DRAFTING COSTS AGREEMENTS

Transcription

1 DRAFTING COSTS AGREEMENTS By Stephen Hartwell Introduction Over the past six years all jurisdictions (with the exception of South Australia) have adopted substantially uniform legislation dealing with Costs Agreements between law practices and their clients 1. It is understood that South Australia is soon to adopt the national model 2. Any discussion relating to Costs Agreements must first deal with the issue of costs disclosure. Whilst practitioners are not obliged to enter into Costs Agreements with their clients, costs disclosure is mandatory in all matters where legal costs, excluding disbursements, exceed $1,500 (exclusive of GST). Further, whilst a Costs Agreement is optional and disclosure mandatory, the failure to give costs disclosure in the appropriate form will render any Costs Agreement liable to be set aside. The consequences of a Costs Agreement being set aside are discussed below. As stated above, all jurisdictions have a substantially uniform legislation governing these issues and the relevant provisions in each state also provide for the jurisdiction which will apply to a Costs

2 Agreement in any particular circumstance. There are also provisions for the parties to a Costs Agreement to opt in or opt out of a particular jurisdiction where the matter crosses jurisdictional lines. Essentially, the jurisdiction in which the law practice is first instructed will be the applicable jurisdiction unless the legal services are to be provided wholly or primarily in another jurisdiction and the parties opt in writing to submit to the law of that jurisdiction. The writer knows of no case where jurisdiction has been an issue under the current regime. Costs Disclosure The costs disclosure provisions of the legislation will apply not only to a client but also to a certain extent (which will be dealt with later herein) to associated and non-associated third party payers 3. A third party payer is an associated third party payer if the legal obligation to pay all or any part of the legal costs for legal services is owed to the law practice, whether or not it is also owed to the client or another person. A third party payer is a non-associated third party payer if the legal obligation is owed to the client or another person but not to the law practice.

3 The following information must 4 be disclosed to a client in writing before, or as soon as practical after, the law practice is retained in a matter 5 : The basis on which legal costs will be calculated, including whether a scale of costs applies; The client s right to (i) Negotiate a costs agreement; and (ii) Receive a bill from the law practice; and (iii) Request an itemised bill after receipt of a lump sum bill; and (iv) Be notified of any substantial change to the matters disclosed; and An estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable, a range of estimates of the total legal costs and an explanation of the major variables that will effect the calculation of those costs; and Details of the intervals at which the client will be billed; and The rate of interest that the law practice charges on overdue legal costs; and If the matter is a litigious matter, an estimate of (i) The range of costs that may be recovered if the client is successful in the litigation; and

4 (ii) A range of costs the client may be ordered to pay if the client is unsuccessful; and The client s right to progress reports; and Details of the person whom the client may contact to discuss the legal costs; and Avenues that are open to the client in the event of a dispute in relation to legal costs including costs assessment or setting aside the Costs Agreement; and Any time limits that apply in the taking any of such action; and The jurisdiction applicable to the costs agreement; and Information about the client s right to accept under a corresponding law a written offer to enter into an agreement with the law practice; and If it is a litigious matter, disclosure must also be given to the effect that (i) An order by a court for the payment of costs in favour of the client will not necessarily cover the whole of the client s legal costs; and (ii) A statement that disbursements may be payable by the client even if the client enters into a conditional Costs Agreement (if applicable); and

5 If a law practice is retained on behalf of a client by another law practice, then that law practice must disclose to the first law practice information necessary to enable the first law practice to advise the client the basis on which the legal costs will be calculated, an estimate of the total legal costs and details of the intervals at which the client will be billed 6. It should be noted the obligation to disclose is ongoing. Written disclosure must be given to the client if there is a substantial change to costs disclosed 6(a). Additional Disclosure Required in Certain Matters In certain circumstances additional disclosure will be required of the law practice, namely: (i) If a settlement of a litigious matter is negotiated then before the settlement is executed the law practice must disclose a reasonable estimate of the amount of legal costs payable by the client if the matter is settled, including any legal costs of another party that the client is to pay and a reasonable estimate of the contributions towards those costs likely to be recovered from the other party 7.

