereton J)).
8. For example, order 2 of 7 October 2011 (Welker & Ors v Rinehart & Anor (No 2) [2011] NSWSC 1238 at [58] (Brereton J)).
9. Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170; (2014) 86 NSWLR 674 at [9] (Beazley P), [38]-[48] (Basten JA), [193]-[197] (Barrett JA).
10. Catto v Hampton Australia (in liq) (2008) 257 LSJS 245; [2008] SASC 231 (White, Vanstone and Anderson JJ).
11. Wentworth v Rogers [2002] NSWSC 709 at [29] (Barrett J).
12. Catto at [4] (White J).
13. Catto at [31]-[33] (White J).
14. Catto at [34] (White J).
15. Catto at [37]-[39] (White J).
16. Catto at [43] (White J).
17. Catto at [43] (White J).
18. [2010] FCA 383; (2010) 223 FCR 261.
19. [2010] FCA 383; (2010) 223 FCR 261 at [36].
20. [2010] FCA 383; (2010) 223 FCR 261 at [40] (Flick J).
21. (1872) LR 7 Ch App 766.
22. (1989) 98 FLR 352.
23. A summary was provided on behalf of the plaintiffs rather belatedly, at the hearing of the application, which was received on the basis that if the defendant desired a further opportunity to impugn it or to contradict it, that would be afforded. Accordingly, these factual "findings" should be regarded as provisional until that question is resolved; however, while further evidence may impact on the figures, they enable the governing principles to be determined and illustrated.
24. Burridge v Bellew (1875) 32 LT(NS) 807; ASIC; In the matter of Richstar Enterprises Pty Ltd v Carey (No 13) [2007] FCA 57 at [20]-[21] (French J); Australian Receivables Ltd v Tekitu Pty Ltd (subject to a deed of company arrangement) (deed administrators appointed) [2012] NSWSC 170 at [162] (Ward J).
25. Ellingsen v Det Skandinaviske Co [1919] 2 KB 567; Richstar at [20]-[21] (French J); Tekitu at [162] (Ward J).
26. Korner v H. Korner & Co Ltd [1951] Ch 10; Longreach Oil Ltd v Southern Cross Exploration NL (NSWSC, Young J, 9 March 1988, unreported).
27. Cordery on Solicitors, 7th ed, 63; Palmer v Harris (1826) 1 Russ 155; Longreach Oil Ltd v Southern Cross Exploration NL.
28. Cf Richstar at [21]; Tekitu at [162]-[163].
29. R v Miller [1983] 3 All ER 186 at 190 (Lloyd J); cited in Catto at [44].
30. See Idoport Pty Limited v National Australia Bank Limited and Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 at [13] (Einstein J); In the matter of Aquaqueen International Pty Ltd [2015] NSWSC 500 at [18] (Black J).
31. Beach Petroleum NL v Johnson (No 2) [1995] FCA 350; (1995) 57 FCR 119; 135 ALR 160 at 165 (von Doussa J).
32. Beach Petroleum at 164-165 (ALR).
33. Norfeld v Jones (No 2) [2014] NSWSC 199 at [9]-[10] (Campbell J); Harvey v Barton (No 4) [2015] NSWSC 809 at [48] (Slattery J).
34. Norfeld at [7]; Beach Petroleum at 160, 165 (ALR).
35. Bouras v Grandelis [2005] 65 NSWCA 463; (2005) 65 NSWLR 214 at [117]-[119] (Santow JA); Norfeld v Jones at [9] (Campbell J).
36. Bouras at [118]; KB Productions 2001 Pty Ltd (deregistered) v Kurt [2015] NSWSC 1415 at [18] (Beech-Jones J).

Amendments 11 November 2015 - Typographical errors paras: [4(1)], [4(3)], [14], [45], and [59]. 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: 11 November 2015