Lawrence v Sammut

The cost assessment and review

1. The costs assessment process was regulated by the Uniform Law, which provides for application for assessment to be made in accordance with the applicable jurisdictional legislation, in this state the Application Act: Uniform Law, s 198(2).
2. On such an application a costs assessor must "determine whether legal costs are fair and reasonable and, to the extent they are not fair and reasonable, determine the amount of legal costs (if any) that are to be payable": Uniform Law, s 199(2)(b). The Legal Profession General Uniform Rules 2015 made under Pt 9.2 of the Uniform Law also applies: s 199(1). So do the costs assessment rules: Application Act, s 67.
3. Section 82 of the Application Act provides for review of an assessment by a review panel constituted by two costs assessors. In his review application Mr Lawrence complained about the assessor's alleged failures, including to:

• give adequate consideration to matters he had raised;
• provide an explanation of the basis on which the costs were assessed;
• give reasons compliant with the applicable regulations; and
• explain how the parties' submissions were dealt with.

1. A review panel has "all the functions of a costs assessor in relation to the assessment concerned and is to determine the application, subject to this Part and the costs assessment rules, in the manner that a costs assessor would be required to determine an application for costs assessment": s 85(2). A review panel is not bound by the rules of evidence: s 85(3).
2. In March 2021 Mr Lawrence commenced these proceedings, appealing the Review Panel's decision and the four certificates which dealt with the costs of the proceedings before Henry J, interest and the costs of the assessment and review: Application Act, s 89. His complaints included that the reasons given by the Review Panel were perfunctory, the Panel not having engaged in a proper form of reasoning or provided an adequate explanation of the manner in which it dealt with the grounds of review.
3. That the reasons given by the Review Panel were inadequate was understandably not put in issue by Ms Sammut and Mr Ciantar. On each ground the reasons given by the panel were confined to: "The Review Panel, having reviewed the whole of the matter agrees with the determination made by the Assessor and adopts the reasoning expressed by the Assessor and accordingly this ground is not made out."
4. The nature of the obligation to give reasons under this statutory scheme does not appear to have arisen for consideration. In Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166 the obligation to give reasons imposed on review panels by the predecessor legislation, the Legal Profession Act 2004 (NSW), s 380 was considered. Reference was there made to the notion that "the touchstone of the adequacy of reasons is a disappointed party having a 'real and not largely illusory right of appeal'": see Frumar v Owners of Strata Plan 36957 (2006) 67 NSWLR 321 at 331; [2006] NSWCA 278 at [44]": at [46].
5. After discussing the nature of an appeal against the decision of a review panel under that statutory scheme, it was observed that "what the applicants required from the panel were not, strictly speaking, reasons sufficient to give them a real right of appeal, but reasons sufficient to allow them to decide whether to seek leave to appeal, and the appellate judge to decide whether to grant it": at [53]. And at [55] that "what a statement of reasons must reflect is 'why the determination was made'," citing Frumar at [44].
6. There is no reason to think that the obligation now imposed on a review panel to give reasons is less onerous. That it was not met by the inadequate reasons which were given, is apparent.
7. In his summons Mr Lawrence contended that it would be an efficient use of time and resources for a costs assessor to be appointed as a referee on what lay in issue on the appeal. That was accepted by the defence, with the result that in July 2021 Davies J made consent orders and directions under r 20.14 of the Uniform Civil Procedure Rules 2005 (NSW).
8. That rule empowered the Court to "make orders for reference to a referee appointed by the court for inquiry and report by the referee on the whole of the proceedings or on any question arising in the proceedings". "Question" is defined in r 20.13 to include "any question or issue arising in any proceedings, whether of fact or law, or both, and whether raised by pleadings, agreement of parties or otherwise".
9. Given what now lies in issue, it is pertinent to note that what was ordered by consent was: "1. Pursuant to Part 20 rule 14 of the Uniform Civil Procedure Rules (the "UCPR"), refer to John Bartos for enquiry and report the matter in the Schedule hereto. 2. Direct that (without affecting the powers of the Court as to costs) the Plaintiff, in the first instance, be liable to the Referee for the fees payable to him, but that liberty is reserved for the Parties to argue as to which Party is ultimately responsible for payment of the first Referee's costs at the final Hearing. 3. Direct that the plaintiff deliver to the Referee forthwith a copy of this order together with: (a) a copy of Division 3 of Part 20 of the UCPR; and (b) a copy of the Court Book, in the form agreed between the parties. 4. Direct that; 4.1 subject to paras 4.2 and 4.3 hereof, the provisions of Pt 20 r 20 shall apply to the conduct of proceedings under the reference; 4.2 the reference will commence on 13 July 2021 unless otherwise ordered by the Referee: 4.3 unless the Referee determines otherwise, the reference shall be conducted on the basis of the material contained in the Court Book; 4.4 the Referee consider and implement such manner of conducting proceedings under the reference as will, without undue formality or delay, enable a just determination to be made;. 4.5 the Referee submit the report to the Court in accordance with Pt 20 r 23 addressed to the Equity Division Registrar on or before 20 August 2021. 5. Amendments to the Schedule, whether by agreement or on a contested basis, are to be the subject of an order made by the Court. 6. If for any reason the Referee is unable to comply with the Order for delivery of the report to the Court by the date in this Usual Order for Reference, the Referee is to provide to the Duty Judge an Interim Report setting out the reasons for such inability and an application to extend the time within which to deliver the report to the Court to a date when the Referee will be able to provide the Report. 7. Upon the conclusion of the enquiry and the report submitted by the Referee, the matter be listed before the Court to give consideration as to what is to occur with regard to the existing certificates and determinations and whether they are to be affirmed, set aside and/or substituted, as well as who is to pay the costs of the reference and this appeal; 8. Grant liberty to the Referee or any Party to seek directions with respect to any matter arising in proceedings under the reference upon application made on 24 hours' notice or such less notice ordered by the Court. 9. Reserve costs of the proceedings. 10. Stand the proceedings over for further directions before the Registrar on 27 August 2021. SCHEDULE The quantum of the fair and reasonable costs payable by the Plaintiff under the costs order made by Henry J on 14 June 2019 in the proceedings Wayne James Lawrence V Alice Alexandria Sammut & Paul William Ciantar, case number: 2017/336803 (copy Annexed hereto)".
10. Mr Bartos was appointed referee and he provided a report on 16 August 2021, also giving reasons for his conclusions on the cases which the parties had advanced, he having considered their submissions and the documents he identified: at [3]-[4]. He concluded that the fair, reasonable and proportionate legal costs were $146,183.64 plus disbursements of $62,146.39, a total of $208,330.33: at [6]. He calculated interest payable under s 101(4) of the Civil Procedure Act 2005 (NSW) to be $31,802.29 calculated from 26 April 2019, the date of Henry J's first order to 17 August 2021: at [7].
11. The reasons Mr Bartos gave reflect conclusions that the costs assessor and Review Panel fell into error, albeit the referee's reasons refer to the submissions advanced, rather than the reasons given by the assessor and Panel.

Issues

1. At the final hearing it was accepted that what remained in issue was whether: 1. leave to appeal was necessary; 2. if it was, it should be granted; 3. the referee's report should be adopted by the Court, as was Mr Lawrence's case, or merely noted and the summons dismissed, as was the defence case; and 4. what order should be made as to interest.

Is leave to appeal necessary and should it be granted?

1. I am satisfied that leave to appeal is not necessary, but that even if I am wrong in that conclusion, that it would have to be granted, given the accepted errors into which the Review Panel fell; the consent referral to the referee which resulted; and the conclusions which the referee reached on the matters over which the parties joined issue.

The summons

1. Section 89 of the Application Act provides for an appeal against a decision of a review panel to this Court, with leave if the amount of costs in dispute is less than $100,000: s 89(1)(b). It was common ground that the appeal had been brought within time. The summons made no application for leave to appeal, but as the amount in dispute was in issue, so was the question of whether leave to appeal was necessary.
2. It emerged at the hearing that if the amount in dispute was less than $100,000, the defence had no objection to Mr Lawrence being granted leave to amend his summons to seek leave to appeal. Accordingly, that leave was granted. Grant of leave to appeal was still opposed even though earlier, by consent, the subject matter of the appeal had been referred to a referee, thereby undoubtedly incurring significant costs.

The parties' cases

1. Mr Lawrence's case was that the costs in dispute exceeded $100,000, he having only ever conceded that $71,432.87, the amount the costs assessor he had engaged concluded was payable under Henry J's orders.
2. Accordingly, he did not require leave to appeal. But if he did, it would be granted given the course which had been pursued by consent. If leave to appeal was to be opposed, the cost of the referral should not have been incurred. Accordingly, the defendants should be estopped from now opposing it, in his view by way of ambush.
3. The defence case was that the amount in dispute was only $21,115.26. That being the difference between the cost assessor's assessment, reflected in the certificate, and that arrived at by the referee, contained in his report, which Mr Lawrence now sought to have adopted. That sum was not only under the $25,000 threshold for which leave to appeal to the District Court was required, but it represented only some 9.2% of the costs assessed by the assessor and 7.8% of those claimed.
4. Further, even before the referral, Mr Lawrence who was then legally represented, knew that his case would not succeed, given offers he had made and his own submission at the final hearing, that if only $180,000 or $200,000 had been pursued the matter could have been settled. That established that the amount in issue was less than $100,000.
5. In the result the sum in issue was so minor that interference with the challenged certificates was not warranted and so leave would now be refused.

What amount is in dispute?

1. I am satisfied that the defence case cannot be accepted.
2. On the evidence, when the proceedings were commenced the amount in dispute between the parties was more than $100,000. Mr Lawrence was appealing the Review Panel's decision, it not having accepted his case that the assessor had erred and that costs should be assessed only to be $71,432.87, the amount he had conceded in the costs assessment.
3. The referral to the referee was later agreed, but that does not establish that Mr Lawrence's case altered before the referee. It was only at the final hearing that Mr Lawrence urged the adoption of the referee's report. It indicates that the referee did not entirely accept the case which either party had advanced, for reasons which were given. Neither party submitted that the referee had fallen into error.
4. Mr Lawrence explained his case, the adoption of the report, by his desire to finally bring the dispute to an end, consistent with the overriding purpose specified in s 56 of the Civil Procedure Act, the just quick and cheap resolution of the real issues.
5. The defence case, that the report would not be adopted despite there being no suggested error was explained by reference to the requirements of s 60 of that Act. It requires that the practice and procedure of the Court be implemented with the object of resolving the issues "in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute".
6. The referral to the referee plainly accorded with that statutory objective.
7. Mr Lawrence's case was also that if the report was not adopted, the Court itself had to assess the disputed costs. In that event he would argue that some $150,000 of the costs included in the two bills of costs over which the parties had joined issue were not covered by Henry J's orders, despite what the referee had concluded.
8. This was not accepted by the defence, which contended that it was open to the Court simply to note the report and dismiss the summons, without itself assessing the costs, as the defence contended the Court had the discretion to do. That depended on the proper construction of the statutory scheme and the Uniform Civil Procedure Rules.
9. If the Court itself undertook the costs assessment function, that it would not be open to the parties to advance arguments as to why the assessor and the Review Panel's conclusions were wrong, is not apparent.
10. In the result it would be open to Mr Lawrence to advance arguments about the $150,000 he claims did not fall within Henry J's order, because it was work performed in connection with the Forestville property, not the proceedings.
11. In the circumstances I am not persuaded that the amount in issue on the appeal was less than $100,000.

