PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
COSTS – INTERLOCUTORY PROCEEDINGS – where the
plaintiff seeks to
stay the enforcement of costs orders made in two interlocutory applications
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –COSTS – INTERLOCUTORY PROCEEDINGS – where theplaintiff seeks tostay the enforcement of costs orders made in two interlocutory applicationsuntil the determination of the principalproceeding – where the costs wereassessed in excess of $215,000 – whether a party will be prejudiced by thegrant orrefusal of a stay – whether a stay should be grantedBankruptcy Act 1966 (Cth) s 60, s 116Civil Proceedings Act 2011 (Qld) s 4, sch 1Uniform Civil Procedure Rules 1999 (Qld) r 4, r 682, r 702, r 740, r800BHP Coal Pty Ltd and Ors v O & K Orenstein & Koppel AG and Ors(No 2) [2009] QSC 64, citedCook’s Construction Pty Ltd v Stork Food Systems Australasia PtyLtd [2008] QCA 322[2008] 2 Qd R 453, citedCroney v Nand [1998] QCA 367[1999] 2 Qd R 342, cited
Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523, cited
The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 357,
cited
Virgtel Ltd v Zabusky (No 2) [2009] QCA 349, cited
Judgment (64 paragraphs)
[1]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INTERLOCUTORY PROCEEDINGS - where the plaintiff seeks to stay the enforcement of costs orders made in two interlocutory applications until the determination of the principal proceeding - where the costs were assessed in excess of $215,000 - whether a party will be prejudiced by the grant or refusal of a stay - whether a stay should be granted
D G Clothier QC for the first, second, third and fifth defendants
[17]
Holding Redlich for the first, second, third and fifth defendants
[18]
[1] Mr Lee was ordered to pay the Sunland defendants' costs of:
(a) an application which could not be heard when there was insufficient court time on 11 June 2015; and
(b) an application which was heard on 11 November 2015, which resulted in certain paragraphs of his statement of claim being struck out, with leave to re-plead.
[19]
Those costs were assessed in the surprising amount of $215,495.09.[1]
[20]
[2] Money orders based on those assessments were made on 22 September 2016. If those orders are enforced, Mr Lee will be bankrupted: he has barely any assets. He submits that the prosecution of his substantial claim against the Sunland defendants, which cannot be said to be without merit, will be stifled. He seeks a stay of the enforcement of the two money orders until the determination of the proceeding or earlier order. He argues that without a stay he will suffer irreparable harm whereas the defendants will not suffer any real prejudice if a stay is granted.
[3] In opposing the stay, the Sunland defendants contend:
(a) they are entitled to the fruits of the orders made in their favour;
(b) it is not obvious that Mr Lee will be forced into bankruptcy if there is no stay, and even if he is, it is not apparent that he would not be able to continue the proceeding; and
(c) Mr Lee did not originally seek an order that the payment of costs await the outcome of the proceeding or that the assessments not occur until the end of the proceeding. Therefore they argue that Mr Lee delayed in bringing this application.
[21]
The Sunland defendants submit that, balancing the relevant factors, this is not an appropriate case for a stay.
[22]
[4] The ultimate issue is whether it is appropriate to grant a stay in the particular circumstances of this case, taking into account the need to do justice between the parties by balancing their competing rights and interests. An applicant for a stay does not need to show special or exceptional circumstances.[2] Nevertheless, the onus is upon the applicant to demonstrate that it is appropriate for a stay to be granted. In general, courts should not be disposed to delay the enforcement of their orders,[3] and a successful party in litigation is entitled to the fruits of a judgment.[4] Delay in bringing an application is a factor against the granting of a stay.[5]
"A court may, on application by an enforcement debtor -
[24]
(a) stay the enforcement of all or part of a money order, including because of facts arising or discovered after the order was made; and
(b) make the orders it considers appropriate, including an order for payment by instalments."
[6] An "enforcement debtor" is a person required to pay money under an order.[6] A "money order" is:
[25]
"An order of the court, or part of an order of the court, for the payment of money, including an amount for damages, whether or not the amount is or includes an amount for interest or costs."[7]
[26]
[7] An order by a judge that a party pay costs is not an order for the payment of money and is not, therefore, a "money order". Until the orders were made by the Deputy Registrar on 22 September 2016, there were no "money orders" which would allow an application for a stay to be made under r 800.[8]
[8] Many of the authorities about stays relate to stays pending appeal. Nevertheless, they state general principles governing stays. The decision of the Court of Appeal in Virgtel was in the context of costs orders. It emphasises that the discretion to order a stay is exercised having regard to the fact that parties are entitled to the "fruits of their victory" and more generally by the need to do "justice between the parties by balancing their competing rights".[9]
[9] These general principles must be applied to the facts of individual cases. In this matter a relevant factor is the right or interest of the Sunland defendants in enforcing, prior to judgment in the proceeding, costs orders made in their favour. A competing right or interest is the entitlement of an individual, who seeks the assistance of the Court to vindicate his or her legal rights, to litigate a claim that cannot be said to be without merit. This individual interest corresponds with the public interest in access to justice.
