Plaintiff v Defendants

1 Ella Jabe ('the deceased') died on 23 May 2018, leaving a will dated 9 March 2015 ('the will'). The deceased was survived by her adult daughter, Denise Kennedy ('the plaintiff').

2 Pursuant to the will, the deceased appointed Peter Schwarcz and Patricia Sharp ('the defendants') as the executors and trustees of her estate. Mr Schwarcz is a principal of Spigler & Schwarcz ('S&S'), the law firm representing the executors, and Ms Sharp is an employee of that firm.

3 Pursuant to her will, the deceased made some small bequests to certain individuals totalling $31,000 and bequeathed the residue of her estate to Ms Sharp, whom she met after Ms Sharp had commenced working as a law clerk at S&S, and Lisa Simonetta, whom she met while Ms Simonetta worked as a receptionist at the medical surgery frequented by the deceased.

4 The deceased stated in her will that she made no provision for the plaintiff because she had provided adequately for the plaintiff in her lifetime, that the plaintiff deemed it appropriate not to have contact with her for the twenty years prior to the execution of the will and that the deceased's grandchildren similarly did not have contact with her for many years.

5 On 23 May 2018, S&S was engaged by Ms Sharp to apply for probate of the deceased's will. On 22 August 2018, probate of the deceased's will was granted to the defendants. The value of the estate was estimated as $326,147.90.

6 On 12 December 2018, the plaintiff retained Goodman Group Lawyers ('GGL') to act in relation to making a claim for provision from the estate, pursuant to pt IV of the Administration and Probate Act 1958.

7 By originating motion filed 18 December 2018, the plaintiff's application for provision was filed on the ground that the will did not make adequate provision for her proper maintenance and support.

8 S&S acted for defendants in the pt IV claim.

9 At the first and only directions hearing on 9 April 2019, the parties were ordered to attend judicial mediation on 11 June 2019. The plaintiff did not file an affidavit in support of her claim. The plaintiff filed her position statement on 14 March 2019. The defendants filed a position statement on 7 June 2019. At the mediation held four days later the parties provided a trial estimate of three days. The proceeding settled at mediation on the basis that the plaintiff receive $100,000 (inclusive of costs) from the estate of the deceased.

10 No affidavits were filed in respect of the pt IV proceeding. Subsequently affidavits and submissions were filed in relation to the costs of the proceeding.

11 The plaintiff's costs up to and including the mediation were initially estimated by GGL at $62,170, comprising professional fees, counsel's fees and other disbursements. In a letter from GGL dated 2 September 2019, this figure was discounted to $50,000.

12 The defendants' costs amounted to $46,270. Of the defendants' costs, professional fees amounted to $37,950 and disbursements amounted to $8,320. Of the professional fees, $5,500 was attributable to obtaining the grant of probate and $32,450 was attributable to the pt IV proceeding.

13 The total costs for both sides amount to $96,270 or close to 30 per cent of the value of the estate.

14 By email dated 31 October 2019 to GGL and S&S, the Court raised concerns about the costs and enquired whether the practitioners would take the opportunity to provide submissions on the following issues:

(a) whether the costs of the parties are reasonable and proportionate within the meaning of the Civil Procedure Act 2010 ('the CPA') and fair and reasonable within the meaning of the Legal Profession Uniform Law ('the LPUL');[1]

(b) whether the parties have complied with their disclosure obligations under the LPUL and the CPA;

(c) whether the costs agreements are void for non-disclosure;

(d) given the above, whether Mr Schwarcz is in breach of his fiduciary obligations as executor; and

(e) any other relevant matters the parties may wish to raise with the Court.

15 GGL and S&S provided their written submissions on costs on 15 November 2019 and 2 December 2019, respectively.

16 On 12 December 2018, the plaintiff entered into a fixed price costs agreement with GGL. The fixed price costs agreement comprised of a disclosure statement and costs agreement. The plaintiff also signed a summary of agreement and an acknowledgment.

17 Under the terms of the fixed price costs agreement, GGL contracted to provide legal work for the 'fixed price' of $55,000 plus expenses. The fixed price is said to be inclusive of 'photocopying, search fees, court filing fees, postage etc and gst (sic)', but excludes expenses which are defined as fees for 'third party professional services', such as barristers' fees.

