Sanjiv v Coleman Greig Lawyers Pty Ltd

HIS HONOUR: Over a decade ago, the plaintiff Rekha Sanjiv became embroiled in litigation consequent upon the breakdown of her marriage to Dr Sanjiv Shah (Dr Shah) and adjustment of property interests between them.

Unhappily, as the events of her vexed litigious life recorded in this judgment will show, the plaintiff has spent more final hearing time against her final lawyers (the defendants), over her disputed claims regarding the costs of them acting for her, than she did with Dr Shah in the family law litigation.

In October 2014, Dr Shah commenced proceedings in this Court seeking appointment of trustees for sale of matrimonial property the couple held at Epping, which property was registered in the sole name of the plaintiff (Epping property). Within two weeks, the plaintiff commenced proceedings in the Family Court of Australia (Family Court) [1] seeking orders pursuant to s 79 of the Family Law Act 1975 (Cth) (FLA) for adjustment of property interests between herself and Dr Shah.

Since the commencement of that litigation, the plaintiff has had a number of lawyers acting for her, including Slater & Gordon, Prominent Lawyers and relevantly, the first defendant in these proceedings, Coleman Greig Lawyers (CGL). The second defendant, Karina Ralston (since July 2018, a Principal of CGL), [2] is the solicitor with CGL who had the main carriage of the plaintiff’s matter (Ms Ralston). Keith Spencer of Spencer Legal (Mr Spencer) relevantly acted for Dr Shah.

The Family Court proceedings were, in circumstances recited below, resolved.

CGL commenced to act for the plaintiff in June 2018 pursuant, it says, to costs/fees agreements. Relevantly, there were two forms of such agreement:

CGL rendered 13 invoices to the plaintiff over a period from 29 June 2018 to 2 August 2022 totalling $482,865.35. The first 11 invoices were rendered pursuant to CA1 with the remaining two being rendered pursuant to CA2. The details are set out in the annexure at the end of these reasons for judgment. In summary, the invoices are as follows:

The first 7 invoiced fees up to the end of 2018 were paid by the plaintiff. The next 4 invoiced fees during 2019 were largely unpaid and the subject of a District Court judgment, details of which I note below. Eventually those invoices and the remaining 2 invoices rendered in 2022 were substantially paid from funds received into CGL’s trust account.

Costs Notices [7] were provided to the plaintiff on 4 occasions. The Costs Notices incorporate three categories (though not always clearly set out): costs and disbursements to date; costs incurred but not yet charged; and estimated future costs. From the figures provided in the Costs Notices, the following can be calculated:

In 2019, CGL sued for recovery of its outstanding fees and obtained a default judgment in the District Court at Parramatta for approximately $266,860. Under a garnishee order in December 2019, CGL was able to recover the sum of $5,872.84. Subsequently in or around June 2022, through the sale of the Epping property, CGL received a further sum of approximately $252,604 in reduction of the District Court judgment. A small part of the judgment debt of approximately $8,381 remained outstanding. CGL has not pressed the plaintiff for payment of that outstanding sum.

On 20 September 2023, the plaintiff commenced the present proceedings in which she makes complaints regarding CGL’s costs, costs agreements and costs disclosure in acting for the plaintiff.

Wisdom regarding choices in life encourages assessment of the cost of a proposed course of action before embarking upon it. [11]

Within the realm of the solicitor-client relationships, one of the purposes of legislative regulation of the relationship is to ensure or at least facilitate, by the use of early disclosure of information, the empowering of clients to make informed choices about the services they access and the costs involved. [12]

For the solicitor, meaningful implementation of the statutory purpose requires careful thought regarding what disclosure should be properly given to a client regarding costs and any qualifications on such disclosure.

For the client, the purpose will be effective if the client is able to soberly reflect upon the information provided. If litigation is then embarked upon, it will be done on an informed basis with the client’s eyes wide open.

The plaintiff has many complaints regarding the fees charged to her and the actions of the defendants in rendering those charges. I will say more regarding the complaints below in addressing the real issues in the proceedings. However, broadly speaking the plaintiff seeks repayment to her of monies charged in respect of costs, for various reasons, including alleged initial inadequate disclosure of the estimated total legal costs involved in the retainer and significant changes to initial estimates.

The defendants, affronted by some of the plaintiff’s claims, especially a claim of duress, have stridently resisted the totality of the relief sought by the plaintiff and assert that they had given the plaintiff appropriate advice, various costs estimates and ongoing information to assess her position.

Frequently, in many cases, of which this is one (in a context I will explain below), there is some degree of truth in the positions taken by either side. On the plaintiff’s side, she did not receive an initial estimate of the total [13] amount of the likely costs that would be incurred in the litigation. The first estimate of total likely costs occurred on 9 August 2018 (approximately 6 weeks after 29 June 2018). Leaving aside the question of whether an estimate at that time was “as soon as practicable after instructions are initially given”, that estimate ($131,865.42) was not an estimate which (at least numerically) accorded closely with the total amount of costs actually rendered. One of the plaintiff’s assertions is that, had she initially received advice that the costs to her of the defendants acting in the matter would approach the order of close to $500,000, she would not have retained CGL. On the defendants’ side, they claim that, with limited initial information to hand, they gave an adequate costs estimate up to the time of the next court listing and, as further information came to light, they gave to the plaintiff further appropriate costs estimates.

There are, as will be seen below, what I will simply call some “queries” regarding CGL’s costs disclosures. However, overall, I do not regard them as being such substantial matters so as to justify any of the relief sought by the plaintiff. Rather, I have determined to dismiss the plaintiff’s summons and the relief sought and I find for the defendants in respect of the issues and the relief on the summons.

I will cite the evidence in the proceedings, as I already have, by reference to the Court Book (CB), transcript pages (T) and exhibit numbers, and cite the submissions by reference to the plaintiff’s opening written submissions dated 22 September 2024 (POS), her closing written submissions dated 14 April 2025 (PCS) and her closing reply written submissions dated 26 April 2025 (PCRS), and Mrs Young’s opening written submissions filed 20 September 2024 (DOS) and closing written submissions provided on 23 April 2025 (DCS). References to the transcript will be to transcript pages of the final hearing unless otherwise specified.

In addressing a number of the issues below, it should be observed that the initial written opening outline of submissions were provided by the parties out of order. Mrs Young’s DOS were provided first and the plaintiff replied to that in her POS. The effect of that is that certain of the submissions the plaintiff made in her POS are not an outlining of her case but rather a reply to the submissions in the DOS.

Issues are identified in proceedings in various ways, including by reference to:

In addition to the above, parties are often requested by the Court (in both pleaded and non-pleaded proceedings) to prepare agreed lists of issues.

The task of identifying real issues in dispute generally speaking ought to be straightforward. Parties’ contentions regarding what matters are or are not in issue are generally strongly informative of what matters are addressed by a judge in a hearing and subsequent judgment. However, judges are not necessarily bound by the parties’ assertions of “agreed issues”. Whether they are or are not will depend upon the particular circumstances of each case. In some cases, including those involving self-represented litigants, parties fail to adequately identify real issues but muddy the waters giving rise to difficult questions for the Court in determining what the real issues to be determined in the proceeding are. This is one of those cases.

These proceedings were commenced by summons. The parties served affidavits and, pursuant to pre-trial directions, prepared and provided to my Associate an agreed list of issues. However, from at least the first day of the hearing, there was both disputation and complication regarding the real issues.

Both parties to some degree (although, in my estimation, the plaintiff to a much larger degree) bore responsibility for complication regarding the real issues.

Some number of the aspects of the complication were as follows:

The plaintiff, who is self-represented, particularly muddied the waters in the matter in at least three material respects. First by making certain serious allegations of threats and duress against Ms Ralston (which I find are completely unfounded), secondly after the completion of the first day of the hearing by commencing fresh proceedings seeking to re-agitate relief that I had determined had been abandoned, and thirdly by allegations of negligence (by minor reference in material initially presented in these proceedings and later by commencing fresh proceedings).

In light of the above, I propose in this section of the judgment to consider and identify the real issues to be determined. I have sought to do so in light of the parties’ “agreed issues” but also by reference to the body of the material presented in the case and how it was conducted.

On 10 September 2024, the parties, pursuant to pre-trial directions, prepared and provided to my associate the following agreed issues:

Those issues, as listed, did not reflect certain matters raised in the plaintiff’s summons and others evident from her affidavit evidence.

That gave rise to some debate at the commencement of the hearing regarding whether the plaintiff had abandoned certain relief and subsequently as to what matters underpinned the plaintiff’s claim for relief for repayment (agreed issue 1).

The first order sought on the summons is:

On the first day of the hearing of the matter (26 September 2024), I made various orders, including the following:

The plaintiff, despite having abandoned the relief, subsequently sought to re-agitate that relief below. The plaintiff’s attempt to do that was via separate proceedings by the plaintiff against CGL (2024/361481) and is the subject of a separate judgment delivered by me on 10 December 2024, Sanjiv v Coleman Greig Lawyers Pty Ltd [2024] NSWSC 1675 (Sanjiv No.1).

Up until 22 May 2025, the plaintiff, as far as I was aware, has not sought leave to appeal the orders made on 26 September 2024 nor to appeal the orders made consequent upon the judgment I delivered in Sanjiv No.1. On the listing on 22 May 2025, Mrs Young stated [14] that the plaintiff had filed a notice of intention to appeal “your Honour’s prior cost decision”. She added “I think that’s now expired”. Whether that is the case or not, in respect of costs, I reject any attempt by the plaintiff to seek relief in terms of Order 1 of the summons.

In her PCS, the plaintiff stated: [15]

Mrs Young, in her DCS, responded as follows: [17]

Mrs Young’s submission cannot be so readily accepted. What the plaintiff abandoned was relief that the costs agreements are void. However, I do not consider that the “issue of disclosure” was previously resolved by my interlocutory rulings in these proceedings in such a way as to preclude the plaintiff from asserting that alleged nondisclosures or inadequate disclosures justified her seeking the other relief that she sought, including the repayment relief. Contravention of disclosure obligations leads not only to a costs agreement being void, but also to the client not being required to pay legal costs until they have been assessed or any costs dispute determined: s 178(1)(b) Legal Profession Uniform Law 2014 (NSW) (Uniform Law).

The relief sought in Order 2 of the summons is:

Mrs Young, in both her DOS [18] and DCS, [19] submitted that there is uncertainty regarding the basis on which the plaintiff seeks this repayment of monies. Her submissions in the DCS were as follows:

The plaintiff, in her PCRS, responded: [20]

Several observations can be made.

First, the plaintiff in her POS noted that the defendants did not seek orders for “summons to be substituted by statement of claim under r 6.6 UCPR”. [21] That appears to be correct. If the defendants were concerned as to the seriousness of allegations and wished the plaintiff to plead her case, it was open to them to make that application. I assume the matter was listed before me on the basis that it was ready for hearing. At the pre-trial directions listing, I made directions for the parties to agree on issues. It is unclear to me whether the defendants, prior to the hearing, ever requested the plaintiff to outline the basis for the claims for repayment. However, there was an opportunity for the defendants, if they wished to seek elucidation of the plaintiff’s case, to clarify the basis for the repayment relief.

Secondly, at the start of the hearing, the defendants did not make any application before me for the plaintiff to outline specifically the basis on which the repayment the subject of agreed issue 2 was sought.

Thirdly, the plaintiff makes reference to the Court’s “inherent jurisdiction” in her summons [22] but has not provided any specific submissions on the inherent supervisory jurisdiction. Mrs Young submitted that there is nothing in the legal charges or conduct of the legal practitioners which enliven this Court’s inherent jurisdiction over solicitors. [23]

If one asks why the plaintiff asserts that the costs were “exorbitantly charged and unauthorised”, it seems to me clear that she bases the assertion, and a number of her complaints regarding her costs arrangements with CGL, principally upon alleged non-compliance with statutory disclosure provisions under the Uniform Law. [24]

Disclosure complaints (as will be seen) emerged from the evidentiary material before the court, the cross-examination and the parties’ submissions.

In my assessment, the main complaints of the plaintiff underlying the repayment relief included the following:

Mrs Young asserts that a complaint of unreasonable pressure to continue with the retainer was not articulated properly until the cross-examination of the plaintiff. I consider that is partly true. However, even as early as the plaintiff’s affidavit affirmed 4 December 2023, it is clear that the plaintiff asserted conduct that amounts to compulsion, threats, duress, and false representations. [31] Further, Ms Ralston in her affidavit dated 2 April 2024 responded to the plaintiff’s assertions of compelling and threatening conduct. [32]

Principally, whether repayment should be ordered as relief (as the first agreed issue) depends upon answers to these subsidiary issues. Accordingly, I propose to address them first.