[10] The consequences of granting or refusing a stay must be considered. The consequence of granting a stay for the Sunland defendants is that they cannot pursue Mr Lee to recover the assessed costs at this stage. The consequence for Mr Lee of not granting a stay is to permit the Sunland defendants to bankrupt him, with adverse personal consequences for Mr Lee and potential consequences for the conduct of his claim.
[27]
[11] Neither party to this application submits that I should investigate the prospects of the proceeding to any extent.[10] Each party took me to evidence, including some documents which were said to support their respective cases. This included the very substantial decision of Croft J in Sunland Waterfront (BVI) Ltd & Anor v Prudentia Investments Pty Ltd & Ors (No 2)[11] which concerned some of the same subjects which are in issue in this proceeding. However, that was a different case in which different issues arose. I do not intend to address that case and its implications for Mr Lee's prospects.
[12] I accept the Sunland defendants' submissions that the facts and law relating to this claim are complicated and that prospects are not something about which I can make any assessment. Mr Lee accepts that his prospects depend upon issues of credit and inferences, and that there are significant legal issues in the case as well as a large factual dispute. He submits that his case, to put it at its lowest, is not without merit. In the circumstances he has a legitimate interest in seeking to vindicate his claimed rights in open court.
[13] The Sunland defendants have a legitimate interest in vindicating their reputations against serious allegations of misconduct. They also have an interest in ensuring that the substantial case against them is properly pleaded. Their insistence on their rights has generated costs, including the costs incurred by the Sunland defendants in the application which was listed (but not heard) on 11 June 2015 and the application which was heard on 11 November 2015.
[28]
[14] In 2009 Mr Lee was employed in Dubai by a government body. On 26 January 2009 he was arrested and interrogated by authorities in Dubai in connection with an alleged bribe which was suspected of having been paid by the fifth defendant ("Sunland") to a third party. Mr Lee was incarcerated for the next nine months, the first two months being in solitary confinement. Eventually, about six months after his arrest, he was charged in connection with Sunland's dealings in connection with development land which had been purchased in 2007 by a Sunland subsidiary from an entity controlled by the government body for which Mr Lee worked.
[15] Mr Lee claims to be the victim of false statements made to the Dubai authorities by the Sunland defendants, and that the Sunland defendants did not disclose the true position to the Dubai authorities. He alleges that the Sunland defendants conspired to mislead the Dubai authorities in order to protect Sunland's interests and the interests of Sunland's chair (the first defendant) and its senior employee in Dubai (the second defendant), and as a result, criminal charges were brought against him. He sues them for conspiracy and for the tort of malicious prosecution.
[16] The criminal proceedings in Dubai (as well as the civil proceedings brought by Sunland which went to trial in the Supreme Court of Victoria) were protracted. Sunland's civil claim was dismissed by the Supreme Court of Victoria on 8 June 2012. Ultimately, Mr Lee was acquitted of all charges in 2013, and that acquittal was affirmed on appeal.
[17] Mr Lee seeks very substantial damages in this action, reflecting the lengthy deprivation of his liberty in Dubai. He lost his job and could not work. A large bail bond of about $300,000 had to be posted. He has a substantial claim for lost income and loss of future earning capacity.
[18] This proceeding was commenced on 30 January 2015. Unsurprisingly for a claim of such legal and factual complexity, the pleadings were amended.
[19] On 4 June 2015 the Sunland defendants filed an amended strike-out application which was returnable, along with an application by the fourth defendants, on 11 June 2015. The applications were expected to take three hours. Due to other matters that had to be heard that day, the applications could not be heard, and so they were adjourned with directions, including a direction that Mr Lee file any amendments to his statement of claim by 23 July 2015. A third amended statement of claim was filed and it became the subject of an amended strike-out application which was heard by Bond J on 11 November 2015.
[29]
"On any view, based on these principles, your client's application has no prospects of succeeding.
[30]
We also make the point that if your client does pursue his application seeking a stay of the enforcements of the costs orders, the process of the assessment of those costs should not be delayed. As you know, this process is underway. Any application by your client should be made at such time that our client's (sic) apply to enforce the costs orders. Accordingly, your client's application is premature."
[31]
[23] On 17 August 2016 Mr Lee's solicitors advised that he did not intend to proceed with the application at that stage and that the application had not been served in an effort to avoid unnecessary costs. The application for a stay was adjourned to the Registry.
[24] On 6 September 2016 the costs assessor filed certificates in respect of his assessments. As noted, the costs assessed in respect of the adjourned application were in the amount of $107,592.31 and the costs assessed in respect of the application which was heard on 11 November 2015 and determined on 28 April 2016 were $107,902.78. In addition, the cost assessor's fees totalled approximately $18,000.
[25] After a certificate of assessment is filed, the Registrar is required to make the appropriate order having regard to the certificate.[13] The orders made by the Deputy Registrar on 22 September 2016 are the subject of the current stay application.
[32]
[26] As noted, an important discretionary factor in exercising the discretion to grant or refuse a stay is that, in general, a successful party in litigation is entitled to the fruits of a judgment. In the present context, the "fruits" are the monetary value of interlocutory orders for costs. The starting point under the rules is that, unless a stay is granted, costs ordered at an interlocutory stage may be recovered before the merits of the substantive proceeding are decided.
[27] This starting point may have the advantage of deterring a party from bringing or resisting an interlocutory application when the party, if properly advised, would appreciate that its case on the interlocutory application lacks merit. A party which succeeds on an interlocutory application should not necessarily have to carry the costs burden of achieving its success. Generally, it should be entitled to recover the costs which are ordered in its favour so as to preserve its resources for the final hearing.
[28] The starting point under the rules also has the disadvantage of burdening a party with an opponent's costs where the unsuccessful party's interlocutory case was reasonably arguable and the successful party achieved only some measure of success, but the costs of the application were ordered to follow the event.[14] In some cases this burden may force a party to "sue for peace" and settle the main claim because the burden of interlocutory costs is great and, as a result, the party lacks the financial resources to proceed to trial.
[29] The starting point under the rules is simply that: it may be displaced in an appropriate case by a stay or some other order.[15] The starting point is not necessarily displaced because of a disparity in wealth between the parties. This is so even where the successful, wealthy party is able to delay enforcement of an interlocutory costs order without great hardship, whereas the poorer party experiences hardship in meeting its own interlocutory costs and the costs order made against it. However, the hardship occasioned to a party by the grant or refusal of a stay is relevant to the discretion.
[30] The "fruits of victory" factor begs the question of the fruits which are practically available in a particular case. In this case, what do the Sunland defendants reasonably expect to gain from being able to enforce the money orders at this stage?
[33]
However, the Sunland defendants do not say that they intend to do either of these things. They simply say that Sunland "wants to keep its options open" and does not want a stay that would preclude the option of bankrupting Mr Lee. I return to this topic below in addressing what will occur if no stay is granted. For the moment, I simply note that a stay would not deprive the Sunland defendants of the benefit of the costs orders made by Bond J or the money orders made by the Deputy Registrar. It would simply delay their enforcement. If Mr Lee succeeds at trial, then he can seek to set-off the costs which he owes against the judgment and costs orders made in his favour. If Mr Lee fails at trial, then the stay will be lifted and the orders will be enforced.
[34]
[35] Mr Lee's financial position brings to mind the familiar lyric, "When you got nothing, you got nothing to lose". In the present legal context, it becomes, "When Mr Lee has got nothing, Sunland has got nothing to gain". Granting a stay will not enable Mr Lee to dissipate assets which presently are available to satisfy the money orders. A stay will not deprive the Sunland defendants of the opportunity to in fact recover money under the orders made by the Deputy Registrar. To adopt the fruit metaphor from the authorities on stays, there is no fruit to be picked.
[35]
[36] Mr Lee is not the first poor person to seek the assistance of this Court to vindicate claimed rights. A great judge of this Court, Connolly J, wrote in the context of an application for security for costs:
[36]
"... the door of the court should not be barred to a prospective plaintiff, resident within the realm, because he is impecunious. Thus as between residents within the jurisdiction, prosecuting what could properly be described as their own suits, the law required the defendant to accept the risk that the plaintiff might not be able to satisfy the order as to costs."[16]
[37]
Other cases about security for costs confirm this principle. Exceptions exist in cases where an individual conducts the litigation vexatiously. [17] Such exceptional cases aside, the security for costs cases recognise that "there should not be undue inhibitions on less wealthy persons from seeking vindication of their rights against more wealthy persons".[18]
[38]
[37] This is not a case about security for costs, but the principles in those cases identify the importance which is placed upon the right of an individual to seek vindication in courts of law, even in cases in which a defendant who successfully defends a claim may be unable to recover its costs. Incidentally, the Sunland defendants do not contend that this is one of the exceptional cases in which security for costs may be sought against an individual litigant.
[38] Mr Lee faces a number of legal and factual obstacles in the principal proceeding. However, his claim against the Sunland defendants cannot be said to be without merit. There is no real dispute that he suffered greatly as a result of false accusations and being detained in a foreign country for years.
[39] None of this is to say that the Sunland defendants are legally responsible for Mr Lee's losses. There are substantial arguments in their pleaded defence as to why they are not. If, however, Mr Lee succeeds in holding the Sunland defendants (or some of them) legally liable for his losses, then it will be their tort which led to his present impecuniosity, including his inability to pay the money orders, which the Sunland defendants wish to keep their options open to enforce.
[40] This is not a case in which a defendant is subject to a vexatious proceeding of the kind in which a private individual may be ordered to pay security for costs. I note the Sunland defendants' submissions about the circumstances in which substantial amendments were made to the pleadings, including amendments made after the 11 June 2015 adjournment and that the amended pleading was found to be defective in certain respects. However, in circumstances in which the matter could not proceed on 11 June 2015 and the Court allowed amendments to be made, if so advised, after 11 June 2015, Mr Lee should not be criticised for making those amendments. Moreover, although Bond J struck out some paragraphs of the statement of claim, some of the Sunland defendants' arguments before his Honour did not succeed. I do not accept the Sunland defendants' submission that the costs which were ordered "were not incurred as part of the normal cut and thrust of adversarial litigation". They were incurred in the context of a large and necessarily complicated claim against the Sunland defendants in which the Sunland defendants, quite rightly, sought to insist upon a pleading which complied with the rules of pleading and enabled them to know the case which they have to meet at trial. Contests over pleadings are part of the normal cut and thrust of adversarial litigation. That parts of a pleading are struck out, with leave to re-plead, is unremarkable. What is remarkable is the quantum at which the costs assessor arrived in supposedly assessing costs on the standard rather than the indemnity basis. I will say something more about this at the conclusion of these reasons.
[39]
[42] The Sunland defendants do not say that they intend to enforce the money orders by taking away Mr Lee's few remaining possessions or by bankrupting him. In August 2016 their solicitors indicated an intention to recover their costs. One inference is that they wish to use the threat of bankruptcy to prompt Mr Lee to sue for peace. However, I cannot conclude that this is their intention, since senior counsel for the Sunland defendants submitted that in the absence of evidence about their intentions, I would infer that "my client wants to keep its options open". In reply, senior counsel for Mr Lee submitted that the suggestion that the Sunland defendants wanted to keep their options open, including the option to bankrupt Mr Lee, was "chilling". My present concern, however, is to ascertain what a stay would prevent the Sunland defendants from doing. Simply to say that it wants to keep its options open, including the option to bankrupt Mr Lee, does not tell me whether the option of bankrupting him is one which the Sunland defendants intend to pursue if no stay is granted. In the circumstances, it is difficult to assess the practical prejudice to the Sunland defendants if they are not able to pursue this option.
[43] Mr Lee's written submissions argued that if a stay was not granted then the Sunland defendants would proceed to bankruptcy and the prosecution would then be stayed automatically by virtue of s 60(2) of the Bankruptcy Act1966 (Cth). It would then be a matter for a trustee in bankruptcy to decide whether to prosecute or discontinue the action. However, in argument, I questioned whether s 60(2) applied insofar as Mr Lee's claims were one in respect of "any personal injury or wrong" done to him within the meaning of s 60(4)(a) of the . The Sunland defendants submitted that an action for malicious prosecution probably would be characterised as one falling within and that a conspiracy claim which relied upon the same allegations would be in the same category. Senior counsel for Mr Lee noted in reply that this was not to say that the Sunland defendants would not adopt a different stance in the future about the effect of bankruptcy. However, even if bankruptcy did not result in all or part of the proceeding being stayed pursuant to , bankruptcy itself was said to impose a real and permanent burden upon a person in Mr Lee's position, particularly in terms of obtaining credit and employment. It was a real prejudice to Mr Lee, whereas there was submitted to be no prejudice to the Sunland defendants.
[40]
[51] A relevant factor is delay in bringing an application. The application for a stay is brought principally in reliance upon r 800. An application for a stay could not be made under that rule until the money orders were made on 22 September 2016. The application for a stay was filed on 18 November 2016. It was made returnable on 14 February 2017. The delay between 22 September and 18 November was not inordinate. There is no evidence that the delay occasioned the Sunland defendants any prejudice. They might have expected such an application in the light of the earlier filed, but unserved, application to stay the orders of Bond J. In any case, the delay needs to be seen in the light of Sunland defendants' solicitors' letter of 16 August 2016 in which they argued that the assessment process should proceed. That distinguishes the matter from the observations made in Virgtel[20] concerning delay.
[52] In the circumstances, I do not consider that Mr Lee's alleged delay in filing an application under r 800 disentitles him to a stay. Only limited weight should be placed upon his delay in any balancing exercise because the delay did not cause any real prejudice to the Sunland defendants.
[53] The Sunland defendants next argue that the application for a stay is not based upon anything novel and that Mr Lee did not ask Bond J to make the costs payable only at the conclusion of the action or to order that the assessments not occur until that time. However, it is not apparent what the result would have been if such an application had been made to Bond J. The Sunland defendants certainly do not say that they would have consented to such an order and there is every reason to suppose in the light of their present position that such an application would have been opposed. If it had been, then Bond J would have been required to speculate about the quantum of costs which would be the subject of assessment and the consequences for Mr Lee of costs being assessed in such an amount. The parties would have been required to place the kind of evidence which has been placed before me, before Bond J, who would have been required to guess at the quantum at which costs would be assessed. Speaking for myself, I would not have anticipated costs being assessed in excess of $215,000. Bond J had already devoted a large amount of judicial time to a reserved decision and additional time to deciding written submissions on costs. If, as the Sunland defendants suggest, Mr Lee had asked Bond J to make an order that the costs be payable in any event or to order that the assessment of costs not occur until the end of the proceeding, then Bond J might have declined to entertain such an application at that stage, preferring to leave the parties to argue a stay application once the quantum of costs and the consequences to the parties of enforcing them were known. Bond J could not have been asked to grant a stay under r 800 in relation to money orders which had not been made. The Sunland defendants still have not decided whether they will seek to enforce the costs order by, in effect, attempting to get blood out of a stone. I should not assume that their intentions would have been any clearer if the matter had been argued before Bond J.
[41]
[57] The issue is whether, in all the circumstances of this case, Mr Lee should be obliged to pay the money at this stage.
[58] In circumstances in which there are no fruits available for the Sunland defendants to pick, the factor that, in general, a successful party is entitled to the fruits of a judgment has limited weight.
[59] No real prejudice to the Sunland defendants has been demonstrated to occur if I grant a stay. Allowing them to enforce the money orders achieves little in practical terms, at least so far as recovery of money is concerned. There is no identified irreparable harm to the Sunland defendants. In particular, there is no evidence that Mr Lee has the assets or other financial resources available to him which might be dissipated in the event a stay is ordered.
[60] Allowing the Sunland defendants to enforce the money orders may lead to Mr Lee's bankruptcy and the substantial prejudice which is occasioned by being bankrupt. On Sunland's case, bankrupting Mr Lee will not bring an end to his action. So enforcing the money orders does not provide it with the benefit of having the action stayed with a trustee in bankruptcy, in all likelihood, deciding to discontinue it in the absence of any funding from the only identified substantial creditor, namely Sunland.
[61] The possibility that the threat of bankruptcy will be used to resolve the proceeding on a basis it would not be resolved if that threat was not open is an unattractive one, especially when none of the Sunland defendants are said to need the money. However, the Sunland defendants do not suggest that they intend to use the threat of bankruptcy as a bargaining chip to force such a settlement.
[62] This is not a typical case in which a creditor needs the money to defray costs. It is unlike a case where a party has incurred some thousands of dollars to win an interlocutory application and ordinarily should have its costs assessed and paid to it so as to replenish its fighting funds for the trial. It is not even a case in which the creditor's assessed costs run to $20,000 and the other side has the capacity to pay them. In this case the costs have been assessed at more than ten times such an amount. Requiring an ordinary individual to pay costs of that order or face bankruptcy at the instance of a wealthy party affects the right or entitlement of an individual of ordinary means, or little or no means, to litigate a claim in the courts of justice. The position might be different if the claim was a vexatious one or one which was unlikely to result in substantial damages in the event of success. Mr Lee is entitled as an individual to seek the assistance of the Court to vindicate his claimed rights in a case which cannot be said to be without merit. His personal interest corresponds with the public interest in allowing access to justice.
[42]
[66] I propose to order:
Pursuant to r 800 of the Uniform Civil Procedure Rules1999 (Qld) enforcement of the two orders made by the Deputy Registrar on 22 September 2016 be stayed until the determination of the proceeding, or earlier order;
The application filed 1 November 2016 to review cost assessment decisions be adjourned to a date to be fixed, with the costs of and incidental to that application being reserved.
[67] As to the costs of the stay application, my present inclination is to reserve them. One reason is that it may prove difficult to disentangle the costs associated with that application and the costs associated with the application to review the costs assessment decisions. If I was to order that the costs of the application for the stay follow the event, then there would be the question of assessment and possible set-offs. I will hear the parties in relation to the question of costs, if required. However, absent further submissions, the costs of the application for the stay will be reserved or, if the parties consent to such an order, made costs in the proceedings.
[43]
[68] The stay order makes it unnecessary for me to decide the application to review the costs assessment decisions at this stage. I have had the benefit of the parties' written submissions, but not their oral submissions, so my views are provisional. My provisional views may assist the parties to resolve that application at some future date.
[69] Mr Lee's submissions point out that the costs assessor allowed:
(a) for the adjourned application four days preparation by Queen's Counsel (not the QC who appeared on this application) at $15,000 per day, and 4.36 of the six days preparation by a junior counsel; and
(b) a further two and a half days preparation by the same QC for the application heard on 11 November 2015 at $16,500 per day, as well as almost seven days of preparation by junior counsel.
[70] After considering what is submitted in defence of the costs assessor's decision to allow so many days preparation at such rates, I find it hard to conclude that the costs assessor did not err in concluding that this quantum of counsel's fees should be allowed in assessing costs on the standard basis.
[71] When assessing costs on the standard basis, an assessor must allow "all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed."[21] By contrast, when assessing costs on the indemnity basis, a costs assessor must allow "all costs reasonably incurred and of a reasonable amount" having regard to certain matters stated in r 703(3).
[72] To be allowed as party and party costs, expenditure must be confined to what is reasonably necessary or proper to ensure the presentation of the case to a court in such manner and to such extent that a just result is achieved.[22] As Barwick CJ stated in Stanley v Phillips:
[44]
"Such a limitation on the expenditure recognizes that a litigant in his own sole interest may in all prudence not wish to venture into court with only such counsel as this limitation would allow. ... The emphasis throughout is upon obtaining an adequate presentation to enable justice to be done: it is not upon the propriety of the steps taken by a litigant to ensure the maximum of success in his own cause. That of course he may do but not, in my opinion, at his opponent's expense."[23]
[45]
[73] The question for the assessor was not whether a party seeking its own maximum advantage would engage a counsel of a particular level of experience or skill,[24] and to have them spend the number of days which they had in preparing the application. The question "is not whether one member of the Bar will present the case better than another."[25] The question is whether the costs are "necessary or proper" as those words have been explained in the authorities.[26]
[74] Just as the Sunland defendants are allowed to hire a Rolls Royce, they are entitled to engage senior counsel who charge $15,000 or more per day. Senior and junior counsel may spend many days preparing for an interlocutory application. Doing so may maximise Sunland's chances of success. However, the assessment of even indemnity costs is governed by what is reasonable.
[75] To continue the motoring analogy, the Sunland defendants could recover the costs that would be reasonably incurred to hire a reliable car which would get them to their intended destination, safely, comfortably and directly, not a Rolls Royce taking a more scenic route.
[76] The assessment of costs on the standard basis is as stated in r 702. I am not presently persuaded that costs in the order allowed by the costs assessor were "necessary or proper" for the attainment of justice in a strike out application, even in a complex case.
[77] My present view is that the costs assessor erred and assessed costs in amounts which manifestly exceed what was necessary or proper for the attainment of justice in the strike out applications. The expression of this provisional view may assist the parties to resolve in due course the adjourned application, and thereby minimise the costs of this very expensive litigation.
[46]
[1] $107,592.31 for the adjourned application and $107,902.78 for the application which was heard.
[8] To the extent that Virgtel at [23] may be taken to consider the position under r 800, this point does not appear to have been argued.
[52]
[10] The nature of Mr Lee's case, as then pleaded, is helpfully summarised by Bond J in Lee v Abedian & Ors[2016] QSC 92 at [1]- [35]. The pleaded facts were assumed to be true for the purpose of the strike-out application.
[14] The fact that a successful party fails on particular issues is not ordinarily a reason to deprive it of some of its costs: BHP Coal Pty Ltd and Ors v O & K Orenstein & Koppel AG and Ors (No 2)[2009] QSC 64 at [8].
[26] See the discussion by McGill DCJ in Hennessey Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd[2007] QDC 057 at [23]- [29]. See also the judgment of Martin J in The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd[2009] 2 Qd R 357 at 363[18]-346[19].
Parties
Applicant/Plaintiff:
# Lee
Respondent/Defendant:
Abedian & Ors \[2017\] QSC 22
Cases Cited (1)
(1966) 115 CLR 470
[20] On 28 April 2016 Bond J struck out some parts of the third amended statement of claim relating to the Sunland defendants, with leave for Mr Lee to re-plead. Mr Lee's claim in negligence against the fourth defendants was struck out. Mr Lee was ordered to pay the Sunland defendants' costs of the amended application filed 28 October 2015. Bond J later ordered Mr Lee to pay the Sunland defendants' costs of the application which was listed before the Court on 11 June 2015. [12]
[21] The Sunland defendants engaged a costs assessor to prepare cost statements, who was appointed by consent and orders for an assessment were made.
[22] On 4 August 2016 Mr Lee filed an application seeking, amongst other things, a stay of the costs orders made by Bond J until the determination of the proceeding or earlier order. The application was returnable on 30 August 2016. It was not served but the solicitors for the Sunland defendants became aware of it. On 16 August 2016 they wrote to Mr Lee's solicitors about the application for the stay, indicating that their clients would oppose it. They referred to the decision in Virgtel in relation to an application for a stay of the enforcement of costs orders made in interlocutory proceedings and stated:
[31] The material indicates that Mr Lee is in a parlous financial position and relies upon the support of his wife and friends for ongoing living expenses and accommodation. He has only a few thousand dollars in the bank. His arrest, prosecution and the large legal costs incurred by him in defending the Dubai prosecution led to him and his wife having to sell their properties in Australia. They live in accommodation which they rent from a friend at a reduced rate. Neither has been able to obtain full time employment. Mr Lee relies on an arrangement with his lawyers for them to run his case without demanding immediate payment.
[32] Mr Lee has no apparent capacity to raise money from a bank or other financial institution to pay the amount of more than $215,000 due under the money orders. One would not reasonably expect his friends and family to "take the hat around" to pay the Sunland defendants. They may prefer to direct their financial support to the immediate needs of Mr Lee and his wife in attempting to re-establish their lives in Australia and meet ordinary costs of living.
[33] In circumstances in which Mr Lee has very little money, only a few meagre assets and no ability to pay $215,000, this is not a case in which the fruits of victory for the Sunland defendants is the ability to actually recover $215,000, or anything like it. This is not a typical case in which the "enforcement debtor" has assets or other financial resources to satisfy, or substantially satisfy, a money order, and where those resources may be lost or dissipated if a stay is granted. In such a typical case, a stay deprives a creditor of the monetary fruits of an order in a very real sense, or at least risks doing so.
[34] Rather than depriving the Sunland defendants of "fruits" in the form of actual payment of all or a substantial part of the $215,000, a stay will deprive them of the opportunity to:
take the little money and few personal possessions which Mr Lee owns; and
bankrupt Mr Lee.
[41] In summary, Mr Lee's substantive claim is not vexatious, nor has he conducted the proceeding vexatiously. He has a legitimate interest in vindicating his claimed rights in a court of law, and there should not be undue inhibition upon his doing so.
[44] It is unnecessary for me to decide whether all or part of Mr Lee's present action would be stayed by s 60(2). There may be interesting arguments about the characterisation of parts of his claim, particularly those relating to pure economic loss. I am prepared to assume for present purposes that Mr Lee's bankruptcy, either on his own petition if and when the Sunland defendants move to enforce the money orders or by the Sunland defendants on their bankruptcy notice and petition, would not automatically stay his action.
[45] If the Sunland defendants are correct and the action is not stayed and the causes of action pursued by him do not vest in his trustee in bankruptcy so as to be divisible among creditors,[19] one is prompted to ask what is the point of allowing the Sunland defendants to enforce the money orders and to bankrupt Mr Lee? On the arguments of the Sunland defendants, such a course would not stop the action. Mr Lee would be free to continue it, with or without the support of his present lawyers. If he became self-represented then the proceeding presumably would limp along. Bankruptcy would have significant adverse consequences for him, whilst also having the benefit of relieving him of the debts owed to the Sunland defendants due to the money orders. His reputation would be damaged and his prospects of obtaining credit and employment would be reduced. Bankrupting Mr Lee is likely to do him more harm than good.
