Frisken v Bitar Pty Ltd (No 3)

I made orders in this matter on 1 April 2026 (Frisken v Bitar Pty Ltd (No 2) [2026] NSWSC 310). Some additional and consequential orders were made in chambers on 28 April 2026. Under Order 6 of the orders made on 1 April 2026, I gave the plaintiffs and the second defendant “leave to request any further orders, consistent with these reasons, to assist in the progress of any related proceedings.”

The related proceedings to which I was referring are the continuation of a partnership dispute which is still ongoing before Black J. My reasons concerned an appeal from costs assessments arising from orders made by Black J on 25 June 2021 and repeated on 4 July 2021 (Hebbel Constructions Pty Ltd v Bitar Pty Ltd [2021] NSWSC 810).

Further background may be gleaned from [21] onwards of the decision I gave on 1 April 2026.

In my decision I determined that the costs assessments that had been made by a Costs Assessor on 8 August 2022, and a Review Panel on 17 February 2025, should be set aside. Instead of returning the matter for a further costs assessment I took a “broad-brush approach” and assessed costs at $475,000.

An issue that remains, and which falls within Order 6 of my above orders, arises from Order 9B of the orders made by Black J:

The Costs Assessor had declined to assess costs after 5 May 2021. The Review Panel corrected this obvious error, but like the assessor, the panel assessed costs on a quantum meruit basis rather than according to a costs agreement that had been made between the receiver and his solicitors.

In order for the matter to return to Black J, it is necessary for the costs incurred after 5 May 2021 (being a part of the $475,000 that I assessed) to be identified. I had hoped that the plaintiffs and second defendant could agree on the relevant sum. I note that for reasons given in my principal decision, the first defendant was not permitted to take any part in the proceedings.

The plaintiffs and second defendant provided written submissions on the apportionment between costs before and after 5 May 2021, on the basis that I would make my decision on the papers.

Although they did not agree on the orders to be made, I think the respective sides effectively followed a similar path to their suggested solutions. The plaintiffs suggested that the fair and reasonable legal costs for any particular period should be assessed at 86.4% of the costs incurred (or at least claimed) during that period. This percentage was derived from the calculation that $475,000 is 86.4% of $549,536.90 (being the amount originally claimed by the plaintiffs).

The second defendant’s calculations involved separating photocopying charges from the total costs. Thereafter the same percentage (86.4%) was applied to the figures. The separate figures were photocopying costs of $82,467 and other costs of $441,920. I would have expected these two figures to total $549,536.90, but they are about $25,000 short. Accepting I may not have followed their reasoning, I did not fully understand why this was the case.

While the simplicity of the plaintiffs’ approach is admirable, the point of the exercise is to work out the costs referrable to before and after 5 May 2021.

The plaintiffs and the second defendant seemed to suggest their approach was consistent with the formula I posed in discussion after delivering my reasons on 1 April 2026. The exchange was:

What I was trying to convey was that a possible solution was to work out how much of the total period in which costs were levied fell after 5 May 2021 and apply this percentage to the $475,000.

This is consistent with the broad-brush approach I took to arriving at the $475,000 and which should continue to be applicable to the current exercise.

The total period for costs is from 28 August 2019 to 7 July 2021. This a period of 97 weeks. The period from 6 May 2021 to 7 July 2021 is 9 weeks. 9 weeks is 9.28% of 97 weeks.

9.28% of $475,000 is $44,080. I will order that that this amount be applicable to costs after 5 May 2021.

In relation to the costs of this argument, I have not adopted the orders put forward by either side. I think there should be no order as the costs of the argument arising from Order 6 made on 1 April 2026.

In addition to orders already made, I order: