Frisken v Bitar Pty Ltd (No 2)

The proceedings were commenced with the filing of a summons on 25 August 2025. The primary relief sought by the summons is the setting aside of the following three determinations:

The proceedings are an appeal brought pursuant to s 89 of Legal Profession Uniform Law Application Act 2014 (NSW) (the LPULAA). The amount in dispute is more than $100,000 so leave to appeal is not required.

Section 89(4) states:

The summons is supported by an affidavit of Mr Farshad Amirbeaggi dated 10 October 2025. Mr Amirbeaggi is the plaintiffs’ solicitor. The second defendant has filed an affidavit from its solicitor, Mr Peter Speed, dated 25 February 2026. Both affidavits have annexed substantial exhibits.

The first defendant is Bitar Pty Ltd. No appearance had been filed by this company. However, at the commencement of the hearing Mr Katter, who is the sole director and shareholder of Bitar Pty Ltd, asked for the matter to be adjourned. He said:

Then, after stating he did not have any information with him, he requested an adjournment. Objection to an adjournment was taken by both the plaintiffs and the second defendant.

Mr Katter then said:

I pointed out to him that the court had received a message from the barrister stating that he no longer acted in the matter. Mr Katter responded:

It appears that the barrister was probably acting on direct instructions from Mr Katter. As stated above, no appearance had ever been filed by a solicitor.

Mr Speed, who acts for the second defendant, then told me that Mr Katter had “gone through 16 different lawyers or more, in the various proceedings.” The various proceedings include the proceedings which led to the costs assessment which are the subject of the summons.

Mr Speed then added:

Mr Speed later added:

Consistent with this submission, and with r 7.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), are these orders made by Black J on 16 April 2025:

Mr Fernon of senior counsel, who appeared for the plaintiffs, adopted Mr Speed’s submissions and added that his client had paid $50,000 into court by way of security for costs in anticipation of the hearing and that the first defendant “through Mr Katter and through its counsel, have at all times known that this matter was listed for today. It is not correct for Mr Katter to say he didn’t know this was going on, because the matter has been listed for hearing for some considerable period of time during the course of proceedings in which he appeared.”

Mr Fernon continued:

After hearing from the parties, I refused the adjournment. Mr Katter then produced an affidavit (MFI 1A) in which he, as sole director and shareholder of the first defendant, authorised himself to appear for the company. The affidavit had been prepared the day before (25 March 2026) but never sent to the other parties nor was any notice given to them of an application that would be made by Mr Katter either to seek an adjournment or seek leave to appear on behalf of the first defendant.

I refused the adjournment because:

After refusing the adjournment the hearing continued and went into the following day (27 March 2026). Early on 27 March Mr Katter wrote to my Associate (copying in the other parties) again asking for an adjournment. In his email (MFI 1B) Mr Katter said that his “legal counsel was unable to attend”. Assuming this to be the same counsel he had earlier retained, this counsel had made it quite clear that he was not in fact retained.

In his email Mr Katter made some assertions concerning the involvement of the first defendant in the proceedings and its assistance to the second defendant. The other parties maintained their objections to the adjournment. Mr Speed disputed the assertions made by Mr Katter in his email. I could see no new reason to change the decision I had made the day before to refuse an adjournment. Accordingly, I refused Mr Katter’s second application.

On the second day of the hearing the plaintiffs stated they had made an open offer of settlement (of the costs appeal) to the second defendant. The second defendant was not able to promptly obtain instructions on the offer. When I reserved my judgment the plaintiffs and the second defendant asked me to hold preparation of the judgment in abeyance until 4pm on 31 March 2026. This was to enable the second defendant to obtain instructions on the plaintiffs’ open offer.

At 10.08am on 31 March 2026 Mr Katter emailed my Associate asking about the time I had allowed for the plaintiffs and second defendant to continue their negotiations. Then at 10.45am Mr Katter, obviously undeterred by earlier rulings, again emailed my Associate, this time asking “if he could forward documents in this matter relevant to Bitar.” My Associate responded telling Mr Katter that my refusal to allow him to participate in the proceedings remained in place and I would not consider any material that he sent.

There are 21 grounds of appeal. Central to the grounds are orders made by Black J on 25 June 2021, and then repeated in his judgment of 4 July 2021 (Hebbel Constructions Pty Ltd v Bitar Pty Ltd [2021] NSWSC 810)

Before setting out Black J’s orders, I think some background is necessary to the very long-standing dispute, primarily between the defendants. The two defendants, Hebbel Constructions Pty Ltd (Hebbel) and Bitar Pty Ltd (Bitar), entered into a partnership. I gratefully adopt this summary as to what ensued, given by Black J at [5]-[6] of the above judgment:

In the summons now before the court, Mr Frisken is the first plaintiff. The second plaintiff (ACN 640 543 979 Pty Ltd but referred to as YBL) is the firm of solicitors that acted for the first plaintiff in carrying out his duties as a receiver and in related litigation.