The statutory scheme

1. An appeal against a review panel certificate is to be by way of a rehearing, with fresh or additional evidence able to be led with the leave of the Court: s 89(4) of the Application Act. Given the nature of such a costs appeal, a court exercising the s 89 jurisdiction must pay close attention to the terms of the statutory power: Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98 at [4].
2. In Gazecki the functions imposed by s 89 of the Application Act were discussed: "42 … 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'. 43 No submissions were made in this Court on the scope and operation of s 89; accordingly, it is both unnecessary and inappropriate for the Court to resolve these questions in this case. What is clear, however, is that courts exercising jurisdiction under this provision must pay close attention to the terms of the statutory power and should not adopt statements from earlier cases dealing with different powers, unless persuaded that they remain applicable. Although the distinction between appeals on matters of law and appeals from the final determination of a costs assessment have been removed, it may, nevertheless, be appropriate to adopt different standards of scrutiny with respect to each. Thus, questions of law are inherently liable to review according to a correctness standard; a lower standard of scrutiny may well be applicable to an assessment of what costs are fair and reasonable in the circumstances of the particular case. Particularly is that so where a specific body of costs assessors, appointed solely for that function, reach evaluative judgments. Furthermore, costs assessors are expected to ensure consistency of approach, being a standard which cannot readily be applied by a reviewing court with limited experience of such matters."
3. There the Court did not have to consider a referral made under the Uniform Civil Procedure Rules, r 20.14 of the kind which the parties here agreed. But given these observations, the parties' agreement to the referral to Mr Bartos, a costs assessor, is understandable, as are the orders consented to. Importantly, they include that after the report is received the Court is "to give consideration as to what is to occur with regard to the existing certificates and determinations and whether they are to be affirmed, set aside and/or substituted, as well as who is to pay the costs of the reference and this appeal".
4. The defence did not seek to have that order set aside.
5. Further, care must be taken in resolving the issue over the adoption of Mr Bartos' report, given that necessarily requires consideration to be given to what a rehearing under s 89 involves.
6. In Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114, the nature of such a rehearing was discussed: at [7]-[9]. There reference was made to the powers of an appellate court on a rehearing: at [7]. They are exercisable only where the appellant demonstrates on all the evidence that the subject of the appeal was the result of some legal, factual or discretionary error, unless there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance: Allesh v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23].
7. In Gilmore Finance it was also noted at [9] that the Court determining an appeal under s 89 by way of rehearing has all the functions of the review panel. For its part, under s 85(2) the panel had all the functions of a costs assessor and had to determine the application, subject to Pt 7 of the Application Act and the costs assessment rules, "in the manner that a costs assessor would be required to determine an application for costs assessment." It was further noted that neither party in that case had submitted that "the effect of this provision is that the powers of the appellate court may be exercised whether or not there was error on the part of the Review Panel" at [9].
8. In this case error on the part of the Review Panel was properly not put in issue, with the result the referral to the referee under the consent orders. It was the statutory cost assessment powers that the referee, also a costs assessor, thus exercised as the result of the referral. What was so agreed, given the observations in Gazecki about the evaluative judgments involved in a s 89 rehearing and the consistency of approach costs assessors are intended to achieve, was both understandable and desirable.
9. The parties are still bound by those orders. A just reason for now departing from them, is difficult to see.

