Hasted v Mackay & Anor [2020] QSC 58

[1] Following a mediation earlier this year, the parties agreed to compromise the plaintiff's claim for damages for personal injuries the subject of this proceeding. The plaintiff applies for the sanction by the Court of the compromise, under s 59 of the Public Trustee Act 1978 (Qld).

[2] The compromise was on terms that the defendants pay a sum of money to the plaintiff (the settlement sum) and, in addition, the defendants agreed to pay "as damages the amount of reasonable administration fees and charges payable on any fund remitted to an administrator for administration on behalf of the plaintiff in a sum to be agreed or failing agreement as is ordered by the court upon the application for sanction" (I will call these the fund management damages). The defendants also agreed to pay the plaintiff's standard costs of the proceeding, including the application for sanction.[1]

[3] The sanction, and the appointment of an administrator, are required because the plaintiff has an impairment for financial and legal matters within the meaning of the Guardianship and Administration Act 2000 (Qld), and is therefore a "person under a legal disability" as defined in s 59(1A) of the Public Trustee Act.

[4] The settlement sum is to be managed for the plaintiff by Perpetual Trustee Company Ltd as administrator.

[5] There is one area of disagreement between the parties, which relates to the method adopted by the plaintiff's solicitors and Perpetual for calculation of the estimated management fees.

[6] The management fees have been estimated by Perpetual by reference to the settlement sum, less the statutory refunds, adopting the methodology used in Gray v Richards (2014) 253 CLR 660.[2] Two estimates are given, depending on whether the fund is to be invested in superannuation or not. The parties are agreed the fund will not be in superannuation.

[7] The plaintiff contends that is the appropriate method of calculating the fund management damages.

[8] The second defendant contends that the base figure for the calculation of the management fees should not simply be the settlement sum (less the statutory charges). The second defendant submits that there should be deducted from that amount, the difference between the indemnity costs to be paid to the plaintiff's solicitor and the standard costs to be paid by the second defendant (I will refer to this as the indemnity costs differential). The second defendant argues that this amount will be paid to the plaintiff's solicitor, from the settlement sum, shortly after the compromise is sanctioned, and it would be more appropriate for the fund management fees to be calculated by reference to a base figure that more truly reflects the fund to be managed for her benefit in the future.

[9] The proposed order includes the following, which explains the timing just referred to:

"6. Within twenty-one (21) days of this order or of the second defendant's receipt of the last of any statutory clearances or charges in relation to the compromise sum[3] (whichever is the later to occur), the second defendant pay the compromise sum as follows -

(a) to any statutory body having a charge over the compromise sum, the amount necessary to satisfy the charge;

(b) to the administrator,[4] the balance,

whose receipt shall in each case be a sufficient discharge for the first and second defendants.

1. Interest ...
2. The second defendant pay the standard costs to the administrator within twenty-one days of their assessment or prior agreement between the second defendant and the administrator as to their amount.
3. The plaintiff's costs of this proceeding, including the costs of this application, be assessed or agreed on the indemnity basis ("the indemnity costs").
4. Following the assessment of the indemnity costs or agreement as to their amount, the administrator is to:

(a) pay the indemnity costs to the plaintiff's solicitors from the moneys received under sub-paragraph 7(b) [sic, 6(b)] of this order; or

unless the administrator in relation to assessed indemnity costs decides to:

(b) pay such lesser sum as it may agree with the plaintiff's solicitors; or

[10] In accordance with the proposed order, the total amount of the damages (primary damages plus fund management damages) is paid by the defendant insurer to the administrator. Under proposed order 3, the administrator is empowered to invest all moneys received and held under the order pursuant to s 51 of the Guardianship and Administration Act 2000". The plaintiff's (assessed or agreed) standard costs are also paid by the defendant insurer to the administrator. The plaintiff's legal costs are to be assessed on the indemnity basis and then paid (in the amount assessed, or as agreed, or as directed) to the plaintiff's solicitor, by the administrator, from the fund which the administrator has received.

[11] In support of its argument, the second defendant relies upon the decision of this Court in Nicotra v State of Queensland [2018] 3 Qd R 219, which was the catalyst for paragraph 12 of Practice Direction No. 15 of 2018. Paragraph 12 requires that, on an application for sanction:

"The solicitor acting for the plaintiff must include in a supporting affidavit an estimate of:

(a) standard costs recovered or recoverable in the proceeding or in respect of the claim;

(b) indemnity costs recoverable in the proceeding or in respect of the claim; and

(c) the amount the plaintiff will be paying out of the compromise sum to satisfy the difference between standard costs and indemnity costs.

This is to allay concern the Court may have with respect to the proposed compromise sum being diminished unacceptably by the payment out of the fund of non-recoverable legal costs."

[12] As explained by Burns J in Nicotra, the reason for this requirement is to enable the Court to make a properly informed decision as to whether the compromise is reasonable and for the benefit of the plaintiff, by determining the net sum likely to comprise the fund to be administered for the plaintiff's benefit.[5]

[13] The second defendant emphasises that Nicotra confirmed the Court's entitlement to make inquiries as to the reasonableness of claimed indemnity costs sought by the plaintiff's solicitor. It submits that a corollary of the decision in Nicotra is that the Court should also be concerned to ensure a defendant insurer does not have to meet excessive fees of a trustee; that is, fees for administering a balance settlement sum which are in excess of what will actually be incurred. The evidence in this case is that the administration fees have been calculated on the assumption that the plaintiff will have a further life expectancy of about 66 years, and that the administrator will be administering funds on behalf of the plaintiff for that period. The second defendant submits that it should not have to meet trustee administration fees over a period of over 66 years on a sum that will be reduced by the indemnity costs differential within a matter of weeks following the sanction of the settlement of the claim.

[14] The second defendant submits the Court should order the plaintiff's solicitor to obtain a further quote from Perpetual, based on the settlement sum less the indemnity costs differential.

[15] Those figures are ascertainable with some precision, it is said, because the plaintiff's solicitor has sworn an affidavit which contains estimates of the indemnity costs, and recoverable standard costs, as required by paragraph 12 of the Practice Direction.

[16] The second defendant further submits that the approach it contends for would not result in the plaintiff being worse off in terms of the money she will receive during the course of Perpetual's administration, and would prevent an unjust enrichment of Perpetual.

[17] For the plaintiff it is submitted that it is appropriate for the management fees to be calculated on the settlement sum without any reduction for the indemnity costs differential because:

"commanding support for the view that the Court should be slow to pre-empt the decisions of a trustee charged with the prudential management of a large sum of money that is required to meet the needs of a severely disabled plaintiff over a lengthy period of time." (at [97]).

[23] In Rosniak one of the issues determined by the Court of Appeal was whether any components of the judgment should be excluded from the fund, for the purposes of working out the cost of fund management as part of the damages (although none of the components were legal costs). The approach adopted was to look at the funds which would be available for investment, even if in respect of some components, that may not be for very long.[9]

[24] In Gray v Richards (No 2), whilst McCallum J acknowledged the solicitor/client component of the plaintiff's costs was likely to be paid "within the next one to two years", she regarded the other expenses the subject of this argument (capital costs of a house modification and swimming pool, and whether any payment would be made to the plaintiff's mother for past Griffiths v Kerkemeyer damages) as speculative (at [98]). Accordingly, her Honour found it was not appropriate to deduct any sum from the judgment sum, for the purpose of calculating the future fund management costs.

[25] McCallum J's decision on this issue was upheld on appeal.[10]

[26] Relevantly, in Richards v Grey, as Bathurst CJ recorded at [66], "[s]enior counsel for the appellant [defendant] was unable to point to any evidence that the fund would not be available for investment, stating that the amounts in question might be there for a year or two years but would not be available for the life of the fund".

[27] The reasoning of Bathurst CJ in relation to this issue was as follows:

"[127] It is necessary to initially determine whether there are any components of the verdict which would be deducted from the fund prior to its commencement or whether in principle any amount should not be included in the fund: Rosniak (No 1) at 688 per Mahoney JA.[11]

[128] In the present case there is no reason to suggest that the whole of the fund would not be available for investment, at least initially. Further, it is not clear when the outgoings the appellant contended should not be included in the fund would in fact be dispersed. As I indicated, senior counsel for the appellant ultimately contended that the monies might be there for a year or two years but would not be available for the life of the fund.[12]

[129] The uncertainty can be demonstrated by a consideration of each of the items in question. The first was an amount of $200,000 for solicitor and client costs. That figure was an estimate of such costs. They have yet to be assessed and their quantum will ultimately be assessed on the difference between the total costs and the amount of costs payable to the respondent pursuant to the settlement approved by Hoeben J.

[130] With respect to the primary judge, the question of whether these payments and costs will take annual outgoings over the sum of $500,000 in any year is irrelevant to this issue.[13] No doubt the liability will be met when it arises. However, her Honour was correct in concluding that the time at which such liability will arise is a matter of speculation.

[131] The same position applies in relation to Griffiths v Kerkemeyer damages. There has been no recommendation sought for their payment out of the fund. If a recommendation was sought and made there would be little doubt that the fund manager would seek to comply with it. Whilst the manager might take into account the particular position of the fund at the time the recommendation was made in deciding how and when to comply with it, I do not think it would depend on a cut-off level of expenditure of $500,000 per annum as her Honour concluded. Nevertheless, her Honour was correct in my opinion to conclude that the making and timing of the payment was a matter of speculation.