[46] The Sunland defendants do not suggest that they wish to keep the option of bankrupting Mr Lee open simply to derive some personal satisfaction from seeing him bankrupt. They do not state that they intend to use the threat of bankruptcy to force Mr Lee to settle the action by accepting terms to which he would not agree if such a threat did not exist.
[47] In summary, the "fruits of victory" so far as the Sunland defendants are concerned is the ability to bankrupt Mr Lee if they choose. There is no prospect of an economic return, and bankrupting Mr Lee will not stop the proceeding.
[48] Given the uncertainty as to the Sunland defendants' intentions in relation to the enforcement of the money orders in the event no stay is granted, I find it difficult to conclude that it will suffer any real prejudice if a stay is granted. There certainly is no evidence of any irreparable prejudice. In the circumstances, it would be better if Mr Lee's claim was prosecuted or settled on its merits, rather than settled in an atmosphere of veiled threats to bankrupt him on the basis of interlocutory costs orders.
[49] I should add something about my conclusion that there seems no real prospect of an actual monetary recovery to the Sunland defendants if the money orders are enforced at this stage. Mr Lee has meagre assets and I do not infer that any financial institution or associate is prepared to lend him $215,000 so that he can pay the Sunland defendants. Contrary to the Sunland defendants' submissions, the evidence placed before the Court by Mr Lee's solicitor concerning Mr Lee's personal circumstances is sufficient to satisfy me of this. I addressed these points during oral argument. In short, although Mr Lee worked in well-paid positions between 2000 and 2009, this does not mean that he had large savings as a result. Most people spend most of what they earn and borrow against their earning capacity. Mr Lee's incarceration, coupled with his loss of employment, led to him and his wife having to sell their assets and use their savings. The evidence is that they had to borrow money, including using credit cards, in order to get him bail. He received a relatively small payment from his former employer. The evidence is that Mr Lee relies upon the support of his wife, his family and friends. He also relies upon his solicitors and counsel who have not rendered invoices or been paid for the work they have done**.**
[50] If, however, I am wrong and Mr Lee has not satisfactorily proved that he is unable to pay the money orders, then he is likely to suffer substantially more prejudice by being required to pay more than $215,000 at this stage than the Sunland defendants will suffer by a delay in executing the money orders. There is no evidence that the Sunland defendants will be prejudiced by a delay in enforcement, as there is no evidence that they will in fact be paid $215,000 or anything like it. Moreover, Sunland has assets of more than $356 million. The other Sunland defendants are either directors of or senior managers in Sunland. None of them claim financial hardship will be endured by them if a stay is ordered. There is no evidence that the individual Sunland defendants are personally paying the defence costs.
[54] The Sunland defendants do not say that any previewing of an application under r 800 for a stay would have prompted them to delay the assessment process and the incurring of costs in connection with the assessment. Their attitude, at least in mid-August 2016, was that the assessment process should take its course and that any attempt by Mr Lee to seek a stay of the orders of Bond J were premature at that time.
[55] In the circumstances, I do not regard the fact that Mr Lee did not originally seek an order that costs not be assessed or paid until the end of the proceeding disentitles him from seeking a stay under r 800.
[56] Finally in this context, the costs incurred by the Sunland defendants in connection with the assessment process have not been wasted. The assessment is subject to an application to review which also came before me and which the parties agreed I should defer deciding until I had decided the application for a stay. If a stay is ordered, then the Sunland defendants will have the benefit of the assessment process, for what it is worth, when the stay ends.
[63] In summary, there is no identified irreparable harm to the Sunland defendants, such as the risk of dissipation of assets whilst a stay remains in place. There is an identified prejudice to Mr Lee if a stay is not granted. He faces bankruptcy, with certain adverse personal consequences. The Sunland defendants do not submit that bankrupting Mr Lee will result in his action being stayed. In the circumstances, the practical advantage to the Sunland defendants in allowing them to "keep their options open" is unclear.
[64] Balancing the relevant factors, I conclude that it is appropriate to grant a stay in the particular circumstances of this case.
[65] The unusual circumstances of this case include the fact that the Sunland defendants stood to recover little, if any, money if they enforced the costs orders and they are capable of absorbing the costs burden while the stay operates. My decision in the circumstances of this case should not be taken as establishing any general rule that money orders based on costs assessments will be stayed as a matter of course. In the general run of cases in which an enforcement debtor has the capacity to pay all or a substantial part of the costs which have been ordered and the creditor needs the money in order to prepare for and conduct a trial, a stay will not normally be ordered. Allowing enforcement of a money order is a means of ensuring that available funds to meet the money order are not dissipated. This, however, is an unusual case, and its circumstances make it appropriate, on balance, to grant a stay.