The requirements of the Uniform Civil Procedure Rules

1. The consent orders have to be understood in the context r 20.24(1) of the Uniform Civil Procedure Rules, which provides: 20.24 Proceedings on the report (1) If a report is made under rule 20.23, the court may on a matter of fact or law, or both, do any of the following - (a) it may adopt, vary or reject the report in whole or in part, (b) it may require an explanation by way of report from the referee, (c) it may, on any ground, remit for further consideration by the referee the whole or any part of the matter referred for a further report, (d) it may decide any matter on the evidence taken before the referee, with or without additional evidence, and must, in any event, give such judgment or make such order as the court thinks fit.
2. The discretion the Court is given by the rule is undoubtedly a wide one. The defence urged that all that the Court was now obliged to do, given that r 20.24(1) required the Court to make such order as it thinks fit, was to note the report before dismissing the summons. It was thus not required to adopt, vary or reject the report, or itself to undertake the costs assessment, contrary to the case Mr Lawrence advanced about the deficiencies of the assessment and review processes and the desirability of the Court exercising the assessment function, if the referee's report was not adopted.
3. That, however, does not pay necessary regard to the consent orders. They provide a persuasive reason for the grant of leave to appeal.
4. Even accepting the construction of the rule for which the defence contended, the use of the word "may" there encompassing the possibility that the Court would not take any of the steps specified in r 20.24(1)(a)-(d) in a particular case, I am also not satisfied that in this case, simply noting the report before dismissing the proceedings is an available course, given the requirements of s 89 of the Application Law.
5. Even if it were available, I am not persuaded that approach would result in the just exercise of the discretion, given the referee's unchallenged conclusion that some of the claimed costs did not fall within the terms of Henry J's orders. That there is a jurisdictional basis on which Mr Lawrence could be ordered to pay those costs by an assessor, is difficult to see. That is another persuasive reason for the grant of leave to appeal.
6. The referee also concluded that some of the claimed costs were not reasonable, another important requirement under this statutory scheme. The reasons given included a very detailed spreadsheet which dealt with all of the many disputed costs, which indicated both the parties' cases and the conclusions reached. None of those conclusions were challenged.
7. In determining what course to take the Court may not overlook s 89, because in making "any order it thinks fit" under the rules, as to the disposal of the appeal, undoubtedly it must have regard to the statutory power it is exercising in the proceedings.
8. Section 89 requires the Court to exercise the functions of the review panel. It had to exercise the functions of the cost assessor under s 85(2) of the Application Act and costs assessment rules. By agreement, those powers were exercised by the referee, as r 20.23 permitted, error on the part of the Review Panel not being in issue.
9. The result, it seems to me, of the course which the parties agreed to pursue, is thus that consideration must now properly be given to the adoption of the unchallenged report which Mr Lawrence seeks, that being within the Court's discretion under r 20.24 and what the consent orders provide for.
10. If it is not to be adopted, I also think that given the requirements of s 89 and the terms of the consent order, the Court should dismiss the report and itself decide the matter on the materials which the parties relied on. Given the exercise undertaken and the conclusions reached over what the parties joined issue over, which are not challenged, I do not consider, however, that to be either a necessary or just outcome

Leave to appeal should be granted

1. In the result I have also been persuaded that if leave is required, the defence case, which relies on Mr Lawrence's attitude to the adoption of the referee's report, which has the result that the money difference remaining between them is now $21,115.26, is not a proper basis for refusing to give Mr Lawrence leave to appeal.

Should the referee's report be adopted?

1. I am also satisfied that the report should be adopted.

The parties' cases

1. Mr Lawrence explained his case, the adoption of the report, by his desire to bring the dispute to an end, consistent with the overriding purpose specified in s 56 of the Civil Procedure Act, the just quick and cheap resolution of the real issues, despite the case he said he would advance if the Court decided itself to assess the costs. In his view the referee had undertaken the necessary task which the cost assessor and Review Panel had failed to undertake, considering the bills of cost which he had colour coded and on which the cost assessor he had engaged had reached his conclusions. He had then explained in the reasons given, why he had accepted and rejected aspects of the cases advanced.
2. Mr Lawrence also relied on the judgment given by the Federal Circuit Court to submit that the referee had engaged properly with the evidence and issues lying between the parties and had given reasons explaining the conclusions reached, which the Review Panel had not attempted. In the result he urged the adoption of the report, to bring the dispute to a proper conclusion.
3. The defence case, that the report would not be adopted despite there being no error relied on, was explained by reference to the requirements of s 60 of the Civil Procedure Act. It requires that the practice and procedure of the court be implemented with the object of resolving the issues "in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute".
4. The defence case rested on the size of the difference between the fair and reasonable costs determined by the cost assessor and the referee, which it was contended was not "material", with the result that the report would not be adopted and the summons would be dismissed.
5. That was not accepted by Mr Lawrence, who explained his concerns not only about the inadequacy of the assessment process before the cost assessor and the Review Panel, but also the reasons which they each gave and that the unchallenged referee's report, which resulted in him being liable for considerably less costs than had been claimed at the outset, now be adopted by the Court. In his view, even the difference between the sum arrived at by the cost assessor and the referee was considerable and he should not justly be required to pay more.

The applicable law

1. The question of whether a report should be adopted has repeatedly been considered: Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184 at [19]-[20] applying Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2008] NSWCA 228 at [51]. What arises to be determined in such a case is whether "to adopt, vary, reject all or part of a report, or decide a matter on the evidence before the Referee": Mainteck Services at [21].
2. I can see no reason for adopting a different approach in this case.
3. The authorities also discuss the need for proper justification for a decision to reject or vary a referee's report: Ryde City Council v Tourtouras [2007] NSWCA 218. There at [22] reference was made to the settled approach that the power of a trial judge to reject a report in whole or in part should not be exercised too readily. Further, as discussed in Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 at 563-564, that the purpose of the predecessor Rule was: "to provide, where the interests of justice so dictate, a form of partial resolution of disputes alternative to orthodox litigation, and it would frustrate that purpose to allow the reference to be treated as some kind of warm-up for the real contest. On the other hand, if the referee's report reveals some error of principle, some absence or excess of jurisdiction, or some patent misapprehension of the evidence, that would ordinarily be a reason for rejecting it … So also would perversity or manifest unreasonableness in fact-finding."
4. Nothing of that kind was here urged.

Mr Bartos' report

1. Mr Bartos explained the approach he adopted to the assessment he undertook in accordance with the Uniform Law and the Application Act, which required that the fair and reasonable amount of costs for the work concerned to be determined having regard to the factors specified in s 172(1) and (2) of the Uniform Law. He also referred to the requirements of r 42.5 of the Uniform Civil Procedure Rules regarding indemnity costs. He observed that the onus generally fell on the applicant to establish that claimed costs are fair and reasonable, even when an indemnity costs order is made, there being a discretion to disallow costs that appear to be unreasonable or not properly the subject of the costs order: at [33]-[34].
2. Mr Bartos considered the claimed hourly rates, which Mr Lawrence contended were excessive and not reasonably incurred. He concluded that they were fair and reasonable and well within rates set out in the 2016 Costs Assessment Rules Committee Guideline Costs Payable Between Parties Under Court orders on a party/party basis and found no basis to reduce them. He also concluded that there had been an appropriate level of delegation and supervision: at [39]-[46].
3. Mr Bartos disallowed the costs claimed for printing electronically received materials which he found were not fair and reasonable, but to be "overhead costs". Costs claimed for the clerical work involved in photocopying, the cost of which had not been claimed, were allowed: at [50]-[51].
4. Mr Bartos also considered Mr Lawrence's objection to charges being made on the basis of 6 minute units as inflating time actually spent on tasks. He considered use of such units to be fair and reasonable if used appropriately and gave reasons for that conclusion. They included the typical length of even a short telephone call and the time involved in production of a short letter; making file notes and reviewing files. He took a different view in relation to circular letters and multiple emails in relation to routine matters: at [52]-[57]. He also concluded that claimed hours of work on particular days were excessive: at [62]
5. In his report Mr Bartos also explained that he had allowed counsel's fees for work performed which he found fair and reasonable: at [69]. He disallowed various work claimed: on a proposed appeal against a judgment of Darke J which he found was outside the order Henry J had made: at [66] and [73]; on a cancellation fee: at [67] and [76]; work for which there was no supporting documentation: at [68]; as well as costs which he accepted related to building work: at [73].
6. In the detailed attachment to his reasons Mr Bartos also explained conclusions reached in relation to specific items which were put in issue, giving reasons when he reduced or disallowed them. Otherwise he concluded that they were fair and reasonable: at [78]-[82]. It is not necessary to refer to these many conclusions and explanations in further detail.

The referee's report should be adopted

1. The question of whether the report should be adopted must begin with the fact that neither party submitted that the referee had fallen into any error. A consideration of the cases advanced is also required.
2. As well as error on the part of the cost assessor and the Review Panel, the amount of the difference finally between the parties are, I accept, all relevant considerations, as are the conclusions reached by the referee about the matters in issue before him. They support the adoption of the report, error on the part of the cost assessor and the Review Panel thereby having been revealed, for the unchallenged reasons given.
3. Despite the size of the money amount now lying between the parties, I am satisfied that the report should be adopted, unchallenged as it was, the referee undoubtedly having undertaken his task in accordance with the requirements of the statutory scheme. That result is consistent with what the interests of justice require in this case, Mr Bartos having been ordered to undertake the exercise which s 89 required, in accordance with the consent orders. The result a determination of the quantum of fair and reasonable costs payable by Mr Lawrence, for unchallenged reasons.
4. Relevantly, the consent orders reflect the parties' common position that the Review Panel had fallen into error. That was apparent from the entirely inadequate reasons which were given, the Panel not even having identified that some of the costs claimed did not relate to the proceedings and were thus not encompassed by Henry J's order.
5. The conclusions reached by the referee establishes that the Review Panel also failed to give necessary consideration to what lay in issue between the parties, or to explain why it concluded, as it did, that the cost assessor had not erred.
6. The parties accept the conclusions which Mr Bartos reached. Given the obligations imposed on the Court by s 89, I am satisfied that justice now requires that the report be adopted by the Court, no error having been suggested in the conclusions reached by the referee and none being apparent on my consideration of the report.
7. That also requires the making of orders in favour of Mr Lawrence.

Interest

1. Mr Lawrence's case was, however, that interest should only be payable from the time of the costs assessment. That was opposed, the defence relying on s 101 of the Civil Procedure Act and on the conclusions reached by the referee.
2. Subsections 101(4) and (5) of the Civil Procedure Act provide: (4) Unless the court orders otherwise, interest is payable on an amount payable under an order for the payment of costs. (5) Interest on an amount payable under an order for the payment of costs is to be calculated, at the prescribed rate or at any other rate that the court orders, as from the date the order was made or any other date that the court orders.
3. Henry J did not order otherwise, either when she made the original costs order or when she later varied it. The costs later assessed, the parties being unable to agree, were payable under her Honour's orders. In the result the effect of s 101(4) was that the assessed costs attracted interest from the date of the order, 26 April 2019. That was the date from which Mr Bartos calculated interest: at [7].
4. But Mr Lawrence urged that this aspect of the report not be accepted and that instead, interest only be payable from the date of the initial cost assessment, what was payable not earlier having been known.
5. Despite Mr Lawrence's case I am not satisfied that the just exercise of the Court's discretion would permit this result in the circumstances I have discussed.
6. An order for interest is compensatory, reflective of the period that the costs remain unpaid. While costs were never agreed, even before the assessor Mr Lawrence conceded that over $70,000 costs were payable, but he did not pay them. It was his loss in the bankruptcy proceedings which was the catalyst for his payment of the costs assessed by the cost assessor, in order to avoid being made bankrupt. He thus properly conceded that before he made the resulting payment, he had had use of that money, but still contended that until costs were determined, it was impossible for him to have paid them.
7. That cannot be accepted. Parties reach agreement about costs all the time and it was always within Mr Lawrence's power to pay the costs, particularly those he accepted he was liable to pay.
8. What Mr Lawrence has paid, it was properly accepted by the defence, must now be taken into account in the orders finally made. But that does not provide a just basis for a departure from the ordinary position which results from s 101 of the Civil Procedure Act, or the refusal to adopt this aspect of the referee's report.

Costs and final orders

1. Under the Uniform Civil Procedure Rules the usual order as to costs is that they follow the event. In this case that is an order that Mr Lawrence's costs of these proceedings, as agreed or assessed, be met by Ms Sammut and Mr Ciantar.
2. It was common ground that if Mr Lawrence's case succeeded, as it has, orders would also have to be made which reflected that result, given the orders already entered in this Court, which reflect the costs assessed by the costs assessor.
3. I thus direct that: 1. the parties confer on costs and the terms of the final orders reflecting the conclusions which I have reached on the matters over which they joined issue; and 2. proposed orders be filed within 14 days, together with short submissions on any matters which are not agreed.

Amendments 01 August 2022 - (No 3) added to title 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: 01 August 2022