[132] The payment out of the fund for house modifications and the costs of a swimming pool is a matter of even greater speculation. There was no evidence when it would occur and the primary judge was correct in my opinion in concluding that the payment of such amounts would depend on the position of the fund and the needs of the respondent at any given time.

[133] In these circumstances it does not seem to me to be appropriate to make any deduction from the fund for the purpose of the calculation of fund management costs. It must be remembered as I pointed out earlier, that the method of calculation of these costs does not necessarily reflect what would occur over the future and is, as McHugh J explained in Nominal Defendant v Gardikiotis supra, a hypothetical construct.[14] Consistent with that approach it is not appropriate, in my opinion, to speculate whether payments will be made and to adjust the fund accordingly."[15]

[28] The dissenting view of Basten JA, at [208]-[213], was that expenses already incurred should be deducted before calculation of the management fees:

"[208] The appropriate principle with respect to calculating the corpus is to reduce the amount of the damages awarded by the amount of existing legal liabilities. Otherwise, in accordance with the principle that the Court is not concerned what the plaintiff does with her award, it is inappropriate to speculate in that regard, even though in the case of a tutor or guardian, owing fiduciary duties to the plaintiff, it would be reasonable to assume that amounts reasonably necessary to be expended forthwith will be expended. Apart from any effect on the establishment fee (which will be a minimal sum overall) the proper assumption (if somewhat arbitrary) is that the corpus will be reduced by a steady amount over the life of the fund. As a practical justification, the likelihood that there may be greater expenditure in the first few years may be offset by the fact that higher income will be earned in those years.

[209] Applying the relevant principle, there should have been a reduction for the amount of costs already incurred and payable, but not with respect to the other amounts. By their nature, past gratuitous domestic services (provided by the plaintiff's mother) were accompanied by no legal liability, nor did the anticipated early expenditure for capital expenses involve any extant legal liability.

[210] From a proposed judgment (disregarding fund management costs) of $10 million, as approved by Hoeben J, deductions of $66,000 appear to have been made for repayment of Centrelink payments, an advance for the purchase of a motor vehicle and Medicare costs. Hoeben J identified the total deduction as approximately $266,000, of which $200,000 was attributed to solicitor/client costs.[16] Calculations of the corpus of the fund should have been reduced by the full amount of $266,000, as envisaged by Hoeben J. That would have given a figure of $9,734,000.

[211] The appellant sought to argue for a more expansive approach to deductions, based on the reasoning of this Court in Rosniak. In Rosniak at 699, Meagher JA stated:

"[Senior counsel for the appellant] also submitted that there should be included in the 'deductibles' from the 'fund' any sums allowed in respect of past care, but I do not see why. There was no evidence from the respondent that she had any intention to repay such moneys to the providers of the past care, and it is not entirely clear that the Protective Commissioner would be empowered to do so."

[212] That approach would not have permitted a deduction on account of past gratuitous domestic services. The amount contained in the schedule of damages for the plaintiff in this case was $373,000, as to which Hoeben J noted that he would have been prepared to recommend to the trustee an immediate payment to the plaintiff's mother of $200,000. Foreshadowed approval of a possible disbursement does not create a liability in the trustee to make a payment which may or may not be sought.

[213] Nevertheless, the calculation in Rosniak did allow reduction for two amounts, one involving purchase of outstanding property interests ($210,000) and 'swimming pool modifications' ($200,000): p 694D. Kirby P referred to those items at 674-675, but did not consider the principles by which such deductions were appropriate. It is not entirely clear how they were dealt with in the calculation undertaken by Mahoney JA. Meagher JA did not discuss why they should be allowed. Further, the discussion in Rosniak was premised on the need to calculate the costs of fund management by reference to the annual income of the fund. In that case the timing of any major expenditure may have taken on a different significance to the current practice of calculating such fees. To the extent that a principle was identified, it was simply that any calculation of the cost of fund management should be undertaken by reference to amounts which will in fact be paid to the trustee. Accordingly, the only additional deduction beyond those accepted by the parties in the present case is the amount of $200,000 for solicitor/client costs already incurred at the time of approval of the settlement."[17]

[29] A distinguishing feature between Richards v Gray, and this case, is that there does not appear to be a basis in this case to assume the costs would not be paid (and therefore remain part of the invested fund) for a year or more. On the other hand, as in Richards v Gray, the whole of the fund (less any statutory refunds) is to be paid to the administrator from the outset (proposed orders 1 and 6); the administrator is appointed to receive and manage the whole of that amount (proposed order 2); and empowered to invest all moneys received and held under the order (proposed order 3); at the time the order is made, all that is available is an estimate of the indemnity costs differential (on the basis of the solicitor's confidential affidavit), with the actual quantum not to be determined until after an assessment has been undertaken, a process to be supervised by the administrator; and as such both the actual amount of costs to be paid, and the time at which the costs are paid, to the plaintiff's solicitor by the administrator is not certain.