Mr Frisken paid YBL for the services they rendered to him. He is seeking indemnity from the defendants for the amounts he paid. In this matter, the work done was described by Mr Frisken in his affidavit of 6 October 2020 in this way:

The total amount paid by Mr Frisken to YBL for the above work was $549,536.90. The defendants asserted that this amount was unreasonable, so that it initially fell to Black J to adjudicate on the reasonableness of the claimed costs.

Mr Frisken, on the basis of undertakings he was prepared to give, proposed that the costs be assessed by a costs assessor.

Black J thought the proposal was sound and said at [43] and [45] in the judgment of 4 July 2021:

The orders made by Black J on 25 June 2021 were:

The relevant undertakings made by Mr Frisken were:

An important element of the background is that a costs agreement (the Costs Agreement) was made between the plaintiffs on 10 July 2017. It seems to be in a standard form and sets out scales of fees and refers to various obligations of disclosure.

An initial estimate of fees was $750 plus GST. This related to a restricted “Scope of Work”. An updated schedule of fees was sent to Mr Frisken on 9 March 2018. On 7 April 2021, a further estimate of fees in the sum of $180,000 plus GST was provided to Mr Frisken and then followed, on 3 May 2021, with further estimates based on alternatives of a two-day hearing ($116,000 plus GST) and a three-day hearing ($135,000 plus GST). A final estimate was given on 17 June 2021 relating to a one-day hearing ($46,900 – $48,900 plus GST).

The costs assessment contemplated by Order 5 made on 25 June 2021 was carried out by Ms Dulhunty (the Assessor). The determination was delivered on 8 August 2022.

The claim before the Assessor was for the $549,536.90 stated above, being the costs said to lie within Schedule A (referred to in Order 1(a)). The Assessor assessed the costs in the sum of $271,375.50 plus disbursements of $2,304.06 (attributed to photocopying).

The plaintiffs were unhappy with the assessment. They said the Assessor had not assessed all of the invoices in Schedule A and the assessment had been made on the wrong basis. The Assessor had conducted her assessment on a quantum meruit basis because she found the Costs Agreement between the plaintiffs was void.

In addition, the plaintiffs complained, the Assessor had imposed a cut-off date of 5 May 2021 (derived from Order 9B of 25 June 2021), but this meant she did not assess those invoices in Schedule A which post-dated 5 May 2021.

Finally, the plaintiffs disputed the Assessor’s finding that YBL had not complied with its disclosure obligations under Pt 4.3 of the Legal Profession Uniform Law (NSW) (the LPUL).

The plaintiffs then requested a review of the Assessor’s findings before a Review Panel. The Review Panel, as a precursor to its consideration of the 2022 Assessment, asked two questions arising from the 25 June 2021 orders:

Black J answered the two questions in an Ex-Tempore Revised judgment given on 2 November 2023. As to the first question Black J stated, at p 8:

In respect of the second question, his Honour stated, from p 9:

Armed with Black J’s clarifications, the Review Panel conducted its review and issued a Certificate of Determination on 17 February 2025. The Review Panel assessed costs after 5 May 2021, thereby raising the assessed costs to $364,266.76, but say the plaintiffs, made its assessment on the wrong basis.

The plaintiffs allege the Review Panel, like the Assessor, erroneously considered the disclosure obligations of YBL, found they had not been met, voided the Costs Agreement, and then assessed costs on a quantum meruit basis.

In other words, the Review Panel correctly assessed costs after 5 May 2021 but then incorrectly assessed them according to the wrong scale.

As noted above, there are 21 grounds of appeal, but as submitted by the plaintiffs in written submissions:

The issues were further refined during the hearing, to the following:

Some matters which initially presented as issues, but were actually ‘red herrings’, were:

The second plaintiff in the summons is named as ACN 640 543 979. The tax invoice rendered by YBL on 17 September 2019 lists an ACN of 627 087 030 Pty Ltd. The tax invoice dated 13 July 2021 has an ACN of 640 543 979 Pty Ltd

Close examination of the foot of the Costs Agreement refers to “Strut Master No 2 Pty Limited ABN 54 278 630 521 trading as Yates Beaggi Lawyers”. This company is apparently no longer trading, and Yates Beaggi Lawyers became the trading name of a different company. Justice Rothman, dealing with, inter alia, an application to file further evidence, said (in Frisken v Bitar Pty Ltd [2026] NSWSC 10 at [35]:

The second defendant’s point was simple. The company that made the Costs Agreement was different to the company that rendered some of the tax invoices and different to the company now appearing as the second plaintiff. Therefore, the second plaintiff could not assert it was a party to the Costs Agreement and, in turn, could not claim any benefit from the Agreement’s terms.