6 (ii) If there is a Costs Agreement providing for an uplift fee the law practice must, before entering into the agreement, disclose to the client in writing the law practice s legal costs, the uplift fee or the basis of calculation of the uplift fee and the reasons why the uplift fee is warranted. (This disclosure is not required if the client is a sophisticated client. Interestingly, sophisticated client is not defined in the legislation) 8 Form of Disclosure Written disclosure must be expressed in clear plain language, maybe in a language other than English if the client is more familiar with that language and, if the law practice is aware that the client isn t able to read, the law practice must arrange for the information required to be given to the client orally in addition to providing the written disclosure 9. Effect of Failure to Disclose If disclosure is not given as required by the legislation then the following will apply: The client need not pay the legal costs, and the law practice may not maintain any proceedings against the client for

7 recovery of legal costs, unless the legal costs have been formally assessed; The client or associated third party payer may also apply for the Costs Agreement to be set aside; On a formal assessment the amount of costs may be reduced by an amount considered by the Costs Assessor to be proportionate to the seriousness of the failure to disclose; Failure by the law practice to comply with the disclosure required is capable of constituting unsatisfactory professional conduct or professional misconduct 10. Disclosure to Associated Third Party Payers A law practice is required to make the same disclosure to any associated third party payer to the extent that the details or matters disclosed are relevant to the associated third party payer and relate to costs that are payable by the associated third party payer in relation to legal services provided to the client 11. The law practice is not required to make disclosure to a non-associated third party payer although such a party would have the right to seek a formal assessment of the account.

8 Exceptions to Requirement for Disclosure Disclosure is not required in the following circumstances- If total legal costs of the matter, excluding disbursements, are not likely to exceed $1,500 exclusive of GST If the client has received one or more disclosures from the law practice in the previous twelve (12) months and the client has agreed in writing to waive the right to disclosure and the principal decides on reasonable grounds that having regard to the previous disclosures and the relevant circumstances that further disclosure is not warranted. (The principal is required to document this decision and to keep this written document on the client s file) There are various other clients who are exempt such as where the client is a law practice or Australian legal practitioner, a public company, a financial services licensee, a liquidator, a Minister of the Crown or a government department and the like 12.

9 It is important to note that if the law practice becomes aware that the total legal costs are likely to exceed $1,500 then the law practice must make disclosure as soon as practicable thereafter. Costs Agreements The importance of having a Costs Agreement lies in the financial consequences of not having one. Legal costs are recoverable on the following basis (a) Under a Costs Agreement; or (b) If paragraph (a) does not apply Under the applicable scale of costs; or (c) If neither paragraph (a) nor (b) applies - According to the fair and reasonable value of the legal services provided 13. Thus it can be seen that if a law practice wishes and expects to charge at a particular rate then this can be only be done if there is a valid Costs Agreement. Making Costs Agreements A Costs Agreement may be made between (a) A client and a law practice retained by the client; or

10 (b) A client and a law practice retained on behalf of the client by another law practice; or (c) A law practice and another law practice that retained that law practice on behalf of the client; or (d) A law practice and an associated third party payer 14. The Costs Agreement must be written or evidenced in writing and may consist of a written offer that is accepted in writing or by other conduct 15. Under previous legislation a Costs Agreement had to be signed by the client in order to be valid and that has often caused problems when law practices, obviously running many hundreds if not thousands of files, fail to have systems in place to check that Costs Agreements sent to the client were in fact signed and returned. It is not uncommon for practitioners to find at the end of the mater that there was in fact no signed Costs Agreement. The offer to provide legal services must clearly state (a) That it is an offer to enter into a Costs Agreement; and (b) That the offer can be accepted in writing or by other conduct; and (c) The type of conduct that will constitute acceptance.

11 Importantly, a Costs Agreement cannot provide that the legal costs to which it relates are not subject to Costs Assessment provided that a sophisticated client, or an associated third party payer who would be a sophisticated client if the third party payer were the client, may contract out of that provision. The Cost Agreement should define specifically what it is the law practice is to do for the client. Whilst a law practice may enter into a general retainer with a client to cover all legal work, it should be clear from the agreement that that is the situation. Where the agreement provides for specific legal work, then the law practice may have problems if the scope of that work expands or other work is done at a later time which might be only remotely incidental to the original agreement 15a. Conditional Costs Agreements A Costs Agreement may provide that the payment of some or all of the legal costs is conditional on the successful outcome of the matter provided that the matter does not involve criminal proceedings or proceedings under the Family Law Act 1975 (C wth) 16.