[30] The reasoning of Basten JA, in relation to an existing legal liability, which will not be paid to the administrator (cf [213]), is persuasive. But the latter does not appear to be the case here - in the present case, the whole of the fund will be paid to the administrator in the first instance; and only later, following an assessment, will the indemnity costs be paid to the plaintiff's solicitor.

[31] The question is, does the distinguishing feature referred to in paragraph [29] above warrant taking a different view, from that of the majority in Richards v Gray?

[32] In my view, the answer is no. Apart from the commanding authority of a decision of four out of five judges of the New South Wales Court of Appeal, consideration of some of the fundamental principles, which were referred to by Bathurst CJ in Richards v Gray, informs the answer.

[33] As confirmed in Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412, "a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put [her] in the same position as if [she] had not sustained the injuries"; and damages for one cause of action are awarded as a lump sum.

[1] See exhibit DT5 to Ms Twidale's affidavit.

[2] See exhibit VDM1 to Ms Mounts' affidavit.

[3] The "compromise sum" is defined in proposed order 1(a) as the total damages, comprising the primary damages (or the settlement sum) together with the fund management damages.

[4] Under proposed order 2, the administrator is Perpetual Trustee Company Ltd.

[5] Nicotra v State of Queensland [2018] 3 Qd R 219 at [6], [34], [47], [50]-[51].

[6] See also r 98 of the Uniform Civil Procedure Rules 1999.

[7] See paragraphs 13 and 14 of the pro forma orders (adult plaintiff order), and the checklist, both forming part of the Practice Direction.

[8] See Gray v Richards (No 2) [2011] NSWSC 1502 at [90], [91], [93]-[98] per McCallum J; Richards v Grey [2013] NSWCA 402 at [10] and [35].

(McCallum J's decision does not appear to be available on Austlii or via Casebase, but can be found at: https://www.caselaw.nsw.gov.au/decision/54a6364f3004de94513d91ed.)

[9] See Government Insurance Office of NSW v Rosniak (1992) 27 NSWLR 665 at 673-674 per Kirby P; 688 per Mahoney JA; and 694 per Meagher JA.

[10] [2013] NSWCA 402 per Bathurst CJ at [127]-[134]; Beazley P at [163], McColl JA at [163] and Meagher JA at [241] agreeing; cf Basten JA at [208]-[213] dissenting as to the appropriateness of deducting the solicitor/client costs.

[11] In Government Insurance Office of NSW v Rosniak (1992) 27 NSWLR 665 at 688 Mahoney JA said: "The court must initially determine whether there are any of the components of the judgment which, in principle, should not be included in the fund initially. This depends on whether any of the amounts will not in fact be available for investment by the Protective Commissioner and so available to be used to derive income or whether there are any of the components which, for reasons of policy or otherwise, should not be included in the principal."

[12] See [2013] NSWCA 402 at [66].

[13] See McCallum J's decision [2011] NSWSC 1502 at [95] and [97].

[14] See [2013] NSWCA 402 at [107] to [112], [123]-[125].

[16] As recorded in [2] of McCallum J's decision [2011] NSWCA 1502, it was Hoeben J who approved the settlement, on 5 August 2011. Hoeben J's reasons do not appear to be publicly available. It is not apparent, other than from this paragraph in Basten JA's reasons, that a deduction for solicitor/client costs was initially allowed or provided for by Hoeben J. On the contrary, according to [2] of McCallum J's decision, the agreed verdict provided only for a deduction for statutory refunds; and there remained a number of issues to be determined by the court, including the issue of deductions of, inter alia, the legal costs, before calculating fund management fees.

[18] See also Gray v Richards [2014] HCA 40; (2014) 253 CLR 660 at [1].

[19] Gray v Richards [2014] HCA 40; (2014) 253 CLR 660 at [4], referring to Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49 at 67 and Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627 at 643 [51].

[20] Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627 at 643 [51]; Gray v Richards [2014] HCA 40; (2014) 253 CLR 660 at [45].

[21] By McHugh J in Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49 at 61; referred to by Bathurst CJ in Richards v Gray [2013] NSWCA 402 at [125] and [133].

[22] See exhibit VDM1 to Ms Mounts' affidavit, at p 2.