Federal Court of Australia

Cappello v Homebuilding Pty Ltd (formerly known as Hammond & Simonds NSW Pty Ltd) [2024] FCA 413

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rule 1.34 of the Federal Court Rules 2011 (Cth), compliance with rule 35.12 of the Rules be dispensed with.

2.    The application for leave to appeal be dismissed.

3.    The proceeding be dismissed.

4.    The appellants are to pay the respondent’s costs on an indemnity basis.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

meagher J

introduction

1    The appellants seek to appeal against the decision in Cappello v Homebuilding Pty Ltd (No 2) [2023] FCA 1205 (PJ). The matter was referred to this Court to determine first whether leave to appeal is required as the appeal is solely on the question of costs and secondly, if leave is required, whether leave should be granted. The appellants represented themselves before this Court, as was the case in the matter from which they appealed.

2    The Notice of Appeal filed on 31 October 2023 contains one ground of appeal as follows:

Her Honour erred in failing to hold that sections 174 and 175 of the Legal Profession Uniform Law 2015 (NSW) had not been complied with and that section 178 of the Legal Profession Uniform Law 2015 (NSW) had the consequence that the respondent hereto had not satisfied the indemnity principle

3    The appellants sought the following orders:

1. This appeal is upheld

2. The appeal before her Honour is upheld

3. respondent is not entitled on taxation of its costs to any legal costs and disbursements inf [sic] proceedings NSD 398 of 2021

4. The respondent pay the costs of the taxation, the taxation appeal (NSD398 of 2021) and of this appeal

4    For the reasons that follow, leave to appeal is required and should not be granted.

background

5    This is an appeal from the decision of the primary judge which, on review, varied the certificate of taxation of a bill of costs determined by a Registrar from $41,431.48 to $40,638.53.

6    The matter has a long history of litigation, with a number of proceedings flowing from the initial claim. The appellants are husband and wife. They entered into a contract with the respondent for building work on their property. In January 2019, the appellants sued the respondent for defective works, overcharging and delay. The respondent filed a cross-claim, seeking damages for the amount of unpaid work and a quantum meruit for other work performed. The appellants’ application was dismissed, and Ball J found in favour of the respondent in respect of its claim in debt, in the sum of $76,510.68; Cappello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021 (First Decision). The appellants were ordered to pay costs on an indemnity basis; Cappello v Hammond & Simonds NSW Pty Ltd (No 2) [2020] NSWSC 1199.

7    The appellants appealed that decision, which the Court of Appeal allowed in part, reducing the costs to $50,097.32 and ordering that the appellants pay 75% of the costs; Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57 (Appeal Decision).

8    The respondent’s lawyers sought the judgment debt, but the appellants’ lawyers indicated that they did not intend to make the payment. On 22 April 2021, the Official Receiver issued a bankruptcy notice to the appellants. The appellants did not comply with the notice and brought an application to set it aside. On 18 August 2021, the application was dismissed, and the Court extended the time in which the appellants could comply with the notice; Cappello v Homebuilding Pty Ltd (formerly known as Hammond & Simonds NSW Pty Ltd) [2021] FCA 981 (Bankruptcy Decision).

9    On 1 October 2021, the respondent presented creditor’s petitions for the sequestration of the appellant’s estate on the basis that they failed to comply with the bankruptcy notice. On 19 July 2022, the petitions were dismissed as the appellants were found to be solvent; Homebuilding Pty Ltd v Cappello [2022] FedCFamC2G 576.

10    From the First Decision and subsequent proceedings, also stemmed an appeal of the decisions of the Costs Review Panel on the basis that the respondent had not satisfied the indemnity principle due to contraventions of costs disclosure requirements. On 9 December 2022, this appeal was dismissed; Cappello v Homebuilding Pty Ltd [2022] NSWDC 725. The appellants brought an application for judicial review of that decision, which was also dismissed: Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109 (Judicial Review Decision).

11    The PJ relates to the certificate of taxation issued on 23 June 2023, arising out of the Bankruptcy Decision. At PJ[3] and [4], the primary judge summarised the appellant’s application at first instance:

The Cappellos seek orders setting aside the certificate of taxation, issued on 23 June 2023, and any judgment entered on the basis of the certificate (it appears that there is no such judgment), and ask the Court to order that a certificate of taxation be issued in the amount of “NIL”. They also seek orders that Homebuilding pay the costs of the taxation and of this review.