Theoretically the point may be sound, but it has this problem. This is an appeal from a decision of the Review Panel which heard a review of the Assessor’s decision. The point about ownership of YBL was never taken before the Assessor or the Review Panel.

In McInnes v Rheem Australia Pty Ltd [2021] NSWCA 89 Gleeson JA, in the Court of Appeal stated at [44]-[45]:

The constitution of YBL being raised before Rothman J does not cure its absence from either of the assessment proceedings from which the summons is an appeal. There was no suggestion that the point could not have been taken in either of the assessment proceedings.

I therefore reject the second defendant’s reliance on this issue.

I listed above, as a red herring, whether the whole of Pt 4.3 of the LPUL applied to the costs assessment or application was limited to Div 7. The plaintiffs’ submissions suggested the second defendant was asserting that the whole of Pt 4.3 was relevant. The second defendant put this assertion to rest when Mr Speed stated:

Ultimately therefore there was agreement between the parties that it was only Div 7 of the LPUL that applied. It was also agreed that this application brought into play certain sections within Pt 4.3 which were not in Div 7. These included s 172 which is incorporated into Div 7 by s 200(1) of the LPUL which states:

Section 172 of the LPUL is at the core of the plaintiffs’ case. The section states:

The plaintiffs’ argument was as follows:

The plaintiffs submitted that the errors described in the previous paragraph are evident from the Review Panel’s reasons, in particular as expressed in the following paragraphs:

Error by the Review Panel is I think evident from para 77 of its reasons. The referral by Black J was for an assessment under Pt 4.3 of the LPUL. It is Div 7 of the LPUL that deals with a “Costs assessment”. It is to be recalled that the referral for the assessment was effectively a “mechanism” engineered to refer the detailed assessment to the costs assessors.

The Review Panel assumed the whole of Pt 4.3 was applicable, including the disclosure provisions. But that is not correct because, as seen above, receivers are exempted from the disclosure provisions.

The second defendant endeavoured to bring the disclosure provisions back into play by reference to the first condition in s 172(4) of the LPUL, namely the requirement that the Costs Agreement is only prima facie evidence of being fair and reasonable if “the provisions of Div 3 relating to costs disclosure have been complied with …” The second defendant submitted that this condition was to be applied regardless of whether or not the disclosure provisions were otherwise not applicable because Mr Frisken was a Receiver. This was a plain reading of s 172(4).

The plaintiffs described the second defendant’s response as “nonsense”. The plaintiffs submitted that the condition was simply inapplicable because the costs disclosure requirements under Div 3 did not apply as Mr Frisken was a Receiver. If Div 3 did not apply because of s 170(2)(ii) of the LPUL, then there had not been an obligation for disclosure and there was nothing to comply with under s 172(4)(a).

While I do not accept the plaintiffs’ description of the second defendant’s argument as being “nonsense”, I do agree with the plaintiffs’ interpretation of s 172(4). If the disclosure obligations were not applicable to the Costs Agreement, then I cannot see how they could be brought back in by the condition in the subsection. The exemption created by s 170 of the LPUL (for receivers) meant there were no cost disclosure provisions to be complied with.

It follows that I am of the view that the Assessor and Review Panel were in error in not giving effect to the presumption provided by s 172(4) and in finding that the Costs Agreement was void.

The next point to be considered under this heading is whether there had been a waiver by the plaintiffs of the exemption provided by s 170 of the LPUL. The Costs Assessor made this finding:

The Assessor’s reasoning was adopted by the Review Panel, at [78]:

The Costs Agreement is clearly a standard form document which includes the ‘usual’ disclosure terms. It makes no mention of being specifically tailored to the client being a receiver. The reasoning of the Assessor and the Review Panel is that simply because the agreement contains disclosure terms, and there were some disclosures, that the exemption from disclosure obligations was necessarily waived.

I disagree. As stated by the plaintiffs, there must be a “clear and unequivocal statement of waiver and there is no such thing in the costs disclosure agreement”.

In Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd (2005) 30 WAR 290; [2005] WASCA 106, the Western Australia Court of Appeal, after a discussion of the law of waiver said, at [50]:

The waiver found in the present case by the Assessor and the Review Panel is drawn from an inference that because the Costs Agreement includes disclosure terms it must follow that exemption from disclosure has been waived. I do not think an inference meets the requirements of “an unequivocal act with knowledge of the relevant facts.”

Accordingly, I am again of the view that the Review Panel (and the Assessor) fell into error.

Although I think the findings I have made above are sufficient to allow the appeal, I will deal briefly with the remaining issues.

The plaintiffs complained that there was a “write-down” of photocopying charges by the Review Panel from $1 per page to about 20c per page.

It is difficult for me to assess the correct cost of photocopying. However, the approach I intend to take obviates the need to make an assessment. I will make no further comment on photocopying.

The Costs Agreement allows charging according to six-minute blocks. The issue is not the use of the blocks but rather whether different actions taking less than six minutes should be included in a block or can be the subject of separate blocks. The point is best illustrated with an example. If the solicitor makes three consecutive telephone calls to different persons, each of two minutes in duration, can the solicitor charge three lots of six-minute blocks or only one six-minute block because the total time spent on the phone calls was six minutes.

Senior Counsel for the plaintiffs’ said in submissions in reply:

The plaintiffs’ complaint was more about the approach that had been taken in the assessments:

As I understand the complaint it is not so much the theoretical approach to six-minute blocks but rather the Assessor and Review Panel ignoring the Costs Agreement.

Once again, the remedy I intend to impose does not contemplate a precise answer. It seems apparent anyway that the parties generally agree on the approach to be taken to the 6-minute blocks.

The plaintiffs said they were anxious for the costs assessment to be completed so that the matter could return to Black J for the completion of outstanding issues. This anxiety was not only echoed by the second defendant but further emphasised. Mr Speed began his oral submissions in this way:

A little later Mr Speed continued:

I suggested to the parties, that in order to meet their anxieties and hasten the end of the litigation, they might like to resolve their differences about the assessment. I suggested, but only as an example, that splitting the difference between the assessment and the plaintiffs’ claim might be one way to proceed.

The parties obviously considered my suggestion, leading to an open offer being made by the plaintiffs to the second defendant, that $78,861.98 (inclusive of GST) be paid, or returned to, the partnership assets. The offer had these further two conditions:

Mr Speed, reasonably, was not in a position to respond to the open offer and requested that I delay preparation of my judgment until 4pm on 31 March 2026.

The open offer was not accepted, so that I now return to whether or not I can take the suggested broad-brush approach.

My initial reaction was that I did not think I could responsibly do so. It is one thing to suggest that parties split the difference but that is entirely different to me effectively guessing a figure which might be described as a fair and reasonable result. To reach such a figure would require the type of analysis, if only at a basic level, that is normally conducted by costs assessors.

On the other hand, if the matter returns to the Review Panel:

The difference between the claim is relatively small; $549,536.90 - $364,266.76 = $185,270.14.

I strongly suspect the total costs associated with another review will exceed $185,000.

The open offer made by the plaintiffs primarily involved $78,861.98 being returned to the partnership. This figure is not far from half the difference between the claim and the assessment ($92,635.07).

Section 89(2) of the LPULAA gives the Court “all the functions of the review panel.”

Section 85 of the LPULAA dictates the conduct of a review panel. It states:

I doubt I could impose a figure based on an equitable time and costs saving estimate within the confines of s 85 of the LPULAA. But I also have the benefit of s 75A of the Supreme Court Act 1970 (NSW) which states:

The important subsection is (10), and especially the words “The Court may … give any judgment ... which the nature of the case requires”.

I think this appeal almost demands a resolution which does not involve the matter being remitted to the Review Panel. Such an approach is also consistent with facilitating a “just, quick and cheap resolution’ of the dispute, as required by s 56 of the Civil Procedure Act 2005 (NSW).

Adopting the above sentiments, the question then arises as to what figure should be substituted for the Review Panel’s assessment. I first thought splitting the difference would be a fair approach, but on reflection I do not think that would adequately reflect the plaintiffs’ success in the summons. Therefore, recognising that the Review Panel would at least have a presumption in favour of the Costs Agreement scales, but factoring in that these scales are only a presumption and not a certainty, and also that items such as photocopying and the six-minute block issue could lead to a decrease in the assessment, I think a final figure of $475,000 is appropriate.

In relation to the costs of the summons, the plaintiffs have succeeded in overturning the Review Panel’s assessment, but the second defendant has succeeded in achieving a result not involving remittal to the Review Panel. I think a fair approach is that taken by the plaintiffs in the open offer, namely that each party bear its own costs of the appeal.

I think it appropriate to only amend the assessment of the Review Panel but not the costs order made in respect of the review, which I understood has already been paid.

I make the following orders: