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[2025] NSWSC 528
General information, not legal advice.
Supreme Court of NSW
2025-05-26
Meek J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Sanjiv v Coleman Greig Lawyers Pty Ltd [2025] NSWSC 528
Hearing dates: 26 September 2024, 7-8 April 2025 (hearing); 14, 23, 26 April 2025 (further submissions provided); 22 May 2025 (mention)
Date of orders: 26 May 2025
Decision date: 26 May 2025
Jurisdiction: Equity
Before: Meek J
Decision: Summons dismissed.
Catchwords: COSTS — Solicitor-client — Background — In late June 2018, Plaintiff confers with D2 (a solicitor) and engages D1 (D2’s law firm) to act for her in family law litigation, having previously engaged two prior firms of solicitors — D2 in the initial conference gives an estimate for work up until the next court listing (August 2018) and, from early August 2018 progressively over the next 9 months, gives further estimates by means of Family Law Rules Cost Notices — Proceedings fixed for final hearing in late April/early May 2019 and settled following negotiations at the hearing — 11 invoices rendered over 11 months totalling approximately $470,579 — First 7 invoices rendered during 2018 paid by mid-January 2019 and the 2019 invoices are at that time unpaid — Following the Family Court Orders, there are issues regarding payment of fees and enforcement of the orders — D1 ceases to act, sues for fees and obtains a default judgment against the plaintiff in the District Court — Subsequently plaintiff requests D1 to further act and D1 renders 2 further invoices for fees in July and August 2022 for approximately $12,286 — Matrimonial property sold and plaintiff authorises D1 to receive proceeds of sale to pay most of the outstanding fees — Plaintiff subsequently complains about amount of fees and disclosure
COSTS — Solicitor-client — Plaintiff (self-represented) commences proceedings and, prior to hearing, abandons relief seeking a declaration that costs agreements are void and invalid but presses orders requesting repayment of fees allegedly charged exorbitantly and without authorisation — Hearing is not completed on the allocated listing day — Shortly after the hearing is adjourned part heard, the plaintiff commences fresh proceedings attempting to re-instigate the abandoned relief — D1 named as the sole defendant in the fresh proceedings and seeks to have them summarily dismissed — Orders made in those proceedings dismissing that claim — On the resumed part heard hearing of these proceedings, the plaintiff presses claims for repayment and continues to raise issues regarding alleged inadequate disclosure of costs — Notwithstanding abandonment of claim that the costs agreement(s) are void and invalid, the (retained) claim for repayment of funds is essentially underpinned by various complaints of the plaintiff, including nondisclosure of total costs, inadequate disclosure of significant increases in costs, and assertions that D1 had agreed to act for a limited sum — Held, as repayment issue is premised on nondisclosure issues and other complaints, the Court ought to address those issues — Other issues including allegations of duress in respect of costs agreements and costs notices, allegations that that defendants guilty of contempt in failing to comply with Family Court Orders and claims for making a gross sum costs order or referring costs to be assessed by a referee also addressed — Plaintiff’s various claims dismissed
CIVIL PROCEDURE — Identification of real issues in dispute — Obligations of parties including self-represented litigants regarding identification of issues
UNREPRESENTED LITIGANTS — Content of procedural fairness
COSTS — Principles regarding costs agreements, disclosures, billing and assessment outlined and discussed — Requirement to provide an “estimate of the total legal costs”, “as soon as practicable after instructions are initially given in the matter” discussed — Meaning of “significant change” — Requirement to disclose “significant change to anything previously disclosed” discussed — Requirement for the legal practice to 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 discussed
EVIDENCE — Communication by a witness with others whilst under cross-examination — Principles discussed
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Legal Profession Act 1987 (NSW)
Legal Profession Uniform Law 2014 (NSW)
Family Law Rules 2004 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Abbott v The Queen [2017] NSWCCA 149
Allianz Australia Insurance Ltd v Yu [2024] NSWSC 31
Arambatzis v Foundas (No 2) [2024] NSWSC 859
Barton v Armstrong [1976] AC 104; [1975] 2 WLR 1050
Bauskis v Liew [2013] NSWCA 297
Benjamin & Khoury Pty Ltd v Rahme (No 4) [2023] NSWSC 1162
Bevan v Bingham (2023) 111 NSWLR 7; [2023] NSWSC 19
Cameron v Geer [2020] VSC 75
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Crosby v Fica (No 4) [2018] NSWSC 632
Dai v Jiao [2011] NSWSC 538
Elite Realty Development Pty Ltd v Sadek [2022] NSWSC 1333
Elite Realty Development Pty Ltd v Sadek [2023] NSWCA 165
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gabrielle v Abood (No 4) [2023] NSWCA 100
Hamod v New South Wales [2011] NSWCA 375
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; [1955] HCA 12
Mohareb v Local Court of New South Wales [2024] NSWCA 235
New South Wales v Kable (2013) 252 CLR 118 at 133; [2013] HCA 26
Petselis v Tatarka (2019) 57 VR 375; [2019] VSC 8
Potier v R [2015] NSWCCA 130
Re Jabe [2021] VSC 106
Rusca Bros Services Pty Ltd v Dlaw Pty Ltd (No 2) [2019] FCA 1865; (2018) 140 ACSR 533
Sanjiv v Coleman Greig Lawyers Pty Ltd [2024] NSWSC 1675
Saravinovksa v Saravinovski (No 6) [2016] NSWSC 964
Snook v Western Australia (No 2) [2024] WASCA 135
Templeton v Australian Securities and Investments Commission [2015] FCAFC 137; (2015) 108 ACSR 545
Wang v Yu [2023] NSWSC 1182
Wentworth v De Montfort (1988) 15 NSWLR 348
Wills v Woolworths Group Ltd [2022] FCA 1545
Withyman v NSW [2013] NSWCA 10; [2013] ATR 82
Texts Cited: Bible – New International Version
Dal Pont, GE, The Law of Costs (5th ed, 2021, LexisNexis)
Encyclopaedic Australian Legal Dictionary (LexisNexis)
Federal Circuit and Family Court of Australia, “Practitioner and Litigant Guide to Electronic Hearings”
Macquarie Dictionary, online ed
Quick, Roger, Quick on Costs (Thomson Reuters)
Ritchie’s Uniform Civil Procedure NSW
Rosier, Peter, “Costs Disclosure and the Uniform Law: Has Your Client Really Understood You?” (February 2016) Law Society Journal 84
Shepherd, Ian, “Communications with witnesses before and during their evidence” (1987) 3 Australian Bar Review 28
Category: Principal judgment
Parties: Rekha Sanjiv (Plaintiff)
Coleman Greig Lawyers Pty Ltd (First Defendant)
Karina Ralston (Second Defendant)
Representation: Counsel:
K Young (First and Second Defendant)
Solicitors:
Coleman Grieg Lawyers Pty Ltd (First and Second Defendant)
In-person (Plaintiff)
File Number(s): 2023/00299506
Introduction
Real issues
Parties’ agreed issues
Abandoned relief – Order 1 of the summons
Issues arising in respect of Order 2 of the summons
Abandoned relief – Order 5 of the summons
Belated raising of issues
Avoidance of increased legal costs issue
Alleged negligent work and new common law proceeding
Parties and associated persons
Plaintiff
Plaintiff’s asserted vulnerability
CGL
Communication with the plaintiff
Hearing
Representation
Evidence
Cross-examination of Ms Ralston
Credit and reliability of witnesses
Standard of proof and weighing evidence
Plaintiff
Defendants’ witnesses
Communication by a witness with others whilst under cross-examination
Principles
The plaintiff speaks with a friend
Background
Prior lawyers
Initial retainer (June 2018)
July-9 August 2018
Post 9 August 2018-December 2018
January-April 2019
Family Court hearing (April-May 2019)
May-June 2019
Fee recovery proceedings (July-December 2019)
2020
2022
2023
Commencement of current proceedings
Related proceedings
Costs agreement and disclosure principles
Retainers, costs agreements and costs disclosures
Purposes informing costs regulation
Reasonableness of costs
Disclosure requirements
Estimate of total legal costs as soon as practicable
Obligations on updating cost disclosures
Disclosure in family law
Client understanding and consent
Non-compliance with disclosure obligations
Costs agreements
Billing costs and assessment
Limited sum issue
Complaint
Submissions
Determination
Disclosure of total costs estimates issue
The complaint
Submissions
Determination (initial estimate up to 9 August 2018)
Determination (total costs estimated after 9 August 2018)
Other matters
Provision of costs agreements issue
Complaint
Submissions
Determination
Invoice documentation issue
Contemporaneous provision of invoices
Rate and hour details
Instructions issue
Duress issue
Complaint
Submissions
Determination
Exorbitant costs issue
CGL costs
Submissions
Determination
Mr Grew’s fees
Funds dispersal issue
Transfer of funds from trust account
Garnishee order
Use of money from the proceeds of sale of the Epping property
District Court judgment issue
Are the Defendants required to repay any monies to the Plaintiff? (agreed issue 1)
Should a gross sum costs order be made? (agreed issue 2)
Issue
Submissions
Determination
Should a referee be appointed? (agreed issue 3)
Issue
Submissions
Determination
Is CGL guilty of contempt? (agreed issue 4)
Issue
Submissions
Determination
Is the Plaintiff entitled to an order for pre-judgment interest and costs of the proceedings? (agreed issue 5)
Issue
Submissions
Determination
Conclusion
ANNEXURE A
HIS HONOUR: Over a decade ago, the plaintiff Rekha Sanjiv became embroiled in litigation consequent upon the breakdown of her marriage to Dr Sanjiv Shah (Dr Shah) and adjustment of property interests between them.
Unhappily, as the events of her vexed litigious life recorded in this judgment will show, the plaintiff has spent more final hearing time against her final lawyers (the defendants), over her disputed claims regarding the costs of them acting for her, than she did with Dr Shah in the family law litigation.
In October 2014, Dr Shah commenced proceedings in this Court seeking appointment of trustees for sale of matrimonial property the couple held at Epping, which property was registered in the sole name of the plaintiff (Epping property). Within two weeks, the plaintiff commenced proceedings in the Family Court of Australia (F****amily Court) [1] seeking orders pursuant to s 79 of the F**amily Law A**ct 1975 (Cth) (FLA) for adjustment of property interests between herself and Dr Shah.
Since the commencement of that litigation, the plaintiff has had a number of lawyers acting for her, including Slater & Gordon, Prominent Lawyers and relevantly, the first defendant in these proceedings, Coleman Greig Lawyers (CGL). The second defendant, Karina Ralston (since July 2018, a Principal of CGL), [2] is the solicitor with CGL who had the main carriage of the plaintiff’s matter (Ms Ralston). Keith Spencer of Spencer Legal (Mr Spencer) relevantly acted for Dr Shah.
The Family Court proceedings were, in circumstances recited below, resolved.
CGL commenced to act for the plaintiff in June 2018 pursuant, it says, to costs/fees agreements. Relevantly, there were two forms of such agreement:
an agreement dated 29 June 2018 [3] (CA1); and
an agreement dated 15 June 2022 (CA2). [4]
CGL rendered 13 invoices to the plaintiff over a period from 29 June 2018 to 2 August 2022 totalling $482,865.35. The first 11 invoices were rendered pursuant to CA1 with the remaining two being rendered pursuant to CA2. The details are set out in the annexure at the end of these reasons for judgment. In summary, the invoices are as follows:
| No. | Date | Invoice No. | Amount | Court Book page | Sent to plaintiff [5] | | 1 | 29 June 2018 | 309323 | $440 | 77-79 | - | | 2 | 6 July 2018 | 309480 | $9,689.90 | 83-85 | Ex. D2 | | 3 | 17 July 2018 | 309611 | $14,956.07 | 91-96 | CB 86 | | 4 | 9 August 2018 | 310380 | $45,775.85 | 101-107 | Ex. D3 | | 5 | 17 August 2018 | 310525 | $26,293.03 | 108-113 | Ex. D4 | | 6 | 24 September 2018 | 311570 | $23,869.95 | 130-135 | - | | 7 | 19 November 2018 | 313282 | $71,685.14 | 137-146 | Ex. D5 | | 8 | 5 February 2019 | 315632 | $78,425.60 | 174-185 | - | | 9 | 6 March 2019 | 316623 | $42,476.50 | 193-199 | Ex. D6 | | 10 | 8 May 2019 | 318634 | $26,376.90 | 412-417 | - | | 11 | 28 May 2019 | 319299 | $130,590.17 | 490-498 | Ex. D7 | | | | Sub-total | $470,579.11 | | | | 12 | 12 July 2022 | 361240 | $8,252.90 | 743-746 | CB 735 | | 13 | 2 August 2022 | 361970 | $4,033.35 | 761-764 | Ex. D8 | | | | Total | $482,865.36 [6] | | |
The first 7 invoiced fees up to the end of 2018 were paid by the plaintiff. The next 4 invoiced fees during 2019 were largely unpaid and the subject of a District Court judgment, details of which I note below. Eventually those invoices and the remaining 2 invoices rendered in 2022 were substantially paid from funds received into CGL’s trust account.
Costs Notices [7] were provided to the plaintiff on 4 occasions. The Costs Notices incorporate three categories (though not always clearly set out): costs and disbursements to date; costs incurred but not yet charged; and estimated future costs. From the figures provided in the Costs Notices, the following can be calculated:
| Date | Paid to date | Incurred but not paid | Estimated future costs | Total estimate | | 9 August 2018 | $25,254.57 | $45,940.85 | $60,670.00 | $131,865.42 [8] | | 29 November 2018 | $110,271.40 | $90,137.99 | $67,960.00 [9] | $268,369.39 | | 17 January 2019 | $120,271.40 | $126,464.49 | $130,000.00 | $376,735.89 | | 26 April 2019 | $212,089.40 | $187,144.99 [10] | $80,035.90 | $479,270.29 |
In 2019, CGL sued for recovery of its outstanding fees and obtained a default judgment in the District Court at Parramatta for approximately $266,860. Under a garnishee order in December 2019, CGL was able to recover the sum of $5,872.84. Subsequently in or around June 2022, through the sale of the Epping property, CGL received a further sum of approximately $252,604 in reduction of the District Court judgment. A small part of the judgment debt of approximately $8,381 remained outstanding. CGL has not pressed the plaintiff for payment of that outstanding sum.
On 20 September 2023, the plaintiff commenced the present proceedings in which she makes complaints regarding CGL’s costs, costs agreements and costs disclosure in acting for the plaintiff.
Wisdom regarding choices in life encourages assessment of the cost of a proposed course of action before embarking upon it. [11]
Within the realm of the solicitor-client relationships, one of the purposes of legislative regulation of the relationship is to ensure or at least facilitate, by the use of early disclosure of information, the empowering of clients to make informed choices about the services they access and the costs involved. [12]
For the solicitor, meaningful implementation of the statutory purpose requires careful thought regarding what disclosure should be properly given to a client regarding costs and any qualifications on such disclosure.
For the client, the purpose will be effective if the client is able to soberly reflect upon the information provided. If litigation is then embarked upon, it will be done on an informed basis with the client’s eyes wide open.
The plaintiff has many complaints regarding the fees charged to her and the actions of the defendants in rendering those charges. I will say more regarding the complaints below in addressing the real issues in the proceedings. However, broadly speaking the plaintiff seeks repayment to her of monies charged in respect of costs, for various reasons, including alleged initial inadequate disclosure of the estimated total legal costs involved in the retainer and significant changes to initial estimates.
The defendants, affronted by some of the plaintiff’s claims, especially a claim of duress, have stridently resisted the totality of the relief sought by the plaintiff and assert that they had given the plaintiff appropriate advice, various costs estimates and ongoing information to assess her position.
Frequently, in many cases, of which this is one (in a context I will explain below), there is some degree of truth in the positions taken by either side. On the plaintiff’s side, she did not receive an initial estimate of the total [13] amount of the likely costs that would be incurred in the litigation. The first estimate of total likely costs occurred on 9 August 2018 (approximately 6 weeks after 29 June 2018). Leaving aside the question of whether an estimate at that time was “as soon as practicable after instructions are initially given”, that estimate ($131,865.42) was not an estimate which (at least numerically) accorded closely with the total amount of costs actually rendered. One of the plaintiff’s assertions is that, had she initially received advice that the costs to her of the defendants acting in the matter would approach the order of close to $500,000, she would not have retained CGL. On the defendants’ side, they claim that, with limited initial information to hand, they gave an adequate costs estimate up to the time of the next court listing and, as further information came to light, they gave to the plaintiff further appropriate costs estimates.
Issues are identified in proceedings in various ways, including by reference to:
the relief sought;
legal principles regarding what matters may justify or counter such relief;
assertion and admission or disputation of material facts in pleadings;
evidentiary disputes appearing in affidavits;
the conduct of the hearing including issues apparent from cross-examination; and
submissions (both pre-hearing and final).
In addition to the above, parties are often requested by the Court (in both pleaded and non-pleaded proceedings) to prepare agreed lists of issues.
The task of identifying real issues in dispute generally speaking ought to be straightforward. Parties’ contentions regarding what matters are or are not in issue are generally strongly informative of what matters are addressed by a judge in a hearing and subsequent judgment. However, judges are not necessarily bound by the parties’ assertions of “agreed issues”. Whether they are or are not will depend upon the particular circumstances of each case. In some cases, including those involving self-represented litigants, parties fail to adequately identify real issues but muddy the waters giving rise to difficult questions for the Court in determining what the real issues to be determined in the proceeding are. This is one of those cases.
These proceedings were commenced by summons. The parties served affidavits and, pursuant to pre-trial directions, prepared and provided to my Associate an agreed list of issues. However, from at least the first day of the hearing, there was both disputation and complication regarding the real issues.
Both parties to some degree (although, in my estimation, the plaintiff to a much larger degree) bore responsibility for complication regarding the real issues.
Some number of the aspects of the complication were as follows:
during the first day of the hearing, the defendant’s assertion that the plaintiff had abandoned an issue as to whether a costs agreement was void;
lack of engagement of the parties regarding the basis underlying one of the issues identified by the parties, namely whether the defendants were obliged to repay monies to the plaintiff;
the plaintiff’s disordered conduct of the proceedings, including making complaints in affidavits sometimes by use of only a few words, which complaints were not identified by the parties as being “agreed issues”;
the propensity of the parties during the litigation to raise and address generally in the conduct of the hearing, in cross-examination and in submissions matters which seem to be complaints but had not been expressly characterised by the parties as “agreed issues”; and
1. Are the Defendants required to repay any monies to the Plaintiff?
2. Should the Court make an order for a gross sum costs assessment under section 98 of the Civil Procedure Act 2005 (NSW) (CP Act) and, if so, in what amount?
3. If the Court is not prepared to make a gross sum costs assessment under section 98 of the CP Act, should the Court appoint a referee pursuant to rule 20.14 of the Uniform Civil Procedure Rules 2005 (NSW) to make determination as to costs which the Plaintiff is liable to pay to the First Defendant?
4. Did the Defendants commit contempt of court for wilfully, knowingly and deliberately breaching and failing to comply with paragraph 2.4.3 of the orders made in Family Court of Australia No. SYC6488/2014 on 30 April 2019?
5. Is the Plaintiff entitled to an order for pre-judgment interest and costs of the proceedings?
Those issues, as listed, did not reflect certain matters raised in the plaintiff’s summons and others evident from her affidavit evidence.
That gave rise to some debate at the commencement of the hearing regarding whether the plaintiff had abandoned certain relief and subsequently as to what matters underpinned the plaintiff’s claim for relief for repayment (agreed issue 1).
An order declaring cost agreement, if any between plaintiff and defendants void and invalid and unenforceable and non-existent and to be set aside.
1. Notes the plaintiff has abandoned the following relief sought in the Summons filed 20 September 2023:
a. Order 1; and
b. Order 5.
2. Orders that leave to file an amended summons in the form of MFI-1 be refused.
The plaintiff, despite having abandoned the relief, subsequently sought to re-agitate that relief below. The plaintiff’s attempt to do that was via separate proceedings by the plaintiff against CGL (2024/361481) and is the subject of a separate judgment delivered by me on 10 December 2024, Sanjiv v Coleman Greig Lawyers Pty Ltd [2024] NSWSC 1675 (Sanjiv No.1).
Up until 22 May 2025, the plaintiff, as far as I was aware, has not sought leave to appeal the orders made on 26 September 2024 nor to appeal the orders made consequent upon the judgment I delivered in Sanjiv No.1. On the listing on 22 May 2025, Mrs Young stated [14] that the plaintiff had filed a notice of intention to appeal “your Honour’s prior cost decision”. She added “I think that’s now expired”. Whether that is the case or not, in respect of costs, I reject any attempt by the plaintiff to seek relief in terms of Order 1 of the summons.
In her PCS, the plaintiff stated: [15]
ANY OTHER ISSUE THIS COURT TAKES JUDICIAL NOTICE IN THE INTEREST OF JUSTICE [16]
I respectfully request for findings and conclusions that do not create issue estoppel or issue preclusion or anshun estoppel or res judicata in relation to my claim for negligence against defendants in 2025/126128 where assessed costs are claimed as damages.
On 10 December 2024 at [46] on page 13 in [2024] NSWSC 1675 Judge Meek wrote “Ultimately, having established from Mrs Young that the relief sought under the alternate ground of r 13.4 of the UCPR would rely upon the same substantive evidence and submissions, I formed the view that I should allow the notice of motion to be amended in order to address the real issue that had been disclosed on the material”.
I would suffer a substantial miscarriage of justice if I am not allowed to press order number 1 of my summons in these proceedings relying upon the same substantive evidence and submissions.
The final submissions relating to judicial notice, issue estoppel or res judicata do not make sense. It is hard to respond usefully to these matters. The issue of disclosure has been agitated previously and resolved by His Honour’s prior interlocutory rulings. That was the basis on which the 3-day hearing was conducted, and it is unfair if this issue is permitted to be agitated now in closing submissions.
An order requiring defendants to repay under the equity principles/inherent jurisdiction amount of exorbitantly charged and unauthorised costs to plaintiff who bore the costs.
20. There is significant uncertainty around the basis of the Plaintiff’s claim that the Defendants are required to repay any monies to her. It is not clear whether the Plaintiff relies on equitable principles or some common law cause of action. It is not clear what amount needs to be repaid. The absence of a pleading makes it difficult to discern the exact legal basis the Plaintiff relies on as the Defendants are left with a broad-range of complaints and allegations of alleged dishonourable conduct such that it is difficult to address in any comprehensive manner.
21. Doing the best they can, the complaint made by the Plaintiff, seems to be that the fees for legal services rendered by the First Defendant to the Plaintiff were exorbitant and so improper that somehow this Court acting within its inherent jurisdiction over lawyers is required to order the First Defendant to pay back some or all of the monies previously paid to them or makes some order which will lead to an assessment of those costs. However, these orders and complaints as against Ms Ralston make no sense as she was at all material times an employed solicitor and did not receive any of the Plaintiff’s fees.
22. There also seems now to be a complaint, which was not articulated properly until the cross-examination of the Plaintiff, that she was subject to unreasonable pressure to continue the retainer with Coleman Greig which somehow involved dishonourable conduct by Ms Ralston in that she was said to have locked the Plaintiff into a cabin, cupboard or conference room and forced the Plaintiff to sign costs agreements, acknowledgements and authorities. The problem with new claim is that none of her claims were put to Ms Ralston during cross-examination nor was it properly articulated in her affidavit material, so Ms Ralston did not have a proper opportunity to respond to such serious accusations. Such submissions should not be permitted to be made now.
20 Plaintiff is relying on quantum of repayment to be made by referee or is relying on equitable principles or inherent jurisdiction for repayment of 30% reduction in total cost charged by defendants or any percentage determined by Judge Meek.
Several observations can be made.
First, the plaintiff in her POS noted that the defendants did not seek orders for “summons to be substituted by statement of claim under r 6.6 UCPR”. [21] That appears to be correct. If the defendants were concerned as to the seriousness of allegations and wished the plaintiff to plead her case, it was open to them to make that application. I assume the matter was listed before me on the basis that it was ready for hearing. At the pre-trial directions listing, I made directions for the parties to agree on issues. It is unclear to me whether the defendants, prior to the hearing, ever requested the plaintiff to outline the basis for the claims for repayment. However, there was an opportunity for the defendants, if they wished to seek elucidation of the plaintiff’s case, to clarify the basis for the repayment relief.
Secondly, at the start of the hearing, the defendants did not make any application before me for the plaintiff to outline specifically the basis on which the repayment the subject of agreed issue 2 was sought.
Thirdly, the plaintiff makes reference to the Court’s “inherent jurisdiction” in her summons [22] but has not provided any specific submissions on the inherent supervisory jurisdiction. Mrs Young submitted that there is nothing in the legal charges or conduct of the legal practitioners which enliven this Court’s inherent jurisdiction over solicitors. [23]
If one asks why the plaintiff asserts that the costs were “exorbitantly charged and unauthorised”, it seems to me clear that she bases the assertion, and a number of her complaints regarding her costs arrangements with CGL, principally upon alleged non-compliance with statutory disclosure provisions under the Uniform Law. [24]
Disclosure complaints (as will be seen) emerged from the evidentiary material before the court, the cross-examination and the parties’ submissions.
In my assessment, the main complaints of the plaintiff underlying the repayment relief included the following:
Did CGL agree to act for the plaintiff on the basis that the total costs to be charged to her would be no more than a sum of $50,000 [25] (limited sum issue)?
Did CGL fail to disclose to the plaintiff an estimate of the total amount of fees that would be charged to her for acting in relation to the family law proceedings [26] (d****isclosure of total costs estimate is****sue)?
Did the plaintiff receive copies of CA1 and CA2 (provision of costs agreements issue)?
Was the plaintiff provided with certain invoices or provided with details of invoices showing the rate per hour of the person doing the work and number of hours utilised by that person ()?
An order for all invoices with number of hours and rate per hour to be given to plaintiff.
The plaintiff in her POS, PCS and PCRS raised a number of other matters which were not agreed issues.
Mrs Young complained about the raising of new issues. [36] The plaintiff responded: [37]
45 I have not raised any new issues. My issues are based on evidence in the court book and my submissions. I will be denied procedural fairness if all my evidence and submissions is not considered and those this Court make take judicial notice of on its own motion in the interest of justice and for the purpose of maintaining the proper administration of justice.
Yes: - because defendants costs are excessive for the following reasons:
1. Poor quality of work under s 172(2)(e) of Legal Profession Uniform Law (LPUL) because from the time I engaged defendants in 2018, defendants caused me substantial loss (to gain legal fees of about ½ million dollars only to prepare a balance sheet for trial See Templeton at [34] where Full Federal Court held that a lack of proportionality between the cost of the work done and the value of the services provided may support a conclusion of overcharging or excessive remuneration) by failing to give me advice to obtain an order for trustee to be appointed under s 79 and/or s 80(e) of Family Law Act 1975 to sell all assets, pay off all liabilities and pay net sale proceeds into family court for family court to determine the percentage of division of money paid into family court (Since Sanjiv Shah took away more money, I could negotiate a higher percentage).
2. Defendants incurred money on domestic violence matters which were never filed and on super fund matters that were unnecessary to [1] above.
3. Defendants charged me substantial amount of money for barrister fees when the matter settled without a hearing and matters could have been handled by a trustee appointed under s 80(e) of Family Law Act 1975.
4. Defendants filed a notice of ceasing to act but continued to charge me.
5. Defendants obtained an order from Family Court to act as conveyancer but refused/failed to act as conveyancer after continuing to charge fees.
6. Defendants wasted my money (without seeking my instructions) to obtain garnishee orders knowing that these garnishee orders made by an inferior court (District Court) are not valid until set aside because under s 178(1)(b) of Legal Profession Uniform Law I am not required to pay legal costs until they have been assessed and under s 178(1 )(c) of Legal Profession Uniform Law the law practice must not commence or maintain proceedings for the recovery of any or all of the legal costs until they have been assessed due to my challenge to disclosure obligations.
7. Defendants abused my trust and confidence and took unconscionable advantage of my vulnerability to earn substantial amount of fees for their own financial benefit even though defendants knew that I was a vulnerable client subject to principles governing non est factum.
8. Legal costs charged by defendants are not fair and reasonable in all the circumstances and that in particular are NOT
(a) proportionately and reasonably incurred; and
(b) proportionate and reasonable in amount.
Defendants must not act (but in fact acted) in a way that unnecessarily resulted in their increased fees in breach of section 173 of Legal Profession Uniform Law.
The issue of disclosure is not an agreed issue in these proceedings. Further, the claim that somehow the Defendants acted in breach of section 173 of the Uniform Law is a new claim that is denied and was never put to Ms Ralston in cross-examination. There is no evidence that Coleman Greig in any way increased the overall costs.
173 Avoidance of increased legal costs
A law practice must not act in a way that unnecessarily results in increased legal costs payable by a client, and in particular must act reasonably to avoid unnecessary delay resulting in increased legal costs.
I agree with Mrs Young that the complaint of the plaintiff by reference to s 173 of the Uniform Law was, prior to receipt of the PCS, not raised as an issue and I reject the plaintiff’s specific complaint regarding it.
I regard some of the 8 matters under issue 1 in the plaintiff’s POS as being raised without adequate notice. Others fall under other issues such as the exorbitant costs issue and I will address them there.
By reference to the 8 matters above, I briefly observe the following.
The first and eighth matters raise an issue of a lack of “proportionality” between the cost of work done by CGL and the value of the services provided. That is a very generalised complaint. It was not listed per se amongst the list of issues. Apart from some other aspects which I will expressly refer to within the 8 points, the plaintiff did not identify specific instances of lack of proportionality by reference to specific evidence and submissions.
In the first matter, the plaintiff references s 172(2)(e) of the Uniform Law and “s 79 and/or s 80(e) of Family Law Act 1975”.
The third matter also makes reference to “s 80(e) of Family Law Act 1975” which is obviously intended by the plaintiff to be a reference to s 80(1)(e) of the FLA.
Section 172(2)(e) of the Uniform Law provides as follows:
(2) In considering whether legal costs satisfy subsection (1), regard must be had to whether the legal costs reasonably reflect—
…
(e) the quality of the work done;
(1) The court, in exercising its powers under this Part, may do any or all of the following:
…
(e) appoint or remove trustees;
As will be seen below, on 5 February 2020, Dr Shah was appointed under Court orders as a sole trustee for the sale of the Epping property. Some complaint was raised by the plaintiff regarding this, seemingly in respect of Dr Shah not being registered on title as trustee and I will deal with it below under the question of alleged negligent work.
The second matter raised by the plaintiff is a submission that “Defendants incurred money on domestic violence matters which were never filed and on super fund matters that were unnecessary to [1] above”. It is also new. It is not clearly raised by the summons nor in the plaintiff’s affidavit in chief and I reject the plaintiff’s belated attempt to raise it.
The fourth matter in which the plaintiff asserts that “Defendants filed a notice of ceasing to act but continued to charge me” is also new. No particulars are given of that, and I reject the plaintiff’s belated attempt to raise it.
The fifth matter in which the plaintiff asserts that “Defendants obtained an order from Family Court to act as conveyancer but refused/failed to act as conveyancer after continuing to charge fees” has clear connection to the plaintiff’s claim regarding alleged contempt and I will deal with it as such below.
The sixth matter in which the plaintiff asserts that “Defendants wasted my money (without seeking my instructions) to obtain garnishee orders knowing that these garnishee orders made by an inferior court (District Court) are not valid until set aside …” has clear connection to the plaintiff’s claim regarding the District Court judgment issue and I will deal with it as such below.
The seventh matter in which the plaintiff asserts that “Defendants abused my trust and confidence and took unconscionable advantage of my vulnerability to earn substantial amount of fees for their own financial benefit even though defendants knew that I was a vulnerable client subject to principles governing non est factum.” has several aspects to it. I address the plaintiff’s asserted vulnerability below under the heading “Parties and associated persons”. I reject the notion that the plaintiff had any relevant vulnerability that bears upon the issues to be decided in these proceedings. In any event, even if the plaintiff were able to establish any such vulnerability, her claim that the defendants abused it was not properly particularised and I reject the plaintiff’s claims regarding it.
In my opening remarks I noted that a third respect in which the plaintiff had muddied the waters in the matter related to allegations of negligence.
Whether the defendants had acted negligently was not one of the agreed issues.
In the plaintiff’s affidavit affirmed 4 December 2023, in which she replies to paragraph 43 of Ms Ralston’s affidavit sworn 7 November 2023 (which formed part of the evidentiary materials in the Court Book at the time of the commencement of the hearing) an isolated reference to negligence appeared.
Paragraph 43 of Ms Ralston’s affidavit is as follows: [41]
I am aware that on 5 February 2020 the Plaintiff’s ex husband became sole trustee for the sale of the Plaintiff’s property. at no time did myself or any other person at Coleman Greig receive instructions from the sole trustee to prepare a contract for sale.
43. Defendants made no attempt at any point in time to seek variation of family court order to exclude their obligation to prepare and exchange and settle contract of sale. Defendants knew or reasonably ought to know that ex-husband did not become sole trustee because he did not transfer title to himself as required by section 86(1) of Real Property Act 1900 to avoid paying stamp duty and therefore, orders made by Judge Rees appointing Sanjiv Shah, ex husband as trustee had no legal effect under section 86(2) of Real Property Act 1900 and Rekha Sanjiv remained registered proprietor. Under section 172(2)(e) of Legal Profession Uniform Law, defendants are not entitled to costs for their poor quality of work/negligence/negligent failure to give proper advice that caused a fraudulent exchange of contract and fraudulent settlement.
In the POS [43] (as noted above) the plaintiff references s 172(2)(e) Uniform Law and submits that she did not receive advice in order to obtain an order for a trustee to be appointed under ss 79 and 80(1)(e) of the FLA.
Whilst reference is made to s 172(2)(e), a claim regarding negligence is not clearly set out. As best as I can glean, it appears the plaintiff is asserting that the land was not properly vested in her ex-husband and that the defendants should have known that. Even assuming what I have just stated is the natural tenor of the plaintiff’s assertion, the plaintiff had not provided in any procedurally clear or fair way how any case in negligence is put, nor provided evidence for her assertions, nor any further arguments based on those assertions.
During the first day of the hearing, the plaintiff did not mention negligence.
However, on 2 April 2025, 5 days before the resumed hearing commenced, the plaintiff filed a statement of claim in the Common Law Division (Professional Negligence List) of the Supreme Court of New South Wales naming CGL as defendant (new proceedings).
Broadly, the particulars in the new proceedings are that the defendant owed and breached a duty of care to give the plaintiff “accurate and adequate advice and exercise reasonable care and skill” with respect to certain clauses of the consent orders made on 30 April 2019 with her ex-husband and aspects of implementation of those orders.
During the second and third days of the hearing, the parties did not expressly draw my attention to the fact that these new proceedings have been filed by the plaintiff.
In her PCS dated 12 April 2025, the plaintiff states:
ANY OTHER ISSUE THIS COURT TAKES JUDICIAL NOTICE IN THE INTEREST OF JUSTICE
I respectfully request for findings and conclusions that do not create issue estoppel or issue preclusion or anshun estoppel or res judicata in relation to my claim for negligence against defendants in 2025/126128 where assessed costs are claimed as damages.
The final submissions relating to judicial notice, issue estoppel or res judicata do not make sense. It is hard to respond usefully to these matters…
27 The Cost Agreements are void due to lack of proper disclosures. The quality of work done under section 172(2)(e) of Legal Profession Uniform Law was negligent. That is why I have sued Coleman Greig Lawyers Pty. Ltd. in the Supreme Court of New South Wales - Common Law Division.
..
51 I filed and served a statement of claim against first defendant for negligence and loss of opportunity. I respectfully request for an adjournment of decision-making in these proceedings or a decision that will not create issue estoppel or claim preclusion or res judicata in my above negligence proceedings in Supreme Court common law division.
These instances in the PCS and PRCS were the first in which the plaintiff requested the Court to defer the delivery of judgment, adjourn the proceedings or make some other specific orders by reference to the new proceedings.
On 20 May 2025, my Associate sent an email to the parties indicating that judgment would be delivered on 22 May 2025. On 21 May 2025, in circumstances in which I became cognisant of the existence of the new proceedings, my Associate at my request sent an email to the parties notifying them that the matter would be listed for mention rather than judgment.
On 22 May 2025, I raised with the parties the circumstances described above. Mrs Young for her part expressed her understanding that the statement of claim concerns different issues to the ones before me in these proceedings. [45]
I gave the plaintiff an opportunity to put her case regarding why I should determine her claim in these proceedings on the basis that negligence is in issue.
I made an observation that the plaintiff did not use the terms “negligent” or “negligence” during the three days of hearing. In response, the plaintiff stated: [46]
…once we finish cross-examination, I went through everything, and knowing the situation, I was very disappointed, and only way this negligence happened again and again. Anybody can see that. And that is the only reason I have filed again at a later stage because that is something very, very important…
I am unpersuaded that the claims in negligence have been fairly and adequately raised as issues to be dealt with in the existing proceedings. The question of whether CGL’s work was negligent was not listed as an agreed issue. The plaintiff did not cross-examine Ms Ralston or any other of CGL’s employees regarding it. She has not particularised her assertions nor provided any evidence for those assertions. Mrs Young confirmed she made forensic decisions on this basis. In light of this, I reject the plaintiff’s belated attempt to assert it as an issue.
On this same basis, I also reject the plaintiff’s request to adjourn the existing proceedings, concurrently deal with both the existing and new proceedings, or to defer any further the judgment in these proceedings.
Accordingly, I made the following orders on 22 May 2025:
THE COURT:
- Notes that:
a. on 2 April 2025 the plaintiff filed a statement of claim in the Common Law Division (Professional Negligence List) of the Supreme Court of New South Wales case number 2025/126128 in which she (Rekha Sanjiv) is named as plaintiff and the first defendant (Coleman Greig Lawyers Pty ltd CAN 125 176 230) is named as defendant (new proceedings);
b. during the hearing which concluded on 8 April 2025 no party expressly drew to attention of the Court the fact that the new proceedings have been filed by the plaintiff;
c. the plaintiff in closing written submissions filed on 14 April 2025 stated “I respectfully request for findings and conclusions that do not create issue estoppel or issue preclusion or anshun estoppel or res judicata in relation to my claim for negligence against defendants in 2025/126128 where assessed costs are claimed as damages”;
d. the plaintiff in closing written reply submissions filed on 26 April 2025 stated “51 I filed and served a statement of claim against first defendant for negligence and loss of opportunity. I respectfully request for an adjournment of decision-making in these proceedings or a decision that will not create issue estoppel or claim preclusion or res judicata in my above negligence proceedings in Supreme Court common law division”;
e. on 20 May 2025 at 4:15 PM the Associate to Meek J sent an email to the plaintiff and to the legal practitioners for the defendants indicating that his Honour proposed to deliver judgment in the matter at 9:30 AM on Thursday, 22 May 2025;
f. on 21 May 2025 at 10:55 AM, in circumstances in which his Honour became cognisant of the existence of the new proceedings, the Associate to Meek J, at his Honour’s request, sent an email to the parties notifying that the matter would be listed at 10 AM on 22 May 2025 for mention rather than for judgment;
g. at no stage during the final two hearing days on 7 and 8 April 2025 nor prior to receipt of the submissions in 1c and 1d did the plaintiff request the Court to defer the delivery of judgment, adjourn the proceedings or to seek other specific orders in relation to the hearing of the proceedings by reference to the existence of the new proceedings or the relief being sought in the new proceedings;
h. at the listing of the matter for mention at 10 AM on 22 May 2025 Mrs Young appeared on behalf of the defendants, and initially the plaintiff did not appear but subsequently did appear at a revised listing time of 12:30 PM;
i. his Honour raised with the plaintiff and Mrs Young the above-mentioned matters and discussion ensued regarding how his Honour should proceed in the matter, in light of the request of the plaintiff identified in notations 1c and 1d;
j. Mrs Young confirmed to the Court that she had made forensic decisions based on the fact that the plaintiff had not raised in these proceedings, or sought to raise, her claims in the new proceedings;
k. the plaintiff orally requested Meek J to defer judgment in these proceedings for the purposes of his Honour taking over case management of and concurrently hearing the plaintiff’s claims in the new proceedings with these existing proceedings;
l. his Honour gave the plaintiff an opportunity to clarify (i) why she wished to seek the relief identified in notations 1c and 1d, and (ii) why his Honour should deal with the existing proceedings on any basis other than that claims in negligence had not been fairly and adequately notified and raised as issues to be dealt within the existing proceedings; and
m. his Honour not being satisfied that he should (i) proceed on the basis that claims in negligence had been fairly and adequately notified and raised as issues to be dealt within the existing proceedings; (ii) adjourn the existing proceedings to allow the new proceedings to be dealt with concurrently with the existing proceedings and (iii) defer for any significant further length of time judgment in these proceedings based on the existing litigated issues, foreshadowed those matters and indicated that he proposed to deliver judgment on Monday, 26 May 2025.
- Notes that judgment will be delivered in respect of the existing proceedings at 10 AM on Monday, 26 May 2025.
The plaintiff has a son, Isham (born in September 1996). [47]
The plaintiff is well educated and credentialled. She graduated from Bombay University with a bachelor’s degree in chemistry and physics. [48] She appears to have qualified for a medical technology degree and worked as a laboratory technician at a biochemist in a local hospital in India. [49] She has a postgraduate bachelor’s degree in computer management and has completed a master’s degree in business systems analysis and design in computers. [50] She worked in South Kensington, London as a business analyst for about three and a half years before moving to Australia in 1984. She worked at Telstra as an IT consultant and moved to Wellington, New Zealand, to assist Dr Shah (her then husband) to set up and run his medical practice and was a director of the company that operated the practice. [51] She understood “business” and oversaw all the management, contracts, accounts and bookkeeping aspects of the management company and attended to payment of tax and GST. [52] She has also had involvement as a director in other companies.
The plaintiff in her affidavit asserted that she is “a vulnerable person with special disadvantages”, “unwell” [53] and that “both defendants greatly abused my trust and confidence”. [54] It is unclear what the plaintiff meant by the asserted vulnerability and special disadvantages. Mrs Young addressed written closing submissions to these issues. She referenced much of the material I have recited above. [55] I am not persuaded that the plaintiff had any vulnerability or special disadvantage that amounts to any factor affecting her claim against the defendants in respect of costs.
During the hearing, the plaintiff referred to “domestic violence” and “financial abuse”. [56] To the extent that it might be suggested that the plaintiff had difficulties arising from domestic violence or financial abuse, I readily accept that there is some material before the Court which refer to those terms. [57] However, the evidence does not disclose in any detail the nature of the alleged violence. It does indicate that the allegations, or at least some of them, were disputed. [58] Indeed, in May 2019, by reason of the plaintiff’s uninvited contact with Dr Shah, his legal representative Mr Spencer foreshadowed that there may be personal violence orders sought against the plaintiff. [59] The plaintiff cross-examined Ms Ralston regarding her awareness of claims of domestic violence and financial abuse. Ms Ralston’s email of 9 August 2018 indicates she was aware of these allegations. [60] She confirmed that in cross-examination, though did not go so far as to accept that the allegations had been established. [61]
In any event, the plaintiff did not adduce any independent medical or other expert evidence suggestive that she had any particular vulnerability or “special disadvantage”.
CGL is a corporation and able to be sued as such.
Ms Ralston is a qualified legal practitioner. She was admitted as a lawyer of the Supreme Court in August 2011. She has been practising as a legal practitioner in New South Wales since January 2012. She has been working in the family law area since June 2012 and achieved Specialist Accreditation in Family Law in 2017. She has been employed by CGL since January 2014 and currently holds the position “Director and Team Leader of the Family Law Team”. [62]
Other CGL staff having some involvement with the plaintiff in her interaction with CGL include: Malcolm Gittoes-Caesar, one of the principals of CGL (Mr Gittoes-Caesar); Ambrose Teo, a support staff (Ms Teo), Colleen Cuthbert, a legal secretary (Ms Cuthbert); Diane Elven, a legal assistant (Ms Elven); Wendy Cousens, a senior legal clerk (Ms Co****usens); Therese Austin, a licensed conveyancer (Ms Austin); Warrick McLean, a general manager and Emma Nichelsen, an Associate lawyer (Ms Nichel****sen).
At least in relation to this litigation, three other CGL staff have had involvement, namely: Ashley Lamb, the current CEO of CGL (Mr Lamb); Caroline Hutchinson, the solicitor on the record for the defendants (M****s Hutchinson); and James Michael Ferguson, an employed solicitor assisting Ms Hutchinson (Mr Ferguson).
During the period of time that CGL acted for the plaintiff, the plaintiff used a number of email addresses and CGL communicated with the plaintiff via those email addresses. [63]
At times CGL, had some correspondence with Isham, principally by email, at least on occasions when they were unable to contact the plaintiff.
The plaintiff has at all material times in these proceedings represented herself, as she is entitled to do. Mrs Young appeared for the defendants.
During the hearing, the plaintiff performed dual roles, being an advocate conducting her own case and also separately as a witness.
The role of the Court in dealing with self-represented litigants is explained in a number of Court of Appeal decisions, including Hamod v New South Wales [2011] NSWCA 375 at [309]-[316], Bauskis v Liew [2013] NSWCA 297 at [67]-[70], and, most recently, in Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [37].
At the outset of the hearing, [64] I provided the plaintiff with necessary information about court practice and procedure to ensure a fair trial for both parties, while clearly indicating that I could not advise her on how to exercise her legal rights. I reiterated certain aspects throughout the hearing to remind the plaintiff.
The plaintiff in her evidence asserted that “I have no legal education and no legal training and no legal experience”. [65] Whilst I have no reason to doubt that is true, the plaintiff is well educated, as evident from above. The plaintiff appeared to me to understand the court processes as I explained them to her and exhibited the ability to make choices regarding those processes.
However, as I will elaborate below, the proceedings were not conducted efficiently by the plaintiff, leading to the length of the hearing being extended into a three-day hearing, well beyond the initial time allocated, being a single day.
The evidence on the hearing comprised affidavit and documentary material.
The plaintiff relied upon three affidavits of herself, affirmed on 20 September 2023, 4 December 2023 and 24 June 2024. The defendants relied upon two affidavits of Ms Ralston sworn on 7 November 2023 and 2 April 2024 and two relatively formal affidavits being one from Ashley Lamb sworn 7 November 2023 and the other from Mr Ferguson sworn 21 August 2024. Each of their deponents were cross-examined.
A bundle of documentary material included in the Court Book was tendered and marked JP-1. In addition, the defendants tendered a number of exhibits.
On the first day of the hearing, after the affidavit evidence was read and I clarified which witnesses were required for cross-examination, Mrs Young indicated to me that Ms Ralston had had childcare responsibilities later that day and they were hoping that she might be interposed for cross-examination. [66] I enquired of the plaintiff as to whether she was in a position to cross-examine Ms Ralston, indicating that I was not requesting her to do so. The plaintiff indicated that she was able to cross-examine Ms Ralston and that she did not think she would be very long. [67]
In fact, what occurred was that Ms Ralston was cross-examined for a lengthy period of time. Ms Ralston was called to the witness box just prior to 1 pm. She gave some brief evidence in chief and then, after the luncheon adjournment, the plaintiff conducted the cross-examination through the afternoon sitting and well beyond the Court’s usual 4 pm adjournment, for a total of three hours and twenty minutes.
The purpose of sitting late was attempting to give the plaintiff a fair opportunity to conduct the cross-examination of Ms Ralston, but nonetheless complete it that day, so that there may not be any ultimate need for Ms Ralston to return.
I formally excused Ms Ralston on the basis that she was no longer under cross-examination but noted that, at some point, the plaintiff may wish to seek leave to further cross-examine her. [68]
On the resumed hearing of the matter, at the commencement of the second day, the plaintiff did not seek to further cross-examine Ms Ralston. However, towards the end of the third day, the plaintiff intimated that she might wish to do so. The plaintiff had not given any such notice to CGL or Ms Ralston. [69] With regard to that, and also to the facts that the proceedings had extended several days beyond the single day estimate and Ms Ralston was not, in any event, in the precincts of the court, no further cross-examination of Ms Ralston was realistically possible. [70]
The plaintiff, in her PCRS, makes the following submission: [71]
22 to 26 Karina Ralston had an opportunity to be honest in her affidavit evidence and testimony but failed to do so. I was denied procedural fairness causing jurisdictional error by defendants who sought Karina Ralston to be cross-examined before I was cross-examined.
Whilst, towards the end of the third day of the hearing (as noted above), the plaintiff raised the prospect of possibly further cross-examining Ms Ralston, at no stage prior to serving her PCRS did the plaintiff complain that she had been denied procedural fairness by the defendants in seeking to have Ms Ralston cross-examined before she was cross-examined.
In light of the context that I have set out above, I reject the submission that the plaintiff has been denied procedural fairness.
In this case, the requisite standard of proof for determining the facts in issue is on the balance of probabilities: s 140(1) Evidence Act 1995 (NSW) (Evidence Act).
Without limiting the matters the Court may take into account in deciding whether it is so satisfied that the facts in issue are established, it is to take into account (a) the nature of the cause of action or defence; (b) the nature of the subject‐matter of the proceeding; and (c) the gravity of the matters alleged: s 140(2) Evidence Act.
Evidence should be approached and weighed having regard to objective surrounding facts which are either undisputed or established by contemporaneous documents, logic and the inherent probabilities of life as they bear upon the events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ.
Having regard to the plaintiff’s complaints regarding costs disclosure and, in particular, her initial expectations and understanding of the total costs likely to be incurred, it is surprising that none of the parties saw it fit to set out the discussions between the plaintiff and Ms Ralston in the initial meeting of 29 June 2018.
The plaintiff’s affidavit evidence did not descend to any particular detail regarding how she came to engage CGL or the discussions she had with Ms Ralston or other CGL staff.
During her cross-examination of Ms Ralston, the plaintiff did not put to Ms Ralston some of the relevant conversations that she said she had had with her. It was only during Mrs Young’s cross-examination of the plaintiff that assertions of what had been said to CGL or its staff arose. Even then, it was generally in non-responsive answers to questions.
Mrs Young, in her DCS, made submissions on the legal principles relating to fact-finding and credit, [72] including citing Withyman v NSW [2013] NSWCA 10; [2013] ATR 82 per Allsop P at [65] (with whom Meagher and Ward JJA agreed at [154] and [155] respectively) and Kunc J in Saravinovksa v Sara**vinovski (No 6) [2016] NSWSC 964 at [464]-[473]. I have had regard to those judgments and Mrs Young’s submissions.
The plaintiff was cross-examined across the second and third days of the hearing.
The plaintiff made no particular submissions regarding her credit and reliability as a witness. However, in the DCS, Mrs Young is scathing of the plaintiff’s credibility based on her conduct during the hearing and cross-examination. [73]
In summary, Mrs Young made the following submissions and referenced various examples in each case, which I have had regard to:
“key parts of the Plaintiff’s evidence are completely at odds with the contemporaneous documents. There were many occasions where it was clear the Plaintiff was simply not telling the truth when she was caught out on inconsistencies with contemporaneous documents”; [74]
“there were many occasions where the Plaintiff added to or qualified her claims made in her affidavit during cross-examination”; [75]
“the Plaintiff’s recollection was poor or non-existent on matters which did not suit or hindered her case in these proceedings and yet it was abundantly clear on matters which assisted her position (such as her personal history or issues with her husband)”; [76] and
“her evidence comprises many serious and outrageous accusations not supported by any independent evidence whatsoever”. [77]
Further, Mrs Young submitted (omitting the footnote) as follows: [78]
…there were a number of aspects of the manner in which Ms Sanjiv gave evidence, particularly in cross-examination, which undermined her credibility as a witness as well as the plausibility of her evidence. She did not answer most questions put to her promptly and responsively, with consistency or candour. In some cases, including questioning by His Honour as to who she had spoke to over the Court recess while under cross-examination, she refused to answer the questions outright. Her oral evidence also often consisted of lengthy orations, mostly non-responsive answers to straightforward questions, in which she repeated over and over her mantra that she had been taken advantage of by the Defendants. Her demeanour further demonstrates that her evidence is neither credible nor reliable. Her evidence should only be accepted where it is inherently credible or corroborated by contemporary documents or other independent evidence or is otherwise against her interest.
The plaintiff was, in my estimation, an unimpressive witness.
Much of the plaintiff’s evidence was punctuated by long pauses (noted in the transcript) [79] and was followed by the plaintiff volunteering information that had not been asked about. [80] On some occasions, the plaintiff appeared to lose train of thought and questions were repeated for her. At other times, the plaintiff made statements or gave answers which were “non-responsive” to the questions, in the sense that they did not directly address the question and were tangential. My impression is that the plaintiff, at least in relation to certain critical aspects of the questioning, simply evaded the question and stated what she wished the Court to hear. On critical issues where there is conflict between Ms Ralston and the plaintiff, I prefer the evidence of Ms Ralston.
There are important aspects of the plaintiff’s complaints which were not made out by her on the evidence and, in some respects, were shown to be incorrect. A number of examples will suffice.
First, the plaintiff’s denial that she signed CA1 on the first day of engaging CGL [81] is incorrect and I reject it.
The plaintiff stated: [82]
I have not received a copy of cost agreement executed by all parties. If such a cost agreement exists it is void for lack of proper disclosures to enable me to make an informed decision whether to engage and continue engagement with defendants.
Acceptance, Understanding & Acknowledgement
I:
1. confirm that I have read and understood your fee proposal dated 29 June 2018 and the attached Terms of Business (Terms);
2. confirm acceptance of your fee proposal dated 29 June 2018 and the Terms.
Dated:
………………………………
Signed by
The plaintiff’s signature lies underneath the acceptance of the fee proposal and the date inserted is 29 June 2018. [84]
On the first day of the hearing, in the context of the plaintiff cross-examining Ms Ralston, I asked the plaintiff about the basis for asserting that the costs agreement was void. The following exchange occurred: [85]
HIS HONOUR: All right. Well, I think this, in a sense - so just so I understand it, your basis for asserting that the costs agreement was void, which you’ve abandoned, but just for clarity’s sake, your basis for asserting that, as I understand it, is not because you didn’t sign the agreement, but rather because you say you weren’t given an estimate or updated estimates of the cost. Is that a fair statement‑‑
PLAINTIFF: Yes.
HIS HONOUR: ‑‑of what you‑‑
PLAINTIFF: Essentially, yeah. If I knew, I would not have continued.
Q. You accept Coleman Greig issued you with a costs agreement? You accept that as a proposition?
A. That’s up to the - I started in 29 June, so it was just up to the August.
Q. But they gave you on 29 June, didn’t they?
A. Yes, so that was only up to that month and nothing after that disclosed anything but that was also very weak. It wasn’t telling me exactly the situation‑‑
Later, she asserted that she had been told to sign it in a context in which she understood costs would be only $20,000. [87]
Secondly, the plaintiff claimed that she had not received all invoices showing the rate per hour of a person doing the work and number of hours utilised by that person. [88] The defendants provided evidence showing that at least some of the disputed invoices were sent to the plaintiff by email. This was put to her during her cross-examination. I will say more below regarding provision of invoices to the plaintiff. However, for present purposes it suffices to note that the plaintiff acknowledged in cross-examination that she received all 7 of the invoices Mrs Young examined her about (Exhibits D2-D8 - see the table above for details).
Thirdly, the assertion that Mr Grew had charged $50,000 for one day is simply false. [89] There are no invoices in which Mr Grew charged $50,000 in one day. The plaintiff was cross-examined regarding the two invoices he sent [90] (26 February 2019 for $7,892.50 and 1 May 2019 for $40,425).
Fourthly, the plaintiff in her affidavit evidence asserted that she had been threatened and compelled to sign Costs Notices and authorities for payment of costs under duress and false representations. [91] During the hearing, she asserted that she had been put in a “cabin” which had been closed and forced to sign documents. [92] It later transpired that her use of the word “cabin” was likely intended by her to mean a conference room. [93] The plaintiff reiterated the assertion that she had been locked in a “cabin” and forced to sign documents. [94] I reject the plaintiff’s evidence in this regard. There is nothing in the documentary evidence even remotely supportive that any such locking of the plaintiff into a conference room and being forced to sign documents occurred. The evidence does not show that the plaintiff ever reported any such threatening conduct to the Office of the Legal Services Commissioner, or to anyone else. [95]
2 Both defendants who have wilful and knowing and deliberate and contumacious contempt for court cannot be witness of truth.
22 to 26 Karina Ralston had an opportunity to be honest in her affidavit evidence and testimony but failed to do so…
Ms Ralston, Mr Lamb and Mr Ferguson’s evidence should be accepted without qualification. Ms Ralston, in particular, gave careful and fully responsive answers; was polite and could even be described as “kind” to the Plaintiff during cross-examination and ‘almost’ assisting her to put a proper question to her while in the box. She fully engaged in answering each question from Ms Sanjiv and Court. Her evidence is supported by contemporaneous documents and she was not attacked in cross-examination on any point in any way. Similarly, with Mr Lamb and Mr Ferguson.
As I explained above, Ms Ralston was cross-examined by Ms Sanjiv for a lengthy part of the first day of the hearing. There is no need for me to make any particular finding as to how “polite” or “kind” Ms Ralston was in giving her evidence. Her evidence, broadly speaking, accorded with the documentary material which I will recite below. She gave her evidence clearly and made appropriate concessions. I accept her evidence. I do not accept the plaintiff’s submission regarding Ms Ralston’s credit as a witness.
The plaintiff cross-examined each of Mr Lamb and Mr Ferguson. It was clear that neither of them had any particular familiarity with the plaintiff’s family law claim during the period in which CGL was acting for the plaintiff, as distinct from the awareness of the current proceedings. Both gave their evidence in a straightforward way. I accept their evidence.
For various reasons, including to preserve the integrity of evidence, it is common for judges to give witnesses who are being cross-examined a direction that the witness should not discuss their evidence with anyone whilst they are under cross-examination. The practice applies in both criminal law and civil proceedings. The power to give such a direction derives from the inherent power of a court to control its own proceedings and to ensure that a trial is fair: Western Australia Court of Appeal (Mazza, Hall and Vandongen JJA) in Snook v Western Australia (No 2) [2024] WASCA 135 (Snook) at [73].
The purposes of such a direction were elaborated in Snook as follows
74 The direction is intended to guard against the possibility that the evidence of the witness would be tainted by discussions with others at a critical point in their testimony. The risk is that a witness under cross-examination may be influenced, consciously or subconsciously, to change their evidence or their demeanour, correct errors, withdraw concessions or improve on weaknesses that have been exposed in cross-examination. This would give the witness concerned an advantage over other witnesses who do not have the benefit of an adjournment and could unfairly undermine the effect of cross-examination. Credibility assessments of witnesses often depend critically on the performance of the witness under cross-examination. That assessment assumes that the witness will not have the benefit of any external assistance.
75 The direction is also protective of counsel, who may otherwise come under pressure to discuss with a witness the progress of their cross-examination to that point. That risk would be particularly acute in the case of an accused person under cross-examination in a criminal trial. The giving of a direction in open court provides an assurance to the jury that the witness will not have the benefit of being coached or “phoning a friend” during the adjournment.
Directions are typically given when a witness’s cross-examination is underway but not yet complete and the court must adjourn. There is no set form of direction that is given by judges to witnesses. The content of what is said is invariably informed by the context in each case.
Often, questions regarding communications arise where legal representatives need to discuss some matter with their client or the client’s witness, despite the cross-examination being incomplete. It may be, for example, that there is necessity to discuss with the witness travel arrangements or to locate documents called for, or perhaps to consider, in the case the witness is a party, an offer to resolve proceedings. Normally, in such a circumstance, the legal representatives for the parties speak with one another and raise with the Court the fact that it is proposed for there to be some communication with the witness for a specific purpose. Raising the matter directly with the Court in such a way facilitates transparency and minimises suspicions that proposed communication is for an impermissible purpose.
Guidelines regarding communication appear in caselaw and sometimes information guides produced by courts: see, for example, the “Practitioner and Litigant Guide to Electronic Hearings” produced by the Federal Circuit and Family Court of Australia (paragraph 3.1[10] Guidelines for Witnesses).
A helpful discussion regarding the practice was undertaken by Mr Justice Shepherd in his article “Communications with witnesses before and during their evidence” (1987) 3 Australian Bar Review 28, in particular, at 36-39. There are particular obligations on legal practitioners in respect of communications. Broadly speaking, the limitation arises only upon the commencement of the cross-examination: Potier v R [2015] NSWCCA 130 per Ward JA at [579]-[582] (Simpson and Wilson JJ agreeing at respectively [597] and [598]).
The consequences of communication by a witness with others whilst under cross-examination self-evidently will depend upon the circumstances of each particular case. In circumstances where the nature of the communication is revealed to the Court, the effect upon the assessment of the witness’ credibility or reliability can be varied. Thus:
Sometimes it may have a piercing effect: e.g. Allianz Australia Insurance Ltd v Yu [2024] NSWSC 31 at [189] per Weinstein J;
in some instances, its effect is not such as would be calculated to corrupt the witness’s testimony, either in content or in manner of delivery: e.g. Abbot**t v The Queen [2017] NSWCCA 149 at [104]-[105] per Fagan J (Basten JA at [28] and McCallum J at [29] agreeing);
in other instances, an impermissible communication has in fact lead to an outcome in which evidentiary records have been able to be seen in a helpful different light: see e.g. [2011] NSWSC 538 per Biscoe AJ at [58(d)].
In this case, on the second day of the hearing, whilst the plaintiff was being cross-examined by Mrs Young, I indicated that the Court would take the morning tea adjournment.
I drew to the attention of the plaintiff that she was currently under cross-examination and indicated to her that she should not discuss her evidence with anyone. [97] The plaintiff acknowledged my statement to her.
On the resumption of the hearing after the morning adjournment, Mrs Young asked the plaintiff “Did you call anyone during the recess break?” [98] She indicated that she had spoken to a “friend” but objected to identifying who she had called, asserting that it was a “personal” matter. It became evident following further questioning that the plaintiff had “discussed everything” with the friend regarding what had happened during the morning, though did not give any details beyond that description. [99] The plaintiff intimated that her reason for calling the friend was because she was stressed and needed to relieve the stress. [100] Notwithstanding the plaintiff’s objection, I indicated that it was permissible for Mrs Young to request the name of the friend, and the plaintiff declined to identify the friend.
Essentially, the plaintiff appeared to hold some belief that, at least in a relational sense, she needed permission from the friend in order to reveal the friend’s name, intimating, if it were otherwise, she would jeopardise her friendship. [101]
Apart from reiterating that the plaintiff considered the matter to be a “personal” thing, one response of the plaintiff suggested that the plaintiff might have been concerned that the friend would have to come to court. I indicated that no one (at least at that point) was asking the plaintiff’s friend to attend court. Rather, the only thing that had been asked of the plaintiff was to identify the name of the friend. [102]
I indicated to the plaintiff that I had given her adequate opportunity to inform the Court of the name of the friend and that I would proceed on the basis that she had made a conscious decision not to answer the question. Whilst I proceeded on that basis, I admitted of the possibility that at some later point of time the plaintiff may seek to indicate the name of the friend. [103] At no later point did the plaintiff reveal the name of the friend she had spoken with.
It was permissible for Mrs Young to enquire about the matter. I do not know to what, if any, extent the plaintiff actually discussed her evidence with a friend and to what, if any, extent her evidence was compromised in so doing.
Mrs Young in her DCS did not make any submissions as to how the impermissible communication should be treated. In light of the circumstances, it suffices that I make the following observation.
In circumstances in which the content of the communication has not been revealed to the Court, it is not possible for the Court to make any particular conclusion about the impact of the communication upon the plaintiff’s evidence. However, the episode reinforced in my mind what had been evident from earlier cross-examination of the plaintiff, namely that the plaintiff at times declined to assist the Court in her evidence, in this instance by failing to respond to a question that had been permissibly asked. In that sense, the nature of her evidence and her manner in giving evidence did not change after the undisclosed communication.
On 29 June 2018, Ms Ralston first met the plaintiff, and CGL opened a file and provided the plaintiff with a fee proposal. Having regard to the initial tax invoice issued, the initial conference as between Ms Ralston and the plaintiff lasted for an hour. [104]
The plaintiff’s assertion that she did not sign and date the fee proposal [105] is incorrect, and I reject the plaintiff’s evidence in that regard.
On 29 June 2018, the plaintiff signed and dated an acknowledgement that she had read and understood the fee proposal and the Terms of Business, and accepted the fee proposal on those terms. [106]
In her letter to the plaintiff dated 29 June 2018, Ms Ralston gave an estimate of fees of $50,000 exclusive of GST, being for “reviewing your file, providing advice to you in drafting relevant court documents up to 23 August 2018”. [107] The fee proposal (CA1) set out the staff of CGL who would be expected to be primarily responsible for the plaintiff’s work, with their hourly rates. [108]
Further details were elaborated in CGL’s Terms of Business, which set out rates for various staff and the following details in relation to fee estimates: [109]
Estimated Fees
Where our fee proposal gives a fee estimate, this is an estimate only, and not a fixed quote. The total costs may exceed the estimate. While the estimate is based on present information and instructions and our current understanding from you as to what services are required, our costs may exceed the estimate if further information becomes available or circumstances change which affect these matters. In this event we will provide you with a revised estimate as soon as practicable. Where there is a significant change in your matter then as far as possible we will advise the impact of the change on the legal costs.
Some of the variables which may affect the costs estimate include:
(a) the number and duration of telephone calls or other communications;
(b) your prompt and efficient response to requests for information or instructions;
(c) changes in your instructions;
(d) documents being revised in light of varied instructions;
(e) the lawyer or other persons with whom we deal and the level of co-operation of the lawyer’s clients and other persons involved;
(f) changes in the law; and
(g) the complexity or uncertainty of the legal issues affecting your matter.
A period of approximately 6 weeks elapsed between 29 June 2018 and 9 August 2018.
Some indication of what was done in that period is given in the detail set out in the second tax invoice issued on 6 July 2018, the third tax invoice issued on 17 July 2018 and the fourth tax invoice issued on 9 August 2018. [113]
Relevantly, it is evident that Ms Teo on 3 July 2018 reviewed such of the plaintiff’s documentation as had been made available and sorted through pleadings, correspondence, and some details apparently regarding the Supreme Court matter. Ms Teo also, on the same day, reviewed the Family Court portal list of documents and documents provided by the plaintiff. [114] The tax invoices reveal quite a degree of activity was carried out over the period between 3 July 2018 for the following two weeks up to 17 July 2018. [115]
On 17 July 2018, it appears that Ms Teo attended at the Family Court in Sydney to file subpoenas but also relevantly to attend the exhibits room to view the Court file and copy pleadings that were not available on the Commonwealth Courts Portal. [116]
On 17 July 2018, Ms Ralston sent a letter to the plaintiff, referring to the initial costs estimate, and gave an estimate of further work that would be required from that point of time (17 July 2018) through to the next mention of the matter, being relevantly 23 August 2018. [117]
There is some inkling even at this early stage that Ms Ralston was starting to appreciate that the plaintiff’s case may involve some further significant work. In particular, she stated to the plaintiff in the letter: [118]
I had originally envisaged that we would not have complied with the Orders of 7 May 2018 by that next Directions Hearing, and the $50,000.00 quoted was to ensure that I was up to speed in relation to the matter and that we had engaged the single experts.
However, as a consequence of the way that your matter has progressed, it would seem that there is a chance that I will be able to draft your Trial Affidavit material, issue further Subpoenas and inspect those documents prior to the next Court date. Further, it may be the case that we can finalise the agreed facts and the Balance Sheet prior to that time as well.
As a consequence, there is significant further work being incurred in relation to your matter this month above what was initially discussed.
I confirm to date that the costs that have been incurred by you are $10,129.90 (and in that regard please find enclosed the most recent invoice for your records). This is in addition to the estimate quoted above.
However, the “most recent invoice” attached with that letter contains an amount of $14,956.07. [120] That amount was paid from the trust account to CGL’s office account on 26 July 2018. [121] This is in addition to, and not instead of, the $10,129.90 which had already been paid by the plaintiff, being $440 in the initial meeting and $9,689.9 on 16 July 2018. [122] Hence, the costs that had been incurred as on that date were not $10,129.9, but approximately 2.5 times that amount, namely $25,085.97 (being the sum of $10,129.9 and $14,956.07).
On 9 August 2018, Ms Elven, on behalf of Ms Ralston, sent the plaintiff an email addressing a number of matters regarding costs. The email attached the first of a number of “Costs Notice” which were provided to the plaintiff. [123] The email relevantly stated: [124]
Dear Rekha
I understand you did not receive our previous letter updating the Fee Estimate, and setting out the costs that need to be paid prior to 23 August 2018.
In that regard, I thought I would set out for you, in as much detail as possible, the costs that have been incurred and the costs that are likely to be incurred to finalise this matter.
As you know, there has been significant conferences between us. As a consequence of the difficulty in obtaining instructions from you (simply because the family violence is quite difficult for you to talk about) means that there has been more involvement from me that I would otherwise have hoped.
Further Wendy Cousens (Senior Legal Clerk) and myself have worked tirelessly to prepare this matter in compliance with the Orders of 7 May 2018. That means that more work has been incurred in the last month than I had initially anticipated. That is a good thing though, as your matter will be ready to proceed when the matter is next in court before Justice Watts on 23 August 2018.
I understand that you spoke to Diane Elven, my personal assistant, today and indicated your understanding that the whole matter would be finalised for a sum of $50,000.00. The original fee estimate provided to you of $50,000.00 was for legal costs up to and including 23 August 2018. As indicated though, this was in the context of not having our Trial Affidavit material filed prior to that time. That material will now be filed, and the Trial Directions made on 7 May 2018 will now be complied with. For that reason, the costs that you have incurred over the last month, and up to 23 August 2018 is more than initially anticipated although the costs to be incurred overall (up to and including the Final Hearing) is likely to be less now as, the bulk of the work has been incurred over the last month.
Please find enclosed a Costs Notice which reflects the work to be incurred up to 23 August 2018, a further Directions Hearings (assuming the Court will bring us back following the release of the single expert reports) and a Final Hearing (which I have anticipated to be 4 days). As you can see, there are significant costs. I am however conscious that your matter has been ongoing for some time and the issues that remain in dispute are significant. Therefore, whilst I hope to be able to resolve this matter without proceeding to a Final Hearing, it is my view that there is a fair chance that it will not resolve and therefore I need to provide you with my total fees up to and including Final Hearing.
In accordance with that fee estimate, please ensure that the following payments are made into our Trust Account:
1. $5,000.00 - 9 August 2018;
2. $30,000.00 – 13 August 2018;
3. $20,000.00 – 20 August 2018;
4. Further monies to be transferred prior to the Final Hearing (and that can be discussed once Final Hearing dates have been obtained).
If you have any questions, please do not hesitate to speak to me further during our conference at 2:00pm today. Otherwise, please confirm by way of return email that you have read and understood those fees.
Kind regards
Karina
Seemingly, on or about 30 August 2018, Prominent Lawyers issued a tax invoice setting out monies said to be owed by the plaintiff to them in the sum of $22,040.80. [125]
On 31 August 2018, Ms Ralston drafted an email to Prominent Lawyers and, on 3 September 2018, read several emails from Prominent Lawyers enclosing a form of tripartite deed. [126] The deed is not in evidence. However, the plaintiff does not appear to have given Ms Ralston instructions to immediately respond to Prominent Lawyers.
On 20 September 2018, Ms Ralston emailed the plaintiff. [127] The email addressed issues regarding costs. There are elements of the email which suggest that there were complicating issues regarding the plaintiff’s actions in the matter, including compliance with providing financial documents and the plaintiff’s preparedness to take advice. The email refers to questioning as between the plaintiff and “Diane” (Elven) regarding production and noted inter alia “you simply cannot ignore Court orders”. [128] The email subsequently went on to state: [129]
You again raised with Diane that the documents produced under subpoena are not complete and that if all of the documents were produced then that would show the millions of dollars that are being hid. Diane informed you that this was irrelevant at this time as we are unable to progress your matter further without the further disclosure documents to ensure that the Orders have been complied with.
We have been attempting to contact you in relation to you matter since 7 September 2018 without any meaningful response from you. When we do have the opportunity of speaking to you, you do not take our advice and continually repeat that there are millions of dollars hidden that we need to find whilst ignoring the need to comply with Court Orders.
We cannot and will not be in a position to undertake the tracing of the various bank accounts until such time as:
• Our outstanding fees have been paid; then
• You have provided all of the outstanding financial documents; then
• We have been in a position to serve Sanjiv’s Solicitors with the outstanding financial documents; then
• Your substantive Affidavit has been finalised, filed in the Court and served; then
• My Affidavit in relation to your non compliance with previous Orders has been finalised, filed in the Court and served; then
• We are in a position to file an Application and Affidavit in relation to enforcing the costs orders and seeking an Interim distribution.
As you can see there are several steps to be taken and documents to be finalised before we are in a position to trace the removal of funds from the various bank accounts.
Unfortunately, if we do not receive the financial documents from you by close of business on Tuesday 25 September 2018 and you do not commence actively participating in providing us with your instructions we will have no choice but to file a Notice of Ceasing to Act in the proceedings.
On 3 October 2018, Ms Elven emailed the plaintiff following a telephone conversation with her enclosing (yet again) the CA1 signed by the plaintiff and CGL’s email to her dated 9 August 2018 enclosing the Costs Notice. The email further attached a letter dated 20 September 2018 regarding outstanding fees. [131]
On 26 October 2018, another email was received from Prominent Lawyers. [132]
On 29 November 2018, Ms Ralston sent an email to the plaintiff, consequent upon a conference that had occurred in person on 19 November 2018. [133] The letter addresses issues under 13 main headings.
One topic addressed was the outstanding costs owing to Prominent Lawyers. Ms Ralston’s letter relevantly stated as follows: [134]
9. Prominent Lawyers
As you are aware, Prominent Lawyers have indicated that you owe them a sum of $22,040.80. We have not communicated with Prominent Lawyers regarding those outstanding fees but it is my strong suggestion that you communicate with them and either express any concern you have regarding their invoice or otherwise come to an agreement as to the payment of fees.
11. Legal fees moving forward and Costs Notice
As flagged with you in our conference on 19 November 2018 (and in my letter dated 21 November 2018), I am extremely concerned about the costs that you have expended in legal fees to date.
I set out for you some of the complicating factors in your matter that has meant that your legal fees have been significant and that the costs up to and including a Final Hearing, will also be significant.
Please find enclosed a Costs Notice which sets out the amended costs for my office preparing and appearing for you in respect for a Final Hearing. Given the issues that are at play, it is my view that a Final Hearing will be listed for 3 to 4 days. The complicating factors that means the Final Hearing is likely to run 4 days is as follows:
(a) The other side continues to run a “wastage” argument with respect to the sale of the Epping property;
(b) We continue to run an argument that Sanjiv has disposed of significant superannuation assets;
(c) There are disputing assertions regarding family violence (and the supplementary witnesses are required to give evidence);
(d) There continues to be difficulties in obtaining financial disclosure.
As discussed between Malcolm, you and myself, Coleman Greig is prepared to wait until a Final Hearing for payment of some of our legal fees. However, and as indicated above, if you have access to funds (such as the money in your savings account), then we would require you to be making contributions. Further, if you receive any further monies from the other side (by way of any cost orders), then we would also require you to make a contribution towards your legal fees.
I realise that the Costs Notice that has been provided is significantly more than you had anticipated Rekha. I was hopeful that we could keep costs down however, the complexities in your matter (and the sheer cost of my telephone conferences and face to face conferences with you) has meant that those fees have increased. I am prepared to put into place a regime whereby our interactions are less (and therefore your legal fees are lessened). My concern however, is that to progress your matter (and obtain your financial disclosure, obtaining instructions from you regarding previous cost orders and your various assertions regarding superannuation funds) cannot be achieved, productively, by email. Therefore, it has seemed (and you were strong in your view) that face to face conferences are required.
If you do not believe that that is the case and we can liaise via email, and you can provide responses within 24 to 48 hours of receiving emails from me (with the appropriate evidentiary documents), then I would be happy to work with you to reduce those legal fees moving forward.
12. Potential Counsel to Brief
Rehka, we have spent a great deal of time in talking about your matter, but we have not discussed in any great detail the Counsel who is to be briefed to run that Final Hearing. I will of course be in attendance with you (and would wish Wendy to also be in attendance for the days that cover property matters) but it is worthwhile obtaining experienced Counsel to run the Final Hearing. It is my recommendation that you consider the following Counsels:
(a) John Levy of Waratah Chambers (see profile enclosed);
(b) Joshua Grew of Edmund Barton Chambers (see profile enclosed);
(c) Christopher Lawrence of Edmund Barton Chambers (see profile enclosed).
Whilst it is my view that you do not require Senior Counsel, you are welcome to consider Senior Counsel and in that respect, I would suggest the following:
(a) Peter Cummings SC of Waratah Chambers (see profile enclosed);
(b) Peter Campton SC of Waratah Chambers (see profile enclosed).
These Counsels range in costs between $3,500 per day (plus GST) to $11,000 per day (plus GST). Therefore, I would like you to read the profiles carefully and provide me with your preference and we can then discuss the briefing of any Counsel.
The Costs Notice provided with the letter of 29 November 2018 included further detail regarding costs. [137]
On 5 December 2018, the Family Court listed the plaintiff’s proceedings for a final hearing with a 5-day estimate commencing on 29 April 2019. [138]
I, Rekha Sanjiv, hereby confirm the following:
(a) I have received the Costs Notice dated 17 January 2019 and attached to this correspondence (“the Costs Notice”);
(b) I acknowledge the outstanding debts indicated in that Costs Notice and agree that they are properly incurred and due and payable;
(c) I acknowledge that there has been work undertaken in my matter that has been incurred but not yet charged to me, as set out in the Costs Notice; and
(d) I confirm that I will incur further legal fees in accordance with that Costs Notice dated 17 January 2019.
A copy of the Irrevocable Authority attaching the Costs Notice signed by the plaintiff was emailed to the plaintiff by Ms Elven on the same date. [141]
Further on 17 January 2019, Ms Ralston sent the plaintiff an email in the following terms: [142]
Dear Rekha
I know that Diane has already provided you with a copy of the Irrevocable Authority and the Costs Notice but those documents are also provided to you now.
I confirm that the Costs Notice sets out the fees up to and including attendance at Court for the Final Hearing on 29 April 2019 (for 5 days).
That represents the entirety of the work that I believe will be incurred in relation to your matter. If anything exceptional comes about (such as Sanjiv breaching Orders, or the need for further Subpoenas) then I can discuss that with you at that time.
I confirm, that should the $115,000.00 be paid then I will ensure that there is a discount of $7,000.00 off future invoices. For example (and as indicated in the Costs Notice) there is a sum of approximately $54,000.00 of work that has been incurred but not yet billed to you. I will ensure that that is written down to a sum of $52,000.00 and will otherwise discount other invoices to ensure the $7,000.00 discount is applied.
I also confirm, should the $115,000.00 be paid in accordance with the Irrevocable Authority, that no further payment will be required until the Final Hearing (with the exception of the costs to William Buck for the report which is to be paid directly out of the SRI Superannuation Fund). If we receive any further funds in the meantime from Sanjiv (such as payment of the Cost Orders from the Supreme Court or Application in a Case in the Family Court) then those monies will be applied towards your outstanding fees as per the Irrevocable Authority (and that means the overall payment that needs to be paid by you will be lessened.
I have otherwise confirmed that I have provided you with a list [things to do] and also a list of further documents that are required. I confirm that you are to provide details required in both those lists tonight. I will send you your Affidavit and [Isham’s] Affidavit over the course of the next few hours.
If you have any questions, please do not hesitate to contact me tomorrow.
Kind regards
Karina
On 18 January 2019, the plaintiff deposited into the CGL trust account four separate amounts totalling $100,000. [143]
On 21 January 2019, Mr Grew sent an email to Ms Ralston enclosing a form of fees agreement and disclosure. [144]
On 5 February 2019, Ms Cousens, on behalf of Ms Ralston, sent to the plaintiff an email addressing a number of matters. In particular, it addressed the briefing of Mr Grew, the provision of a tax invoice and arrangements to pay outstanding fees as follows: [145]
…
Otherwise, I note that Mr Grew, Counsel, has been briefed in relation to your matter. I note that you have been provided with a copy of his fee proposal (in line with the estimate provided to you previously). I indicated if I had not heard from you that I would assume that you consent to his engagement (noting the previous instructions, which confirm that to be the case) and I have since properly engaged Mr Grew. I will provide you with his available dates for a conference in the near future.
I will be providing to you tomorrow your most recent tax invoice for the work that has been incurred from 15 November 2018 to 31 January 2019. The reason that it has been billed over a three-month period (rather than monthly, which is usually the way that we invoice) is simply to give you a “break” in relation to receiving such invoices. I note that this level of fees were flagged with you in your Cost Notice and I confirm that you do not need to pay any of the fees outlined in that invoice as yet (confirming that the balance of those fees will be paid upon settlement or Orders being made by the Court).
I note, however, there was agreement for you to pay $115,000.00 towards your outstanding fees; however, I have only received $100,000.00 to date. As a consequence, I have not been able to provide you with the discount of fees that I had otherwise hoped. I would still ask that you try to make payments, as and when possible, towards those fees.
I will otherwise be in touch with you over the next few days to discuss the ongoing strategy in relation to your matter.
Regards
Karina
On 25 February 2019, the plaintiff sent to Mr Gittoes-Caesar an email raising a number of complaints. [146] Later that evening, Mr Gittoes-Caesar responded to the plaintiff’s email indicating inter alia that he almost wholly disagreed with what the plaintiff had set out in the email and indicated that if the plaintiff truly believed “even half of what you have written in that email, you should arrange to engage new lawyers immediately”. [147]
On 26 February 2019:
Ms Ralston sent the plaintiff an email letter enclosing a form of Notice of Ceasing to Act, which she indicated she would cause to be filed within the next seven days; [148]
Ms Ralston sent the plaintiff a further letter outlining the present position in relation to her family law matter; [149] and
Mr Grew sent a tax invoice for work he had completed on 19 and 20 February 2019. [150]
Further communications with Prominent Lawyers appear to have taken place on 27 February 2019, 6 and 12 March 2019. [151]
On 5 March 2019, Ms Ralston sent an email to the plaintiff addressing in detail (and outlined in red) her responses to the plaintiff’s email to Mr Gittoes-Caesar dated 25 February 2019. [152]
On 8 March 2019, the plaintiff signed and dated an acknowledgement (which I infer had been drafted by either Ms Ralston or someone at CGL). The acknowledgement was in the following terms: [153]
I REKHA SANJIV of 40 Cliff Road, Epping NSW 2121 acknowledge the following:
MY EMAIL
1. On 25 February 2019 I sent an email to Malcolm Gittoes-Caesar of Coleman Greig Lawyers with respect to the work that has been incurred in the preparation of my family law matter. That email was responded to by Mr Gittoes-Caesar on 25 February 2019 and by Ms Ralston on 5 March 2019.
2. I unreservedly apologise for the criticisms that I raise in my email on 25 February 2019. I accept the comments and assertions in Ms Ralston’s email. I accept that Coleman Greig Lawyers have been working in my best interests and progressing my family law matter as per my Instructions and to the point where my matter is now ready to proceed to a final hearing.
MY INSTRUCTIONS
3. I have instructed Ms Ralston to liaise with the other side in an attempt to negotiate a final resolution of the matter. I accept that these instructions are separate to work set out in the cost notice provided to me on 17 January 2019.
4. I also accept, in providing these Instructions:
a. The balance sheet that forms the basis of these negotiations is annexed hereto and marked ‘A’;
b. The asset pool for division Is approximately $5,130,000.00
c. That I have received advice that, I am likely to receive a division of assets (If judicially determined) of between 50-65% of the asset pool (on the basis that the court would make findings sought by me). I have received advice that a division of assets in the vicinity of 50-57.5% is a more likely outcome If the matter was judicially determined (on the basis that the Court would make findings sought by me).
COSTS.
5. On 17 January 2019 I signed an Irrevocable Authority with respect to monies owed to Coleman Greig Lawyers.
6. At paragraph 2 of the Irrevocable Authority it indicates that I will transfer a sum of $115,000.00. I confirm that I paid a sum of $100,000.00 in line with paragraph 2.
7. On 17 January 2019 I also received a Costs Notice with respect to the work that was to be incurred and billed to me for the preparation of my Family Law matter.
8. The fees estimated in that Costs Notice were agreed to by me on 17 January 2019.
9. There Is currently a sum of $9,710.50 is to be utilised towards the following:
a. Joshua Grew $7,892.50
b. Costs and disbursements $1,818.00
10. The balance of monies owing by me at present is $101,522.64. This does not include the work that I have asked to occur today.
On 26 April 2019:
CGL sent the plaintiff a further Costs Notice which confirmed the listing of the matter for final hearing of 5 days commencing on 29 April 2019 and advised details of total costs and disbursements billed to the plaintiff to that date, costs that have been incurred but not billed, and also an estimate for further work in preparation for final hearing; [154] and
Ms Ralston sent to the plaintiff a letter by email which attached a further Costs Notice and addressed a variety of issues, including various steps taken, the costs incurred and reasons in respect of that. [155]
The fees payable to Prominent Lawyers do not appear to have been included by CGL in any Costs Notices until the final Costs Notice issued on 26 April 2019. The figure in that Costs Notice for monies due to Prominent Lawyers is $23,135.90. That is somewhat more than the earlier-mentioned figure of $22,040.80. The difference is not explicable in the evidence. One possibility is that additional fees were incurred by Prominent Lawyers after 30 August 2018, which were added to the $22,040.80. However, ultimately, the authority given by the plaintiff on 6 April 2022 to pay the fees of Prominent Lawyers [156] and the undertaking signed by the plaintiff on 15 June 2022 [157] was limited to the amount of the invoice in the sum of $22,040.80.
Subsequently in 2022, in the correspondence regarding the settlement of the sale of the Epping property, issues regarding the payment of Prominent Lawyers were raised and seemingly addressed. [158]
On 29 April 2019, the final hearing of the plaintiff’s family law proceedings was due to commence. It is evident that there were some settlement discussions on that day and advice was given to the plaintiff by Ms Ralston and also Mr Grew. The plaintiff signed an acknowledgement of that advice, which included, relevantly, confirmation that she had received an updated Costs Notice on 26 April 2019. At that point, the plaintiff gave instructions to continue the hearing of the proceedings. [159]
On 30 April 2019, the following day, a settlement of the family law proceedings was negotiated. [160] Orders were typed up, signed by the plaintiff and ultimately made by the Family Court. [161]
The orders contemplated that the Epping property would be sold and set out a process by which that would occur. A notation “B” was made that a solicitor at CGL who is not part of the “family law department” would act in respect of the sale of the property, on behalf of both the plaintiff and Dr Shah. [162] I will address this notation below under agreed issue 4 (alleged contempt).
On 1 May 2019, Mr Grew sent an email to Ms Ralston regarding the finalisation of the Family Court proceedings in the making of consent orders and attached a tax invoice. [163]
I look forward to receiving your instructions. In the meantime, please do not hesitate to contact me should you have any queries.
On 6 May 2019, Ms Ralston sent an email to the plaintiff’s son Isham requesting that he contact her. [165]
On 10 May 2019, Ms Elven on behalf of Ms Ralston, sent the plaintiff a letter addressing a number of matters. [166] The letter is detailed. It recounts the events of the listing of the matter on 29 April 2019, including the issues that were then being grappled with, the advice given by Ms Ralston to the plaintiff, and the negotiations that occurred with a view to settlement. It stated that an in principle agreement fell through and negotiations ceased at the end of the first day. [167] The letter also recounted the events of the second day, being 30 April 2019, including the fact that the plaintiff agreed to orders resolving the matter. [168] The letter then alerted the plaintiff to the fact that she would be able to vary the orders by consent, and that, if there was no such agreement to variation, that the orders “stand and must be implemented”. [169] The letter alerted the plaintiff to the fact that if she did not implement the Orders, that Dr Shah had the capacity to file an enforcement application in the Family Court. [170]
Relevantly, it seems that the plaintiff was having some regrets over agreeing to the orders and was potentially contemplating the ability to either vary the orders or delay sale of the Epping property. This is evident from the concluding paragraphs of the letter as follows: [171]
Otherwise, I note that you asked a number of questions on Thursday, in my telephone call to you, regarding the ability for you to delay the sale of the Epping property. As I Indicated to you during that conference, there are Orders that provide for the sale of the Epping property and they should be implemented. If you and Sanjlv come to a different agreement, then I am more than happy for that to be the case, but that agreement should be in writing. It would seem though that there is no agreement to delay the sale of the Epping property and that the sale should occur as per the Orders. I have written to you separately regarding the implementation of the Orders.
Rekha, I do want you to focus not on revisiting the trial but rather moving forward. You have indicated that you have a family friend who can help you in structuring your finances. That is wonderful news. You have had 5 years of dealing with this litigation and it would be lovely to see you be able to move on and move past this situation (and, to use your wards on 30 April, “to have this man out of your life”). Good luck in all of your endeavours and if you have any questions about the implementation please do not hesitate to call Therese Austin from our Conveyancing Department or Dean Claughton (the solicitor who has carriage of the sale of the Epping property).
By 16 May 2019, it seems that the plaintiff was attempting to communicate directly with Dr Shah (which he had rebuffed) and Ms Ralston emailed the plaintiff addressing this, seeking transfer of funds into trust and alerting the plaintiff to risks, inter alia, in relation to non-compliance orders. [172]
On 17 May 2019, the plaintiff’s son Isham sent an email to Ms Ralston as follows: [173]
…I’ve tried speaking to my mum. She keeps asking about an itemised bill. The other issue she keeps asking about is why the barrister cost approx. 50k for 2 days when the estimate for the barrister for the 5 day hearing was approx. 50k? This doesn’t seem close to the estimated at all, and my mum is saying she would not have gone with the barrister if he cost that much, she expected approx 20-30k for 2 days.
Could you please send through an itemised bill for all costs incurred by your firm and the barrister as a matter of urgency.
Kind Regards,
Isham
Dear Isham,
Please find attached:
1. The outstanding tax invoices (noting that I am billing the outstanding WIP per month);
2. Mr Grew’s first invoice;
3. Mr Grew’s fee disclosure;
I note that Mr Grew spent longer in preparing the matter than first anticipated as the meetings with Rekha went longer than expected. There is also a cancellation fee (which all family law barristers charge and would have occurred for Sanjiv as well).
I also note that Rekha signed an acknowledgement as to our fees (confirming that they were all properly incurred).
Can you please organise Rekha to provide her instructions and transfer those funds as soon as possible as I am conscious to avoid going back to Court.
Thanks,
Karina
By 20 May 2019, Ms Ralston had not received instructions and sent an email to Isham requesting he indicate what was happening and reminding him that the fees needed to be paid by the following day in order to get a discount. [175]
Further correspondence ensued from Ms Ralston to the plaintiff and to Isham.
On 23 May 2019, Ms Ralston emailed the plaintiff and Isham, expressing concern that she had not heard from them regarding implementation of orders and payment of fees. [176]
On 29 May 2019, Ms Ralston sent the plaintiff and Isham an email [177] expressing concern regarding the absence of instructions, the lack of payment of fees, and foreshadowing, in the absence of a response, ceasing to act.
On 30 May 2019, Ms Ralston sent the plaintiff an email in the following terms: [178]
Dear Rekha,
I haven’t heard anything further from you and note that payment has not been made.
I imagine Rekha that everything seems too much right now and you want to ignore these matters for a while. The problem is that there are deadlines (one of which occurs tomorrow) and you cannot bury your head in the sand right now.
I have no choice now but to stop acting for you and to send your matter to debt recovery. I do not want to do that but you have left me no choice. I urge you to contact me as soon as possible.
On 31 May 2019, CGL sent an email to Prominent Lawyers confirming that they were no longer acting for the plaintiff. [179]
On 3 June 2019, Ms Ralston sent to the plaintiff, by registered post, a letter [180] noting that multiple emails had been sent and telephone calls made since 1 May 2019 (enclosing copies of the emails). She indicated that she had only heard once from the plaintiff, with the plaintiff indicating she did not wish to sell the Epping property despite Ms Ralston’s advice that it was part of the orders. The letter enclosed other correspondence and attached copies of the plaintiff’s acknowledgements in relation to costs and advice.
CGL’s initial retainer under CA1 appears to have been brought to an end on or about 3 June 2019. [181]
On 9 July 2019, CGL commenced proceedings against the plaintiff by statement of claim in the District Court of Parramatta, seeking to recover the then balance owing in respect of fees rendered. [182]
A process server had difficulty serving the plaintiff the statement of claim between 13 July 2019 and 4 September 2019. [183]
By 17 September 2019, Prominent Lawyers had lodged a caveat on the title to the Epping property. [184]
On 19 September 2019, CGL filed a notice of motion seeking to dispense with personal service and applying for substituted service. The application was supported by an affidavit by Mr Ferguson. [185]
On 20 September 2019, it appears that Deputy Registrar Cornish in the District Court made orders for substituted service by various means, including express post and email to a number of different email addresses associated with the plaintiff. [186] On 23 September 2019, the orders that had been made on 20 September 2019 were entered. [187]
The orders for substituted service were affected.
On 11 November 2019:
CGL filed a notice of motion for default judgment, supported by an affidavit by Mr Gittoes-Caesar sworn on the same date; [188] and
judgment was entered by the Principal Registrar Grace Romeo [189] in favour of CGL against the plaintiff in the sum of $266,859.42 [190] (District Court judgment).
On 5 December 2019, CGL filed a notice of motion seeking a garnishee order for the Commonwealth Bank of Australia (CBA) to garnish the plaintiff’s account with the bank for debts owed by the plaintiff. That application was also supported by an affidavit by Mr Gittoes-Caesar on the same day. [191] CGL obtained the garnishee order sought on the same day. [192] On 18 December 2019, CGL caused CBA to garnish the sum of $5,872.84 in favour of CGL. [193]
On 5 February 2020, it appears that Dr Shah became sole trustee for the sale of the Epping property (which, as noted earlier, was registered in the sole name of the plaintiff). Ms Ralston indicates, and I accept, that at no time did she or any other person at CGL receive instructions from Dr Shah to prepare any contract for sale in respect of the property. [194]
On 1 April 2020, contracts for the sale of property were exchanged for a sum of $3,000,000. [195] Exceptionally, the printed timing date for completion (42 days after contract) was deleted and (in handwriting) specified as being 24 months from the date of the contract. [196] The reason for that is not particularly explained on the evidence.
In any event, from approximately 23 February 2022, while still representing Dr Shah, Mr Spencer corresponded with Ms Ralston regarding various aspects of the property sale, notably mentioning that the settlement was due to occur on 1 April 2022.
On 11 March 2022, Ms Ralston sent a letter to the plaintiff seeking instructions in respect of a number of matters, including assistance in finalising settlement of sale of the property, and addressing payment of costs. [197]
Between approximately 31 March 2022 and 5 April 2022, there were various email exchanges between Ms Ralston and/or CGL and the plaintiff. [198] By this time, Gary Pickering, solicitor (Mr Pickering), was engaged by the plaintiff to act for her in relation to the settlement of the sale of the property. [199]
On 6 April 2022, Mr Pickering sent an email to CGL, to the attention of Ms Ralston, confirming his instructions to act and attaching an authority signed by the plaintiff that authorised CGL, Prominent Lawyers and an accountant (William Buck) to make payments of invoices from the proceeds of the sale of the Epping property. [200]
It is not entirely clear what happened in relation to the involvement of Mr Pickering beyond that which I have stated.
On 25 May 2022, it appears that Mr Spencer on behalf of Dr Shah filed a form of enforcement action in the family law proceedings. [201]
On 7 June 2022, the Family Court made orders as between the parties. [202] The detail of the orders is not evident from the materials in the Court. Nonetheless, I infer that the enforcement action and the orders made by the Family Court appears to be the catalyst for the plaintiff returning to CGL for assistance in respect of finalisation of the sale of the property.
By 15 June 2022, it appears that CGL and, in particular, Ms Ralston, had received instructions to act for the plaintiff to assist with finalising the settlement of the sale of the Epping property. One issue that had arisen was that, as previously noted, Prominent Lawyers had lodged a caveat in respect of the property and the settlement envisaged removal of that caveat. [203]
Further, on 15 June 2022:
Ms Elven, on behalf of Ms Ralston, provided the plaintiff with a fee proposal for acting for the plaintiff in the implementation of the orders for the Epping property sale, with certain attachments, including the then current Terms of Business and other family law materials in relation to legal costs; [204] and
the plaintiff signed and dated electronically (by Docusign) an acceptance of the fee proposal (i.e. CA2) and confirmation of having read and understood the Terms of Business. [205]
On 17 June 2022, Ms Ralston communicated with Mr Spencer regarding settlement of the sale of the property and the then recent Family Court orders. [206]
Karina,
Please follow court order.
If I have not instructed snd [sic] you receive sny [sic] mail from other lawyer then I am not responsible to pay you if you continue to talk to them.
You have broken my trust and made me penniless Homeless and now without my permission taking my money from trust account then keep charging me is not acceptable.
Refer to my previous email and provide complete cost details with activities.
You are aware that I should have received $1.3 million from proceeds of my property immediately and you agree as you have already taken your mobey [sic] without asking me from settlement money. Only when complete settlement finish then you should have taken money $250,000 giving detailed account. You failed to do so anc [sic] you have breached the court order which is totally unacceptable. This will be reported.
Why you and keith did not allow Garry to act on my behalf for settlement of this my property because you planned to play Gand snd [sic] make me homeless and take more money from me. This is the most unprofessional way of settlement of property. Even though property in my name i am not allowed access snd [sic] demolition started without paying my property money. This is the game played by both lawyers karina abd keith [sic]: It is sad that you both along with Sanjiv ex-husband do not stop harassment to Rekha.
Please provide all the requested all documents in this and previous emails the cost and complete trust account statements of the bank.
What kind of mother are you that do not stop hurting another mother and trying to take every cent without helping to get any of her rights on her money to live normal life?
May be money is only focus uou [sic] have but unethical way of earning money is unprofessional. You pay big price in this birth and your family too. Loosing [sic] member of the family or end up with incurable disease is painful where money will not help. This is happened to families who played dirty game with rekha.
Smooth settlement without any game is possible. Court case and mire [sic] cost that benefits both lawyers is not in clients best interest. So stop it.
Hope God made human with humanity include you soon when you act in best interest of client one day.
Kind regards,
Dear Rekha,
I am surprised and disappointed by your correspondence.
I note:
1. That you have not instructed us to act for you in the enforcement proceedings. I have therefore not communicated with the other side about that application (and their proposal to receive additional sums from settlement);
2. You engaged us to ensure that settlement took place. You did not want to be evicted from your home (and wanted to vacate at the time of settlement). You however did not instruct us in a timely manner to file an application to vary the orders and ultimately you were evicted. Settlement did however proceed;
3. I was not part of any discussion as to the conveyancer (and note the orders provide for Coleman Greig to be the conveyancer). Pursuant to Orders Sanjiv became trustee for sale and instructed Keith Spencer;
You have indicated I have breached an order. I do not know which order you say that I have breached and would ask that you set out in more detail. Otherwise Rekha, I have never acted for Sanjiv. I have asked, on numerous occasions, for you to provide further instructions in relation to the enforcement proceedings (by providing disclosure and a response to the draft Affidavit). That is because I believe it is in your best interests to respond to Sanjiv’s proposal (and to maximise the amount you will receive).
I am sorry you do not see it that way.
Please set out what you need from me (by way of documents) and I will forward them to you.
On 12 July 2023, CGL provided the plaintiff with a copy of an annual trust statement. [228]
On 29 August 2023, the plaintiff sent Ms Elven an email requesting that she provide the plaintiff with the last four invoices. [229]
On 31 August 2023, the plaintiff commenced proceedings against Ms Ralston personally in the New South Wales Civil and Administrative Tribunal (NCAT), seeking copies of all trust account statements and all itemised invoices. [230]
On 8 September 2023, CGL emailed a copy of certain trust statements and itemised invoices to the plaintiff, however asserting that it already provided the documents to her. [231]
On 18 September 2023, the plaintiff withdrew her NCAT application. [232]
- On 20 September 2023, the plaintiff commenced proceedings (case number 2023/299506) in the Equity Division of this Court by summons, naming CGL as the first defendant and Ms Ralston as the second defendant (related proceedings). By her summons, she sought the following relief:
- An order declaring cost agreement, if any, between plaintiff and defendants void and invalid and unenforceable and non-existent and to be set aside.
- An order requiring defendants to repay under the equity principles/inherent jurisdiction amount of exorbitantly charged and unauthorised costs to plaintiff who bore the costs.
- An order to make a gross sum costs assessment under s 98 of the Civil Procedure Act or reference to a referee under UCPR 20.14.
- An order for contempt of court for wilful, knowing and deliberate breach and disobedience of court order 2.4.3 made by Court on 30 April 2019.
- An order for all invoices with number of hours and rate per hour to be given to plaintiff.
- An order for pre-judgment interest and costs such as payment for court fees**.**
- The proceedings were listed for hearing before me, to commence on 26 September 2024.
- On 22 August 2024, I made certain pre‑trial directions, which included an order for the parties to cooperate to prepare a list of agreed real issues in the proceedings.
- The parties corresponded with each other between 5 and 10 September 2024 and agreed on a list of issues for determination, in accordance with the pre-trial directions.
…
- It appears from the email correspondence and the list of agreed issues that the plaintiff had indicated that she would not press order 1 and order 5 of the relief sought in the summons.
- At around 7:00 pm on 25 September 2024 (i.e. the evening before the hearing was due to commence), Caroline Kay Hutchinson, a solicitor with CGL, received an email from the plaintiff which attached a proposed amended summons.
- The proposed amended summons sought the following relief (including strikethrough and underlining): [233]
- An order declaring referee to determine under s 199(2(a) of Legal Profession Uniform Law cost agreement, if any, between plaintiff and defendants void and invalid and unenforceable and non-existent and to be set aside if matter referred to referee and gross sum costs order not made.
- An order requiring defendants to repay under equity principles/inherent jurisdiction amount of exorbitantly charged and unauthorised costs to plaintiff who bore the costs.
- An order to make a gross sum costs assessment under s 98 of the Civil Procedure Act or reference to a referee under UCPR 20.14
- An order for contempt of court for wilful, knowing and deliberate breach and disobedience of court order 2.4.3 made by Court on 30 April 2019.
- An order for all invoices with number of hours and rate per hour to be given to plaintiff. An order to set aside under inherent jurisdiction or under UCPR r 36.16(2)(a)&(b)& (3B) District Court judgment obtained by defendants on 17 September 2024 at 11.19am.
- An order for pre-judgment interest and costs such as payment for court fees.
- An order for leave to amend summons in this Supreme Court
- An order for Leave to appeal judgment of District Court or judicial review under Part 59 UCPR of judgment of District Court issued on 17 September 2024 at 11.19 AM and extension of time (if required) be granted.
- On 26 September 2024, the hearing commenced before me. The proposed amended summons was marked as MFI-1, however I ultimately refused the plaintiff leave to file it. The hearing was not concluded on that day and is in fact part-heard. It is due to recommence before me on 7 and 8 April 2025.
- At the conclusion of the hearing, I made orders which included the following:
THE COURT:
- Notes the plaintiff has abandoned the following relief sought in the Summons filed 20 September 2023:
a. Order 1; and
b. Order 5.
- Orders that leave to file an amended summons in the form of MFI-1 be refused.
- Notes that the hearing is not completed and the matter remains part-heard.
- Orders that Ms Ralston be released from cross-examination, without prejudice as to the plaintiff being able to seek leave to further cross-examine Ms Ralston when the hearing recommences.
- A notation was also made for the parties to indicate their availability for further hearing dates up to and including May 2025. However, on 27 September 2024 (the following day), the plaintiff sent an email to my Associate, copying in CGL, indicating that she was “making preparation” to relocate overseas permanently from January 2025.
- Extension of time be GRANTED.
- Leave to appeal, if required, be GRANTED.
- Judicial review under Part 59 of Uniform Civil Procedure Rules (UCPR) of judgment of District Court made on 11 November 2019 issued on 17 September 2024 at 11.19 AM., in the alternative, be GRANTED.
- Appeal ALLOWED.
5. Judgment made by District Court of New South Wales on 11 November 2019 and issued on 17 September 2024 be quashed and set aside under UCPR r 35.15 or UCPR r 36.16 (2)(a) & (b).
- A declaration that the defendant law practice contravened its disclosure obligations under section 174(1) & (3) of LPUL.
- A declaration that defendant law practice must not commence or maintain proceedings for the recovery of any or all of the legal costs until they have been assessed and the plaintiff is not required to pay the legal costs until they have been assessed.
- An order under this court’s inherent jurisdiction for defendant to repay plaintiff $266,859.42, paid by plaintiff to defendant pursuant to this District Court judgment that has no legal effect in view of section 178(1)(b) & (c) of Legal Profession Uniform Law (LPUL).
- An order for pre-judgment interest and costs for payment for court fees etc. or each party to bear own costs.
- An order that this summons be case managed and heard and determined together with 2023/299506 summons pending before Meek J.
The arrangements between law firms and clients for the provision and receipt of legal services may be attended by various terms embodied in agreements or other communications between them. Commonly, law firms and clients have a form of retainer which sets out the nature and scope of work to be undertaken, as well as the responsibilities and obligations of each party.
Such a retainer may also include provisions regarding the payment of fees for the services provided. However, it is also common for there to be a specific separate document which sets out the costs arrangements as between the parties (cost****s agreements).
Certain aspects of costs agreements are regulated by statutory provisions. Law firms also have disclosure obligations, which were introduced in amendments to the Legal Profession Act 1987 (NSW) with effect from 1 July 1994: GE Dal Pont, The Law of Costs (5th ed, 2021, LexisNexis) (Dal Pont) at 26. Since then, there have been further reforms.
The principal provisions regarding regulation of legal costs were embodied in Part 4.3 of the Uniform Law, with effect from 1 July 2015. Whilst there have been some amendments, there is no material difference in the applicable provisions of the Uniform Law over the time period covered by the matters in this case, from 29 June 2018 to August 2022.
One of the objectives of the Uniform Law is to promote the administration of justice and an efficient and effective Australian legal profession, by empowering clients of law practices to make informed choices about the services they access and the costs involved: s 3(d) Uniform Law.
The objectives of Part 4.3 addressing legal costs are set out in s 169 and are as follows:
169 Objectives
The objectives of this Part are--
(a) to ensure that clients of law practices are able to make informed choices about their legal options and the costs associated with pursuing those options; and
(b) to provide that law practices must not charge more than fair and reasonable amounts for legal costs; and
(c) to provide a framework for assessment of legal costs.
Generally speaking, a law practice must charge legal costs that are no more than fair and reasonable in all the circumstances and that, in particular, are proportionately and reasonably incurred and proportionate and reasonable in amount: s 172(1) Uniform Law.
In determining whether legal costs satisfy the proportionate and reasonable criteria as to incurring of costs and amount, regard must be had to a number of criteria and circumstances, including the retainer and instructions (express or implied) given in the matter: s 172(2) Uniform Law.
174 Disclosure obligations of law practice regarding clients
(1) Main disclosure requirement 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).
In relation to the initial disclosure under s 174(1)(a), certain information must be provided about the client’s rights: s 174(2)(a).
Further, any further disclosure under s 174(1)(b) must include a sufficient and reasonable amount of information about the impact of the change on the legal costs that will be payable to allow the client to make informed decisions about the future conduct of the matter: s 174(2)(b) Uniform Law.
The Uniform Law does not address how a law practice should determine an “estimate of the total legal costs” for the purposes of s 174(2)(a) Uniform Law.
Parker J in Crosby v Fica (No 4) [2018] NSWSC 632 at [19] considered that it was:
…perfectly reasonable that an estimate under the Uniform Law should be provided by means of a range, especially when it is given at an early stage of the matter when the length of the hearing and the work that will be required to prepare the case, are unknown. But what is provided must still be a genuine estimate. It must be the product of actual consideration by the solicitor of the likely costs in the case, having regard to the particular features of the case in question as they then appear**.**
AsJ Wood in Cameron v Geer [2020] VSC 75 at [20] observed that estimating total legal costs is “an inexact science which involves a degree of informed guesswork”.
Dal Pont sets out a number of observations, with reference to caselaw, in relation to costs estimates and their revision which, in summary, (omitting footnotes) include the following: [234]
an “estimate” has been described as a “judgement as to a sum which is likely to be incurred for the matter or for a particular step in the matter”;
the estimate is not a quote, although clients may not always appreciate the difference between the two;
an estimate represents an approximation based on the number of matters that can, and likely will, change as the retainer progresses;
the fact that an estimate does not accord with the actual costs rendered does not mean that the estimate ceases to be an estimate for the purposes of the disclosure provisions; and
the fact that the total costs charged exceed, even substantially, the estimate does not automatically render the relevant costs agreement unfair or unreasonable, nor does it mean that disclosure of a client’s rights must be made repeatedly.
On the meaning of the term “total”, R Quick comments: [235]
The requirement to give an estimate of “total” legal costs, in litigation, means an estimate to the completion of litigation, even if it is expected that the matter will resolve earlier. At the outset when information about a case may be limited, it may be reasonable to provide a very wide range of estimates, but this should be refined as the matter proceeds and more information becomes available.
81 Now the concept of “as soon as practicable” in s 174(1)(b) is to be informed by the statutory context. Let me make the following points.
82 First, one of the objectives of Part 4.3 is “to ensure that clients of law practices are able to make informed choices” (s 169(a)). So, the necessity to make timely disclosure of changes in estimates is informed by that goal…
83 Second, this context of “as soon as practicable” is also reinforced by s 174(2)(b) which refers to disclosure such as “to allow the client to make informed decisions about the future conduct of the matter”…
34 Let me return to the wording of s 174(1)(b). Two conditions need to be met in order to establish a breach of the provision.
35 First, there must as a matter of fact be a significant change to something previously disclosed. A belief that there may be a significant change to something previously disclosed, including information about any significant change to the legal costs that will be payable by the client, is not sufficient to engage the provision. A requirement to provide further disclosure only arises when there is a significant change to anything previously disclosed.
36 Second, it must be reasonably practicable to provide the client with information disclosing the change. Contravention of the provision will only arise when the time when it was reasonably practicable to have provided the necessary information has passed.
(1) Immediately before each court event, the lawyer for a party must give the party a written notice of:
(a) the party’s actual costs, both paid and owing, up to and including the court event; and
(b) the estimated future costs of the party up to and including each future court event.
Disclosures in family law proceedings are now regulated by the relevant legal professional legislation and also the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (current FLR). The current FLR still makes some provision for costs disclosures in defined circumstances, including requiring a lawyer for a party, immediately before each Court event, to give the party written notice of certain information, including the party’s actual costs up to and including the Court event, the estimated future costs of the party up to and including each future court event, and any expenses paid or payable to an expert witness. [238]
Additionally, particular disclosure obligations arise in relation to settlement of litigious matters generally: s 177 Uniform Law.
A 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: s 174(3) Uniform Law.
The disclosure must be in writing, but the requirement for writing does not affect the law practice’s obligations to ensure the client’s consent and understanding: s174(6) Uniform Law.
This obligation of taking all reasonable steps self-evidently requires the exercise of professional judgement depending upon the facts and circumstances of each case and the nature and understanding of the client. [239] It is said that the term “reasonable” suggests that the test is an objective one, and not necessarily met in each instance by the following of a set procedure. [240]
Non-compliance with disclosure obligations by the law practice has particular consequences. It is unnecessary to set out all the relevant consequences. The following may be noted.
First, non-compliance with disclosure obligations renders the costs agreement concerned (if any) void: s 178(1)(a) Uniform Law.
Secondly, the client is not required to pay legal costs until they have been assessed, or any costs dispute has been relevantly determined: s 178(1)(b).
Thirdly, the law practice must not commence or maintain proceedings for the recovery of any or all of the legal costs until they have been assessed, or the dispute has been determined: s 178(1)(c) Uniform Law.
One example of non-compliance with the disclosure obligations is Re Jabe [2021] VSC 106 where McMillan J made a finding that the exclusion of certain expenses meant that an estimate was not provided with respect to “total legal costs”:
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.
In Rusca Bros Services Pty Ltd v Dlaw Pty Ltd (No 2) [2019] FCA 1865; (2018) 140 ACSR 533, Markovic J held that an estimate was insufficient for the purposes of s 174 in circumstances where, at its outer limit, it was approximately 2% of the total amount billed and was expressed as “being subject to change as the matter proceeds”, with no further estimates being provided: see [77].
It has been said that a breach of the obligation to provide an updated cost disclosure will result in the costs agreement being void from the date of the contravention, rather than from the date of commencement of the costs agreement: Wills v Woolworth at [28] per Beach J.
Division 4 of the Uniform Law addresses rights in relation to costs agreements and the content of costs agreements. A client has the right to require and to have a negotiated costs agreement with the law practice (s 179 Uniform Law) which may be enforced in the same way as any other contract: s 184.
Costs agreements must be written or evidenced in writing, and they may consist of a written offer that is accepted in writing or (except in the case of a conditional costs agreement) by other conduct: s 180(2), (3) Uniform Law.
A costs agreement that contravenes or is entered into in contravention of any provision of Division 4 of Part 4.3 Uniform Law is void: s 185(1) Uniform Law.
Billing in relation to costs is also regulated and addressed in Division 5 of Part 4.3 Uniform Law. The bill may be in the form of a lump sum bill or an itemised bill: s 186 Uniform Law.
A law practice must ensure that the bill includes or is accompanied by a written statement setting out the avenues that are open to the client in the event of a dispute in relation to legal costs and any time limits that apply to the taking of such action: s 192 Uniform Law.
A law practice may give a client an interim bill covering part only of the legal services the law practice was retained to provide: s 193 Uniform Law.
There are certain restrictions on commencing proceedings to recover legal costs. In particular, a law practice must not commence legal proceedings to recover legal costs from a client unless a bill has been given for the costs and the bill complies with the requirements of the Uniform Law and Uniform Rules: s 194(1) Uniform Law.
A law practice must also not commence proceedings to recover legal costs where the costs in the bill provided are the subject of a costs dispute before a designated local regulatory authority until the authority has closed or resolved the dispute: s 194(2)(a) Uniform Law.
Further, the law practice must not commence legal proceedings to recover costs until at least 30 days after the later of the date on which the person is given the bill (or if a request is made for an itemised bill, the date on which that is provided): s 194(2)(b) Uniform Law.
There are particular provisions regarding assessment of legal costs. The principal provisions are set out in Division 7 of Part 4.3 of the Uniform Law.
An application for an assessment of the whole or any part of legal costs payable to a law practice may be made by a client who has paid them or is liable to pay them to the law practice: s 198(1)(a) Uniform Law.
However, any such application for assessment pursuant to s 198 must be made within 12 months after: the bill was given to, or the request for payment was made to, the client; or the legal costs were paid if neither a bill nor a request was made: s 198(3) Uniform Law.
7. I say that an invalid and inadequate disclosure of estimated costs of $50,000 was made in the unsigned cost agreement at the time at which it was sought by defendants to be entered into plaintiff…. [241]
…
12 I did not sign and date the fee proposal referred to in paragraph 12 as this fee proposal was not acceptable to me and I contested that there was a valid disclosure. I did not receive a single accurate estimate under LPUL s 174(1 )(a) and (b) before commencement of work to enable me to make informed choices referred to ins 3(d) and s 169(a) of Legal Profession Uniform law (LPUL). Estimate asserted by defendants as provided at the start is $50,000. Actual fees about $500,000 in relation to property settlement (about½ of my share of sale of property). Defendant’s fees were more than 10 times the original estimate. I understand this cost agreement to be void for lack of proper disclosures See Bevan v Bingham & Ors [2023] NSWSC 19 at [36- 70]. [242]
Work would not have been carried out and defendants not engaged if I was told at the start that estimated fees were $500,000 not $50,000.
The terms of the initial costs agreement/fee proposal was not capped at $20,000 but initially $50,000 for work up to 23 August 2018. It was also not expressed to be a fixed quote or estimate and was made subject to variables and changes during the course of the matter.
During the hearing, the plaintiff asserted costs of $20,000 had been mentioned by her as a figure in the initial conference with Ms Ralston on 29 June 2018. Ms Ralston, she says, indicated that subpoenas would need to be issued and the work would be completed for $50,000. She claimed she was told that was all that would ever be charged to her for the handling of her case. [245]
In cross-examination, Ms Ralston denied that the costs for the whole case would be $50,000 as distinct from being an estimated amount up to the next court date. [246]
In CA1, the estimate was: [247]
Reviewing your file, providing advice to you and drafting relevant court documents up to 23 August 2018. $50,000.00 (excl GST)
Mrs Young correctly observes that it was not expressed to be a fixed quote and was made subject to variables and changes during the course of the matter. [248] There is no suggestion in CA1 that only $50,000 would be charged for the entire matter. Nor is there any suggestion it was an estimate of total costs.
Despite that, it is evident that approximately 6 weeks into the retainer, the plaintiff had approached Ms Ralston’s assistant Ms Elven indicating that she understood that “the whole of the matter would be finalised for a sum of $50,000”. That the plaintiff had this understanding is evident from Ms Ralston’s email dated 9 August 2018. [249]
Ms Ralston by the email emphasised that the original fee estimate provided to the plaintiff was $50,000 for costs up to and including 23 August 2018. To the extent that the plaintiff was under any misapprehension about the notion that the costs of the whole of the work to be performed by CGL for her in relation to the family law matter will be limited to a sum of $50,000, that was addressed by the email.
Further, as mentioned above, the plaintiff signed and dated an acknowledgement that she had read, understood and accepted the fee proposal in the above terms.
I reject the plaintiff’s claim that she had been promised the fees would be limited to a sum of $50,000.
12. I did not sign and date the fee proposal referred to in paragraph 12 as this fee proposal was not acceptable to me and I contested that there was a valid disclosure. I did not receive a single accurate estimate under LPUL s 174(1)(a) and (b) before commencement of work to enable me to make informed choices referred to ins 3(d) and s 169(a) of Legal Profession Uniform law (LPUL). Estimate asserted by defendants as provided at the start is $50,000. Actual fees about $500,000 in relation to property settlement (about½ of my share of sale of property). Defendant’s fees were more than 10 times the original estimate. I understand this cost agreement to be void for lack of proper disclosures See Bevan v Bingham & Ors [2023] NSWSC 19 at [36- 70].
During the opening day of the hearing, whilst the plaintiff was in the midst of cross-examining Ms Ralston, the plaintiff asserted that had she known from the outset that the total amount of costs she would incur was within the order of “half a million” dollars, she would not have engaged CGL to provide legal services to her. [251] The plaintiff also challenged Ms Ralston as to whether she had given an estimate before each legal service was provided. [252]
The plaintiff further challenged Ms Ralston regarding her reply affidavit and in particular whether there had been non-compliance with the disclosure obligations. Ms Ralston disagreed. [253]
Defendant submits: (ii) the fees estimate was continuously updated during the course of the family law matter
My reply: Section 174(1)(b) of Legal Profession Uniform Law refers to “significant change”**. It is my position that there was no significant change that required significant change to legal costs repeatedly. Therefore, Coleman Greig’s repeated change to legal costs obstructed me as a vulnerable person (subject to principles of non est factum) from making an informed decision s 3(d) and s 169(a) of Legal Profession Uniform Law about continuing to engage money-hungry defendants.
Defendant submits: (iii) where the work was carried out
My reply: Work would not have been carried out and defendants not engaged if I was told at the start that estimated fees were $500,000 not $50,000. This Court make orders for 30% discount to be made from total costs.
Pausing there, the plaintiff’s second “reply” appears to raise a “main disclosure requirement” issue pursuant to s 174(1)(a) of the Uniform Law (reproduced above).
The first “reply” raises a second “main disclosure requirement” regarding significant changes to prior disclosures pursuant to s 174(1)(b) of the Uniform Law (also reproduced above).
During the hearing, Mrs Young did not directly deal with the issue of a breach of a “main disclosure requirement” under s 174(1)(a) of the Uniform Law to disclose an estimate of “the total legal costs” “when or as soon as practicable after instructions are initially given”.
Nonetheless, Mrs Young did, in her DCS, state as follows (omitting footnotes): [255]
The terms of the initial costs agreement/fee proposal was not capped at $20,000 but initially $50,000 for work up to 23 August 2018. It was also not expressed to be a fixed quote or estimate and was made subject to variables and changes during the course of the matter.
Coleman Greig updated its costs disclosure and estimate of total costs to hearing on 17/7/2018.
Coleman Greig issued cost notices on 9/8/2018, 29/11/2018, 17/1/2019, and 26/4/2019, further updating their estimated costs for hearing (in respect of the first costs agreement/fee proposal).
Coleman Greig updated its costs disclosure and estimate of total costs in respect to the second costs agreement/fee proposal on 17/6/2022 and 23/6/2022.
Coleman Greig issued a Costs Notice in respect to the second costs agreement/fee proposal on 12/7/2022.
30 Cost agreements are void for lack of proper disclosures and lack of statutory disclosures of estimated total legal costs at the outset obligated by section 17 4 of Legal Profession Uniform Law to enable me as the client to make an informed decision.
48 On 10 December 2024 at [46] on page 13 in [2024] NSWSC 1675 Judge Meek wrote “Ultimately, having established from Mrs Young that the relief sought under the alternate ground of r 13.4 of the UCPR would rely upon the same substantive evidence and submissions, I formed the view that I should allow [258] the notice of motion to be amended [259] in order to address the real issue that had been disclosed on the material”.
Likewise, the issue of disclosure is based on the same substantive evidence and submissions.
The issue of disclosure is included in issue of referral to referee.
If defendants are confident that their disclosures were proper and according to statute and legal principles then they do not need to object.
49 I repeat and rely upon my reply in paragraph 48. If on the evidence before this Court or before the referee (if appointed) disclosures were not proper and not according to statute and not according to legal principles then District Court judgment is invalid and void with no legal effect.
50 I was required to be informed about estimated TOTAL legal costs of Coleman Greig Lawyers and their Counsel at the start (so that I could make an informed decision whether to engage defendants or not) NOT at the end of the engagement that included threats and duress of bankruptcy and loss of home and money entitlements.
What occurred in the matter is that, initially, CGL provided the plaintiff with information disclosing the basis on which the legal costs would be calculated. [260] The provision of that information satisfied the first aspect of the requirement under s 174(1)(a) of the Uniform Law.
Further, CGL provided an estimate of the costs up to and including the next Court listing. [261] However, as at 29 June 2018, CGL did not provide an estimate of the “total legal costs” as that term is understood, to satisfy the second aspect of the requirement of disclosure pursuant to s 174(1)(a) of the Uniform Law.
In relation to the plaintiff’s claim for repayment of fees and her claim that, had she known that the total fees would have approached approximately $500,000, she would not have engaged CGL, it is necessary to give some consideration as to whether CGL breached its disclosure obligation to give an estimate “when or as soon as practicable” after instructions were initially given of the total legal costs as required by s 174(1)(a) of the Uniform Law.
I have set out above what occurred between 29 June 2018 and 9 August 2018.
By the time the plaintiff engaged CGL, she had already been involved in what appears to have been strongly contested family law proceedings for well over 3.5 years, having engaged and liaised with two prior sets of solicitors (Slater and Gordon and Prominent Lawyers). At the time of initial engagement, CGL did not have access to the plaintiff’s prior file.
Ms Ralston does not give any specific affidavit evidence regarding what steps were taken to obtain the plaintiff’s file from her prior lawyers. As best I can glean from the Court Book material, no immediate steps were taken by Ms Ralston to obtain the plaintiff’s file from Prominent Lawyers on or shortly after 29 June 2018. The first correspondence with Prominent Lawyers appears to occur on or about 31 August 2018 (as I have noted above). I infer from the tax invoices what occurred prior to then was that Ms Ralston was able to obtain certain of the court documents referable to the plaintiff’s case by accessing the Family Court portal and arranging for Ms Teo to attend at the Family Court to inspect the court file.
The plaintiff asked Ms Ralston what had been discussed with her regarding the initial invoice. [262] Ms Ralston indicated that, initially, she was made aware that there were some outstanding costs orders that had not been paid, an issue with the superannuation fund, some subpoenas that needed to be issued, and in her words “insufficient financial disclosure”. She was aware there were significant outstanding issues in the matter and that Justice Watts had wanted to set the matter down for a final hearing as soon as possible. From her perspective, there was quite a lot to consider during the period of time through to the next listing, including to reflect on the status of the matter and on what needed to be done. [263]
Costs Notices were issued by CGL on 9 August 2018, [267] 29 November 2018, [268] 17 January 2019 [269] and 29 April 2019. [270]
Whilst the first and subsequent Costs Notices purported to set out figures which may be construed as giving an estimate of the “total fees”, none of those Costs Notices until the final Costs Notices came remotely close to accurately estimating the overall amount of fees actually rendered.
When one reads the Costs Notices, there are many figures that are set out in the notices. To work out what the “total fees” are, one has to add various items together under two categories, being total legal costs and disbursements to date (which includes total costs and disbursements paid and total costs and disbursements outstanding), and expenses yet to be paid (which includes costs incurred but not yet paid, costs incurred but not yet charged and estimated future costs). A form of subtotal that is provided in the Costs Notices is only a summation of the items under expenses yet to be paid. There is then a final “TOTAL” which represents the subtotal plus the total costs and disbursements outstanding subtracting the monies held in trust. There is no figure that represents an estimation of the total fees in the matter.
Over time, the total estimate increased. Thus, the four respective Costs Notices (if one totalled the figures within them) amounted to disclosures of $131,865.42 [271] on 9 August 2018, $268,369.39 on 29 November 2018, [272] $376,735.89 on 17 January 2019, [273] and $479,270.29 on 26 April 2019. [274]
Estimation of legal costs for solicitors is often a difficult task. Generally, it will be based on certain fixed factors and certain variable factors. Some, perhaps many, of those variable factors will be outside the control of the solicitor acting for the client.
The plaintiff did not cross-examine Ms Ralston regarding any of the detail of the estimates in the Costs Notices.
I have the impression from the evidence that estimation of costs in this matter was a challenging task.
The lengthy email letter which Ms Ralston sent to the plaintiff on 29 November 2018 gives some contextual insight to the ever-increasing costs estimates in the concluding two paragraphs under the section headed “11. Legal fees moving forward and Costs Notices” (set out above, but for ease of reading, reproduced below): [275]
I realise that the Costs Notice that has been provided Is significantly more than you had anticipated Rekha. I was hopeful that we could keep costs down however, the complexities in your matter (and the sheer cost of my telephone conferences and face to face conferences with you) has meant that those fees have increased. I am prepared to put into place a regime whereby our interactions are less (and therefore your legal fees are lessened). My concern however, is that to progress your matter (and obtain your financial disclosure, obtaining instructions from you regarding previous cost orders and your various assertions regarding superannuation funds) cannot be achieved, productively, by email. Therefore, it has seemed (and you were strong in your view) that face to face conferences are required.
If you do not believe that that is the case and we can liaise via email, and you can provide responses within 24 to 48 hours of receiving emails from me (with the appropriate evidentiary documents), then I would be happy to work with you to reduce those legal fees moving forward.
The “significant change” disclosure obligation under s 174(1)(b) Uniform Law has at least two aspects to it. One aspect is disclosure of a “significant change” per se. A second aspect is provision of information about such a “significant change”.
In dealing with the first aspect, namely a “significant change”, the following may be noted.
The adjective “significant” ordinarily conveys something that is “important; of consequence”: Macquarie Dictionary, online ed. The noun “change” relevantly conveys a “variation; alteration; modification; deviation; transformation”: Macquarie Dictio**nary, online ed.
The notion of a “significant change” is, in context, an important, material or noticeable alteration from a prior costs “disclosure”, which bears upon or informs the choice the client made regarding the client’s “legal options”. It may be a change, for example, regarding the basis on which legal costs will be calculated and/or the estimate of the total legal costs.
Without purporting to limit what may constitute a “significant change”, it may for example have a quantitative or qualitative aspect to it. Thus, if a prior disclosure of “total legal costs” has been $50,000 and the law practice formed the view that the total costs are likely to be $100,000, that would arguably constitute a “significant change”.
Secondly, apart from that, the disclosure obligation requires provision to the client of information about the change. Without attempting to be exhaustive, information about the change would likely be some form of explanation as to why the numerical estimate was significantly different from an earlier estimate of “total costs”.
In terms of the first aspect, namely advising of a “significant change”, I have already made the observation that it was not until the Final Costs Notice that CGL’s estimate approached in a numerical sense the amount of costs finally rendered.
However, clearly, the estimate of the amount of total costs being disclosed under each Costs Notice was increasing. The plaintiff did not cross-examine Ms Ralston as to the monetary amounts disclosed under each of the respective Costs Notices issued on 9 August 2018, 29 November 2018, 17 January 2019 and 26 April 2019. To the extent that the plaintiff’s claim for repayment is based upon an alleged breach of the obligation under s 174(1)(b) for disclosure “as soon as practicable after” the earlier disclosures of any significant change to anything previously disclosed, I remain unpersuaded that there was a material breach by Ms Ralston or CGL regarding that.
Regarding the second aspect, namely the provision of information (such as an explanation) about any disclosed “significant change”, Ms Ralston in her 29 November 2018 letter to the plaintiff listed a number of complicating factors, which led her to the view that “the Final Hearing is likely to run 4 days”. The factors being: [276]
(a) The other side continues to run a “wastage” argument with respect to the sale of the Epping property;
(b) We continue to run an argument that Sanjiv has disposed of significant superannuation assets;
(c) There are disputing assertions regarding family violence (and the supplementary witnesses are required to give evidence);
(d) There continues to be difficulties in obtaining financial disclosure.
To the extent that the plaintiff contends there was no “significant change” upon which CGL could base their updated numerical cost disclosure, I reject that line of reasoning. The “significant change” to what had been “previously disclosed” is the increase in the total costs estimate itself and information was provided by Ms Ralston regarding that.
As to the plaintiff’s challenge that she had not been provided an estimate before each legal service was provided, [277] Ms Ralston indicated that she provided fee estimates for the work that was to be incurred in general terms for the preparation and attendance at the hearing but acknowledged that she did not set out each and every action to be taken. [278] I accept her evidence. It is unclear to me whether the plaintiff had some expectation that each and every item of work that was separately itemised on each and every one of the bills needed to be the subject of some estimate disclosed to the plaintiff. In the unlikely event that that is the plaintiff’s assertion, I reject any submission that there is such an obligation. The “total costs” disclosure obligations are intended to give the client an insight as to the likely overall cost of the work the subject of a retainer which will inevitably take place over a period of time. In practice, it does not usually (and rarely would) envisage disclosure on a day by day, hour by hour nor item by item basis.
The plaintiff’s summons does not expressly seek relief arising from non-receipt of costs agreements. However, the plaintiff in her affidavits dated 20 September 2023 [279] and 4 December 2023 [280] raised such a complaint.
There is no agreed issue to that effect. However, it was addressed during the hearing, including with submissions from Mrs Young, and accordingly I will deal with it.
Defendant submits: [282] (i) a valid and compliant costs agreement was signed by Ms Sanjiv on the first day of the matter
My reply: [283] I deny the cost agreement is valid. Cost agreement is void. I deny I signed the cost agreement on the first day of the matter.
Defendants breached s 169(a) of Legal Profession Uniform Law to ensure that clients of law practices are able to make informed choices about their legal options and the costs associated with pursuing those options See Bevan v Bingham & Ors [2023] NSWSC 19 at [68 *“*the objective in s 3(d), namely that of empowering a person to make an informed choice about the legal services that he or she might access, and the costs involved ..... it is not possible for a person to make any informed choice unless the proper disclosures are provided. The plaintiff’s fees were, in the end result, almost 6 times his original estimate ... ”
The plaintiff did not in her PCS expressly address the issue further.
However, Mrs Young, in her DCS, addressed two aspects.
First, in relation to the plaintiff’s assertion that “I have not received a copy of the costs agreement executed by all parties. If such a costs agreement exists…”, Mrs Young submitted (omitting footnotes): [284]
A copy of the second costs agreement/fee proposal was sent to the Plaintiff on 15 June 2022. The Plaintiff signed it using DocuSign on that same day. [Again, seemingly, the Plaintiff during cross-examination accepted that she had received33 and signed it.]
A further copy of the first costs agreement/fee proposal was provided to the Plaintiff on 3 October 2018.
On 8 September 2023, Mr Ashley Lamb, the Chief Executive Officer of Coleman Greig, sent to the Plaintiff a further copy of the two costs agreements/fee proposals and five tax invoices from 6 March 2019.
The Plaintiff signed and returned the first costs agreement/fee proposal to Coleman Greig on that same day. [Seemingly, this was accepted by the Plaintiff during cross-examination.]
It is clear that, on 29 June 2018, Ms Ralston sent to the plaintiff CA1 containing a ‘Fee Proposal’ (scope of work with an estimate of fees) with a ‘Terms of Business document’, a ‘Marriage, families & separation brochure’, a ‘Chapter 19 Costs Notice’ and a ‘Fact Sheet - Legal costs in family law matters’. The plaintiff signed and dated the ‘Fee Proposal’. [286] The plaintiff, as I have noted earlier, in cross-examination, accepted that she has received it (though made complaints about its disclosure content).
To the extent that the plaintiff claims that she was not provided with CA2, I reject any such submission. I am satisfied that CA2 was provided to the plaintiff by email on 15 June 2022 and signed and returned by her on that date. [287]
The plaintiff, in cross-examination, reluctantly accepted that she had received it and signed it using DocuSign, [288] though asserted she had done so “under pressure” [289] claiming it was like “putting the gun on my head”. [290] I reject the assertion that she was forced to sign it by CGL or by Ms Ralston. There is nothing objectively in the surrounding contemporaneous material (or otherwise) that lends any material support for such an assertion.
I have not received copies of invoice numbers 309323 and 309480 and 309611 and 310380 and 310525 and 311570 and 313282. I have received copies of invoice numbers 315632 and 316623 and 318634 and 319299 but not received them in the correct format showing the number of hours spent etc.
I can find no evidence that the plaintiff was sent or received the first, sixth, eighth and tenth invoices dated respectively 29 June 2018, 29 September 2018, 5 February 2019 and 8 May 2019 at least on or about those dates.
As to the first invoice dated 29 June 2018, Ms Ralston does not refer to it as being one of the documents provided to the plaintiff by her secretary (Ms Cuthbert) on that date. [292] Further, the email by which the plaintiff was sent CA1 and the attachments does not refer to the invoice being attached. [293] In the Annexure “A” table attached to Mrs Young’s DCS in her final column headed “Comments”, there is a note that the first invoice was issued and paid in person. However, as far as I can detect, there is no evidence to that effect. CGL asserts that the plaintiff paid the invoice. [294]
As to the sixth invoice dated 24 September 2018, as far as I can detect, there is no evidence that it was sent to the plaintiff. However, by reference to an authority given by the plaintiff on 17 January 2019 [295] and monies provided by the plaintiff the following day, that invoice was paid. [296] It seems unlikely that the plaintiff paid that invoice if she had not already received a copy of it.
As to the eighth invoice dated 5 February 2019, whilst I cannot detect any letter or email by which it was sent to the plaintiff, she (as noted above) states that she received it. It was part paid [297] and, on 6 April 2022, the plaintiff signed an authority for the balance of it to be paid. [298]
As to the tenth invoice dated 8 May 2019, I cannot detect any letter or email by which it was sent to the plaintiff on or about 8 May 2019. However, on 17 May 2019, Ms Ralston sent Isham an email addressing issues regarding Mr Grew’s fees and, relevantly, the first document attached to that email appears to be the CGL invoice dated 8 May 2019. [299] On 21 May 2019, another copy of that invoice (as well as other documents) was sent to the plaintiff, copied to Isham. [300] Further, the plaintiff (as noted above) states that she received it (at some point) and, in any event, on 6 April 2022, the plaintiff signed an authority for the balance of it to be paid. [301]
Other than those 4 invoices (1, 6, 8, and 10), there is evidence that the plaintiff received the remaining 9 invoices on or about the date of the invoice (second invoice on 6 July 2018; [302] third invoice on 17 July 2018; [303] fourth invoice on 9 August 2018; [304] fifth invoice on 17 August 2018; [305] seventh invoice on 19 November 2018; [306] ninth invoice on 6 March 2019; [307] eleventh invoice on 28 May 2019; [308] twelfth invoice on 12 July 2022; [309] and thirteenth invoice on 2 August 2022. [310] )
It is curious that there is no express evidence in the proceedings that the first and sixth invoices were actually served on the plaintiff. Some observations can be made. First, the plaintiff sought all invoices in the NCAT proceedings and then discontinued them. Secondly, she has, by force of these proceedings, clearly received those invoices which were paid (as will be seen below) over six years ago. Thirdly, the plaintiff did not challenge specific work referable to those invoices. In light of this, I do not consider that any specific relief regarding provision of those two invoices is now warranted.
The assertion that the plaintiff had not been provided with details of invoices showing the rate per hour of the person doing the work and number of hours utilised by that person [314] is incorrect.
Each of the invoices billed to the plaintiff sets out an itemised time schedule in respect of the work billed including itemising each item of work (including work for which time had been spent but no amount charged), the date of the work, initials of the person doing the work, [315] the details of the work, the charge rate, the unit of time spent on the work, and the amount charged.
The plaintiff was cross-examined regarding an example of this, with respect to the tax invoices dated 9 and 17 August 2018. In particular, she was shown the above-mentioned details at CB 103. [316] When confronted with this, the plaintiff made other complaints suggestive that the details “doesn’t tell that why the same email has been done twice or why the work is being done by two people”. [317] The plaintiff also complained “I am dissatisfied the way it has been handled, the way it is being charged, the way the people, so many people been involved.” [318]
Complaints about how the work was handled or why a number of different people were involved in the work for the plaintiff were not listed as agreed issues.
Neither of the parties set out in any detail what was discussed in the first conference. However, the Terms of Business document which the plaintiff was provided with on the day of the first conference with Ms Ralston, which she acknowledged receiving, does address as its first item the question of who at CGL would look after her work. The printed information states (correctly) that the Fee Proposal names the staff primarily responsible for carrying out the work. [319] Further, it indicates that the lawyers work in teams and that sometimes work will be delegated to another person and that some work will be done by support staff such as paralegals: [320]
Who at Coleman Greig Lawyers will look after my work?
Our fee proposal names the staff primarily responsible for your work. Our lawyers work in teams. When it is appropriate to do so, some work on your matter may be delegated to another member of the team who can carry out that work at a lower cost to you, or who has particular expertise applicable to your work . Work will only be delegated to a team member who is appropriately qualified or experienced to handle it and their work will be overseen by a senior lawyer at all times. Your lawyer will obtain contributions from other teams in the practice as required .
Some of the work on your matter will be done by paralegal and other support staff members. These staff members work under the supervision of the lawyer acting for you. We charge for this work because It advances your work to completion in a cost effective manner.
Our professional staff charge different hourly rates, depending on their experience, within the following ranges:
[listing of staff positions and hourly rates exclusive and inclusive of GST]
What I describe as the instructions issue is sourced from what the plaintiff states in her affidavits.
In her first affidavit dated 20 September 2023 she as follows: [321]
I did not receive written request from defendants seeking instructions from me and I could not give instructions for tasks itemised in invoices. I have not received from defendants copies of these instructions and evidence of work performed by defendants despite my repeated requests.
I did not give instructions at all times and I have not been provided with copies of my instructions.
The agreed statement of issues did not specifically identify the nature of the plaintiff’s complaint with respect to “instructions”.
The plaintiff’s POS referenced “instructions” on two occasions.
First, as I have outlined earlier in this judgment, part of the plaintiff’s summarised answer to the repayment issue was an assertion “Defendants wasted my money (without seeking my instructions) to obtain garnishee orders knowing that these garnishee orders made by an inferior court (District Court) are not valid until set aside”. I deal with the validity of the District Court judgment under that separate issue. It suffices to say that, once CGL obtained judgment, they did not need the plaintiff’s instructions to garnish her bank account.
Secondly, under the contempt issue, the plaintiff makes reference to 2 emails, being an email from Mr Spencer to Ms Nichelsen and Ms Ralston regarding sale of the Epping property on 8 July 2022 (1:40pm) [323] and Ms Nichelsen’s reply to Mr Spencer also on 8 July 2022 (3:04 pm). [324] The plaintiff asserts: [325]
These 2 concealed emails clearly establish that first defendant also received instructions from Sanjiv Shah (through his Solicitor Keith Spencer) to act on the conveyance by accepting Pexa invitation to join workspace but first defendant refused yet was interested to act for me to review settlement adjustment sheet to ensure their outstanding fees of about $252,000 was being deducted from my share of sale proceeds.
I have dealt with this question below under the contempt issue.
Other than those instances, the plaintiff’s POS did not explain or indicate with any precision the nature of the plaintiff’s complaint with respect to “instructions”. The plaintiff did not in opening clarify the nature of her complaint in this regard.
During the plaintiff’s cross-examination of Ms Ralston, a couple of matters were raised regarding instructions.
First, the plaintiff put to Ms Ralston that CGL received “instruction” from Dr Shah “to join PEXAs workplace”, which Ms Ralston denied, responding that there was an “invitation”. [326] As noted I have addressed the joining PEXA complaint in dealing with the alleged contempt issue.
Secondly, the plaintiff made complaints about the engagement of Mr Grew. [327] I have dealt with that under the exorbitant costs issue.
During Mrs Young’s cross-examination of the plaintiff, the plaintiff acknowledged that she had given “very detailed instructions” to GCL regarding her husband’s business affairs. [328] In response to a question regarding whether the plaintiff gave CGL instructions that she wanted her husband’s business affairs investigated [329] she gave a lengthy answer, in the midst of which she intimated that, in some way, Ms Ralston had not followed some instructions she had given: [330]
Because one of those - one of the other asset was sold at 2.75. I got nothing out of that. His Honour settled one million, I nothing got outside of that. The business - then I told her that do the forensic accountant report of all the four companies so we can get all the assets, the money out. And again, Karina did not do that. She just did only two company, not four company. So again, I lost money in that. I was not sure that after giving all the instruction why she did not follow.
The plaintiff did not challenge Ms Ralston regarding this issue in any appropriate way.
It is self-evident from the material which I will refer to below that there were clearly occasions in which CGL did request instructions from the plaintiff. Further, it is clear that, generally speaking, the plaintiff did give instructions.
The background I have outlined above reveals many instances of Ms Ralston and CGL requesting instructions from the plaintiff. On many occasions, the plaintiff failed to respond or give any such instructions which led CGL to being unable to act in relation to certain matters.
At least one reason for the difficulty is hinted in Ms Ralston’s email dated 9 August 2018 in which Ms Ralston had acknowledged the part of the “instruction” difficulty arose “simply because the family violence is quite difficult for you to talk about”, [331] resulting in more involvement from Ms Ralston than she had hoped.
On 9 August 2018, one of the items charged to the plaintiff related to Ms Hutchinson reading the plaintiff’s instructions in relation to the draft family violence section of the affidavit and drafting additions and amendments accordingly. [332]
On 15 August 2018, there is a further charge by Ms Hutchinson for amending the plaintiff’s affidavit “in accordance with your handwritten instructions”. [333]
On 20 September 2018, Ms Ralston emailed the plaintiff with an update. Significantly, the letter highlighted issues in the plaintiff providing instructions. The final page of the letter contains the following paragraphs: [334]
We have been attempting to contact you in relation to you matter since 7 September 2018 without any meaningful response from you. When we do have the opportunity of speaking to you, you do not take our advice and continually repeat that there are millions of dollars hidden that we need to find whilst ignoring the need to comply with Court Orders.
We cannot and will not be in a position to undertake the tracing of the various bank accounts until such time as:
• Our outstanding fees have been paid; then
• You have provided all of the outstanding financial documents; then
• We have been in a position to serve Sanjiv’s Solicitors with the outstanding financial documents; then
• Your substantive Affidavit has been finalised, filed In the Court and served; then
• My Affidavit in relation to your non compliance with previous Orders has been finalised, filed in the Court and served; then
• We are in a position to file an Application and Affidavit in relation to enforcing the costs orders and seeking an Interim distribution.
As you can see there are several steps to be taken and documents to be finalised before we are in a position to trace the removal of funds from the various bank accounts.
Unfortunately, if we do not receive the financial documents from you by close of business on Tuesday 25 September 2018 and you do not commence actively participating in providing us with your instructions we will have no choice but to file a Notice of Ceasing to Act in the proceedings.
The plaintiff did not seek in any specific way (such as by reference to charges in invoices) to identify instances in which she had not given instructions.
Where the plaintiff did not provide instructions, it appears that CGL simply continued to urge her to do so, and did not otherwise undertake any significant actions or work. The plaintiff did not identify any particular instances of substance in which CGL undertook such work without any mandate from the plaintiff to do so.
In relation to the alleged failure to “provide the plaintiff with copies of her instructions”, that is problematic. The plaintiff did not identify any particular legal principles by which she asserted she was entitled to be provided with so-called “copies of instructions”. No particular instance was identified by the plaintiff whereby she appears to have requested to be provided with some form of copy of her instructions or made a complaint that she had made a request and not been provided with such a copy.
Instructions may be provided in many different ways. An email or a letter may be provided by a client to the solicitor. If an email is sent, normally the client will retain a copy of the email. If a letter has been sent, the client may or may not have kept a copy of the letter. If a client gives instructions by a telephone call to a solicitor, the solicitor may or may not have made a file note recording any such instruction.
Entitlement as between solicitor and client to documents is informed in part by the express terms of the retainer between them and in part by the general law.
Some terms regarding entitlement to documents are addressed in the Terms of Business: [335]
Retention of Your Documents
On completion of your work, or following termination (by either party) of our services, we will retain your documents for 7 years. Your agreement to these terms constitutes your authority for us to destroy the file after those 7 years. The authority does not relate to any documents which are deposited in safe custody (such as wills) which will, subject to agreement, be retained on your behalf indefinitely. We are entitled to retain your documents while there is money owing to us for our costs.
If you request a document (such as a will) or a copy of your file, or part of it, after the document or file has been placed in safe custody or storage, we may charge you a fee for retrieval and copying, based on the time required to be spent, and retrieval and postal (or other delivery) costs.
You will be liable for the cost of storing and retrieving documents in storage and our professional fees in connection with this.
However, there does not appear to be any further specific detail in the Terms of Business regarding which documents are regarded as being CGL’s documents and which documents are regarded as being the plaintiff’s documents.
Subject to any express or implied agreement between the parties and any statutory provisions, the question of entitlement as between solicitor and client to documents is dealt with under the general law: see e.g. Wentworth v De Montfort (1988) 15 NSWLR 348 (Wentworth). However, even in cases where there is dispute over entitlement as to documents, the court generally requires some precision regarding what is actually in dispute: Wentworth at 351B-C.
The plaintiff did not provide any particulars regarding her complaint in this regard nor any submissions in respect of it.
As a practical matter, in relation to the alleged failure to “provide the plaintiff with copies of her instructions”, it is clear from what I have outlined above that CGL did in many emails and other communications with the plaintiff recite the instructions that the plaintiff had given.
In light of all the above, the plaintiff has not persuaded me that CGL have breached any entitlement she has to receive a copy of specific instructions which she asserts she has provided to the defendants.
8. I was compelled and threatened to sign costs notices and authority for payment of costs under duress and false representations threatening me that I will lose my home and get NIL share of beneficial interest if I do not sign authority/undertakings for payment of costs. I seek a finding that any authority and/or undertaking signed by me under duress and threats be found to be invalid.
..
26. I repeat my reply in paragraph 12 and 16 and 20. I was compelled and threatened to sign costs notices and authority for payment of costs under duress and false representations threatening me that I will lose my home and get NIL share of beneficial interest if I do not sign authority/undertakings for payment of costs. I seek a finding that any authority and/or undertaking signed by me under duress and threats be found to be invalid.
Each increase in their fees is invalid and void with no legal effect because defendants obtained each increase under threats and duress by advising that I would lose my home and money entitlements if I sought to change lawyers again instead of paying these increases in costs. Ultimately, after garnishee orders were not wholly unsuccessful, I was threatened with bankruptcy that could result in me losing my home and money entitlements. Defendants must not act (but in fact acted) in a way that unnecessarily resulted in their increased fees in breach of section 173 of Legal Profession Uniform Law.
… her evidence comprises many serious an outrageous accusations not supported by any independent evidence whatsoever. Examples include… claims that Ms Ralston locked her in a conference room until she had signed documents… Yet despite these serious claims absolutely no complaint was made to another party, the OLSC or even the Defendants.
21 If defendants complied with their statutory obligations to give me an estimate of total legal costs (their fees and disbursements such as counsel fees), I would never have engaged them or cease to engage them “but for” their threats.
Duress is (relevantly) conduct by which one person applies pressure or undue persuasion on another, to induce that person to do something or refrain from doing something. Duress may take the form of constraint by injury, confinement, or threats: Encyclopaedic Australian Legal Dictionary (LexisNexis).
The party alleging duress has an onus of proving that illegitimate pressure was brought to bear on him or her when he or she entered into the relevant agreement. If that onus is met, the opposing party must prove that the pressure had no causative effect (of deflecting the will) such as to cause the party to enter the agreement: Barton v Armst**rong [1976] AC 104 at 120 per Lord Cross of Chelsea; [1975] 2 WLR 1050; Elite Realty Development Pty Ltd v Sadek [2022] NSWSC 1333 (Peden J) at [234]; Elite Realty Development Pty Ltd v Sadek [2023] NSWCA 165 at [20] per Payne JA (Mitchelmore and Stern JJA agreeing at [113] and [114] respectively). In Wang v Yu [2023] NSWSC 1182, I addressed principles regarding duress and the effect of duress if it is established, the requirement for election and the effect of any affirmation at [181]-[211].
Ms Ralston denies ever compelling or threatening the plaintiff to sign any Costs Notices or authorities. [340] She indicates that it is her usual practice to step out of the room once she hands a client a retainer to allow them the opportunity to consider the document without her presence, which she believes she did throughout the work she undertook for the plaintiff. She denies any actions that may have placed the plaintiff under duress and denies that at any time advice was given to the plaintiff using threats or false representations. [341]
Subject to two matters, I did not detect any instance in which the plaintiff made any duress assertion while cross-examining Ms Ralston.
First, early in the cross-examination of Ms Ralston, there was the following exchange: [342]
Q. Did you contacted my previous lawyer regarding this court case after I was made to sign the cost agreement?
YOUNG: Objection, your Honour. I think - already answered--
HIS HONOUR: Sorry, I reject that question. The reason why I reject the question is that it contains an assertion that is not really established. You said that after I was made to sign the costs agreement, and that’s a sort of a loaded way to put the matter. So - but if you want to ask a different question, you may ask a different question.
PLAINTIFF: Okay.
Q. I put it to you that, due to the lack of proper disclosure by the defendant, I’m not required to pay the legal costs--
Mrs Young made repeated objections to the form of the questions. [343]
Secondly, the plaintiff, in prefacing one question, used the word “forcing to sign”. When I asked the plaintiff about this, she did not assert duress but rather stated as follows:
Q. I’m focusing on knowing the cost before service given, not notifying and forcing to sign. Did you do that?
HIS HONOUR: Well - so I have no idea what is the basis of order 2 in the summons about exorbitantly charged and unauthorised costs. So I wouldn’t allow the question that there’s an assertion that the agreement is void, per se. But just so I can work out whether your question is permissible or not, what do you say is the basis for costs exorbitantly charged or unauthorised? What do you say is that basis for that?
PLAINTIFF: Knowing - knowing the - the service required, as a professional aware of the cost, should be disclosed before the - giving service. That’s what I’m trying to establish.
HIS HONOUR: So do you say that the costs were unauthorised‑‑
PLAINTIFF: Yes.
HIS HONOUR: Because you weren’t aware of‑‑
PLAINTIFF: Yes.
HIS HONOUR: ‑‑what the cost might be?
PLAINTIFF: Yes.
I have referred to the plaintiff’s evidence about threats and being locked in “cabins” (conference rooms) above, which I reject. I accept Ms Ralston’s evidence.
I find that no case of duress is made out.
The plaintiff complained that the total amount of costs, $482,865.35, was exorbitant. [344] She also complained that the amount of invoices which were in fact rendered were beyond what she claimed had been estimated, which I have dealt with above under the disclosure of total costs estimate issue. [345]
The claims regarding exorbitant costs related firstly to the costs of CGL and secondly to the costs of Mr Grew.
In her POS, the plaintiff in providing her summarised answer to issue 1 (repayment of fees) made reference to excessive costs and raised 8 matters as I have earlier set out (in addressing comments under the avoidance of increased legal costs issue). I have elsewhere in this judgment addressed those matters.
In her PCS, the plaintiff stated: [346]
Defendants assert that they knew that I did not pay them each month yet they would not cease to act for me in September 2018. Defendants continued to accumulate exorbitant total amount of costs of about $500,000 to arrive at a Balance Sheet for division of net assets between Sanjiv Shah and myself.
In terms of the fees being allegedly exorbitant, the plaintiff challenged Ms Ralston regarding this. Ms Ralston indicated that she was of the view that the fees were within the fee estimate and reflective of the complexity of the case, indicating that part of the complexity involved a non-compliant superannuation fund, a medical practice and an allegation of wastage made by the other side against the plaintiff. [348]
Ms Ralston’s assertion that the fees “were within the fee estimate” is strictly speaking incorrect. However, that does not mean that estimates (initial and subsequent) were not valid for disclosure obligation purposes (as I have addressed above) nor does it mean that the costs are exorbitant.
Mrs Young made reference to these aspects and numerous other matters, highlighting the complexity of the work in her DCS. [349] Suffice it to say that I accept the general tenor of Mrs Young’s submissions in this regard.
Whilst the plaintiff alleged that there was not enough detail in the invoices and that certain same items have been charged many times, [350] she did not directly challenge Ms Ralston in respect of such matters.
I reject her contention that CGL’s costs were exorbitant.
Another aspect of the plaintiff’s “exorbitant fees” complaint was an assertion that she had not agreed to retain Mr Grew and that he had charged exorbitantly, being an amount of $50,000 in one day. [351]
In her PCS, the plaintiff stated: [352]
LEGAL PROFESSION UNIFORM LAW (NSW) -SECT 175
175 Disclosure obligations if another law practice is to be retained
(1) If a law practice (the “first law practice”) intends to retain another law practice (the “second law practice”) on behalf of a client, the first law practice must disclose to the client the details specified in section 174(1) in relation to the second law practice, in addition to any information required to be disclosed to the client under section 174.
(2) If a law practice (the “first law practice” ) retains or intends to retain another law practice (the “second law practice” ) on behalf of a client, the second law practice is not required to make a disclosure to the client under section 174, but must disclose to the first law practice the information necessary for the first law practice to comply with subsection (1).
Before orders were made on 30 April 2019, I was never served by defendants with proper cost disclosures from Barrister Joshua Grew. I was denied choice of my own barrister by Karina Ralston. In view of the above, due to failure to make proper disclosures, cost agreement of defendants is void with no legal effect and this Court can refer the total exorbitant costs incurred to a referee or make a lumpsum assessment by applying 30% discount.
Before orders were made on 30 April 2019, I was never served by defendants with proper cost disclosures from Barrister Joshua Grew. I was denied choice of my own barrister by Karina Ralston.
Section 175 of Uniform Law issues around disclosure by Mr Grew again are new issues are not supported by the evidence before the Court. As stated above, the Plaintiff was fully informed of Counsel’s engagement and was sent a copy of his costs agreement in advance of him carrying out any work on the matter. That submission is not supported by the evidence.
Whilst the reference to s 175 of the Uniform Law in the plaintiff’s PCS appears to be the first time that the plaintiff made specific reference to s 175, it does not seem to me that it is a “new issue”. The matter was clearly the subject of debate and cross-examination during the hearing. Mrs Young has briefly responded to it as I have set out immediately above (submitting that the plaintiff was fully informed regarding counsel’s engagement).
The plaintiff’s complaints regarding Mr Grew should be rejected.
First, it is clear that the plaintiff had agreed expressly or impliedly to retain Mr Grew. In this regard, I note the following:
On 29 November 2018, Ms Ralston sent an email letter [355] to the plaintiff, consequent upon a conference that had occurred in person on 19 November 2018, setting out various matters as I have indicated earlier, including potential briefing of counsel. Point 12 of the letter requested the plaintiff to read the counsel profiles and provide instructions regarding preference of counsel so that the briefing of counsel could be discussed. [356]
On 17 January 2019, the plaintiff, according to the evidence of Ms Ralston, which I accept, attended the offices of CGL and Ms Ralston handed the plaintiff a Costs Notice [357] which expressly contained reference to amounts for Mr Grew for preparation of the hearing and his appearance in the final hearing. [358] Relevantly, Ms Ralston went through the Costs Notice with the plaintiff. Ms Ralston also handed to the plaintiff an Irrevocable Authority, before leaving the room to allow the plaintiff to review the documents. When Ms Ralston returned to the conference room, the plaintiff had signed the Irrevocable Authority which attached the Costs Notice. [359] Ms Elven later that afternoon emailed [360] the plaintiff a copy of the Irrevocable Authority which attached the Costs Notice that had been signed [361] by the plaintiff.
On 21 January 2019, Mr Grew sent an email to Ms Ralston enclosing a form of fees agreement and disclosure. [362]
On 6 March 2019, Ms Ralston sent the plaintiff an email in response to an email that had been received from the plaintiff that day, indicating that she no longer wished CGL to act on her behalf. [363] Relevantly, the email noted that Mr Grew had been retained to act on her behalf for the final hearing and requested the plaintiff to “please let him know if you require him to attend that hearing. If he does not hear from you by close of business this week I understand he will remove those dates from his diary”.
I cannot readily locate within the Court Book materials any email by which Mr Grew’s form of fees agreement and disclosure were emailed to the plaintiff at least on or about the date that they were provided to CGL. However, the Costs Notice provided to the plaintiff on 17 January 2019 set out details of the estimated charges for Mr Grew per day both for the preparation and attendance on the hearing (being $3850 per day inclusive of GST, for a total of $38,500). [364] The disclosure was at least provided on 17 May 2019 in the following context.
Hi Karina,
I’ve tried speaking to my mum. She keeps asking about an itemised bill. The other issue she keeps asking about is why the barrister cost approx. 50k for 2 days when the estimate for the barrister for the 5 day hearing was approx. 50k? This doesn’t seem close to the estimated at all, and my mum is saying she would not have gone with the barrister if he cost that much, she expected approx 20-30k for 2 days. Could you please send through an itemised bill for all costs incurred by your firm and the barrister as a matter of urgency.
Kind Regards, Isham
Dear Isham,
Please find attached:
1. The outstanding tax invoices (noting that I am billing the outstanding WIP per month);
2. Mr Grew’s first invoice;
3. Mr Grew’s fee disclosure;
I note that Mr Grew spent longer in preparing the matter than first anticipated as the meetings with Rekha went longer than expected. There is also a cancellation fee (which all family law barristers charge and would have occurred for Sanjiv as well).
I also note that Rekha signed an acknowledgement as to our fees (confirming that they were all properly incurred).
Can you please organise Rekha to provide her instructions and transfer those funds as soon as possible as I am conscious to avoid going back to Court.
Thanks,
Karina
Thus, whilst I cannot locate any indication that Mr Grew’s fees disclosure and first invoice were provided to the plaintiff in January 2019, they were provided on 17 May 2019. Further, an estimate of his costs, being $38,500, was provided in January 2019 via the Costs Notice of 17 January 2019.
In light of the above, there can be no real doubt that the plaintiff had given instructions to CGL to brief Mr Grew and that she was aware that Mr Grew had been briefed. There is no suggestion that at this stage or subsequently, the plaintiff had not obtained nor been provided with sufficient disclosures regarding the fees that Mr Grew proposed to charge.
Secondly, the plaintiff challenged Ms Ralston in cross-examination regarding the engagement of Mr Grew as counsel. Ms Ralston denied that she had engaged Mr Grew knowing that the plaintiff had any opposition to his engagement and further indicated that at no point of time did she recollect the plaintiff raising any concern regarding the engagement of Mr Grew. [367] I accept her evidence.
Thirdly, it is clear that subsequently Mr Grew carried out work and provided invoices for that work. [368] The plaintiff did not identify how Mr Grew’s form of fees agreement and disclosure was deficient.
Fourthly, Mr Grew did not charge $50,000 in one day. [369]
Therefore, I reject the plaintiff’s contentions that she did not agree to brief Mr Grew and that his costs were exorbitant.
Initially, and from time to time, the plaintiff transferred monies into CGL’s trust account.
The plaintiff, in her 20 September 2023, affidavit claims: [370]
I was not asked for instructions and I have not given instructions to disburse each amount of money inside my trust account for payment of defendant’s fees. I have not received from defendants copies of these instructions, despite my repeated requests.
On 22 August 2022 (CB 773) Solicitor Karina Ralston said in her email “You engaged us to ensure that settlement took place”****.
Despite Coleman Greig Lawyers knowing that I engaged them to ensure settlement took place after contract of sale must be prepared by them, Coleman Greig Lawyers wilfully and knowingly and in contumacious disregard for order 2.4 .3 disobeyed order 2.4.3 and did not prepare contract of sale. All that Coleman Greig Lawyers were interested in was their monetary benefit in the settlement adjustment sheet to verify if their outstanding fees was included therein for being paid outside the trust account directly into their office account in contempt of court.
The issue of where the sale proceeds should be paid and into what account is a new and serious issue that was not raised by Ms. Ralston and should have been raised. Coleman Grieg denies any wrongdoing in respect to the handling of the sale proceeds.
I understand Mrs Young’s submission to be that the “issue” was not raised “by the plaintiff with [373] Ms. Ralston”.
To the extent that this was a complaint, the plaintiff did not further explain or develop the complaint as an issue. It was not stated as an agreed issue. Ms Ralston did not appear to address the issue in her affidavits. Nor did the plaintiff ask Ms Ralston (nor the other defendants’ witnesses) about this issue.
Overall, there seemed to be 3 aspects to the plaintiff’s complaint.
First, the tenor of her complaint in her first affidavit is that CGL had no authority to transfer funds paid by the plaintiff into trust in order to pay invoices rendered by CGL. Secondly, during the hearing, the plaintiff asked Ms Ralston a question that was a little confusing as it made reference to “statutory invalidity”. However, the question asked, with reference to the garnishee order based on the District Court judgment, was whether the amounts were invalidly deducted. [374] Thirdly, the reference by the plaintiff in her PCS seems to directly relate to the period in 2022 regarding proceeds of sale of the Epping property.
Despite the seeming lack of engagement by the parties on the issue, it is not evident to me that there is any substance to the plaintiff’s complaints.
Trust Accounts
We may ask you to place funds in our Trust Account, in advance, for expenses to be incurred on your behalf, or for all or part of our estimated fees. For example, we may ask you to pay in advance for expenses to be paid on your behalf, or for the costs of a court hearing.
You authorise us to receive money directly into our trust account on your behalf, including any judgment or settlement money, or money we receive from any other source on your behalf. You authorise us to draw on money held in our Trust Account on your behalf to pay our fees (if we have sent you an invoice and you have not objected to the use of trust money within 7 days), including fees for other work we have done for you, and expenses as they are incurred.
Under the Legal Profession Act, you are entitled to receive an invoice before we use any of your money we hold in trust to pay our fees.
Funds held in our Trust Account do not earn any interest.
The second Terms of Business document [377] sent to the plaintiff on 15 June 2022 contained a like provision. [378]
There is no specific affidavit evidence from Ms Ralston as to how the funds were transferred from trust to pay invoices. However, the following can be discerned from documents in the Court Book, especially the trust ledgers.
As to the first invoice dated 29 June 2018 for $440, despite the comment in the Annexure “A” table attached to Mrs Young’s DCS that the first invoice was issued and paid in person, as far as I can detect there is no evidence to that effect. Nonetheless, by the time that CGL came to issue the statement of claim in the District Court proceedings, the invoice is recorded as having a nil balance, it having been paid. [379]
The second invoice issued on 6 July 2018 in the sum of $9,689.90 contains, on the front page, a nil balance. The trust ledger indicates that the transfer of funds from trust to the office account to pay the invoice occurred by a transaction on 16 July 2018. [380]
The same applies to the third invoice dated 17 July 2018 in the sum of $14,956.07. [381] The trust ledger indicates that funds were transferred to pay that invoice from the trust account on 26 July 2018. [382]
The fourth invoice dated 9 August 2018 in the sum of $45,775.85 was in part paid from monies transferred from the trust account on 20 August 2018 in the sum of $15,185.43 [383] and the balance ($30,590.42) was subsequently paid by receipts and transfers recorded in the trust ledger on 30 October 2018 (being receipts respectively of $10,000 and $30,000 and a transfer of $590.42). [384]
The fifth invoice dated 9 August 2018 in the sum of $26,293.03 was paid by monies transferred from the trust account, also on 30 October 2018. [385]
The plaintiff agreed to the Terms of Business documents and I find that the above-mentioned term gave authority to CGL to draw monies held on the plaintiff’s part in trust to pay outstanding fees, in circumstances in which they had sent to the plaintiff invoices and had not received any objection to use of monies held in trust within a period of 7 days. That appears to have provided authority for payment of at least the second to fifth invoices.
Further, apart from the general authority, the plaintiff also signed an Irrevocable Authority on 17 January 2019 in respect of monies to be placed into CGL’s trust account and use of those monies to pay fees for counsel and otherwise to reduce her existing debt with CGL as set out in the Costs Notice. [386]
The sixth invoice dated 24 September 2018 in the sum of $23,869.95 and the seventh invoice dated 19 November 2018 in the sum of $71,685.14, totalling $95,555.09 were paid on 18 January 2019. Ms Ralston, in her 7 November 2023 affidavit, indicates that under the Irrevocable Authority signed on 17 January 2019, the plaintiff gave the necessary authority for the payments. [387] The following day, the plaintiff made payments totalling $100,000 ($40,000, $5,270, $1,000 and $53,720) to GCL’s trust account. [388] The trust ledgers show a series of transfers from CGL’s trust account which appear to have been applied to pay at least in part (and arguably in full) those invoices. [389]
The plaintiff at one point on the first day of the hearing, in her cross-examination of Ms Ralston, made reference to the District Court judgment [390] and asserted that it was “infected with statutory invalidity”, which seemingly appeared to be an assertion that CGL had garnished a sum of $5,872.84 from the plaintiff’s bank account invalidly. [391]
In her PCS, the plaintiff asserted the following: [392]
Proceeding before District Court of NSW and orders made by District Court of NSW in my absence are invalid for statutory illegality and void ab initio with no legal effect.
Similarly, the arguments that proceedings before the District Court due to her absence were invalid for statutory illegality and void ab initio don’t make sense; are new issues and it is not clear what the Plaintiff is alleging here. Default judgment does not require that the respondent be joined to the motion for default judgment and Coleman Greig properly had a substituted service order. This is an issue which was raised previously in related proceedings before His Honour and have no legal basis. The only evidence before this Court in this matter is the District Court judgment and it is not appropriate that this Court goes behind that order.
As to the complaint regarding use of money from the proceeds of sale of the Epping property, the following may be noted.
As I have recounted above, on 6 April 2022, Mr Pickering sent an email to CGL to the attention of Ms Ralston confirming his instructions to act and attaching an authority signed by the plaintiff authorising, relevantly, CGL as to payment of invoices from the proceeds of the sale of the Epping property. [394] The authority listed amounts which are outstanding in respect of CGL’s invoices dated 5 February 2019, 6 March 2019, 8 May 2019 and 28 May 2019, totalling $252,604.80. [395]
On 15 June 2022, the plaintiff signed by Docusign an undertaking authorising proceeds of sale of the Epping property to be paid, including, relevantly, to discharge a CBA Viridian Line of Credit, a sum of $22,040.80 to Prominent Lawyers, a sum of $252,604.87 to the CGL office account (in respect of outstanding costs), a sum of $5,000 to Dr Shah or as he directed, a sum of $20,000 to the plaintiff, with the balance to be paid to the CGL trust account. [396]
Proceeding before District Court of NSW and orders made by District Court of NSW in my absence are invalid for statutory illegality and void ab initio with no legal effect.
I have referred above to Mrs Young’s DCS response regarding this. [398]
The plaintiff’s submissions that the District Court judgment is invalid [399] are misconceived. There is no claim in these proceedings to set aside the District Court judgment. In the related proceedings (see Sanjiv No.1), I addressed aspects of the plaintiff’s collateral attack on the District Court judgment at [65]-[85]. For reasons explained in Sanjiv No.1, if the plaintiff seeks to set aside the District Court judgment, the appropriate mechanism to do that is to apply to the District Court. There is no need for me to repeat what I address there. Put simply, the plaintiff has never taken any of the available steps open to her to attempt to set aside the District Court judgment.
The plaintiff’s claims that the District Court judgment is in some way inherently invalid as a result of an excess of jurisdiction (citing New South Wales v Kable (2013) 252 CLR 118 at 133; [2013] HCA 26) or by reason of some form of jurisdictional error (citing Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58) are also misconceived.
There is no principled basis for the Court on this application to proceed as if the District Court judgment is invalid or void.
I reject the plaintiff’s submissions otherwise.
Before I conclude my determination on the first agreed issue (with reference to the sub-issues), I will address the plaintiff’s contention that the defendants breached ss 169(a) and 172 of the Uniform Law. [400]
The plaintiff’s submission that the costs rendered by CGL are excessive because of alleged poor quality of work pursuant to s 172(2)(e) of the Uniform Law [401] is misjudged. Section 172(2)(e) provides that regard must be had to whether the legal costs reasonably reflect the quality of the work done. The plaintiff referred to Templeton v Australian Securities and Investments Commission [2015] FCAFC 137; (2015) 108 ACSR 545 at [34] where the Federal Court considered the concept of reasonable remuneration, stating that a lack of proportionality between the cost of the work done relative to the value of the services provided may indicate overcharging. The plaintiff claims:
…defendants caused me substantial loss (to gain legal fees of about ½ million dollars only to prepare a balance sheet for trial… by failing to give me advice to obtain an order for trustee to be appointed under s 79 and/or s 80(2) of Family Law Act 1975 to sell all assets, pay off all liabilities and pay net sale proceeds into family court for family court to determine the percentage of division of money paid into family court (Since Sanjiv Shah took away more money, I could negotiate a higher percentage).
To the extent that the plaintiff relies on the legal fees to establish substantial loss (reflecting poor quality of work), I have dealt with her claim of exorbitant costs above. To the extent that the plaintiff contends there was poor quality of work on the basis that CGL did not advise her to seek orders for a trustee to be appointed, a number of points can be made.
First, no relief is claimed in the Summons on the basis that s 172 has been breached. Secondly, the plaintiff did not properly set out her assertion regarding the alleged failure to advise. For example, she did not set out why CGL should have provided that advice, at which point they should have done so, and the consequences of not doing so. Thirdly, the plaintiff’s limited cross-examination of Ms Ralston in relation to the issue revealed that Ms Ralston did not believe she gave advice in relation to a trustee for sale, [402] and that, at the time the plaintiff’s husband was appointed as trustee for sale of the Epping property, CGL was not instructed or engaged in the matter. [403] Ms Ralston’s understanding was that the plaintiff was not complying with Court orders in relation to the sale process and, as a consequence, her husband made an application to be trustee for sale. Further, on 29 May 2019, Ms Ralston sent the plaintiff an email urging the plaintiff to provide instructions and expressing concern that her husband may seek to enforce the orders and ask the Court to appoint him as trustee. Shortly after, in the continued absence of instructions from the plaintiff, CGL ceased to act for her.
In light of the circumstances in which the plaintiff’s husband was appointed as trustee for sale of the Epping property, and noting that the plaintiff has not properly set out her contention regarding the alleged failure to advise, I find that she has not established that CGL carried out their work with poor quality such that their fees were not reasonable under s 172.
The plaintiff’s submission that the defendants breached s 169(a) of the Uniform Law [404] is also misconceived. Section 169(a) sets out, as I have indicated above, one of the objectives of Part 4.3 Uniform Law. The plaintiff refers to the comments of Bellew J in Bevan v Bingham (2023) 111 NSWLR 7; [2023] NSWSC 19 (Bevan) at [68]. However, the comments were made in different circumstances. In Bevan, it was common ground that, having provided his original estimate of costs, no ongoing updates of his estimated costs were provided by the plaintiff at any time: at [22]. Further, his Honour (at [68]) was responding to an argument that a costs agreement could only be regarded as void ab initio under s 178(1)(a) if the contravention of the relevant obligation occurred at the same time the agreement was entered into, with reference to the Uniform Law’s objective of “promoting regulation of the legal profession that is efficient, effective, targeted and proportionate” under s 3(e). His Honour rejected the contention, reaffirming that proper disclosure is required to allow clients to make informed choices about the services they access and the costs involved under s 3(d).
[37] The first defendant contested that there was a valid costs disclosure with KL. In those circumstances, as a law practice, KL was only entitled to its costs once those costs had been assessed: s 178(1)(b) of the Legal Profession Uniform Law 2014 (NSW). However, a law practice is required to submit any application for an assessment of the costs between it and its client, within 12 months: s 198 of the Legal Profession Uniform Law. This did not occur. Although it is open to a client – and defined others – to apply to extend the time to submit any application for assessment, the common position of the parties was that it was not open to KL, as a law practice, to seek such an extension: s 198(4) of the Legal Profession Uniform Law. As the first defendant was contesting her liability to KL, it was not in her interests to seek that extension, and she did not. The upshot was that KL was not able to have its solicitor/client costs assessed.
At the time CGL commenced proceedings to recover outstanding costs, there is no evidence to suggest that CGL had contravened its disclosure obligations in order to engage s 178(1)(b). The provisions of s 178 only require consideration to the extent that compliance of a law practice with disclosure obligations is put in issue: Petselis v Tatarka (2019) 57 VR 375; [2019] VSC 8 at [60] per Keogh J. On the day CGL commenced proceedings to recover outstanding costs, judgment was entered for CGL. At that time, it does not appear the plaintiff had put in issue CGL’s compliance with disclosure obligations. To the extent the plaintiff now puts it in issue, I have found that CGL did not contravene its disclosure obligations and therefore s 178(1)(b) is not enlivened. Further, the plaintiff, so far as the evidence discloses, has never applied for an assessment of costs between herself and CGL nor applied to extend the time to submit any application for such an assessment.
Having regard to what I have set out here and my findings in relation to the preliminary matters, I reject the claim that the defendants are required to repay any monies to the plaintiff.
Should the Court make an order for a gross sum costs assessment under s 98 of the Civil Procedure Act 2005 (NSW) (CPA) and, if so, in what amount?
The second agreed issue is undoubtedly sourced from part of the relief the plaintiff seeks in Order 3 of the summons as follows: “An order to make a gross sum costs assessment under s 98 of the Civil Procedure Act …”.
Karina Ralston and Coleman Greig Lawyers were obligated to but failed to provide me under section 174(1)(a) of Legal Profession Uniform Law (NSW) with an estimate of the total legal costs and with information disclosing the basis on which legal costs will be calculated in the matter. As a result I was unable to make an informed decision under section 3(d) about the services I could access and the cost involved and informed choice under section 169 of Legal Profession Uniform Law (NSW) about my legal options and the costs associated with pursuing those options.
Since section 174(1)(a) of Legal Profession Uniform Law (NSW) has been breached by both defendants, section 174(1)(b) of Legal Profession Uniform Law (NSW) does not arise. If I am wrong and does arise, there was no significant change to anything previously disclosed as required by section 174(1)(b) of Legal Profession Uniform Law(NSW).
Mrs Young in her DCS disputed that s 98 of the CPA gives this Court the power to make a gross sum costs order for solicitor/client costs incurred in respect to proceedings previously litigated in the Family Court of Australia. [407]
Mrs Young also submitted that: [408]
The cases relied on by the Plaintiff in its written submissions such as Aramnbatzis v Foundas (No 2) [2024] NSWSC 859, Kunc J; Ahern v AON Risk Services [(No 2)] [2022] NSWCA 39*; and Gabrielle v Abbood* (No 4) [2023] NSWCA 100 are party-party or ordered costs orders. The principles relating to the gross sum costs orders of party-party or ordered costs in those cases do not apply here or to solicitor/client costs.
28 Yes - The Court should make a gross sum cost assessment under section 98 of Civil Procedure Act 2005 consistent with principles in Gabrielle v Abood (No 4) [2023] NSWCA 100 and Bell v Hartnett Lawyers (No 3) [2022] NSWSC 1204 at [97] “Basten JA also made reference to the Court’s inherent jurisdiction in [2022] NSWCA 42 at [13]-[14], [17], [19], 4 [21]-[22]: “[21] It appears from judgments already delivered, that the current intention of the primary judge is to make a gross sum costs assessment under s98 of the Civil Procedure Act the balance of any fees ... “ at [121]:
Determination of quantum 121 I note that in 2021 the parties agreed that the matter could progress by way of a third-party payer costs assessment. However, Slattery J rejected that approach and ordered progress of the matter to be determined in a final hearing by the Court.
29 Gabrielle v Abood (No 4) [2023] NSWCA 100 relates to indemnity costs sought by trustees under section 59 of Trustees Act 1925.
I do not regard it as necessary to address the ambit of the Court’s power to regulate costs under s 98 of the CPA.
Whether the Court should make an order for a gross sum costs assessment is also essentially foreclosed by my findings regarding the preliminary matters.
Undoubtedly, the Court has power in an appropriate case to make an order for payment of a specified gross sum of costs instead of assessed costs. However, none of the usual circumstances in which the Court is likely to make such an order are relevantly engaged on the facts of this case.
Even if, conceptually, the Court was minded to intervene in some way in this case to make such an order, the plaintiff has not provided the Court with any evidence sufficient for the Court to even remotely start to make an assessment of a specified gross sum. The relevant principles regarding supporting evidence and determination of an amount are summarised in Ritchie’s Uniform Civil Procedure NSW at [s 98.65], which in part states as follows:
The power to award a gross sum should only be exercised when the court considers the available material conduces to confidence in the fair assessment of an appropriate costs sum (or of a fair proportion of the costs): Wentworth v Wentworth (NSWCA, Priestley, Clarke JJA and Grove AJA, 21 February 1996, unreported, BC9600215); Harrison v Schipp (2002) 54 NSWLR 738 at 743; [2002] NSWCA 213; BC200100344. The approach taken to estimate costs must be logical, fair and reasonable: Beach Petroleum NL & Claremont Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123; 135 ALR 160 at 165–6; BC9507552; Hadid v Lenfest Communications Inc [2002] FCA 628 at [27]; BC200002428.
The costs ordered should be based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills): Beach Petroleum NL & Claremont Petroleum NL v Johnson (No 2), above at FCR 124; ALR 165–6 (appropriateness of fixed cost order not contested) and at FCR 120 and 123; ALR 161–2 and 164–5 (complex proceedings — multi-million dollar costs claim — order based on an incomplete bill in assessable form and interim bills rendered to clients); Leary v Leary [1986] 136 NLJRep 942; [1987] 1 All ER 261; [1987] 1 WLR 72 (unreasonably protracted and complex divorce proceedings — order based on a discounted estimate and bill); Harrison v Schipp, above at 743; Sparnon v Apand Pty Ltd [1998] FCA 164; BC9800513 (order based on expert evidence analysing interim bills and opinion about the likely outcome of taxation).
It may be necessary, and it is at least desirable, for the costs claimed to involve a degree of particularity about the way in which the total costs have been calculated. This may involve evidence of the nature and amount of the rates involved. It may also involve some demonstrated connection with particular aspects of the proceedings. A merely estimated or general total of the costs claimed may not be accepted as providing a proper basis for a fixed sum costs order: Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11; BC201101168 at [49]–[54] per Barrett J; Colquhoun v District Court (NSW) (No 2) [2015] NSWCA 54; BC201501572 at [7].
In the absence of a proper basis for an informed determination of the appropriate costs amount, a court should refuse an application for a gross costs order: SAB Closed 1 Pty Ltd v Bees and Honey Pty Ltd [2015] NSWSC 1162; BC201507748 (Stevenson J) (no independent costs evidence — invoices not detailed).
The plaintiff’s reference to the decision of Kunc J in Arambatzis v Foundas (No 2) [2024] NSWSC 859 at [10] and [11] is inapt and has no relevant application in the circumstances of this case. That equally applies to the plaintiff’s assertion that, somehow or other, it is appropriate for the Court to apply a 30% discount to the fees that were charged by CGL based on comments of the Court of Appeal in Gabrielle v Abood (No 4) [2023] NSWCA 100 at [10] and [11].
Suffice it to say I do not find that a gross sum costs order should be made.
If the Court is not prepared to make a gross sum costs assessment under section 98 of the CPA, should the Court appoint a referee pursuant to rule 20.14 of the UCPR to make a determination as to costs which the plaintiff is liable to pay to CGL?
This third agreed issue is clearly sourced from part of the relief the plaintiff seeks in Order 3 of the summons, as follows: “An order to …. or reference to a referee under UCPR 20.14”.
In view of the above, due to failure to make proper disclosures, cost agreement of defendants is void with no legal effect and this Court can refer the total exorbitant costs incurred to a referee or make a lumpsum assessment by applying 30% discount.
32. It is not disputed this Court has the power to refer a matter or issue to a person with appropriate costs expertise in accordance with its power to refer issues to a referee for inquiry and report under Part 20.14 of the Unform Civil Procedure Rules; Attard v James Legal Pty Ltd [2010] NSWCA 311 at [180] to [183]; Newell v De Costi [2018] NSWCA 49 at [63]and [236]. That would involve the preparation of a formal report by the Referee and the holding of a formal adoption hearing in relation to the report. Significant costs would be involved in such a course if adopted.
33. However, importantly, there needs to be a “question”, defined broadly under rule 20.14 for such a referral to be made. In this case, Coleman Greig has complied with its obligations under the Uniform Law both initially and in respect to its continuous disclosure obligations; applied hourly rates as per the costs agreement such rates being on any view of it, fair and reasonable and on par with the market for legal services; carried out the work in accordance with its retainer and has a judgment of the District -- 19 Court in its favour which has now been satisfied. There is no real question to be resolved in this case which warrants referral.
32 No significant costs are incurred for a referee-cost assessor to make a report because cost assessment is out of time due to Coleman Greig Lawyers failure to make a timely application for cost assessment.
33 The question is: Is the cost assessment out of time? If no, did the defendants fail to make proper disclosures and what is the amount of fair and reasonable costs? These are the real questions in this case which warrant referral.
Did the defendants commit contempt of Court for wilfully, knowingly and deliberately breaching and failing to comply with paragraph 2.4.3 of the Family Court orders made in No. SYC6488/2014 on 30 April 2019?
The plaintiff in her summons complains that the defendants disobeyed Order 2.4.3 of the Family Court orders made on 30 April 2019. [413]
Mrs Young in her DOS addressed this agreed issue and made a number of submissions which I have had regard to. For present purposes, it is helpful to set out the plaintiff’s submissions, which are essentially a reply to Mrs Young’s submissions on the issue.
The plaintiff in her POS, in respect of this agreed issue, submitted as follows: [414]
Defendant submits:
94 No. There are serious jurisdictional and procedural problems ..... contempt claim brought against both defendants. First, ... this court has no jurisdiction to deal with the contempt claim. Fourth, the order made does not in any way relate to Ms Ralston.
My reply: My contempt claim is against first defendant only. I have not brought and cannot bring contempt claim against Karina Ralston because of Notation B below (See CB 10 at [10] “seek an order for contempt of court under this court’s inherent jurisdiction as first defendant refused to comply with this court order”).
This court has jurisdiction (a) under its inherent jurisdiction (b) because defendants were not a party to family law proceedings and (c) under SCR Pt 55 r 11 “guilty of contempt of the Court or of any other court**”** [415]
Defendant submits:
Second, the summons does not comply with ......... test the case against him or her.
My reply:
Part 55 Contempt
Division 3 Motion or proceedings for punishment
6 Procedure generally
(1) if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders
(2) Where contempt is committed, but not in connection with proceedings in the Court, proceedings for punishment of the contempt must be commenced by summons,
7 Statement of charge A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or summons.
I filed statement of charge with my summons CB 10 at [10]. It would be unfair to hold me to the same standard as solicitors and barristers.
Defendant submits:
Third, key elements of civil contempt of court have not been established ...... instead she engaged another lawyer.
My reply:
I did not engage another lawyer. Sanjiv Shah engaged his own solicitor as solicitor for the conveyance.
I repeatedly begged of Therese Austin of first defendant’s conveyancing team to act on the conveyance but Therese Austin repeatedly refused.
Karina Ralston and Ashley Lamb both conceal the following critically important emails from their respective affidavits:
CB 733: PS I note also your firm has not accepted the Pexa invitation to join the workspace. (Name of person on top of email has been deleted)
CB 734: My firm is not acting on the conveyance for Mrs Sanjiv and do not intend to join the PEXA workspace. I request that as all relevant work has now been completed to provide vacant possession, you provide a Settlement Adjustment Sheet as soon as possible but by no later than Monday morning so the final figures can be reviewed. Your office can then facilitate the PEXA settlement without my firm joining the workspace ....
These 2 concealed emails clearly establish that first defendant also received instructions from Sanjiv Shah (through his Solicitor Keith Spencer) to act on the conveyance by accepting Pexa invitation to join workspace but first defendant refused yet was interested to act for me to review settlement adjustment sheet to ensure their outstanding fees of about $252,000 was being deducted from my share of sale proceeds.
My summarised answer to issue number 4 is:
Statement of charge
A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty.
2.4.3 Coleman Greig Lawyers to prepare a contract of sale.
Notation B: “It is noted that a solicitor at Coleman Greig not part of the Family Law Department shall act in respect of the sale of the Epping property on behalf of both the husband and wife”.
In above circumstances and on the evidence before the Court, Meek J can directed, pursuant to Pt 55 r 11 of the Supreme Court Rules 1970 (NSW), that the Registrar (Prothonotary of the Supreme Court of New South Wales) to apply by motion for punishment of first defendant, Coleman Greig Lawyers for contempt to the effect that first defendant “knowingly and deliberately and wilfully breached and disobeyed the above order of the court made by Family Court” See Madsen v Darmali (No 3) [2024] NSWSC 582 at:
[30] Even when a person is charged with contempt, **it is not necessary to show that the person charged was aware of the full terms of the court’**s order: Sun Newspapers Pty Ltd v Brisbane TV Ltd (1989) 92 ALR 535 at 538 (per Pincus J); Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2015) 238 FCR 209 at [18] (per Jagot J).
[31] Even more so, the Court is entitled to expect that qualified legal practitioners will adhere to orders made in Court**.** [416]
34. There are serious jurisdictional, procedural and evidentiary problems facing the Plaintiff in relation to the contempt claim which has been brought against both [418] Defendants.
35. First, the Defendants submit this Court has no jurisdiction to deal with a contempt relating to an order made by the then Family Court. It is accepted, as a superior court of record, the Court has acquired the traditional common law contempt powers in respect to its own proceedings and also a supervisory jurisdiction to deal with contempts, except perhaps civil contempts, affecting inferior courts within the same court hierarchy, or proceedings in such courts. However, its jurisdiction does not extend to dealing with alleged contempt of the Family Court of Australia as it was then known, given the Family Court is not a court within its hierarchy. The relevant order is one made by the Family Court of Australia on 30 April 2019, not this Court or any Court in its hierarchy. It is worthy also to note that the order was made over 5 years ago. This Court has no jurisdiction to deal with an alleged breach of an order of the Family Court.
36. Second, the Summons filed does not comply with SCR Pt 55 r 7, which requires that a Statement of Charge specifying the contempt, to be subscribed or filed with the summons. As stated by Rothman J in Young v Young [2016] NSWSC 1051 at [9]: “The purpose of SCR Pt 55 r 7 is to provide the person concerned with due notice and to accord a proper opportunity to answer the charge. It is a fundamental of the rules of procedural fairness and/or natural justice that a person charged with an offence, even under the common law, or especially under the common law, is entitled to a reasonable opportunity to prepare and to present her or his case (including to test the case against her or him).”
37. Third, even if a Statement of Charge had been prepared in proper form, key elements of civil contempt have not been established by Mrs Sanjiv. The elements that need to be established in an application for civil contempt for breach of a court order are conveniently set out in the recent decision in Goldspring v Jordan [2024] NSWCA 158 at [34], Bell CJ. The party alleging contempt must establish that:
a. an order was made by a Court;
b. the order was sufficiently clear such that one can be sure that the order was not complied with;
c. the alleged contemnor had knowledge of the terms of the order and, if required by the court rules, the order was served on the alleged contemnor or service was for some reason dispensed with; and
d. the alleged contemnor took a deliberate step which, even if not intended to, breached the order.
38. Importantly, the contempt claim fails at the outset as the proper construction of the order imposed obligations on the parties to the litigation, not the legal practice or their employed staff. There are only two references [419] to Coleman Greig in the orders:
Para 2.4.3, which imposes obligations on the husband and wife to give instructions as are necessary to prepare a contract for sale to Coleman Greig Lawyers110; and
Notation B -a notation, not an order, [420] which records that a solicitor at Coleman Greig, not part of the Family Law Department shall act in respect of the sale of the Epping Property on behalf of both of the Husband and Wife.
39. Paragraph 2.4.3 is an order but the primary obligation was imposed on the husband and wife to give the appropriate instructions to Coleman Greig so they could prepare a contract. In this case, the wife, Ms Sanjiv did not provide such instructions. Despite efforts by Ms Ralston and Ms Austiin to seek those instructions on 13 May 2019; 14 May 2019; 23 May 2019; 24 May 2019; 29 May 2019 she was not successful in getting instructions from Ms Sanjiv. Coleman Greig then ceased to act in early June 2019. Until such instructions are provided, then Coleman Greig could not act for both the Husband and Wife on the contract.
40. Notation B is not a Court order. Further, and importantly, neither Defendant took any step in deliberate breach of the order. In this case, despite many attempts by Ms Ralston and the licensed conveyancer Ms Therese Austin, to get Ms Sanjiv to engage Coleman Greig to prepare the contract for sale, Ms Sanjiv did not instruct Coleman Greig, nor did she provide the proper authority so the practice could act for her in relation to the preparation of a contract of sale of the Epping property. Neither did the husband provide such instructions. Even if the notation imposes obligations on Coleman Greig, without the Husband and the Wife’s instructions, Coleman Greig was not in a position to comply with the order as made.
41. Fourth, the order made does not relate to or require Ms Ralston to do anything -she is not in breach of such an order and the claim against her is without any foundation. It not appropriate for the Plaintiff, now that she realises her own misguided approach, to say she only brings the contempt claim against Ms Ralston. That is not what is set out in the Summons.
42. The Defendants contend that the claims of contempt should be dismissed with costs. Such claims are beyond the jurisdiction of this Court; not in proper procedural form and without merit on the evidence.
WILFUL AND KNOWING AND DELIBERATE AND CONTUMACIOUS CIVIL AND CRIMMINAL CONTEMPT OF COURT - ISSUE 4
Reply to paragraph 34
There are no jurisdictional and/or procedural and/or evidentiary problems in relation to wilful and knowing and deliberate and contumacious civil and criminal contempt of court. Reply to paragraph 35 The Court has jurisdiction to deal with contempt in relation to defendants because defendants were not parties to family court proceedings/family court orders made on 30 April 2019 and are solicitors whose unlawful conduct falls under the jurisdiction of Supreme Court of New South Wales.
Reply to paragraph 36
I as a self-represented person with no legal training must not be held to same standard of the defendants. Both defendants were provided with due notice at all times and accorded procedural fairness to answer the charge. This is in addition to them as qualified and experienced solicitors knowing on and after 30 April 2019 whether they are in contempt of court orders they advised me to accept.
Reply to paragraph 37
Both defendants were aware that orders 2.4.3 with Notation Band 4.4.2 were made on 30 April 2019.
Orders 2.4.3 with Notation Band 4.4.2 were sufficiently clear such that Judge Meek can be sure that these orders were not complied with.
Both alleged contemnors had knowledge of the terms of orders 2.4.3 with Notation Band 4.4.2. Both alleged contemnors took deliberate step which, even if not intended to, (a) breached order 2.4.3 by not preparing contract of sale despite being instructed by me and Sanjiv Shah (b) breached order 4.4.2 by directing Solicitor Keith Spencer to pay balance amount of money payable to me into their “office account” NOT “trust account” as ordered.
Reply to paragraph 38
Orders 2.4.3 with Notation B obligated Coleman Greg Lawyers to prepare contract of sale NOT parties to prepare contract of sale.
Orders 4.4.2 obligated Coleman Greg Lawyers (not parties) to direct payment of balance money to be paid into trust account not office account whose account number was only known to Coleman Greg Lawyers.
Reply to paragraph 39
The words in CB 773 “You engaged us to ensure that settlement took place” clearly establish that I engaged and instructed Coleman Greig Lawyers to prepare contract of sale to ensure settlement took place.
The words in CB 733 “I note also your firm has not accepted the Pexa invitation to join the workspace” clearly establish that Sanjiv Shah through his Solicitor Keith Spencer instructed Coleman Greig Lawyers.
The words in CB 734 “My firm is not acting on the conveyance for Mrs Sanjiv and do not intend to join the PEXA workspace. I request that .... , you provide a Settlement Adjustment Sheet as soon as possible but by no later than Monday morning so the final figures can be reviewed” clearly establish that instead of joining PEXA to complete settlement in relation to contract of sale Coleman Greig was obligated to prepare and settle, Coleman Greig Lawyers were interested in reviewing settlement sheet to ensure payment of money was directed into their “office account” and not into their “trust account” as ordered by Family Court.
Reply to paragraph 40
Coleman Greig Lawyers assert that they knew that I am Sanjiv Shah had not engaged them and not given them instructions to prepare contract of sale, yet clearly Coleman Greig made not attempt to have orders 2.4.3 with Notation Band 4.4.2 varied or set aside. This only because first defendant’s assertions are false to avoid being found in wilful, knowing, deliberate and contumacious civil and criminal contempt of court.
Reply to paragraph 41
On the evidence supported by my submissions, Coleman Greig Lawyers are in wilful, knowing, deliberate and contumacious civil and criminal contempt of court orders 2.4.3 with Notation B.
On the evidence supported by my submissions, Coleman Greig Lawyers and Solicitor Karina Ralston are in wilful, knowing, deliberate and contumacious civil and criminal contempt of court orders 4.4.2.
Reply to paragraph 42 I contend that both defendants be held in civil and criminal wilful, knowing, deliberate and contumacious civil and criminal contempt of court orders 2.4.3 with Notation B and 4.4.2 with an order for costs in my favour.
Reply to other paragraphs
1 Clear and convincing and definite proof is available to establish, including but not limited to, that Solicitor Karina Ralston and Coleman Greig Lawyers Pty. Ltd. wilfully and knowingly and deliberately and in contumacious disregard for court order 4.4.2 gave the office account number to Solicitor Keith Spencer to enable him to pay balance money payable to me into Coleman Greig Lawyers Pty. Ltd. office account NOT trust account as ordered.
2 Both defendants who have wilful and knowing and deliberate and contumacious contempt for court cannot be witness of truth.
3 Both defendants who have wilful and knowing and deliberate and contumacious contempt for court cannot be witness of truth.
4 Both defendants were obligated to give me an estimate of total legal costs (their fees and disbursements such as counsel fees) but failed to do so at the outset which obstructed me from making an informed decision as to whether to engage Coleman Greig Lawyers Pty. Ltd.
5 The issues enlisted are inaccurate and incomplete. 6 A review of the transcript will reveal that I did not abandon the issue about defendant’s failure to make proper disclosures. 7 to 19 Both defendants who have wilful and knowing and deliberate and contumacious contempt for a court of law and justice cannot be witness of truth - Defendants continued acting for me when they knew that I was not paying their invoices timely that breached mutual trust and confidence because of their successful repeated threats that I would lose my home and money entitlements if I changed lawyers again that helped defendants continue making money.
46 The contents of paragraph 46 are inaccurate. If Coleman Greig could not comply with any family court orders they were obligated to have made an application (on my behalf or on their own behalf) before settlement (when acting for me in relation to sale of property). I have established that both defendants are in clear civil and criminal contempt of court.
47 Both defendants are qualified and experienced lawyers who know whether their actions at any time are/were in contempt of court or are/were not in contempt of court. I have established contempt of court based on the evidence in the court book prepared by and known to defendants.
2.4 Should the Epping property not be sold during the blind tender process then within a further twenty eight (28) days of the blind tender the parties do all acts and things necessary to list for sale by public auction the Epping property for the best price reasonably obtainable and in particular will:
2.4.1 give such instructions and to list the Epping property for sale with a real estate agreed upon by the parties and failing agreement the Wife shall forthwith in writing nominate two real estate agents from which the Husband shall within a further seven (7) days select one, and failing which the Wife shall select one who shall be the real estate agent appointed (“the agent”);
2.4.2 sign all documents requested by the agent for the sale of the Epping property;
2.4.3 give such instructions as are necessary to a Coleman Greig Lawyers (“the lawyers”) to prepare a Contact for Sale for a forty two (42) day settlement period (unless agreed to otherwise between the parties in writing);
2.4.4 list the Epping property for sale by public auction and such auction shall be on a date as nominated by the agent but no later than 5 weeks after the conclusion of the blind tender process, at a reserve of price of $2,500,000.00;
B. It is noted that a solicitor at Coleman Greig, not part of the Family Law Department, shall act in respective of the sale of the Epping property on behalf of both of the Husband and Wife;
I serve the following statement of charge for civil and/or criminal contempt of court - breach of order 2.4.3 made on 30 April 2019 *“*Coleman Greig Lawyers to prepare a contract for sale for 42 day settlement period - Notation B: It is noted that a solicitor at Coleman Greig not part of the Family Law Department, shall act in respect of the sale of the Epping property on behalf of both of the husband and wife”**. I seek an order for contempt of court under this court’s inherent jurisdiction as first defendant refused to comply with this court order.
During the hearing, the plaintiff asserted that Order 2.4.3, when read with notation B, created a responsibility in CGL to act in relation to the sale of the property and that they had failed to do so. [426] The plaintiff sought to cross-examine both Mr Lamb and Mr Ferguson regarding this, notwithstanding that they had no relevant involvement in the sale of the property.
The notion that CGL breached Order 2.4.3 such that it amounts to a form of civil and/or criminal contempt of court (as alleged by the plaintiff) [427] is entirely misconceived.
First, properly construed, Order 2.4.3 is an obligation on the parties, not on CGL.
Secondly, at no stage did the plaintiff (nor Dr Shah) relevantly ask CGL to prepare a contract for sale for the Epping property.
The plaintiff’s complaint appears to relate to 2 time periods. The first in May 2019 and the second in July 2022.
In relation to the period in May 2019, I have set out the narrative of events above based on the correspondence between the parties. In summary, it is clear that, on 3 May 2019, Ms Austin spoke with the plaintiff and sent her an email. [428] The email introduced Ms Austin to the plaintiff and requested instructions regarding some of the property. Thereafter, between 6-30 May 2019, Ms Ralston sought instructions from the plaintiff and it is clear that the plaintiff declined to give instructions to Ms Ralston and CGL to act on the sale of the Epping property. [429] The reason the plaintiff declined to give instructions is not expressly evident from the correspondence. However, as I have noted earlier, by at least 10 May 2019, it seems the plaintiff was contemplating trying either to vary the Court orders or to delay the sale of the Epping property. [430]
The above narrative is consistent with Ms Ralston’s affidavit evidence that, whilst the Family Court orders dated 30 April 2019 envisage that the parties will instruct CGL to prepare a contract for the sale of the property and the “property team” at CGL will open a file, due to lack of instructions leading up to 30 May 2019, CGL ceased to act for the plaintiff. [431] Whilst the plaintiff cross-examined Ms Ralston to the effect that she had in some way breached Order 2.4.3, [432] Ms Ralston confirmed that CGL was no longer instructed at the time and so CGL did not prepare any contract for sale. [433] I accept Ms Ralston’s evidence.
In relation to the period in July 2022, the plaintiff further challenged Ms Ralston in respect of her reply evidence that CGL did not act for her in respect of the sale of the Epping property as the plaintiff did not provide CGL with any instructions to do so (noting that the plaintiff was in April 2022 represented by Gary Pickering, solicitor, in respect of the settlement of the sale of the property). [434] Ms Ralston disagreed that her evidence regarding that was incorrect. [435] I accept her evidence.
On 22 August 2022 (CB 773) Solicitor Karina Ralston said in her email “You engaged us to ensure that settlement took place”****.
Despite Coleman Greig Lawyers knowing that I engaged them to ensure settlement took place after contract of sale must be prepared by them, Coleman Greig Lawyers wilfully and knowingly and in contumacious disregard for order 2.4 .3 disobeyed order 2.4.3 and did not prepare contract of sale. All that Coleman Greig Lawyers were interested in was their monetary benefit in the settlement adjustment sheet to verify if their outstanding fees was included therein for being paid outside the trust account directly into their office account in contempt of court.
At any point in time and under all circumstances, defendants made no attempt to get the above order varied.
Conclusion: I submit that I have established that Solicitor Karina Ralston and Coleman Greig Lawyers are in contempt of court. I further submit that if Solicitor Karina Ralston and Coleman Greig Lawyers as qualified and experienced legal professionals had contempt for Court orders, it would be unsurprising that Solicitor Karina Ralston and Coleman Greig Lawyers had contempt for me as their client established as under:
…
2. You engaged us to ensure that settlement took place. You did not want to be evicted from your home (and wanted to vacate at the time of settlement). You however did not instruct us in a timely manner to file an application to vary the orders and ultimately you were evicted. Settlement did however proceed;
You have indicated I have breached an order. I do not know which order you say that I have breached and would ask that you set out in more detail.
Seemingly, there was no response to Ms Ralston’s question in that regard. Certainly, none appears in the Court Book.
Thirdly, as observed by Mrs Young, it is entirely unclear how the Supreme Court has jurisdiction to deal with a claim for contempt relating to an order made by the Family Court. [441] Whilst it may be acknowledged that the Supreme Court has power to deal with, not only contempt of itself but contempt of any inferior court, the Family Court is not an inferior court within the same court hierarchy: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 360 per Dixon CJ, Fullagar, Kitto and Taylor JJ; [1955] HCA 12.
Those matters are sufficient to dispose of the plaintiff’s claims. It is not necessary to address Mrs Young’s further submissions regarding the alleged deficiency of the charge of contempt for non-compliance with Supreme Court rules Part 55 r 7. [442]
Yes - I respectfully submit that I am entitled to pre-judgment and/or post-judgment interest and costs such as fees paid in this court, if successful.
43. No. As against Ms Ralston, there is no basis for this claim whatsoever as she never received any part of the legal fees paid to Coleman Greig.
44. In terms of Coleman Greig, if an order is made for re-payment of any funds, then it is conceded that the Court may make an order for interest. However, as stated above, there is no foundation for a repayment of funds by Coleman Greig. Costs of the proceedings however will depend on the overall merits of the matter and other considerations.
…
53. The Summons should be dismissed in its entirety with costs.
54. The Defendants reserve their rights to make further submissions on costs or bring an application for a fixed orders once the final decision is made by His Honour.
43 Yes. I am entitled to an order for pre-judgment interest and costs.
52 There is strong legal and evidentiary basis for any order sought or that Court deems fit to make in the interest of justice.
53 The summons should be granted with costs.
54 I reserve my position and my legal right to a statutory cost assessment.
Having regard to my findings above, it is unnecessary to decide whether the plaintiff is entitled to any order for pre-judgment interest.
Costs are in the discretion of the Court, subject to the CPA, rules of Court and any other Act: s 98(1)(a) CPA. The Court has full power to determine by whom, to whom and to what extent costs are to be paid: s 98(1)(b) CPA. The Court may order that costs are to be awarded on the ordinary basis or on an indemnity basis: s 98(1)(c) CPA.
The general position is that if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: r 42.1 UCPR. If the Court makes an order for dismissal of the proceedings, then generally speaking, unless the Court orders otherwise, the plaintiff must pay the defendant’s costs of the proceedings to the extent to which they have been dismissed: r 42.20(1) UCPR.
In light of my findings, I intend to dismiss the plaintiff’s summons.
There is, in my opinion, no principled basis for departing from an order that costs follow the event. Nonetheless, I apprehend that Mrs Young, by her submission in DCS [54], intends to seek a specific order regarding costs and, accordingly, I will give the parties an opportunity to make a specific submission regarding.
For the reasons detailed above, I dismiss the plaintiff’s summons.
I will address the issue regarding submissions on costs upon delivery of these reasons for judgment.
**********
Pursuant to the Federal Circuit and Family Court of Australia Act 2021 (Cth), there was a merger of the Family Court of Australia and the Federal Circuit Court of Australia. From 1 September 2021, the Federal Circuit and Family Court of Australia commenced operating in two divisions. It is apparent that after September 2021, the family law proceedings between the parties was dealt with in Federal Circuit and Family Court of Australia (Division 2) (see Court Book (CB) 757). For convenience, I will simply refer to the Division 2 Court as the “Family Court”.
CB 90.
CB 54-59 (and attached Terms of Business CB 60-69).
CB 705-707.
Evidence provided of the invoice being sent to the plaintiff on or about the date of the invoice.
The total recorded in the plaintiff’s summary is $482,865.35, being short by one cent.
Addressed by me below, but essentially a form of costs disclosure document which at the time of the proceedings was mandated under Chapter 19 of the Family Law Rules 2004 (Cth) but which now is provided for by r 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The total estimate calculated from the Costs Notice is actually $131,865.42. The figure provided in Annexure A of Mrs Young’s DCS is $124,871.00. It is not clear from where this figure originates.
The Costs Notice notes that this number excludes counsel’s fees (as counsel had not yet been chosen).
The Costs Notice includes in this figure fees owing to Prominent Lawyers.
For example, Luke 14:28-32 in the Bible – New International Version.
Legal Profession Uniform Law 2014 (NSW) (Uniform Law) ss 3(d), 169(a), 174(1).
The word “total” is underlined for emphasis, which is only viewable on the Caselaw website.
T 3.36-.37 (22 May 2025).
PSC page 4.
This heading is underlined, which is only viewable via the Caselaw website.
DCS [51].
DOS [89].
DCS [20].
PCRS page 4.
POS page 1.
See Summons CB2 under the heading “Type of Claim” and CB 3 (Order 2).
DCS [25].
For example, see POS pages 1-4 which include references to Uniform Law ss 3(d), 169(a), 172(2)(e), 174(1)(b), 178(1)(b) and (c), 198, 198(4), 198(7)(b); PCS which include references to Uniform Law ss 173, 174(1)(a) and (b), 175.
T 101-102.
POS pages 1-2.
CB 10[5].
CB 30[8]; T 138.12-.38.
CB 10[8]-[9].
CB 10[2].
CB 30[8], 32[26].
CB 40-41[24].
CB 3[5].
CB 10[4].
DCS [27(c)].
DCS [45]-[51].
At page 5.
POS pages 4-5
PSC page 3.
DCS [48].
CB 19.
CB 33.
POS pages 4-5.
PCRS pages 4, 6.
T 6.15-.21 (22 May 2025).
T 13.21-.37 (22 May 2025).
CB 257.
T 142.
T 143.
T 143.
T 144.
T 145.
CB 10[6]-[7], 5.
CB 10[8].
DCS pages 12-14.
For example T 48, 49 and 58.
For example, CB 97, 105 (item 119), 106 (items 132, 137, 143, 152, 155, 161), 110 (item 16), 112 (item, 124), 322 (item 300).
CB 152[11(c)].
CB 435.
CB 97.
T 49.21-50.8.
CB 13[2]-5].
CB 14[13].
T 1-2.
CB 46[5].
T 30.
T 30.
T 90.
T 233.22-234.18.
T 234.20-266.10.
At page 4.
DCS [8]-[12].
DCS [2],[3],[13].
DCS [14].
DCS [15].
DCS [16].
DCS [17].
DCS [18].
For example, T 102.44-.46, 116.39, 160.30, 177.38-.39, 182.41-.48.
For example, T 104.20-.27, 106.9-.24, 108.28-.38.
POS page 1.
CB 10[3].
CB 57.
CB 76.
T 41.37-.48.
T 98.36-.43.
T 108.6-109.20.
CB 10[4].
T 172.
CB 464-465 (invoice 26 February 2019) and CB 378-380 (invoice 1 May 2019).
CB 30[8], 33[26].
T 138.
T 151.
T 181.
T 186.
DSC [19].
T 111.45-112.6.
T 112.41.
T 115.35-.42.
T 113.4-.49.
T 115.15-.17, 115.41-.45.
T114.1-.34.
T 115.9-116.2.
CB 79.
CB 31[12].
CB 76.
CB 54.
CB 55.
CB 60.
CB 53.
CB 70-75.
CB 74-75.
CB 85, 94-96, 103-107.
CB 85.
CB 85, 94-96.
CB 103.
CB 87-88.
CB 87.
CB 87-88.
CB 92 (see full invoice at CB 91-96).
CB 202.
CB 202.
CB 99.
CB 97.
CB 114-116.
CB 133 (see items 62 and 67).
CB 122-124.
CB 123.
CB 123.
CB 124.
CB 316.
CB 143 (item 204).
CB 148.
CB 151-152.
CB 152-153.
CB 153.
CB 156-157.
CB 16[25].
CB 16[26].
CB 158.
CB 165-171.
CB 172.
CB 16-17[27].
CB 459-462.
Exhibit D13 (final paragraph on page 1 and the three paragraphs on page 2).
Exhibit D14.
Exhibit D15.
Exhibit D16.
Exhibit D17.
CB 464-465.
CB 199 (see items 189, 191, 194 and 200), CB 317 (item 46).
Exhibit D18.
CB 200.
CB 266-267.
See in particular CB 307-309.
CB 641.
CB 712-713.
CB 596, 599, 601-605, 616-617, 623-627, 636-637, 720-724, 728-730, 734, 738.
CB 335-338.
CB 17[31].
CB 345-354.
CB 353, 371.
CB 376-379.
CB 393.
CB 404.
CB 420-428.
CB 423[14].
CB 424-426.
CB 426.
CB 426.
CB 427.
CB 440-441.
CB 443.
CB 444.
CB 445.
CB 485.
CB 500.
CB 502.
CB 509-510.
CB 511-512.
CB 38[10(a)].
CB 514-525.
CB 527.
CB 551.
CB 529-550.
CB 569-571.
CB 559.
CB 572-577.
Sanjiv No.1 at [12].
CB 578.
CB 580-585.
CB 38[10(c)].
CB 38[10(d)].
CB 19[43].
CB 593.
CB 593.
CB 599.
CB 19[46].
CB 19[47].
CB 639-641.
CB 715.
CB 716.
CB 642-643.
CB 644-783.
CB 707.
CB 715-717.
CB 758.
CB 732.
CB 20[52].
CB 733.
CB 734.
CB 735-746.
CB 20[54], 741.
CB 747.
CB 749.
CB 777.
CB 752-756.
CB 758.
CB 760-764.
CB 21[59]-[60].
CB 21[61].
CB 765.
CB 766-767.
CB 768-771.
CB 772 (third last paragraph).
CB 773.
CB 774.
CB 776-777.
CB 778.
CB 779-781.
CB 795-797.
CB 798.
Readers should be made aware that the strikethrough and underlining in the extract can only be seen when viewing this judgment on the NSW Caselaw website. The strikethrough pertains to the first sentence of paragraph 5 of the extract. The underlining pertains to the following parts of the extract: the words "referee to determine under s 199(2(a) of Legal Profession Uniform Law" and "if matter referred to referee and gross sum costs order not made." in paragraph 1; the second sentence of paragraph 5; the entirety of paragraph 7; and the entirety of paragraph 8.
Dal Pont at [2.30]-[2.31] pages 30-31.
Roger Quick, Quick on Costs (Thomson Reuters) [70.200].
Dal Pont at 32.
Dal Pont at 37.
See r 12.06 current FLR.
Dal Pont at [2.28], page 30.
Dal Pont at 30-31 fn 125, citing Peter Rosier, “Costs Disclosure and the Uniform Law: Has Your Client Really Understood You?” (February 2016) Law Society Journal 84 at 85.
CB 30.
CB 31.
POS page 2.
At [27(f)].
T 67.36-.44, 101.35-102.3, 103.13-.46.
T 70.26-71.23.
CB 54.
DCS [27f] citing CB 60.
CB 97.
CB 31.
T 37.27-.32, 46.14-.15.
T 63.3-.7.
CB 38 [13]-[14]; T 78.35-79.26.
At page 1-2. Readers should be made aware that the following parts are underlined, which is only viewable via the NSW Caselaw website: the words “Defendant submits” and “My reply” at the start of each paragraph.
At [27(f)].
At page 5.
At page 6.
The words “I should allow” are underlined, which is only viewable on the NSW Caselaw website.
The word “amended” is underlined, which is only viewable on the NSW Caselaw website.
CB 55, 60.
CB 54.
T 69.25 and following.
T 70.2-.24.
T 37.27-.32.
T 44.21-.23.
T 44.23-.32, 45.38-46.1.
CB 99-100.
CB 156-157.
CB 161-163.
CB 266-267.
The total estimate provided in Annexure A of Mrs Young’s DCS reports a figure of $124,871.
CB 156, see CB 147 for email attaching it.
CB 161, see CB 166-168 for email attaching it.
CB 266, see CB 302, 308 for email attaching it.
CB 153.
CB 152.
T 63.3-.7.
T 61.48-62.3.
CB 10[3].
CB 31[13].
At page 1.
The words “Defendant submits” is underlined, which is only viewable on the NSW Caselaw website.
The words “My reply” is underlined, which is only viewable on the NSW Caselaw website.
DCS [27(a)].
DCS [27(b)].
CB 54-76.
CB 705-711.
T 117.24-120.38.
T 120.28, 120.38.
T 120.31.
CB 32[20].
CB 14[12].
CB 52.
CB 516.
CB 166-168.
CB 16-17[27], 787-788.
CB 519[20].
CB 641.
CB 444.
CB 478.
CB 641.
Exhibit D2.
CB 86, 91-96.
Exhibit D3.
Exhibit D4.
Exhibit D5.
Exhibit D6.
Exhibit D7.
CB 735.
Exhibit D8.
CB 519[20].
CB 641.
CB 641.
CB 10[4].
The person with those initials being identified by the full name and their position within the firm at the end of the invoice under the heading "Summary of time spent" (CB 107).
T 195.33-198.26.
T 196.20-.21.
T 198.13-.14.
See CB 55.
CB 60.
CB 10[5].
CB 31[13].
CB 733.
CB 734.
POS page 8.
T 34.6-.18.
T 53.24-54.1.
T 147.37-.39.
T 148.4-.5.
T 148.24-.30.
CB 97.
CB 110 item 16.
CB 111 item 84.
CB 124.
CB 62.
CB 30[8], 32[26].
PSC page 3.
At [17].
PCRS page 4.
CD 40-41[24].
CD 40-41[24].
T 39.27-.41.
T 39.43-40.9.
CB 2 (Summons – Type of claim “Inherent/supervisory jurisdiction-exorbitant costs charged be repaid”; CB 3 (Summons Order 2 “An order requiring defendants to repay under equity principles/inherent jurisdiction amount of exorbitantly charged and unauthorised costs to plaintiff who bore the costs"); CB 10[8]-[9].
T 63.3-.7, 264.6-.40.
PSC page 3.
DCS [4].
T 72.13-73.8.
DCS pages 14-17.
T 75.31-.35.
T 55.30-.35, 56.40–.48, 166.
PSC page 3.
DCS page 17.
DCS [50].
CB 148.
CB 153.
CB 16[26].
CB 162.
CB 16[26], 158-163.
CB 165.
CB 168.
CB 459-462.
See CB 189.
CB 162.
CB 442-443.
CB 444.
T 55.1-.3.
CB 464-465 (invoice 26 February 2019) and CB 378-380 (invoice 1 May 2019).
CB 464-465 (invoice 26 February 2019) and CB 378-380 (invoice 1 May 2019).
CB 10[2].
PCS page 1.
DCS [47].
The words “the plaintiff with” are underlined for effect, which is only viewable on the Caselaw website.
T 75.49-78.9 citing CB 38[10].
CB 60-63.
CB 62.
CB 653-656.
CB 655.
CB 516.
CB 786.
CB 92.
CB 786.
CB 787.
CB 787.
CB 787.
CB 156-160.
CB 16[26].
CB 16-17[27].
CB 16-17[27], 787-788.
Citing CB 38[10].
T 75.49-78.9 citing CB 38[10].
PCS page 3.
DCS [49].
CB 639-641.
CB 641.
CB 712-713.
PSC page 3.
DCS [49].
POS page 3.
POS page 1; CB 31[12].
POS page 4.
T 84.13-.20.
T 85.13-.29.
POS page 1.
POS page 2.
PCS page 2.
DCS [28]-[29].
DCS [29].
PCRS pages 4-5.
PSC page 3.
DCS [32]-[33].
PCRS page 6.
CB 3 (summons Order 4).
Pages 7-8. The following headings are outlined, which is only viewable on the Caselaw website: “Defendant submits”, “My reply”, “Statement of charge”.
The words “contempt” and “of any other conduct” are underlined, which is only viewable on the Caselaw website.
The words “the Court is entitled” until the end of the sentence is underlined, which is only viewable on the Caselaw website.
DCS [34]-[42]. The opening words “First”, “Second”, “Third” and “Fourth” are underlined, which is only viewable on the Caselaw website.
The word “both” is underlined, which is only viewable on the Caselaw website.
The words “two references” are underlined, which is only viewable on the Caselaw website.
The words “not an order” are underlined, which is only viewable on the Caselaw website.
PCRS pages 1-3.
PCRS page 6.
CB 346-347, 363.
CB 371.
CB 10-11[10].
T 214-216.
CB 10[10].
CB 393.
CB 404, 420-428, 440-441, 443, 444, 445, 485, 500, 502.
CB 427.
CB 17[33]-18[41].
T 33.39-36.1.
T 36.8-.10, 36.46-.49.
See CB 40[21], 41[28]-[29].
T 79, 81-83.
T 33.39-36.6 (referencing emails that CB 733- 734); PCS page 1.
CB 734.
PCS page 1.
CB 773.
CB 773.
DOS [94], DCS [35].
DOS [96], DCS [36]-[37].
POS page 9.
DCS [43]-[44].
DCS [43]-[44].
Sanjiv
Coleman Greig Lawyers Pty Ltd [2025] NSWSC 528
(2023) 111 NSWLR 7
(1995) 184 CLR 163
(2003) 214 CLR 118
(1955) 93 CLR 351
(2013) 252 CLR 118
(2019) 57 VR 375
(1988) 15 NSWLR 348
(2002) 54 NSWLR 738
(1995) 57 FCR 119
(1989) 92 ALR 535
(2015) 238 FCR 209
There are, as will be seen below, what I will simply call some “queries” regarding CGL’s costs disclosures. However, overall, I do not regard them as being such substantial matters so as to justify any of the relief sought by the plaintiff. Rather, I have determined to dismiss the plaintiff’s summons and the relief sought and I find for the defendants in respect of the issues and the relief on the summons.
I will cite the evidence in the proceedings, as I already have, by reference to the Court Book (CB), transcript pages (T) and exhibit numbers, and cite the submissions by reference to the plaintiff’s opening written submissions dated 22 September 2024 (POS), her closing written submissions dated 14 April 2025 (PCS) and her closing reply written submissions dated 26 April 2025 (PCRS), and Mrs Young’s opening written submissions filed 20 September 2024 (DOS) and closing written submissions provided on 23 April 2025 (DCS). References to the transcript will be to transcript pages of the final hearing unless otherwise specified.
In addressing a number of the issues below, it should be observed that the initial written opening outline of submissions were provided by the parties out of order. Mrs Young’s DOS were provided first and the plaintiff replied to that in her POS. The effect of that is that certain of the submissions the plaintiff made in her POS are not an outlining of her case but rather a reply to the submissions in the DOS.
the plaintiff’s conduct in commencing after the first day of the hearing 2 separate legal proceedings against the defendant which were either related or referable to matters raised in these proceedings.
The plaintiff, who is self-represented, particularly muddied the waters in the matter in at least three material respects. First by making certain serious allegations of threats and duress against Ms Ralston (which I find are completely unfounded), secondly after the completion of the first day of the hearing by commencing fresh proceedings seeking to re-agitate relief that I had determined had been abandoned, and thirdly by allegations of negligence (by minor reference in material initially presented in these proceedings and later by commencing fresh proceedings).
In light of the above, I propose in this section of the judgment to consider and identify the real issues to be determined. I have sought to do so in light of the parties’ “agreed issues” but also by reference to the body of the material presented in the case and how it was conducted.
Did CGL request instructions from the plaintiff, did the plaintiff give instructions for the tasks itemised in the invoices, and did CGL refuse repeated requests to provide copies of the instructions and evidence of work performed by them [27] (instructions issue)?
Was the plaintiff forced to sign documents and acknowledgements [28] (duress issue)?
Were the total fees charged by CGL exorbitant [29] (exorbitant costs issue)?
Did the plaintiff give instructions for disposal of funds to CGL [30] (f****unds dispersal issue)?
Is the District Court judgment invalid (District Court judgment issue)?
Mrs Young asserts that a complaint of unreasonable pressure to continue with the retainer was not articulated properly until the cross-examination of the plaintiff. I consider that is partly true. However, even as early as the plaintiff’s affidavit affirmed 4 December 2023, it is clear that the plaintiff asserted conduct that amounts to compulsion, threats, duress, and false representations. [31] Further, Ms Ralston in her affidavit dated 2 April 2024 responded to the plaintiff’s assertions of compelling and threatening conduct. [32]
Principally, whether repayment should be ordered as relief (as the first agreed issue) depends upon answers to these subsidiary issues. Accordingly, I propose to address them first.
On 22 June 2022, orders were made to facilitate an interim hearing of certain of the orders in respect of the enforcement application. [207]
On 23 June 2022, Ms Ralston sent an email to the plaintiff expressing concern regarding her lack of instructions to one of the staff of CGL (Ms Nichelsen) and noting that she “cannot do anything further without your instructions”. The email indicated that the delay was causing the plaintiff to expend further fees and noted that, at that stage, the fees had reached $5,336 as a consequence of chasing the plaintiff for directions, significant telephone conversations between CGL and the plaintiff, and a form of application, seemingly in the Family Court. [208] Ms Ralston notes that there were complications as there was no agreement regarding certain matters, including: expenses to be paid to Dr Shah as a consequence of him being trustee for sale of the property or delay in settlement; the plaintiff leaving the property prior to settlement; and Dr Shah filing an application seeking possession of the property. [209]
On 8 July 2022, Mr Spencer sent an email to Ms Nichelsen and Ms Ralston, noting that the CGL had not accepted a PEXA invitation to join the workspace. [210] Later that day, Ms Nichelsen responded to Mr Spencer noting that CGL was not acting on the conveyance for the plaintiff, and accordingly did not intend to join the PEXA workspace. [211]
On 12 July 2022, Ms Elven sent to the plaintiff a letter from Ms Ralston and various attachments, including the penultimate tax invoice dated 12 July 2022. [212] The letter provided a form of Costs Notice for the enforcement application. [213]
By 22 July 2022, settlement of the sale of the property had occurred and net proceeds received. [214] Ms Elven on behalf of Ms Ralston sent a further email to the plaintiff that day, noting two phone conversations on the prior day and instructions for CGL to act for the plaintiff in respect of the enforcement proceedings filed against her. [215]
On 25 July 2022, CGL received funds from the settlement of the sale of the Epping property into its trust account. [216]
On 25 and 26 July 2022, further correspondence was sent to the plaintiff by Ms Ralston. [217]
On 27 July 2022, amended orders were made in the Family Court regarding the interim hearing of the enforcement application including, relevantly, relisting the matter from an allocated date of 5 August 2022 to 5 October 2022. [218]
On 2 August 2022, Ms Elven on behalf of Ms Ralston sent an email to the plaintiff, requesting instructions and attaching what became the final tax invoice issued to the plaintiff. [219]
On 9 August 2022, Ms Ralston had a telephone conversation with the plaintiff, in substance, indicating that if the plaintiff wished for her to continue to act (which she said she did), she would need to email Ms Ralston with instructions to send correspondence to Mr Spencer. [220] The plaintiff did not provide instructions. [221]
On 12 August 2022, Ms Elven sent a further email on behalf of Ms Ralston to the plaintiff, noting she had not received a response in relation to the draft correspondence to Mr Spencer and an indication of whether she wished CGL to continue to act in relation to the enforcement application. [222]
On 16 August 2022, the plaintiff sent an email to Ms Ralston requesting itemised bills for all the costs incurred during her court case, as well as raising other matters. [223]
On 19 August 2022, Ms Elven responded on behalf of Ms Ralston. [224]
On 21 August 2022, the plaintiff responded to Ms Ralston which, ironically, in light of the plaintiff’s allegations of duress, contained not only criticism of Ms Ralston, but a veiled threat in the following terms: [225]
The plaintiff questioned Ms Ralston about the fact that, on 29 June 2018, she was not given an estimate of the total amount of costs (said to be $500,000 for the entire family law matter). [264] This aspect of the questioning was messy, in part because Mrs Young objected to a number of the questions the plaintiff was asking and in part because some of the questions were in the form of assertions or phrased in a way that involved various different questions being asked at once.
Essentially, Ms Ralston indicated in cross-examination that she initially provided an estimate of costs at the time of engagement to cover CGL getting across the matter and to work out what work would be incurred prior to the next court date. [265]
In cross-examination, Ms Ralston addressed the 9 August 2018 estimation. By 9 August 2018, she had accessed the pleadings on the online portal and understood from previous orders what preparation was required for the final hearing. This enabled her to indicate the work likely to be undertaken over the following months and prior to a final hearing. [266]
The plaintiff did not suggest to Ms Ralston in cross-examination that it was “practicable” to give an estimate of total costs between the period of 17 July 2018 (when CGL seemingly had available the parts of the plaintiff’s file material that was not otherwise available on the court portal) and 9 August 2018. Above, I have set out particular communication that Ms Ralston had with the plaintiff regarding the costs estimate in the email dated 9 August 2018.
Ms Ralston indicated that, as at 9 August 2018, no hearing dates had been allocated.
In substance CGL was using (family law) Costs Notices to serve dual functions of compliance with the FLR but also compliance with the “main disclosure” requirements of s 174(1) of the Uniform Law.
In light of the above, I am not persuaded that CGL was in any realistic position to give an immediate estimate of “total legal costs” at the time of the first conference on 29 June 2018. I remain unconvinced that it was “practicable”, up until the first Costs Notice was issued on 9 August 2018, for CGL to give an estimate of “total legal costs” in respect of the matter. In my estimation, it was not unreasonable for CGL to give an estimate, dovetailing with the provisions of the current FLR, of the costs up to the next relevant “court event”, namely on 23 August 2018.
Overall, I am not persuaded that Ms Ralston or CGL acted in such a way, or failed to act in such a way, as to transgress the disclosure obligation to provide an estimate of the total legal costs “as soon as practicable after instructions are initially given” within the meaning of s 174(1)(a) of the Uniform Law.
The eighth invoice dated 5 February 2019 was (as noted above) received by plaintiff, part paid [311] and, on 6 April 2022, the plaintiff signed an authority for the balance of it to be paid. [312] The tenth invoice was (as noted above) also acknowledged by the plaintiff as being received by her (at some point) and, in any event, also on 6 April 2022, the plaintiff signed an authority for the balance of it to be paid. [313] In light of this, I do not consider that any specific relief regarding provision of those two invoices is now warranted.
On or about 17 May 2019, an issue arose regarding Mr Grew’s costs. At 10:18 AM, Isham sent Ms Ralston an email as follows: [365]
As I have noted above, there is no evidence before me that the sixth invoice was actually sent to the plaintiff at the relevant time. Therefore, there is doubt as to whether the provisions of the Terms of Business regarding payment from the trust account are engaged with respect to that invoice. However, in any event, the Irrevocable Authority signed by the plaintiff authorised CGL to transfer funds to reduce the existing debt as set out in the Costs Notice.
Accordingly, I find that all transfers of funds from the trust account were appropriately authorised.
The plaintiff’s reference to the decision of Chen J in Benjamin & Khoury Pty Ltd v Rahme (No 4) [2023] NSWSC 1162 at [37] [405] must also be understood in context. Chen J stated:
The plaintiff’s particular complaint for the second period relates to an alleged refusal on 8 July 2022 by CGL to accept an invitation to join a PEXA workspace at the invitation of Mr Spencer. [436] As I have indicated above, Ms Nichelsen responded to Mr Spencer, noting that CGL was not acting on the conveyance for the plaintiff, and accordingly did not intend to join the PEXA workspace. [437]
Briefly, at the end of the plaintiff’s cross-examination of Ms Ralston, the plaintiff made reference to the email Ms Ralston had sent on 22 August 2022.
In her PCS, the plaintiff stated as follows: [438]