The basis for the challenge is that Homebuilding has not proved that its lawyers complied with s 174 of the Legal Profession Uniform Law (NSW) (Uniform Law), “enliven[ing] the prohibition in section 178”, and therefore Homebuilding is not liable to pay its solicitors and any claim that those costs be paid by the Cappellos does not satisfy the indemnity principle. In the alternative, the Cappellos rely on their objections to the bill of costs and the submissions they made on the taxation.

12    The primary judge concluded that the grounds raised in the appellant’s notice of objection, as well as any other grounds whereby they challenged the applicability of the indemnity principle, were without merit. Nevertheless, her Honour did vary the certificate of taxation from $41,431.48 to $40,638.53, as the respondent was unable to prove that some items in their bill of costs were reasonably incurred.

13    In these proceedings, the parties filed written submissions and agreed that the matter be determined on the papers.

IS LEAVE TO APPEAL REQUIRED

14    Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that leave to appeal is required if an appeal is to be brought from an interlocutory judgment.

15    The test as to whether judgment is of an interlocutory or final nature was considered by Justice Windeyer in Hall v Nominal Defendant (1966) 117 CLR 423. At 443, his Honour stated that the orders which are final are the ones which "finally determine the rights of the parties in a principal cause pending between them".

16    As to whether a costs judgment is interlocutory or final in nature, in Aldi Food Pty Ltd v Transport Workers’ Union of Australia (2020) 282 FCR 174; [2020] FCAFC 231, the Full Court stated at [69] – [71]:

The prevailing view has been that a costs order, even when made as part of the final disposition of a proceeding, is interlocutory in nature: see Merit Protection Commissioner v Nonnenmacher (1999) 86 FCR 112; [1999] FCA 274 at [20] (Beaumont, Lee and Dowsett JJ); Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd (2010) 265 ALR 112; [2010] FCAFC 16 at [101] (Jacobson, Siopis and Foster JJ). An order or judgment is final when it finally determines the substantive rights of the parties, although the distinction between final and interlocutory orders can be the subject of considerable debate: see, for example, Hall v Nominal Defendant (1966) 117 CLR 423; [1966] ALR 705.

More recently, two Full Federal Courts have expressed the view that a costs order at the conclusion of a proceeding is a final order made in the exercise of the jurisdiction under s 43 of the FCA Act: Probiotec Ltd v The University of Melbourne (2008) 166 FCR 30; 244 ALR 96; 75 IPR 222; [2008] FCAFC 5 at [79] (Rares J, with whom Finn and Besanko JJ agreed), referred to with apparent approval in Les Laboratoires Servier v Apotex Pty Ltd (2016) 247 FCR 61; 117 IPR 415; [2016] FCAFC 27 at [291] (Bennett, Besanko and Beach JJ).

Neither party addressed the question whether leave to appeal was required. For the reasons expressed below, we would in any event grant the TWU an extension of time for the filing of its application for leave to appeal, and leave to appeal, and it is therefore unnecessary and would be inappropriate for us to express any concluded view on the question.

17    Aldi Food was applied by the Full Court in Minister for Immigration, Citizenship, Migrant Service & Multicultural Affairs v MB [2021] FCAFC 194 at [12]. Furthermore, more recently, in Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in Liq) (2023) 299 FCR 224; [2023] FCAFC 140, the Full Court applied Aldi Food and, in so doing, addressed the two countervailing views referred to in Aldi Food. At [7] – [10], the Full Court observed that in both cases, what was expressed was obiter.

18    In Caratti v Commissioner of the Australian Federal Police [2021] FCA 1067 at [11] – [12], Colvin J elaborated on the rationale for the interlocutory nature of a costs’ judgment:

There is much to be said for the position that orders as to costs are always interlocutory. The usual test to be applied in determining whether an order is final or interlocutory ‘is whether the order, as made, determines the rights of the parties in a principal cause pending between them’: In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70 at [4]. There is no substantive right to an order for costs. Costs orders are always discretionary. They are made to ensure fairness in procedure and to enable the Court to encourage the parties to confine the dispute to the real issues and to use the procedures of the Court for proper purposes. No one comes to the Court with a claim to costs. Therefore, the costs order made at the conclusion of proceedings is not aptly described as finally disposing of any rights of the parties to use the language in In the Matter of an Application by the Chief Commissioner of Police (Vic) [2005] HCA 18 at [28]. The making of costs orders (including such orders made at the time of pronouncing final orders) is a procedural incident of the conduct of the proceedings and does not involve the making of an order the legal effect of which is to finally determine a claim.

On an appeal, the discretion to make a costs order is re-enlivened if the appeal is successful so in such cases the possibility of a different costs order flows from substantive success in the appeal. Leave is not required in such cases in order to contend for a different costs order on appeal. However, if the appeal is unsuccessful and the appellant seeks nevertheless to over-turn a costs order then leave should be sought and obtained before the court is required to revisit the costs order. Other than in an instance where an appeal was otherwise successful, a costs order, like other interlocutory orders, may only be re-visited on appeal if a proper basis for leave to do so was demonstrated. It follows that costs orders made at the same time as final orders can be re-visited without the restrictions that would otherwise confine such circumstances and require an appeal. This approach appears to be consistent with the character of costs orders as orders that do not determine the substantive rights but are consequential procedural orders made in the exercise of discretion, albeit an important discretion for ensuring proper incentives as to the manner in which litigation is conducted.

19    The appellants submitted that the decision under appeal is not interlocutory in nature as it does not challenge the costs order. Rather, it challenges the primary judge’s findings that the indemnity principle is satisfied. The appellants also contended that it is not well-settled whether leave is required in this instance as there are cases wherein leave is not required to appeal against a costs order.

20    I am not satisfied that there is a meaningful distinction between the costs order of the primary judge and the findings relating to the applicability of the indemnity principle where a contravention of section 174 of the Legal Profession Uniform Law (NSW) is claimed. As opined by Pagone J in Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 507 at [4], the question is really whether the judgment decided the “merits of the underlying dispute”. Here, the question as to whether the indemnity principle has been satisfied relates only to the determination of the appellant’s liability to pay costs.

21    As correctly submitted by the respondent, in line with the prevailing view, the appellants would require leave to appeal. The dismissal of a review of the taxation does not finally determine the rights of the parties in the underlying substantive matter.

SHOULD LEAVE BE GRANTED

Legal Principles

22    The rationale of s 24(1A) of the Act is to ensure that the time and resources of the Court are not to be expended lightly when the decision to be appealed does not finally determine the substantive rights of the parties; Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; [2000] FCA 1572 at [42].

23    The appellants referred to Jadwan Pty Ltd v Rae & Partners (a firm) [2023] FCAFC 182 at [8] in which the relevant considerations for granting leave to appeal, as articulated by Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398, were stated:

In an application for leave to appeal, an applicant is required to demonstrate that the decision in respect of which leave to appeal is sought is “attended with sufficient doubt to warrant its being reconsidered” and that “substantial injustice would result if leave were refused, supposing the decision to be wrong”: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398.

24    These considerations are cumulative and will not be satisfied unless both limbs are made out: Sekigawa v Minister for Immigration and Border Protection [2016] FCA 127 at [12]. However, the limbs also “bear on each other, so that the degree of doubt which is sufficient in one case may be different from that required in another”: Cavar v Greengate Management Services Pty Ltd [2016] FCA 961 at [5].

25    In support of the grant of leave to appeal, the appellants submitted that there were a number of errors in the PJ that meant it “is attended by sufficient doubt to warrant it being reconsidered”. With respect, their submissions are unclear and almost exclusively amount to assertions as to statutory interpretation and the findings of the primary judge, unsupported by reasoning or authority. They will be dealt with below.

26    As to the second limb referred to in Décor Corporation, the appellants argued that they would suffer much injustice should leave to appeal be refused, given that, in their submission, they should not have to pay any of the sum ordered of $40,638.53.

27    The respondent contended that leave should not be granted as the appeal is without merit and is oppressive. The respondent also noted that such arguments were ventilated and dismissed by Gibbson DCJ in Cappello v Homebuilding Pty Ltd [2022] NSWDC 725 and the Appeal Decision.

28    In ascertaining whether leave should be granted, the Court should be mindful not to undertake a preliminary hearing of the appeal; Waters v Commonwealth of Australia (Australian Taxation Office) [2017] FCA 1199 at [13]. Instead, the merits are to be assessed in a “rough and ready” manner as suggested by Brennan CJ and McHugh J in Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [9].

29    It is convenient to consider the relevant costs disclosure provisions. Section 174 of the Legal Profession Uniform Law (NSW) relevantly provides:

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).

(2) Additional information to be provided Information provided under—

(a) subsection (1)(a) must include information about the client’s rights—

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

(ii) to negotiate the billing method (for example, by reference to timing or task); and

(iii) to receive a bill from the law practice and to request an itemised bill after receiving a bill that is not itemised or is only partially itemised; and

(iv) to seek the assistance of the designated local regulatory authority in the event of a dispute about legal costs; or

(b) subsection (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.

(3) Client’s consent and understanding If a disclosure is made under subsection (1), the law practice must take all reasonable steps to satisfy itself that the client has understood and given consent to the proposed course of action for the conduct of the matter and the proposed costs.

…

(6) Disclosure to be written A disclosure under this section must be made in writing, but the requirement for writing does not affect the law practice’s obligations under subsection (3).

30    Section 171(1) of the Uniform Law provides a definition of “third party payers” as follows:

171 Third party payers

(1) For the purposes of this Law—

(a) a person is a third party payer, in relation to a client of a law practice, if the person is not the client and—

(i) is under a legal obligation to pay all or any part of the legal costs for legal services provided to the client; or

(ii) has already paid all or a part of those legal costs under such an obligation; and

(b) a third party payer is an associated third party payer if the legal obligation referred to in paragraph (a) is owed to the law practice, whether or not it is also owed to the client or another person; and

(c) a third party payer is a non-associated third party payer if the legal obligation referred to in paragraph (a) is owed to the client or another person but not the law practice.

31    Section 178(1) of the Uniform Law details the effect of contraventions of the disclosure obligations by a law practice:

(1) If a law practice contravenes the disclosure obligations of this Part—

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

(b) the client or an associated third party payer is not required to pay the legal costs until they have been assessed or any costs dispute has been determined by the designated local regulatory authority; and

(c) 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 any costs dispute has been determined by the designated local regulatory authority or under jurisdictional legislation; and

(d) the contravention is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any principal of the law practice or any legal practitioner associate or foreign lawyer associate involved in the contravention.

Consideration

32    While the appellants did not formally file an application for leave to appeal, they made submissions as to why leave should be granted if it is required. Given that the appellants have filed a notice of appeal, made comprehensive submissions as to why leave should be granted and indicated that they are content for the application to be determined on the papers, I am satisfied that it is appropriate for the formal requirements prescribed by way of r 35.12 of the Federal Court Rules 2011 (Cth) to be dispensed with pursuant to r 1.34. I am satisfied that the appellants have applied for leave to appeal and that the notice of appeal can be treated as an application for leave to appeal: SZLRP v Minister for Immigration and Citizenship [2009] FCA 77 at [16].

33    I turn now to the appellants’ submissions regarding the errors they contend mean that the PJ “is attended by sufficient doubt to warrant it being reconsidered”.

34    The appellants complain that at PJ[5], the primary judge erred by stating that even if section 174 of the Uniform Law had been contravened, the lawyers would not be prevented from recovering their taxed costs. The appellants submitted that the onus is on the respondent to prove that the indemnity principle is satisfied. Further, they submitted that the “prohibition does not prevent the lawyers from recovering their costs by way of solicitor and client costs assessment”. The appellants contended that until the lawyers have “done the solicitor and client assessment, the clients have no liability for the lawyer’s fees and disbursements”, Thus they cannot, on the appellants’ case, satisfy the indemnity principle.

35    According to the appellants, the necessary assessment “had not been done at the time of the taxation”. Those submissions may be answered as follows. First, the primary judge observed that “it was doubtful” that many of the appellants’ complaints were able to be entertained as they had not formed part of the notice of objection to the taxation that had occurred. Notwithstanding that, her Honour then explained the “indemnity principle” at [22]:

Costs are awarded to indemnify (or more accurately, partially indemnify) a successful litigant, rather than to punish an unsuccessful one: Cachia v Hanes (1994) 179 CLR 403 at 410-11 (Mason CJ, Brennan, Deane, Dawson, and McHugh JJ); Oshlack v Richmond River Council (1998) 193 CLR 72 at [1] (Brennan CJ). All the indemnity principle means in the present context is that Homebuilding cannot recover more from the Cappellos than the costs it would have been liable to pay its lawyers in the event that I had not ordered the Cappellos to pay its costs.

