Ventura v Higgins

The 2009 litigation between the parties

1. The background is as follows. As is set out in Ventura v Higgins [2018] NSWDC 49, the plaintiffs finally obtained, in 2017, a costs assessment in their favour for litigation completed between 2009 and 2012. The corporate defendant (which was also the cross-claimant) had also obtained a costs order for 80% of the costs of the cross-claim in its favour. However, that corporation took no steps to commence a costs assessment application until February 2018. This occurred only after the plaintiffs had registered their costs assessment in this court as a judgment which they then sought to enforce against the individual defendant, in proceedings in the Federal Court of Australia.
2. The defendants then initiated this application by filing a Notice of Motion seeking orders "[p]ursuant to s 135 of the Civil Procedure Act and/or the inherent jurisdiction of the Court" for a stay of execution of judgment pending further order and costs.

The defendants' application for relief

1. Although I declined to make the relief sought and dismissed that Notice of Motion (on the basis of the lack of inherent jurisdiction of this court as well as the equitable nature of set-off), I transferred the proceedings to the Supreme Court pursuant to s 144 Civil Procedure Act 2005 (NSW) ("the Act") by reason of the mandatory language of s 144 ("must") and the provision in s 140 for a court to take a step of its own motion, even where it is neither proposed nor consented to by the parties: see Mahommed v Unicomb [2017] NSWCA 65.
2. Given that the orders I made were not the orders sought by either party, I invited the parties to address me in relation to costs, including any application for a gross sum costs order under s 98(4) of the Act, as this is a not uncommon practice of courts in relation to dispute arising from assessment of costs, in the interests of avoiding "satellite litigation" (see the observations of Brereton J in In the matter of Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280 at [29] - [30]).

The issues for determination

1. The issues for determination are as follows: 1. The "event" which the costs should follow, and any adjustment factors; 2. Whether the costs should be payable forthwith or at the end of the Supreme Court litigation (r 42.7 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR")); 3. Whether such costs should be paid on an indemnity basis by reason of offers made by both parties; and 4. Whether a gross sum costs order pursuant to s 98(4) of the Act should be made and, in particular, whether it is appropriate for a gross sum costs order to be made when the solicitor seeking the costs is effectively the client.

The orders sought by the parties

1. The order sought by the plaintiffs was for payment of a gross sum costs for costs estimated by Mr Ventura at $36,098 plus GST of $3,609.80 making a total of $39,707.80.
2. The defendants sought an order that costs be costs in the cause and should abide the making of any Supreme Court determination on costs, as this was an order preferably made by a superior court of record rather than by an inferior court of limited jurisdiction such as the District Court.
3. Both parties agreed, however, that if an order for costs was made in relation to the District Court costs, it was appropriate to make that costs order assessable forthwith, notwithstanding r 42.7 UCPR, on the basis that questions concerning the jurisdiction of this court were effectively concluded.

The general rule that costs follow the event

1. UCPR r 42.1 provides: "42.1 General rule that costs follow the event Subject to this Part, 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."
2. The court's general power to determine "by whom, to whom and to what extent costs are to be paid" is set out in s 98(1)(b) of the Act and relates to those costs reasonably incurred in the conduct of the litigation: Oshlack v Richmond River Council (1998) 193 CLR 72 at 97. The exercise of the costs discretion must be compensatory and not punitive and refers to the practical result of a particular claim which may not be limited to the determination of the proceedings as a whole or to particular causes of action.
3. Each case will turn upon its own circumstances, but the test has been stated as being "who in reality is the unsuccessful party and who has been responsible for the fact that costs had been incurred which should not have been" (Warby J in Optical Express Ltd and others v Associated Newspapers Ltd [2017] EWHC 2707 (QB) at [13], citing Smith v Trafford Housing Trust [2012] EWHC 3320 (Ch) at [13] and Factortame v Secretary of State [2002] EWCA Civ 22 at [27]).
4. There is a general rule that a court should ordinarily award costs of the proceedings to a successful party without attempting to differentiate between the issues on which a party has succeeded and failed, a principle which has been applied at appellate level since Cretazzo v Lombardi (1975) 13 SASR 4.
5. There could be no more stark warning of the dangers of not making a "broad axe" (Re Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280 at [16]) costs order than the factual situation of this case. The difficulties have arisen because one party has proceeded to assessment over the five year period since judgment was handed down, while the other only filed its application for assessment of its costs after the plaintiffs brought these proceedings to register their costs certificate as a judgment and then to enforce it by bankruptcy proceedings against the first defendant. As the facts of this case show, the hearing may have ended in 2012, but the battle continues. Each accuses the other of gross overcharging; given the costs assessor's costs orders for the Ventura interests and the enormity of the 80% cross-claim costs, there is some justification for these complaints.
6. This background of hostility and overcharging is relevant to most of the issues for determination. The first of these is that the conduct is asserted by the plaintiffs to be of relevance not only to the question of whether the costs should follow the event, but whether the costs should be payable on an indemnity basis.
7. However, I must be careful not to place too much weight upon the defendants' failure to seek assessment of their 2009 - 2012 costs until February 2018, as it is a perfectly legitimate forensic tactic in the costs assessment procedure, and one which remains open (or perhaps "a loophole" may be more accurate) to this day.
8. There is a procedural "way around" this kind of dilatory conduct by a costs respondent who is also entitled to the benefit of costs orders. Under the previous as well as the present costs assessment regimes, it has always been open to a party seeking assessment of their own costs to request the costs assessor to additionally determine any costs for which the costs applicant is also liable. If no such bill is forthcoming, the party against whom the costs orders have been made can ask the costs assessor to assess those costs at nil.
9. While I note that the enforceability of such an administrative procedure is untested, in theory (at least), a failure of the opposing party to comply and produce the required information could compel a reluctant opponent to put all the bills in a matter in for assessment at the same time, at the risk of a nil costs order if there is failure to comply.
10. This is no comfort to the plaintiffs, who clearly did not think of this way around their problem, but it is a warning to practitioners who find themselves in situations of this sort to take a constructive rather than a combative approach to costs assessments. Fortunately, under the new legislation, the importance of proportionality issues in costs assessments may well result in costs assessors taking a more proactive approach to situations such as recalcitrant parties who delay having their costs assessed, particularly where non-payment of interest under s 101 Civil Procedure Act 2005 (NSW) may also be a consequence of this kind of delay.
11. Whatever the future of costs assessments under the new legislation holds, I remain of the view that the imposition of a limitation period upon the obligation to have costs assessed would warn warring parties who wish to continue their battle into the assessment of costs of their obligations to each other and to those who manage the court's costs assessment procedures. However, matters of that kind must be left to the legislators.
12. Returning to the issues in this case, in my approach to the question of the "event" to which costs should follow in an application such as the present, I have been guided by the observations of Ward JA in Mahommed v Unicomb at [62], where a similar situation arose. Ward JA noted that it was the applicant's resistance to the transfer of proceedings to the Supreme Court which led to the costs and time incurred in the summary dismissal application and the application to the Court of Appeal in circumstances where neither party drew the attention of the trial judge to the operation of s 44 of the District Court Act 1973 (NSW).
13. However, there were other disentitling factors in the conduct of the opposing party. Ward JA was satisfied that "[n]either party has covered it or himself with glory in the unsatisfactory conduct of the litigation to date" and for that reason did not make the costs orders sought by the party in the same position of Mr Ventura's clients.
14. That is not the case here. There is no "unsatisfactory conduct" by the plaintiffs of this litigation, which they correctly commenced in this court by registration of the costs certificate. The defendants commencement of this application by notice of motion in these proceedings for relief under the court's "inherent jurisdiction" was misconceived, given that this was a considered decision of the defendants' legal representatives, despite being aware of this court's lack of inherent jurisdiction.
15. Accordingly, the "event" is one which favours the plaintiffs in these proceedings, and is one which should result in a costs order in favour of the plaintiffs.
16. While I acknowledge the preference of the defendants to have all costs determined by a superior court of record, the costs of this application are discrete and separately identifiable from the Supreme Court proceedings, and any judge of the Supreme Court determining the defendants' applications should not be troubled by having to determine the issue of costs of a concluded application in an inferior court.
17. As there is no challenge to the plaintiffs' assessment of costs forthwith (UCPR r 42.7), the remaining issues are whether the costs should be paid on an indemnity basis and/or in the form of a gross sum costs order.

Should the plaintiffs' costs be paid on an indemnity basis?

1. Both parties in these proceedings made offers in relation to the disposition of these proceedings. The plaintiffs' offer, dated 9 March 2018, was as follows: "1. The plaintiffs will consent to a stay of execution of the judgment debt as against the Second Defendant, Bacchus Holdings Pty Limited, until the date of issue of a Certificate of Determination as to Costs in relation to Costs Assessment case number 2018/00035792. 2. The plaintiffs will undertake to refrain from issue of a Bankruptcy Notice to the First Defendant, Matthew Higgins, until the date of issue of a Certificate of Determination as to Costs in relation to Costs Assessment case number 2018/00035792. 3. Orders and notations are to be made by the Court to reflect paragraphs 1 and 2 above, on 12 March 2018. 4. That there be no order as to costs of or incidental to the motion. 5. That the defendants pay half of the judgment debt (being the sum of $259,299.41) to the plaintiffs by 12 noon tomorrow, by way of payment into the following account: [account numbers]"
2. This offer was open only until 12 noon on the following day, an unacceptably short period.
3. The defendants relied upon their offer for appropriate security for the whole of the sum the subject of the costs order. However, it was acknowledged that this would not have disposed of the dispute or of the need for these proceedings. The likelihood would have been that the defendants' delaying tactics would simply have continued.
4. Neither of these offers effectively disposes of the issues between the parties. The defendants' offer suffered from the additional disadvantage in that this court may not have jurisdiction and the relief sought by the defendants is best determined by proceedings commenced in the Supreme Court, where appropriate orders for a set-off as well as exercise of the court's inherent jurisdiction will be issues for determination by that court.
5. There is no other reason why indemnity costs should be awarded. Although Mr Ventura referred to the conduct of the defendants in delaying the commencement of a costs assessment procedure in relation to their costs for a period of five years, and the delay appears to have been at least in part deliberate, but an order for indemnity costs should not be made in those circumstances, particularly given the reduction in costs awarded by the costs assessor to the plaintiffs as a result of their excessive charges.

The Chorley principle

1. Mr Ventura seeks costs for acting for himself as well as for his co-plaintiff, the company of which he is a sole director. Both parties made submissions to me about the applicability of the Chorley principle (London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 ("Chorley")) as to whether Mr Ventura is entitled to any costs at all.
2. As Mr Ventura notes in his written submissions, in Guss v Veenhuizen (No 2) (1976) 136 CLR 47, the High Court held that the Chorley principle applies in Australia to allow a solicitor who acts for himself or herself in litigation to recover his or her professional costs. Subsequent decisions which appear to question the appropriateness of this rule have been forced (albeit "perhaps reluctantly", to quote Mr Ventura's submissions), to accept that the Chorley principle applies to this day. Mr Ventura draws to my attention the observations of McCallum J in McMahon v John Fairfax Publications Pty Ltd (No 8) [2014] NSWSC 673 where the Chorley exception was applied to a self-represented litigant "notwithstanding his own evidence suggesting that he was able to act for himself during what would otherwise have been spare time" (at [68]).
3. The defendants' challenge to the entitlement of Mr Ventura to charge for the work he performed on his own behalf as well as on behalf of the second plaintiff (a company of which he was the sole director) is therefore hopeless, according to the current state of the common law.
4. However, the common law operates in a statutory framework. The first issue was whether I should inquire is the applicability of relevant sections of the Legal Profession Act 2004 (NSW), such as the nature of Mr Ventura's entitlement to practice and whether there is an enforceable fee agreement. In QRS v Legal Profession Board of Tasmania (No 2) [2017] TASFC 13; George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 the Full Court of the Supreme Court of Tasmania held that a practising certificate was an essential prerequisite to the award of such costs; the same approach was taken in Von Reisner v Commonwealth (No 2) [2008] FCA 430 and Croker v Commissioner of Taxation (2002) 124 FCR 286). That would seem to suggest that the Chorley principle is not a stand-alone common law rule but needs to be interpreted in the light of the relevant legislation rather than looking at the Chorley principle in isolation.
5. The question of whether the solicitor must have a practising certificate is the first example of a collision between the common law Chorley principle and the costs assessment legislation. The solicitor seeking the making of an order on the basis of the Chorley principle in Guss v Veenhuizen (No 2) actually did not have the relevant practising right for the High Court, because of the error of the registry in failing to add his name to the list of persons entitled to practise in the High Court. That means that, on its facts, Guss v Veenhuizen (No 2) is at odds with these later decisions.
6. The next problem is that that legislation regulating solicitors' conduct today is very different from the legislation on foot when Guss v Veenhuizen (No 2) was handed down, not only in relation to practice requirements, but in relation to the requirement for costs agreements. That is a problem here because although Mr Ventura has a costs agreement with his co-plaintiff company, he does not have a costs agreement with himself in his capacity as a plaintiff in this litigation.
7. I drew to the attention of the parties that some part of the Chorley principle is under challenge in the High Court in Coshott v Spencer (2016) 22 DCLR (NSW) 115; Coshott v Spencer [2017] NSWCA 118; Coshott v Spencer [2017] HCATrans 263 (set down for hearing on 8 May 2018). Mr Spencer's incorporated law firm sought to recover its costs for a costs assessment and his incorporated law firm appeared on his behalf on the costs assessment and the appeal (although Mr Coshott erroneously sued Mr Spencer personally).
8. It is, however, unclear as to the extent to which the High Court's judgment will impact on any issue before me, as the Chorley issue was not raised at all at first instance (where a standard order for costs following the event was made) and was dealt with only briefly on the application for review of the issues, which fell for determination by the Court of Appeal, where the binding nature of the High Court's decisions was deferred to.
9. I note that the submissions to the High Court in Coshott v Spencer bring a notice of contention based on provisions of the Civil Procedure Act 2005 (NSW) asserted to undermine the entitlement of solicitors to charge for acting for themselves, but not to the Legal Profession Act 2004 (NSW), and certainly not to the current legislation, the Legal Profession Uniform Law (NSW) and Legal Profession Uniform Law Application Act 2014 (NSW) ("the LPUL"). Whatever the result of the High Court appeal, the interaction of the Chorley principle and legal profession legislation generally seems fertile ground for appeal in the future, and it really is not possible to speculate.
10. One of Mr Faraday-Bensley's attacks on the Chorley principle in relation to Mr Ventura's costs includes a complaint about the statutory requirement for costs agreements. Mr Ventura has only provided the costs agreement he has with Barescape Pty Limited, the second plaintiff, because he cannot contract with himself.
11. There is no authority determining whether a solicitor acting for himself either cannot charge at all, or should have his/her costs determined on a different basis, because there is no costs agreement.
12. These are difficult questions which I do not propose to determine for the purpose of this application. While the defendants' submission that I should not make a gross sum costs order would otherwise require consideration of the costs agreement issue, there is a more compelling reason for rejecting the gross sum costs order, namely that I cannot be satisfied as to the quantum of the costs sought, for reasons unrelated to the absence of any costs agreement.
13. The second stage of the gross sum costs order procedure requires the court to determine whether it can be satisfied that the procedure for determining the gross sum sought is one which the court can rely upon. The defendants submit that the sum sought is outrageously high, whether there is a costs agreement or not, and that I cannot have confidence about the charges Mr Ventura proposes for himself and his company for a number of reasons, one of which is the absence of a costs agreement for both plaintiffs.
14. Gross sum costs orders are routinely made in disputes concerning costs agreements. Paragraph 4.1 of the Federal Court Costs Practice Note (GPN-COSTS) identifies gross sum costs orders as the preferred position to assessment of costs. Such orders are frequently made in costs assessment disputes such as the present. The argument that caution about a gross sum costs order should be shown where a solicitor acts for himself, in the absence of expert or independent evidence, is a novel one.
15. While I do not have the benefit of seeing any costs agreement Mr Ventura has with himself, I do have the benefit of seeing the costs agreement he has with the company of which he is the sole director, the terms of which are set out in some detail, his hourly charge-out rate and that of employed solicitors and paralegals and the like, as well as disbursements. I also have the benefit of a very detailed bill.
16. There are, however, other difficulties that I face in relation to the application for a gross sum costs order. The costs the plaintiffs seek are not only more than usually substantial, but suffer from two defects of preparation. First, Mr Ventura acknowledged that the costs summary had been prepared on an indemnity basis rather than on an ordered costs basis. Second, there has been no deduction of the "rule of thumb" kind, which is made to allow for some percentage of those assessed costs to be refused if an assessment were to proceed (Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863; Star Diamond v Diamond (No 4) [2013] NSWCA 811; Palladium Consulting Pty Ltd [2013] NSWSC 92).
17. Once again, I note the history of costs assessment issues as being relevant to the determination of issues in this case. Mr Faraday-Bensley pointed to the special costs order made against the plaintiffs in the plaintiffs' costs assessment which is the basis of this judgment, which was due to over 50% reduction of the amount of costs sought, and submitted that a substantial deduction, not merely the 30% made in Bobb v Wombat Securities Pty Ltd (No 2), would have to be made. He also noted that I have not accepted the plaintiffs' application for indemnity costs.
18. For an application for a gross sum costs order to be made, courts will take into account the likely range of costs for applications of this nature. Where an application falls outside that range, the court may exercise its discretion to require the parties to go to assessment rather than make the gross sum costs order sought.
19. It was for this reason that I drew the attention of the parties to the decision of Fullerton J in Ghosh v Miller (No 2) [2016] NSWSC 713, where her Honour was provided, on an application for a gross sum costs order, with a tax invoice for $78,926.39, including counsel's fees of $31,573.33. The relevant costs agreement was attached, as is counsel's tax invoice. Her Honour observed at [7]-[10]: "[7] The plaintiff's submitted position was, in short, and ignoring the hyperbole, that there is unfairness in the defendant's application to have costs awarded in a gross sum as it deprives her of the opportunity to seek advice from a costs consultant and to rely on that advice for the purposes of a costs assessment. In particular, she complains that she is deprived of the opportunity to formulate any challenge to Mr Maher's bill of costs and/or the fees charged by counsel. She challenges the quantification of costs in the amount of $78,926.39 as "grossly inflated". She does not seek to be heard on the question whether the defendant is entitled to a costs order in his favour, but resists the making of a specified gross sum costs order both at all and in the amount claimed. [8] At the hearing of the application, I indicated to counsel that in my view, having considered the evidence filed in support of the application in excess of 130 pages, that it seemed to me that it called for an examination of the material commensurate with the detailed examination required in a formal costs assessment, and that the authorities are clear that defeats the purpose of making a gross sum costs order. The authorities also make clear that what is called for is a "broad brush approach" to the exercise of determining the amount that might be considered as an appropriate amount to be ordered as a gross sum, but that approach is only appropriate where the court has sufficient confidence that a reliable assessment can be made of the claimant's entitlement to costs on the available evidence, taking into account the nature of the proceedings and the way they have been conducted by the parties. [9] I made it clear to the parties that I did not consider that the quantification of costs in an amount exceeding $80,000 could be justified, despite the application including costs assessed on an indemnity basis and despite the plaintiff's conduct of the proceedings which, I accept, have consistently been in ignorance of or defiance of her obligations as a litigant under s 56 of the Civil Procedure Act. [10] This is not the occasion to dilate further those matters. Suffice to say that while there is much force in Mr Maconachie's submission that the plaintiff was obstinate and recalcitrant as a litigant through the course of the many interlocutory stages through which the proceedings passed before the summons was actually listed for hearing, which necessitated that he be represented as the defendant to that summons and the respondent to repeated applications of various kinds by the plaintiff, and while he was, of course, entitled to have counsel appear, nonetheless the quantum of costs thereby incurred is not immediately justifiable."
20. Her Honour drew her concerns to the attention of counsel, as she notes at [14]-[17] and, when the sum was not reduced, considered it advisable for the costs to be assessed rather than be the subject of a gross sum costs order.
21. The cause of action in those proceedings was the summary disposition of defamation proceedings where counsel was briefed and where issues of law were complex. While I note that the plaintiff was a litigant in person without legal qualifications, and that this was part of the reason for the referral to an assessor, the principal difficulty was the size of the costs involved.
22. The cautious approach taken by Fullerton J in applications of this kind has much to be recommended. While the reluctance of courts to consider gross sum costs orders has now largely dissipated (Poulos v Eberstaller (No 2) [2014] NSWSC 235; Chaina v Presbyterian Church (NSW) Property Trust (No 26) [2014] NSWSC 1009 at [43]-[57]), unlike the situation in the Federal Court, these orders remain a privilege, rather than a right. The advantages of a gross sum costs order are considerable, but the entitlement of a party to such an order is far from automatic.
23. I briefly note that both Ghosh v Miller (No 2) and Coshott v Spencer were costs assessments which were governed by the repealed Legal Profession Act, while this judgment arises from proceedings commenced after the LPUL came into effect. However, any impact of the LPUL upon the issues raised in this application was not the subject of any submission by either party.
24. In the present case, given the unsatisfactory evidence as to the reliability of the quantum sought, it is appropriate to refer the issue of costs of this application for assessment, to enable careful attention to be paid to the costs actually payable by a skilled costs assessor.

Orders 1. The defendants are to pay the plaintiffs' costs of the notice of motion filed on 15 February 2018 (including the application today and other proceedings before the District Court) on the ordinary basis, to be assessed forthwith pursuant to r 42.7 Uniform Civil Procedure Rules 2005 (NSW), such costs to proceed to assessment as opposed to being the subject of a gross sum costs order pursuant to s 98 Civil Procedure Act 2005 (NSW). 2. Note that the application by the plaintiffs to revoke Ashford DCJ's order is refused.

Amendments 26 April 2018 - Typographical errors. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2018