• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

2. Applying the ordinary rule as to costs laid down by O'Leary C.J. in Loveridge v Brough (1985) 36 NTR 59 at 63-4, it was ordered that the applicant have the costs of his application for bail and his appeal. It was directed that the costs be calculated on a party-and-party basis, the amount thereof, as taxed or as agreed between the parties, to be paid to the Master "to be paid over to the appellant (applicant)".
3. On 7 August 1987 the applicant's costs were taxed and allowed in the sum of $4,394.15.
4. On 13 August Mr Schneider, a solicitor with the applicant's solicitors, appeared before me for the applicant and applied to have the order of 13 April varied. I was informed that the costs had been taxed and allowed at $4,087.59; this is correct as far as it goes, but does not take account of the taxing fee of $306.56 assessed after the taxation was completed. Mr Schneider sought a variation of the order of 13 April to the effect that $1,000 of the taxed costs, be paid out to the applicant and that the balance, $3,087.59, be paid out to the applicant's solicitors.
5. The reason was, as Mr Schneider explained, that the solicitors had agreed with the applicant that they would charge him a total sum of $1,475, for their professional services in appearing for him in relation to the charge, in both the Court of Summary Jurisdiction and this Court. This was because $1,475 was a sum which the solicitors "felt ... he could afford and in view of the circumstances that he found himself in". The applicant has either paid the solicitors the full sum of $1,475, or $1,000 of it; I am uncertain which, but probably the latter.
6. The respondent did not oppose Mr Schneider's application.
7. I pointed out that the award of costs to a successful litigant is for the purpose of indemnifying him in respect of the legal costs he has incurred. As the applicant had apparently incurred a total sum of $1,475 by way of costs, I questioned whether he could recover anything more than that sum from the respondent, and whether any amount allowed on the taxation in excess of $1,475 had been properly allowed.
8. Mr Schneider then informed me that the applicant's solicitors proposed now to render their client an account which he variously described as - "an account that reflects truly the work that was carried out by his solicitors ... a proper account as to what he really should have been charged in the first place for the work that was carried out, (an amount) that we felt at that time that he couldn't afford to pay ... a formal account in the amount which will have been paid ... by the Crown." The account, he said, would be for $3,087.59 "representing a proper reward for the work that was done, less the monies that he paid to us". Hence the variation sought in the order of 13 April.
9. I rule upon the application today.
10. First I should say I fully appreciate the position in which the solicitors find themselves, having carried out quite lengthy and complex professional legal work for an agreed fee which, in the light of the taxation, appears very modest. It seems that they may possibly have a conflict of interest with their client, on this application, but it is not necessary to deal with that.
11. Legal costs, in the sense of a monetary evaluation of the remuneration of a solicitor for professional legal work, are controlled by the Court through the system of scales of costs and by the taxation of costs. Taxation involves the examination of a bill of costs, and the determination of the amount, fair and reasonable in the circumstances, to which the successful party is entitled, bearing in mind the scale of costs applicable; see s.123 of the Legal Practitioners Act and Order 64 Rule 54 of the Rules of Court, the guiding Rule in the taxation of costs.
12. Here the costs were awarded on a party-and-party basis. Such costs are in the nature of an indemnity. As Baron Bramwell put it in Harold v Smith (1860) 5 HandN 381 at 385; [1860] EngR 516; 157 ER 1229 at 1231, the principle is - "... find out the damnification, and then you find out the costs which should be allowed." In general, the expenses and costs properly and reasonably incurred in enforcing the successful party's rights should be allowed on taxation; see R v The Police Magistrate at Hughenden and Reid; ex p. Cummings (1915) St R Qd 147 at 155-6. As to the bill of costs herein I note in passing that it is not clear that the requirements of Order 64 Rule 83 were met when the bill was taxed; otherwise, for present purposes the amount of the taxed costs may be taken as representing the costs and expenses reasonably and properly incurred.
13. However, when making the award of costs in April, the Court was not informed that an agreement existed between the applicant and his solicitors as to the amount he was to be charged. A solicitor may agree with his client as to the costs he will charge for litigious work; see s.129 of the Legal Practitioners Act. Such an agreement is enforceable if it is just, fair and reasonable, and meets the requirements of s.129. Here, the solicitors entered into such an agreement with the applicant. Section 129(5) of the Act provides:- "A legal practitioner who is a party to an agreement under this section is not entitled, in respect of work to which the agreement relates, to receive an amount for his costs (including disbursements) greater than the amount specified in, or ascertainable in accordance with, the agreement." (emphasis mine)
14. I consider that s.129(5) operates as a statutory barrier in this case to the recovery by the solicitors of more than $1,475 for their costs and disbursements. In the light of the agreement it would be improper and ineffective now to render their client an account in the higher sum.

It is, I think, clear in principle and on authority that because party-and-party costs are awarded as an indemnity, the applicant who has entered into such an agreement cannot recover from the respondent more than the amount of $1,475. To do so would be contrary to justice, to common sense and to the law; see Gundry v Sainsbury (1910) 1 KB 645 at 649, per Cozens-Hardy M.R.. 16. I decline to vary the order for costs of 13 April 1987 in the manner sought by Mr Schneider. I consider that that order should be varied so as to provide that the amount of the applicant's costs, as taxed, but not exceeding in any event the sum of $1,475, (plus the taxing fee), be paid by the respondent to the Master to be paid out to the applicant or his solicitors. Both parties are at liberty to apply. Orders accordingly.