36    Her Honour went on to deal with the provision of the costs disclosures and was satisfied that the relevant disclosure was broad enough to capture costs associated with the setting aside of a bankruptcy notice and was provided in the appropriate form and to the appropriate person. Her Honour was not satisfied that there was a “sustainable” complaint with respect to the appellants’ contentions as to the quantum and timing of the costs disclosures, nor could they have been more accurate with respect to counsel’s fees, given the timing of counsel’s invoice.

37    Most importantly, despite expressing a view at [37] that non-compliance with s 174 of the Uniform Law would “probably be excused”, the primary judge made it pellucidly clear at [36] and [40] that it is undoubtedly the case that, by reference to s 178(1)(b) of the Uniform Law, a failure to comply with the disclosure obligations does not result in a client or associated third party being absolved of the need to pay the costs as assessed; rather they are not payable until they have been assessed, or any costs dispute has been determined by the designated local regulatory authority. In this matter, an assessment, that is a taxation by a Registrar, has taken place and indeed a review in favour of the appellants has also taken place. As to the balance of the submissions with respect to this issue, it would appear that the appellants’ understanding of the processes surrounding the assessment, taxation and payment of costs and the basis upon which they might be awarded is incomplete or misguided. There is no merit in the submissions of the appellants in this regard.

38    The appellants also submitted that at PJ[18] and [19], the primary judge erred when her Honour categorised the appellants as “non-associated third party payers” pursuant to section 171(1) of the Uniform Law. They contended that her Honour was therefore misconceived in referring to section 178 of the Uniform Law as that provision relates to an “associated third party payer”. Further, the appellants contended that her Honour erred in holding that the appellants were legally obliged to pay the respondent’s legal costs as “the costs order obligated the appellants to indemnify the respondent for such costs as it was liable to pay its lawyers, not to pay its legal costs”. Again, I find these submissions to be ill-founded. The reference to s 178 simply makes it clear that non-compliance with disclosure obligations does not, in any event, mean that the respondent was not liable to pay its legal costs. The provision is silent on the position of non-associated third-party payers. From the wording of the provision, it appears that non-compliance with disclosure obligations does not impact upon the liability of non-party associated third party payers. The available authorities make this position quite clear. As stated by Woods AsJ in Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2013] VSC 669 at [103], referring to an earlier unreported case of his own which cites Shaw v Yarranova Pty Ltd & Anor [2010] VSC 567 at [25], ‘[a] taxation of costs ordered to be paid by another party is not an occasion for an inquiry into what (if any) failures there have been in relation to disclosure requirements…”. Further, in Wilson v Bauer Media Pty Ltd [2018] VSC 161, at [30], Dixon J stated:

“…Even if the Uniform Law was thought to affect a client’s legal liability to pay their solicitor, Catto and the cases applying it, require than an unsuccessful party’s obligation to indemnity a successful party with the benefit of a costs order who has paid their costs is unaffected.

39    A further submission made by the appellants was that at PJ[22], the primary judge erred by holding that “party and party costs order made by her negates the indemnity principle set down by the High Court”. As is clear from paragraphs 35 to 37 above the appellants have simply misunderstood what has held by the primary judge.

40    The appellants also submitted that at PJ[25], the primary judge erred in relying on the taxed party and party costs to determine whether “there had been compliance with the costs disclosure obligations” rather than the solicitor and client costs. Not only have the appellants advanced no basis for this submission, but it is also ill-founded. The primary judge did not rely upon any estimated costs as being the basis for compliance with disclosure obligations. Instead, the primary judge found that the respondent did produce costs disclosures, contrary to the appellants’ submissions. Her Honour then makes a comment that the estimated amount which was disclosed was indeed close to the amount actually determined on taxation. Accordingly, this submission must be rejected.

41    The appellants next submitted that at PJ[28], the primary judge failed to correctly apply s 174 of the Uniform Law by not finding that the costs disclosure ought to have been made after instructions were initially given. It appears that the appellants are advancing that, as the costs disclosure was made 3 months before the appellants commenced the bankruptcy proceedings, they could not therefore apply to those proceedings. Further, and relatedly, the appellants submitted, the primary judge erred by holding that the costs disclosure related to the enforcement of judgment debt through bankruptcy proceedings. This submission has no force. As the primary judge correctly found at PJ[28], “[i]t [being the relevant costs disclosure] was therefore sufficient to capture costs incurred or likely to be incurred in such proceedings [that is the enforcement of the judgement debt] and that would include an application to set aside the bankruptcy notice”.

42    As to PJ[29] – [32], the appellants submitted that the primary judge’s reference to s 180 of the Uniform Law is misconceived as a costs disclosure and a costs agreement are distinguishable under the Uniform Law. The relevant paragraphs of the PJ are as follows:

As to the second, the Uniform Law does not require a costs disclosure agreement to be signed. Section 180(3) states that:

A costs agreement may consist of a written offer that is accepted in writing or (except in the case of a conditional costs agreement) by other conduct.

Here, a document entitled “General Terms of Business”, which was annexed to both disclosures sent to Mr Re, stipulated that acceptance of the costs disclosure and costs agreement could be effected either by signing and returning the document to the lawyers or by “continuing to instruct [them]”.

By continuing to instruct the lawyers, Homebuilding accepted the lawyers’ offer.

As to the third complaint, Mr Re was a director of Homebuilding at the time of the judgment that generated the judgment debt: see Cappello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021 at [2] (Ball J). In the absence of evidence to the contrary, the presumption of continuance applies. I therefore infer that Mr Re was also a director of Homebuilding at the time the costs disclosures were made. Mr Re was the second defendant in the Supreme Court proceedings. It is apparent from the judgment that he and Homebuilding were represented by the same lawyers, who are the lawyers for Homebuilding in the current proceedings. The costs agreements indicate that he and Homebuilding were “jointly and severally liable for any monies owing to [the lawyers]”. In these circumstances, sending the documents to Mr Re is sufficient to bring them to the attention of Homebuilding.

43    Again, these submissions are misconceived. As s 174(6) of the Uniform law makes clear, a costs disclosure must be in writing. There is no requirement that it be signed. The relevance of s 180 of the Uniform Law is as to the sufficiency of sending the costs disclosures to Mr Re, as was questioned by the appellants, and is completely answered at PJ[32], as can be seen above.

44    Next, the appellants submitted that, at PJ[33], the primary judge erred by “shifting the onus” and requiring the appellant to prove compliance with the costs disclosure obligations. A clear reading of PJ[33] discloses no “shifting of onus”. Rather, her Honour states that “[i]t is apparent from the first disclosure that the professional fees were underestimated, but the Capello’s’ submission was made with the benefit of hindsight. The Capello’s made no attempt to explain to the Court when the lawyers ought to have realised that the costs were likely to be significantly greater than the amount they had originally disclosed.”

45    The appellants also submitted that at PJ[35], the primary judge erred by failing to determine that counsel had not breached costs disclosure obligations. There is simply no basis for this submission, and it must be rejected.

46    The appellants submitted that at PJ[36] and [40], the primary judge erred by holding that even if the costs agreements were void, there would still be a liability to pay legal costs once they are assessed. The appellants submitted that pursuant to s 178(1)(b) of the Uniform Law, the client is not required to pay legal costs until they have been assessed on a solicitor and client assessment. The appellants again have provided no basis or explanation for their interpolation of the words “on a solicitor and client assessment” into s 178(1)(b).

47    As well, the appellants submitted that at PJ[37], the primary judge erred by holding that non-compliance would, in any event, likely be excused pursuant to s 178(3), by way of rule 72A of the Legal Profession Uniform General Rules 2015 (NSW) (Uniform Rules). The appellant submitted that s 72A of the Uniform Rules requires the respondent to prove the elements of the provision which it did not do. First, the primary judge’s remarks about Rule 72A amount to no more than obiter. Her Honour opined that “r 72A of the Uniform Rules “disapplies” s 178(1) in circumstances that probably apply here” (Emphasis added). Secondly, and by extension, there is no suggestion of the respondent being required “to prove the elements of the provision”.

48    The appellants also submitted that, at PJ[38], the primary judge erred by failing to note that in the Appeal Decision, the judicial review application was unsuccessful because there was an error of fact, not an error of law as required. The appellants have advanced no submissions as to the significance of this to the current application for leave. There is simply no error in this as contended for by the appellants.

49    After filing their supplementary submissions, the appellants also referred the Court to Frontier Law Group Pty Ltd v Barkman [2016] NSWSC 1542 as authority for the consequences of non-compliance with disclosure obligations. The appellants did not make any submissions in relation to this case. It is therefore unclear why the Court has been referred to the case.

50    With respect, the errors which the appellants have advanced, and about which they have made submissions appear to be misconceived, disclose a misunderstanding of the matter, or lack relevance. As stated by Burley J in EBT17 v Minister for Home Affairs [2019] FCA 200 at [4], the grounds of appeal should be assessed on a reasonably impressionistic level and as to whether they are “sufficiently arguable” or have a reasonable prospect of success. In this instance, I am not satisfied that the PJ is attended with sufficient doubt so as to warrant the granting of the leave to appeal. Accordingly, as the first limb of the test in Décor Corporation is not satisfied, it is not necessary for me to consider the second as the tests are, as set out above, cumulative. Further, as noted by the respondent, these issues have been repeatedly ventilated in previous proceedings.

SHOULD INDEMNITY COSTS BE GRANTED?

51    Given that leave to appeal is refused, the respondent sought its costs on an indemnity basis. They relied upon the Judicial Review Decision, wherein Mitchelmore JA (Meagher JA and Simpson AJA agreeing), relying on Ferella v Stomo [2017] NSWCA 268, stated at [51]:

Nonetheless, the alleged errors on which the applicants relied were without merit, for the reasons I have set out above. More significantly, the alleged errors were not directed at the amount of the costs that were the subject of the two costs assessments. Instead, the applicants advanced the technical arguments they had advanced, unsuccessfully, before Gibson DCJ, at a time when they were represented. Although challenging the decision of the District Court rather than that of the costs assessor or the Review Panel, the applicants attempted what was, in effect, a third appeal, in circumstances where the costs as assessed well exceeded the amount of money that prompted the proceedings in the Supreme Court. In my view, an order for indemnity costs is appropriate in the circumstances.

52    To that end, the respondent noted that, if one includes the original assessment review, this would be the fifth occasion upon which the appellant has sought to advance these arguments. The respondent argued that the appellants’ conduct exhibited a lack of proportionality.

53    The appellants submitted that should leave be required but not be granted, the costs on a party and party basis should follow the event. They submitted that it is clear that their proceedings were not doomed to fail and therefore, costs on an indemnity basis should not be granted.

54    Indemnity costs should not be granted unless there is a special or unusual feature to justify the Court departing from its usual practice of ordering costs as between party and party; Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 865 at [45]; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151; (1996) 141 ALR 727. For instance, in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, Sheppard J noted that a “wilful disregard of known facts or clearly established law” may warrant the ordering of indemnity costs.

55    In Mahony v El Bayeh (No 2) [2017] NSWSC 325, the New South Wales Supreme Court considered that as a general rule, the Court will be more reluctant to order indemnity against a self-represented litigant than a represented litigant. However, this is not a bar to the grant of indemnity costs as the circumstances of each case must be considered; Bhagat v Global Custodians Ltd [2002] FCA 223 at [55] – [60]; Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792 at [45] – [46].

56    In Ogawa v University of Melbourne (No 2) [2004] FCA 1275, Kenny J ordered indemnity costs against a self-represented litigant due to “unreasonable persistence in [bringing] applications that are devoid of merit”.

57    In this case, I am satisfied that indemnity costs should be ordered against the appellants. They have brought an application in respect of which the issues have already been ventilated several times. Accordingly, I consider that they should pay costs on an indemnity basis.

conclusion

58    For the reasons above, I am satisfied that leave to appeal is required but should not be granted. The proceeding is dismissed. The appellants are to pay the respondent’s costs on an indemnity basis.

Associate:

Dated:    24 April 2024