12 There are certain additional requirements of a conditional Costs Agreement. They are (a) It must set out the circumstances that constitute the successful outcome of the matter to which it relates. (Historically, defining successful outcome has led to significant litigation between law practices and their clients); and (b) May provide for disbursements to be paid irrespective of the outcome of the matter; (c) Must be (i) In writing; and (ii) In clear plain language; and (iii) Signed by the client; and (iv) It must contain a statement that the client has been informed of their right to seek independent legal advice before entering into the agreement; and (v) Must contain a cooling off period of not less than 5 clear business days during which the client, by written notice, may terminate the agreement. If a client terminates the agreement during the cooling off period the law practice may only charge for legal services performed before

13 termination, on the instructions of the client and with the client s knowledge that the legal services would be performed. The firm may not recover any uplift fee in those circumstances. It is important to note that a conditional Costs Agreement may not be accepted by conduct. It must be signed by the client. Conditional Costs Agreements Involving Uplift Fees A conditional Costs Agreement may provide for the payment of an uplift fee. In those circumstances, the agreement must Identify separately the uplift fee; Provide an estimate of the uplift fee or, if that is not reasonably practicable, a range of estimates and an explanation for major variables. Must not exceed 25% of the legal costs, excluding disbursements, otherwise payable 17. Costs Agreements which are Void

14 Apart from circumstances under which a Costs Agreement would be void or liable to be set aside at common law, Costs Agreements will be void in the following circumstances: A Costs Agreement that contravenes any provision of the legislation; Costs Agreements which provide for a contingency fee calculated by reference to the amount of any award or settlement or the value of any property that may be recovered in any proceedings to which the agreements relates are void (Contingency Fees). A Costs Agreement which provides for all or part of the client s interest in any proceedings to which the agreement relates to be transferred to the law practice instead of the client being required to pay an amount payable to the law practice is void (Champerty) 18 In the event that a Costs Agreement is found to be void then the law practice is not entitled to recover any amount in excess of the amount that the law practice would have been entitled to recover if the Costs Agreement had not been void and must repay any excess amount received. It is not entitled to recover the whole or any part of the uplift fee and must repay the amount received in relation to any uplift fee. It

15 is not entitled to recover any fees in respect of a champertous Costs Agreement and must repay any amount received for those services. Setting Aside Cost Agreements It is trite law that solicitors owe a fiduciary duty to their clients and that that duty extends to the making of any Costs Agreement and the terms of it. Whilst the courts retain inherent jurisdiction in respect of agreements between law practices and their client and indeed the conduct of law practices and law practitioners generally, the relevant legislation provides specific grounds upon which Costs Agreements may be set aside. A client may make an application to the Supreme Court, or in some states another tribunal, to set aside a Costs Agreement 19. The Court or Tribunal may set aside the Costs Agreement if the agreement is not fair or reasonable. In deciding whether or not a Costs Agreement is fair or reasonable, without limiting the matters which the Court or Tribunal can have regard to, the Court or Tribunal may have regard to the following 20

16 Whether the client was induced to enter into the agreement by the fraud or misrepresentation of the law practice or of any representative of the law practice; Whether a legal practitioner has been found guilty of unsatisfactory professional conduct or professional misconduct in relation to the provision of the relevant legal services; Whether the law practice failed to make the required disclosure; The circumstances and conduct of the parties before and when the agreement was made; The circumstances and the conduct of the parties in the matter after the agreement was made; Whether and how the agreement addresses the effect of the costs of matters and changed circumstances that might foreseeably arise and affect the extent and nature of legal services provided under the agreement; Whether and how billing under the agreement addresses changed circumstances effecting the extent and nature of legal services provided under the agreement.

17 The Supreme Court, or applicable tribunal, may set aside the Costs Agreement and make any order it considers appropriate in relation to the payment of legal costs the subject of the agreement and in making such an order, the Court or Tribunal may have regard to: Any applicable scale of costs; or Any disclosure made; Any relevant advertised advertisement as to the law practice s costs or skill in a particular area; The skill, labour and responsibility displayed by the law practice; The retainer and whether the work was done within the scope of the retainer; The complexity, novelty or difficulty of the matter; The quality of the work done; The place where, and the circumstances in which, the work was done; The time within which the work was required to be done; Any other relevant matter. The Supreme Court, or tribunal, may not order the client to pay an amount in excess of the amount the law practice would have been entitled to recover if the Costs Agreement had not been set aside, but

18 may order costs be paid according to a scale of costs and decide a fair and reasonable amount in the circumstances of the work and the practitioner s conduct. It is important to remember that the Courts have always viewed agreements between law practices and their clients with a high degree of scepticism. It has always been the case that the law practice is seen as having such a position of power in such matters that a heavy onus will be placed upon the law practice to show that the agreement is fair and reasonable. It is clear the legislation supplements and does not exclude the common law treatment of these issues 21. The separate concepts of fairness and reasonableness were explained by Mildren J in Athanasiou -v- Ward Keller (6) Pty Ltd 22, wherein he commented- The concept of fairness deals with the circumstances under which the agreement was entered. Thus an agreement has been held to be unfair if the solicitor used undue pressure on his client to sign it, or if the solicitor did not explain the agreement to his client... the concept of reasonableness, on the other hand relates to the terms of the agreement itself. So if the fees to be charged under the agreement are excessive the agreement is not reasonable...

19 The requirements of fairness and reasonableness must be looked at independently. Fairness The emphasis here will be on whether the consent of the client or the acceptance of the offer to provide legal services was a genuine consent. That is, a consent or an acceptance obtained by a client fully informed and aware of the services he was going to be provided, the fees he was going to pay for those services and whether those fees represented a fair value for those legal services. The law imposes upon law practices a heavy duty to deal honestly and fairly with their clients and where a Costs Agreement confers benefits upon the law practice which may be considered unusual then the law practice will bear a heavy burden to show that the agreement is both fair and reasonable. (Paccey -v- Vandaroge trading as City First Solicitors (2002) ACTSC 105 at paragraphs 34 and 35. wherein his Honour Higgins J commented at paragraph 29

20 The client is entitled to advice as to the terms of any such retainer agreement. In any case in which the retainer agreement contains any unusual terms, where those terms favour the solicitors interest, the client not only should be frankly and fully advised by the solicitor, but should be urged to take competent independent advise... that is not a new obligation... it applies to costs as well as disbursements. In that case the court found that whilst the client was capable of reading and understanding the agreement that it did not relieve the law practice of its duty to explain: That the flat rate charge of $225 per hour would result in a significant overcharge relative to the scale; That the costs recoverable would be significantly less than those they would be charged; That other law practices, competent in the relevant field of practice, might well charge significantly less. His Honour Higgins J found that at the very least before the agreement was signed the law practice should have urged its client to obtain independent advice.

21 Similarly in Athanasiou -v- Ward Keller (6) Pty Ltd (supra) the Costs Agreement was found not to be fair and reasonable in circumstances where the law practice did not explain to the client the effect of their hourly charge out rates outlined in the Costs Agreement, the fact that if he were successful he would only recover costs under the Local Court Rule which would be a significantly lesser amount, and that he would lose his right to require the law practice s bill to be taxed. His Honour pointed out the numerous authorities which established the proposition that the failure of the law practice to explain fully the degree and impact of the difference between proposed fees and the relevant scale is fatal to the agreement being held to be fair. The following points may be distilled from the case law: An agreement must be obtained fairly 23 ; A law practice should properly explain the work required and should not exaggerate the work to be done 24 ; A law practice should advise the client to seek independent legal advice 25 but it is not necessary for the law practice to show the client received independent advice 26 ; If the agreement is against the client s interests or the law practice is seeking to recover more than it might ordinarily claim then the client must be advised of this. If others would

22 carry out the work at a lesser rate then the client must be informed 27 ; The law practice bears the burden of showing the client understood the agreement and its effect 28 ; The presumption of undue influence applies and the onus rests on the law practice to rebut it. It is a question of degree. Where the deviation of the agreement from the established or understood scale is significant then the evidential onus of persuasion is greater 28a ; Further, compliance with the disclosure provisions and the legislative provisions regarding the contents of a Costs Agreement will no doubt be of assistance in determining whether the agreement was fairly entered into 29. Reasonableness The requirement of reasonableness refers to the terms of the actual agreement rather than the circumstances in which the agreement was entered into. A solicitor, as an officer of the court, has no right to an unreasonable fee for her or his work 30

23 The question of reasonableness should be decided having regard to the kind of work that the solicitor had to do under the agreement, the complexity of work, the experience and competence of the solicitor 31. Further, an agreement may be fairly entered into but unreasonable because the amount agreed is unreasonable for the work anticipated to be done 30a. Clearly where the agreement provides for charges which go well beyond those ordinarily charged for work of the type then it will be found to be unreasonable 30b. As has been noted above, there is a requirement both in the disclosure process and in the agreement to include the estimate of the costs likely to be incurred or a rage of estimates and the variables and also, in a litigious matter an estimate of costs likely to be recovered or ordered to be paid to the other side. Whilst the accuracy of estimates shall not be judged too finely 30c there must be a genuine attempt by the law practice to provide meaningful information to the client. In Casey -v- Quabba (Supra) Jones J commented, albeit in obiter, that an estimate of between nil and $250, would fail to meet the standard.

24 Provided an estimate is given (even if it proves to be incorrect) then, provided it was genuinely given, it is not necessary for the law practice to go on and explain the variables which might affect the ultimate fees. That must only be done when an estimate is not possible and a range of estimates is given 30d. In Barfield -v- Friedman 32 the solicitor had entered into a written agreement with the client stating that it was not possible to provide an estimate of the ultimate costs recoverable. The solicitor had not advised the client that there was a limit of $6,000 in the scale of costs for an originating summons. Parker J held that whether the costs agreement was unreasonable was in part to be evaluated in light of the fiduciary nature of the relationship which existed between the solicitor and the client. Here the solicitor was required to ensure that the client was in a position to exercise an independent or informed judgement as to the costs agreement. His Honour noted that costs can necessarily involve a direct conflict in interest between the solicitor and client and found that in this case the client had no basis to make an assessment of the difference between scale costs and the proposed written agreement and had been unaware of the $6,000 limit fixed by the scale.

25 In Duckworth -v- Chopra 33 a client agreement was not set aside as the Court ultimately found that the client had received a sufficient indemnity against his costs of the action from the opposing party, but the agreement came under criticism as being unreasonable as the client was not advised about the use, application and effect of the scale of costs, that the scale of costs would have applied had he decided not to enter into the agreement, about the fees charged under the retainer agreement and the benefits or disadvantages of the retainer agreement. In Biggins -v- Kevin Penkin and Associates 34 a costs agreement was partially set aside in circumstances where the estimate of recoverable costs was in fact twice that which applied under the relevant criminal injuries compensation legislation. Uncertainty The agreement between a law practice and the client is of course open to challenge on the same grounds as any other commercial agreement may be challenged. For that reason, considerations of fairness must necessarily also involve a consideration of the concept of uncertainty in contract.

26 Agreements between law practice and client may be particularly open to challenge on this ground where a discretion is given to the firm to vary the rate charged or indeed leave the rate open ended. Whilst the fact that a contract is capable of more than one possible meaning will not necessarily mean that it is void for uncertainty 35 this issue has caused some conflict and problem in costs cases. In Wakin -v- Bowen 36 an agreement to pay bills, both past and future calculated at an hourly rate between $180 and $250 per hour... the charge outrate... pending on the solicitor or operative working on the matter was found to be valid. A similar agreement was found to be invalid in Chamberlain -v- Boodle and King (a firm) 37 wherein Lord Denning MR stated as follows: Further the agreement must be sufficiently specific so as to tell the client what he is letting himself in for by way of costs. It seems to me that the letters in this case do not give the client the least idea of what he is letting himself in for. As counsel... said to us, there is a broad band of many uncertainties. Take, for instance, the rate. It certainly seems high enough to me. It

27 is 60 to 80 per hour. What rate is to be charged? And for what partner? By what standard, then 30 to 45 an hour for associates who may be involved. Which legal executives? Of what standard? Which associates? Does it include the typists? That is one of the broad bands which is left completely uncertain by this agreement. Then there is the hourly rate. That must depend on the skill and expertise of the individual partner or associate. A skilled partner can do the work in half the time of a slow partner. Is the client to be charged double the rate because the slow partner has being put on the case? These rates per hour are over a pound a minute. It would seem that there must be a very good system of timing, almost by stopwatch, if that is to be the rate of payment. I only make those observations because it seems to me that this is not at agreement as to remuneration at all. It is simply an indication of the rate of charging on which the solicitors propose to make up their bill. It is by no means an agreement in writing as to the remuneration.

28 Although it would appear that merely giving the law practice a right of election between rates which may be changed does not render the agreement uncertain 38. It has been the writer s experience that law practices wary of tying themselves down, will try to leave themselves as much discretion as possible in terms of the ultimate bill. They no doubt do so for a good reason. Law practices should tread carefully when adopting this practice. (28 May 2010) Footnotes 1. Legal Profession Act 2007 (QLD) Legal Profession Act 2006 (ACT) Legal Profession Act 2004 (NSW) Legal Profession Act (NT) Legal Profession Act 2007 (TAS) Legal Profession Act 2004 (VIC) Legal Profession Act 2008 (WA) 2. Currently the disclosure requirements in South Australia are contained in paragraph 41 of the Law Society of South Australia s Professional Conduct Rules. 3. QLD s318 WA s270 VIC s3.4.18a TAS s302 NT s313 NSW s318a

29 4. QLD s308 WA s260 VIC s3.4.9 TAS s291 NT s303 NSW s309 ACT s QLD s310 WA s262 VIC s TAS s294 NT s305 NSW s311 ACT s QLD s309 WA s261 VIC s TAS s292 and 293 NT s304 NSW s310 ACT s270 6a. QLD s315 WA s267 VIC s TAS s299 NT s310 NSW s316 ACT s QLD s312 WA s264 VIC s TAS s296 NT s307 NSW s313 ACT s QLD s313 WA s265 VIC s TAS s297 NT s308 NSW s314 ACT s QLD s314 WA s266 VIC s TAS s298 NT s309

30 NSW s315 ACT s QLD s316 WA s268 VIC s TAS s300 NT s311 NSW s317 ACT s QLD s318 WA s270 VIC s3.4.18a TAS s302 NT s313 NSW s318a 12. QLD s311 WA s263 VIC S TAS s295 NT s306 NSW s312 ACT s QLD s319 WA s271 TAS s303 NT s314 NSW s319 ACT s279 It should be noted that the New South Wales and Northern Territory have slightly different provisions in this respect and make reference to fixed cost provision rather than a scale of costs. There is also some doubt, at least in Queensland, as to what scales might apply (see Hartwell S. K. No Costs Agreement. What Scale? Proctor (May 2009) at page 15) 14. QLD s322 WA s282 VIC s TAS s306 NT s317 NSW s322 ACT s QLD s322 WA s282 VIC s TAS s306 NT s317 NSW s322 ACT s282

31 15a. See for example Russell -v- Kyloe Pty Ltd & Anor [2007] QDC318 per McGill DCJ at para (16) 16. QLD s323 WA s283 VIC s TAS s307 NT s318 NSW s323 ACT s QLD s324 WA s284 VIC s TAS s308 NT s319 NSW s324 ACT s QLD s327 WA s287 VIC s TAS s311 NT s322 NSW s327 ACT s QLD s328 WA s288 VIC s TAS s312 NT s323 NSW s327 ACT s QLD s328 (7) WA s288 (7) VIC s (7) TAS s312 (7) NT s323 (7) NSW s327 (7) ACT s288 (7) 21. See for example in respect of similar provisions in the Family Law Rules 2004 the decision in Weiss -v- Barker Gosling [1993] FLC at 80, (1998) 122 NTR 22 at Re Stuart [1893] 2 QB 201 at 205; Hargrave -v- Miller [1925] SASR 379 at 384

32 24. Re Lundon (1891) 9NZLR 193 at Clare -v- Joseph [1907] 2 KB 369 at Weiss -v- Barker Gosling [1993] FLC Re Budzissewski & Essers Bill of Costs [1981] FLC at 26, Schiliro -v- Gadens Ridgeway [1995] FLC a. Athanasiou -v- Ward Keller (no. 6) Pty Ltd [1998] NTSC Schiliro -v- Gadens Ridgeway [1995] FLC Quick R, Garnsworthy D., Quick on Costs (Law Book Company 1989) at para a. Richardson -v- Lander (1947) 65 WN (NSW) 74 and Weiss -v- Barker Gosling (1994) FLC b. Mearns -v- Knapp (1899) 37 WR c. Casey -v- Quabba & Anor [2005] QSC 356 per Jones J at para [41]. See also Russell -v- Kyloe Pty Ltd [2007] QDC 318 per McGill DCJ at para [19] 30d. ASIC -v- Atlantic 3 Financial (Aust) [2006] QCA 540 per Jerrard JA at para [52] 31. Re Budziszewski and Essers Bill of Costs [1981] FLC at 76, Unreported, Supreme Court, WA, Parker J, 5 September [2001] WASC [2001] WASC Upper Hunter County District Council -v- Australian Chilling and Freezing Co Ltd (1967) 118 CLR Unreported, Sully J, Supreme Court NSW, 12 March [1982] 3 All E.R. 188 at page Athanasiou -v- Ward Keller (no. 6) Pty Ltd [1998] NTSC 27; Weiss -v- Barker Gosling [1993] FLR 233 at 248 and 249