18 The scope of the fixed price costs agreement refers to commencing court proceedings on behalf of the plaintiff or acting on behalf of the plaintiff in any court proceedings issued by the other party or appearing in any court event. The summary of agreement, however, describes a more limited scope of the legal work covered by the agreement. It describes the fixed price costs agreement as covering costs linked with the pt IV application only 'up to and including mediation of the matter'.

19 In two affidavits filed 3 April 2019 and 12 April 2019, GGL estimated that the plaintiff's total costs would be $62,170. However, pursuant to the letter from Mr O'Donohue of GGL dated 2 September 2019, it appears that GGL has charged the plaintiff the sum of $50,000 and not the estimated total costs of $62,170 referred to in the affidavits.

20 In his affidavit sworn 12 April 2019, Mr Scott Goodman, principal at GGL, stated that '[t]he fixed price offered to the plaintiff was made in order for her to have the certainty of costs rather than the uncertainty of hourly rates'. Subsequently, in a letter dated 2 September 2019, Mr O'Donohue conceded that the fees charged by GGL are high, but said the plaintiff wanted the certainty and transparency of the fixed price. Mr O'Donohue stressed in the letter that the plaintiff was advised by both the solicitor with carriage of the proceeding and counsel 'during the course of the litigation that the fees charged by our office were high'.

21 In its written submissions, GGL submitted that it was not clear how quantification of the plaintiff's own solicitor-client costs was otherwise relevant to the proceeding. The plaintiff resolved her claim for an 'all-in' figure and there was no order for payment of her costs from the estate.

22 According to GGL, the disclosure provided to the plaintiff at the outset of the retainer and the statement of rights attached to the invoice make it clear there are a number of avenues open to her if she wishes to have her costs assessed. They highlighted the fact that, to date, she has not pursued these avenues.

23 In respect of the specific concerns raised by the Court, GGL submits there has been no suggestion that the terms of the costs agreement between the plaintiff and GGL are 'unfair'. If such a suggestion were made, GGL would be in a position of conflict and unable to act for the plaintiff. However, it states there is no such dispute on foot.

24 GGL submits that the plaintiff entered into a fixed price costs agreement in return for the benefit of certainty and transparency. It states that the plaintiff was fully informed about both the potential risks and advantages to her, and fully informed of her rights, relevantly including the right to negotiate terms.

25 GGL submits that, although even the discounted legal costs figure of $50,000 may appear high in a 'typical' pt IV claim, the fees are reasonable in all the circumstances for the following reasons:

(a) the potential scope of work was clearly described;

(b) like any fixed price arrangement, the costs agreement incorporated and allowed for elements of risk, including -

(i) a risk to the law practice that unexpected work within the scope of the arrangement would need to be performed for no additional fee, and

(ii) an equivalent risk to the client, in the event of early resolution and therefore comparatively high professional costs for a lesser volume of work;

(c) both of these aspects were clearly set out at page 6 of the signed costs agreement;

(d) although the instant costs agreement is not a conditional fee agreement within the meaning of the LPUL, a conditional fee agreement provides a useful analogy to explain the justification for comparatively high fees in some cases. In the event of success, a law firm acting on a conditional basis is permitted under the legislation to charge an uplift of up to 25 per cent of professional costs on top of legal costs otherwise payable. The fees charged in such a matter may appear on their face to be high for the work performed - but the higher figure is permitted to reflect the element of risk carried by the law practice. In the current matter, the plaintiff and her lawyers agreed to a fixed price which may appear to be on the high side, but which reflects the risk carried by the law practice that it may be required to perform additional work at no additional charge, and which provides certainty and transparency to the client;

(e) the fixed price nature of the agreement also allowed for certainty and transparency, which were significant advantages for the plaintiff and important to her; and

(f) it is of no immediate relevance to observe that fees calculated by reference to the Court scale or on some other basis might have been lower. These are not inter partes costs. The costs agreement was entered into on a fully informed basis, and may be enforced like any other contract, subject to the provisions of the s 184 of the LPUL.

26 GGL submits that its costs are proportionate in light of the circumstances of the case. It emphasises the significance of the claim for the plaintiff who, despite being the sole child of the deceased, has been excluded from the estate in circumstances of a complex and traumatic life history.

27 It submits that, on a simple numerical assessment, there is no clear disproportionality. It makes two points of comparison in support of this:

(a) First, the plaintiff's solicitor-client costs represent less than one-sixth of the value of the estate, and therefore less than one-sixth of her potential recovery in a claim for provision as to 100 per cent; and

(b) Second, the plaintiff's solicitor-client costs represent exactly 50 per cent of the amount in fact received by her in settlement of her claim.

28 GGL states that the plaintiff's costs are not payable by the estate save for whatever unidentified contribution payable to them is incorporated into her settlement sum. On this basis, it submits that the Court need not trouble itself with the impact of the plaintiff's costs upon the estate.

29 GGL is unaware of any disclosure non-compliance in relation to its own solicitor-client costs. It submits that:

(a) the costs agreement on its face appears to comply with the 'main disclosure requirement' in s 174(1)(a) of the LPUL, in that it includes information about the basis of charge and an estimate of total legal costs;

(b) the requirement for updates in s 174(1)(b) has no application in the present matter, since the costs ultimately charged were close to but slightly less than the estimate originally provided; and

(c) the costs agreement appears to comply with the additional requirements of s 174(2), relevantly including information about her right to negotiate its terms.

30 On 23 May 2018, Ms Sharp signed S&S's disclosure statement and costs agreement when it was retained to apply for probate of the will.

31 The estimate of total legal costs in the disclosure statement was as follows: 'We estimate of [sic] our legal fees associated with your litigation matter to be in the sum of $5,000.00, inclusive of costs and disbursements and all outgoings.'

32 There is nothing in the disclosure statement or costs agreement that limits its scope to the grant of probate alone or in fact limits the charge to $5,000 for obtaining the grant. The 'matter' is simply described as the 'Estate of Ella Jabe'. However, in an email sent on behalf of Mr Schwarcz dated 20 August 2019, a copy of the costs agreement is attached and is said to relate only to the '[p]robate aspect of the file'.

33 The disclosure statement outlines the basis of charging, including hourly rates of $440 for a 'law clerk' to $660 for a 'solicitor' or 'Partner'. It provides an estimate of legal fees associated with the 'litigation matter' which are estimated as $5,000, inclusive of costs and disbursements and all outgoings. The costs agreement reiterates the basis of charging and contains standard terms.

34 In her letter dated 29 November 2019, Ms Sharp submits that when the pt IV proceeding commenced, she and Ms Simonetta were told by Mr Schwarcz that the costs of defending the proceeding up to and including the mediation would be in the order of $35,000. It was conceded in an email sent on behalf of Mr Schwarcz dated 20 August 2019 that S&S 'only entered into an oral agreement as to the balance'.

35 Further, it appears to have been only an assumption on the part of Ms Sharp and Ms Simonetta that the hourly rates as set out in the earlier disclosure statement and costs agreement would continue to apply.

36 In response to the specific concerns raised by the Court, S&S submits that its costs were reasonable and proportionate. In support of this, it highlights the complexity of the proceeding because of the issue of estrangement of substantial duration. To succeed in defending the pt IV claim, it submits 'it was necessary to examine and assess the contemporaneous documents, as well as the facts, which spanned many decades, to displace the general rule of thumb that simply being a child of the testator, combined with financial need, will generally suffice to secure victory if the named beneficiaries are not relatives'.

37 S&S also submits that successfully defending the plaintiff's claim to uphold the deceased's wishes was important to the residuary beneficiaries, notwithstanding the work involved and the cost of achieving that outcome, all of which had been disclosed to them.

38 In addition, it submits that while the value of the estate might seem modest, it constituted a significant amount to the residuary beneficiaries. On this basis, it submits that the defendants were prepared to undertake the work and incur the costs involved to preserve as much of the estate as they were able.

39 S&S highlights that it was able to achieve a successful outcome for its client. It submits that settling the plaintiff's claim for $100,000 meant that the defendants were able to retain the 'lion's share' of the estate for the beneficiaries.

40 S&S submits that the disclosure statement and costs agreement appear, on their face, to comply with the disclosure obligations imposed upon a law practice under s 174 of the LPUL, save for the requirement contained in sub-s (6), which provides that a disclosure under s 174 must be in writing.

41 It concedes that a failure to make a written disclosure constituted a breach of the firm's disclosure obligations contained in s 174(6) of the LPUL and accordingly, by operation of s 178(1)(a), the costs agreement is void.

42 In mitigation, S&S submits that the defendants suffered no prejudice as a result of the contravention because they had made an oral disclosure and subsequently took all reasonable steps to satisfy themselves that the defendants had understood and given consent to what was proposed.

43 Given the above, it submits that Mr Schwarcz is not in breach of any of his fiduciary obligations as an executor.

44 The Court has inherent and general jurisdiction to ensure that legal practitioners as officers of the Court are remunerated properly.[2] This includes jurisdiction to ensure legal practitioners are paid no more than what is fair and reasonable.[3]

45 The inherent jurisdiction of the Court precludes overcharging even in situations where the excessive charges were agreed as a matter of private contract.[4] According to Fletcher Moulton LJ in Clare v Joseph[5] the Courts have viewed agreements between individuals and their legal advisers as to the latter's remuneration with a 'great jealousy' due to the risk of circumstances in which solicitors may improperly attempt to benefit themselves at the expense of their clients.

46 The statutory scheme set out in the LPUL should be seen as complementary to the inherent jurisdiction of the Court.[6] Section 172(1) of the LPUL provides that a law practice must, in charging legal costs, charge costs that are no more than fair and reasonable in all the circumstances and that are in particular:

(a) proportionately and reasonably incurred; and

(b) proportionate and reasonable in amount.

47 Subsection (2) sets out a number of matters that must be considered in determining whether sub-s (1) has been satisfied. These include factors such as the level of complexity, difficulty, experience, novelty, public interest, quality, labour, responsibility, seniority, skill, specialisation and urgency, as well as the number of documents, place, retainer and instructions, time and time spent.

48 Subsection (3) provides that '[i]n considering whether legal costs are fair and reasonable, regard must also be had to whether the legal costs conform to any applicable requirements of this Part, the Uniform Rules and any fixed costs legislative provisions'.

49 Section 24 of the CPA similarly provides that a person to whom the overarching obligations apply must use reasonable endeavours to ensure that legal costs incurred in connection with a proceeding are reasonable and proportionate to:

(a) the complexity or importance of the issues in dispute; and

(b) the amount in dispute.

50 By virtue of s 207 of the LPUL a contravention of the requirement not to charge more than fair and reasonable legal costs may constitute unsatisfactory professional conduct or professional misconduct on behalf of the legal practitioners concerned.

51 Division 3 of pt 4.3 of the LPUL contains the provisions on costs disclosure. Section 174(1) provides:

A law practice -

(a) must, when or as soon as practicable after instructions are initially given in a matter, provide the client with information disclosing the basis on which legal costs will be calculated in the matter and an estimate of the total legal costs; and

(b) must, when or as soon as practicable after there is any significant change to anything previously disclosed under this subsection, provide the client with information disclosing the change, including information about any significant change to the legal costs that will be payable by the client -

together with the information referred to in subsection (2).

52 Section 174(2)(a) provides that the disclosure must include information about the client's rights:

(i) to negotiate a costs agreement with the law practice; and

(ii) to negotiate the billing method...; and

(iii) to receive an itemised bill from the law practice...; and

(iv) to seek the assistance of the designated authority in the event of a dispute about legal costs...

53 An additional obligation is imposed by s 174(3), which provides that the law practice 'must take all reasonable steps to satisfy itself that the client has understood and given consent to the proposed course of action for the conduct of the matter and the proposed costs'.

54 Section 174(6) provides that disclosure must be made in writing.

55 In addition, s 180(2), (3) and (4) provide that costs agreements:

(a) must be written or evidenced in writing;

(b) may consist of a written offer that is accepted in writing or (except in the case of conditional costs agreements) by other conduct; and

(c) cannot provide that the costs to which they relate are not subject to a costs assessment or review.

56 From the perspective of law practices, compliance with the disclosure obligations is critical. Section 178(1) of the LPUL provides that if a law practice contravenes the disclosure obligations:

(a) the costs agreement concerned (if any) is void;

(b) the client is not required to pay the legal costs until they have been assessed;

(c) the law practice cannot commence or maintain recovery proceedings; and

(d) the contravention can constitute unsatisfactory professional conduct or professional misconduct.

57 GGL's fixed price costs agreement appears to comply with the limited requirements of Division 4 of the LPUL, having been made in writing and presumably accepted by conduct, if not in writing. As a 'fixed price' agreement, the price is payable irrespective of the outcome reached in the matter, thus the agreement is not subject to the further requirements imposed by that division upon conditional agreements.

58 The disclosure statement also appears to comply with s 174(2) as it includes the 'standard' information required by that section. However, the disclosure falls short of the requirements in s 174(1)(a) of Division 3 of Part 4.3 in failing to provide an estimate of 'total legal costs'. While 'total legal costs' is not defined in LPUL, 'legal costs' are professional costs and disbursements. The relevant part of the disclosure statement lists the '[f]ixed price for this stage' as being '$55,000 (plus disbursements)'. The '[e]stimated [e]xpenses for this stage' are listed as $0 and no '[t]otal [e]stimate for this stage' is provided. As mentioned above, expenses not included in the 'fixed price' include fees for 'third party professional services', such as barristers' fees.

59 Under the heading '[e]stimated legal costs', it is noted that 'the fixed price is guaranteed' and that '[i]f we expect your matter will incur expenses for third party professionals...we will do our best to estimate these'.

60 Even if it were the initial intention of GGL to appear at the directions hearing and mediation without counsel, which seems unlikely, at a minimum, they failed to provide an estimate of the mediator's fee at the outset, which was surely contemplated at the time the fixed price costs agreement was entered into by the plaintiff.

61 If GGL only made a decision to appoint counsel, or indeed, even the mediator, at a later point, an updated estimate of total costs should have been provided to the plaintiff, in accordance with s 174(1)(b) and the terms of the fixed price cost agreement. In a situation where the fixed price was estimated to be $55,000 (plus disbursements) and the Court was provided with two cost estimates of $62,170, there seems no question that s 174(1)(b) applies, notwithstanding the later costs discount.

62 GGL do not suggest that it provided the plaintiff with any such updates.

63 Prima facie, the agreement is void by virtue of s 178(1) due to GGL's failure to provide an estimate of total legal costs and, possibly, a failure to comply with its continuing disclosure obligations.

64 In considering whether legal costs are fair and reasonable in accordance with s 172(1) of the LPUL, regard must be given to a number of factors.

65 GGL have conceded that their charges are high but seek to justify them in light of the complexity of the case and its significance to the plaintiff, as well as the plaintiff's need for certainty and transparency.

66 Indeed, the level of complexity of the case, the novelty or difficulty of the issues involved, the labour and responsibility involved and the circumstances in acting on the matter, are factors that must be taken into account under s 172(2).

67 Proportionality likewise requires examination of the complexity and importance of the issues, as well as the quantum in dispute, including the importance of the issues to the individual involved in the proceeding.[7]

68 The pt IV claim in this proceeding, however, was not complex and involved a modest estate. GGL would have been aware that the proceeding would involve little substantive work. This is supported by the fact that its only substantive work was a nine-page position statement for the purposes of the mediation, with the proceeding settling at mediation.

69 GGL states that the 'fixed price' was agreed to compensate the firm for the risk that unexpected work within the scope of the arrangement would need to be performed for no additional fee. The scope of work as described in the summary of agreement indicates that GGL intended the fixed price costs agreement to only cover work done up to and including the mediation. In reality, that risk to GGL was negligible, if not non-existent, since it was guaranteed $55,000 'plus expenses' irrespective of the outcome.

70 At general law, there is no doubt that a client, fully informed and advised, can agree to pay what might otherwise be an unreasonable fee. However, in the case of solicitor-client remuneration agreements, which are subject to the inherent and general jurisdiction of the Court, the Court may nevertheless concern itself with quantification of solicitor-client costs.[8] The Court is hesitant to enforce these where they are favourable to the solicitor unless made in circumstances that preclude any suspicion of an improper attempt on the solicitor's part to benefit himself at his client's expense.[9]

71 GGL has not produced a satisfactory explanation as to the steps it took to satisfy itself that the plaintiff had understood and given consent to its substantial proposed costs.

72 In light of the above, the Court is satisfied that the costs charged by GGL are not fair and reasonable in all the circumstances, or proportionately and reasonably incurred and proportionate and reasonable in amount, within the meaning of the LPUL. Neither are they reasonable and proportionate in accordance with the CPA.

73 GGL's cost agreement is prima facie void due to lack of disclosure and, in any event, GGL has charged costs that are not fair, reasonable or proportionate. In the absence of a valid costs agreement, GGL is entitled to fair and reasonable costs for work performed.[10] What constitutes 'fair and reasonable' legal costs may be determined having regard to the factors set out in s 172(2) and (3).[11]

74 S&S conceded that a failure to make a written disclosure in respect of costs of defending the part IV claim and arriving at only an oral arrangement constituted a breach of the firm's disclosure obligations contained in s 174(6) of the LPUL. Accordingly, by operation of s 178(1)(a), the costs agreement in respect of the part IV claim is void.

75 S&S submits in mitigation that the defendants suffered no prejudice as a result of the contravention because S&S had made an oral disclosure to them and subsequently took all reasonable steps to satisfy itself that the defendants had understood and given their consent to what was proposed. S&S also referred to 'executor's fees' being 'specifically waived' which presumably was mentioned as some sort of mitigating factor.

76 The fact that Ms Sharp, Ms Simonetta and possibly the other beneficiaries gave their consent to what Mr Schwarcz proposed cannot relieve S&S of its statutory disclosure obligations. In addition, there are further disclosure obligations upon solicitor executors. In Walker & Ors v D'Alessandro, T Forrest J set out the bare minimum disclosure requirements to obtain informed consent from beneficiaries in respect of solicitor executors charging executor's commission.[12]

77 Insofar as the LPUL is concerned however, the disclosure obligations imposed are clear. Section 174(6) makes it plain that disclosure must be in writing. The factual matrix where one of the executors is a principal of S&S and the other was also associated with that firm and where S&S was proposing to charge substantial fees, made the need for compliance with disclosure obligations all the more important.

78 In the email dated 20 August 2019 sent on behalf of Mr Schwarcz, it was stated that S&S 'received specific consent from the co-executor, Patricia Sharp and also the beneficiaries of the Estate, as to our fees involved in the Probate, defending the application and upholding the terms of the Will'.

79 This email suggests that Mr Schwarcz is somehow relieved of his obligations under the LPUL and the CPA because his co-executor and the beneficiaries consented to the amount charged. That is not the case and Mr Schwarcz remains bound by his obligations, including his disclosure obligations.

80 The deceased's will does not contain a charging clause and without the consent of the beneficiaries, a solicitor executor (or their firm) who performs legal work cannot charge for legal work or the performance of executorial duties.[13] For legal fees or a commission to be payable, each sui juris beneficiary must have consented to the payment of these.[14]

81 Ms Sharp's letter dated 29 November 2019 suggests that she and Ms Simonetta - being the residuary beneficiaries - discussed the matter of Mr Schwarcz's proposal and concluded that they would continue with the engagement of S&S. The email sent on behalf of Mr Schwarcz on 20 August 2019 seems to suggest that the other beneficiaries were also in agreement with this arrangement, although this is not clear. No mention was made of executor's commission.

82 To the extent that all beneficiaries have not agreed to S&S charging for legal work, the estate is under no obligation to pay S&S's legal fees. In addition, in the absence of any mention of an executor's commission, no obligation to pay such a commission can be said to exist. A promise to waive executors' fees, that are said to be owing under normal circumstances, yet which the estate in under no obligation to pay, cannot suffice as adequate mitigation.

83 The mitigation put forward by S&S is not sufficient in the face of a clear breach of its disclosure obligations in s 174(6) of the LPUL.

84 There is no particular concern about the fairness, reasonableness and proportionality of S&S's charge of $5,500 (inc GST) for obtaining the grant of probate and the administration of the estate.[15] The written agreement for this sum stands. What is of concern is the fairness, reasonableness and proportionality of the professional fees of $32,450 (inc GST) charged by S&S for the pt IV claim.

85 There is nothing to show how the figure of $32,450 was calculated, but it can be assumed it was determined on the basis of the hourly rates set out in the agreement for the charges for the grant of probate. As mentioned, the agreement for the grant of probate set out the basis of charging at hourly rates ranging from $440 for a 'law clerk' to $660 for a 'solicitor' or 'Partner'. These rates are high when compared with the current Supreme Court scale allowance for an attendance by a solicitor requiring the exercise of legal skill or knowledge at $453.20 (including GST) per hour.

86 On any view, the amount of work produced by S&S for the defence of what was a relatively straightforward claim was modest. It prepared the notice of appearance, a short formal affidavit on costs and possibly the position paper. It appeared at the mediation with counsel representing the executors of the estate.

87 Under the will, the beneficiaries receive the residue of a modest estate. Although they may consider the value of the estate to be significant and placed importance on upholding the deceased's wishes, this does not justify S&S charging professional fees of $32,450 for the pt IV claim. Professional fees of $32,450 calculated on the basis of hourly rates of up to $660 for a modest amount of work against the backdrop of a modest estate are not considered fair, reasonable or proportionate.

88 Mr Schwarcz should have thought better of subjecting the estate to the professional fees of $32,450 charged by his firm, leading to total costs of $46,270, in the absence of a valid costs agreement. Even if a valid agreement existed, there is a further issue of whether it was appropriate to engage his own firm when he could have retained another law firm to do the work on a more cost effective basis. His firm's fees placed a burden that was not reasonable or proportionate upon the estate.

89 The costs agreement in respect of the costs of defending the part IV claim is invalid for lack of disclosure and, in any event, the costs charged by S&S are not fair, reasonable or proportionate.

90 The issue of the costs of this proceeding is referred to the Costs Court pursuant to r 63.65 of the Supreme Court (General Civil Procedure) Rules 2015 so that the costs claimed by GGL and S&S can be taxed according to the Supreme Court scale.

[1] The LPUL is set out at sch 1 of the Legal Profession Uniform Law Application Act 2014 and pursuant to s 4 of that Act, applies as if it were an Act.

[2] Pryles & Defteros (a firm) v Green [1999] WASC 34; [1999] 20 WAR 541, [22]-[23] (Parker J) ('Pryles & Defteros'), citing Harrison v Tew [1989] 1 QB 307, 320 (Dillon LJ); Electrical Trades Union v Tarlo [1964] 1 Ch 720, 723-4 (Wilberforce J); Sutton v Sears [1960] 2 QB 97, 102 (obiter dictum of McNair J).

[4] Pryles & Defteros (n 2) [24] (Parker J).

[5] [1907] UKLawRpKQB 90; [1907] 2 KB 369, 376 (Fletcher Moulton LJ).

[6] Pryles & Defteros (n 2) [24] (Parker J).

[7] Civil Procedure Act 2010 (Vic) s 24. See also, eg, Newstart 123 Pty Ltd v Billabong International Ltd [2016] FCA 1194, [45] (Beach J).

[8] Pryles & Defteros (n 2) [22]-[23] (Parker J).

[9] Clare v Joseph (n 5) 376 (Fletcher Moulton LJ).

[10] Johnston v Dimos Lawyers [2019] VSC 462, [39] (Wood AsJ).

[12] Walker & Ors v D'Alessandro [2010] VSC 15, [27]-[30] (T Forrest J).

[13] Administration and Probate Act 1958 (Vic) s 65C.

[15] Pursuant to the Supreme Court (Administration and Probate) Rules 2014 (Vic), S&S would be entitled to $855 on the ad valorem scale, leaving the balance for general administration of the estate.