Order 5 of the summons sought the following: [33]

The plaintiff abandoned this relief: see Sanjiv No.1 at [22]-[31]. That abandoned relief reflects one of the complaints raised by the plaintiff at least in her affidavit [34] and submissions regarding the invoice documentation issue. Notwithstanding this matter was abandoned, Mrs Young cross-examined the plaintiff on the issue, at least for the purposes of challenging the plaintiff’s credit, and made submissions regarding it. [35] Accordingly, I will address it below.

The plaintiff in her POS, PCS and PCRS raised a number of other matters which were not agreed issues.

Mrs Young complained about the raising of new issues. [36] The plaintiff responded: [37]

I regard some of what the plaintiff has raised as being new issues and now explain why I reject the belated raising of them.

In her POS, the plaintiff, in providing a summarised answer to issue number 1 (repayment of fees), asserted: [38]

In her PCS, the plaintiff stated: [39]

Mrs Young, in her DCS, submitted: [40]

Section 173 of the Uniform Law provides:

I agree with Mrs Young that the complaint of the plaintiff by reference to s 173 of the Uniform Law was, prior to receipt of the PCS, not raised as an issue and I reject the plaintiff’s specific complaint regarding it.

I regard some of the 8 matters under issue 1 in the plaintiff’s POS as being raised without adequate notice. Others fall under other issues such as the exorbitant costs issue and I will address them there.

By reference to the 8 matters above, I briefly observe the following.

The first and eighth matters raise an issue of a lack of “proportionality” between the cost of work done by CGL and the value of the services provided. That is a very generalised complaint. It was not listed per se amongst the list of issues. Apart from some other aspects which I will expressly refer to within the 8 points, the plaintiff did not identify specific instances of lack of proportionality by reference to specific evidence and submissions.

In the first matter, the plaintiff references s 172(2)(e) of the Uniform Law and “s 79 and/or s 80(e) of Family Law Act 1975”.

The third matter also makes reference to “s 80(e) of Family Law Act 1975” which is obviously intended by the plaintiff to be a reference to s 80(1)(e) of the FLA.

Section 172(2)(e) of the Uniform Law provides as follows:

Section 80(1)(e) FLA relevantly provides:

As will be seen below, on 5 February 2020, Dr Shah was appointed under Court orders as a sole trustee for the sale of the Epping property. Some complaint was raised by the plaintiff regarding this, seemingly in respect of Dr Shah not being registered on title as trustee and I will deal with it below under the question of alleged negligent work.

The second matter raised by the plaintiff is a submission that “Defendants incurred money on domestic violence matters which were never filed and on super fund matters that were unnecessary to [1] above”. It is also new. It is not clearly raised by the summons nor in the plaintiff’s affidavit in chief and I reject the plaintiff’s belated attempt to raise it.

The fourth matter in which the plaintiff asserts that “Defendants filed a notice of ceasing to act but continued to charge me” is also new. No particulars are given of that, and I reject the plaintiff’s belated attempt to raise it.

The fifth matter in which the plaintiff asserts that “Defendants obtained an order from Family Court to act as conveyancer but refused/failed to act as conveyancer after continuing to charge fees” has clear connection to the plaintiff’s claim regarding alleged contempt and I will deal with it as such below.

The sixth matter in which the plaintiff asserts that “Defendants wasted my money (without seeking my instructions) to obtain garnishee orders knowing that these garnishee orders made by an inferior court (District Court) are not valid until set aside …” has clear connection to the plaintiff’s claim regarding the District Court judgment issue and I will deal with it as such below.

The seventh matter in which the plaintiff asserts that “Defendants abused my trust and confidence and took unconscionable advantage of my vulnerability to earn substantial amount of fees for their own financial benefit even though defendants knew that I was a vulnerable client subject to principles governing non est factum.” has several aspects to it. I address the plaintiff’s asserted vulnerability below under the heading “Parties and associated persons”. I reject the notion that the plaintiff had any relevant vulnerability that bears upon the issues to be decided in these proceedings. In any event, even if the plaintiff were able to establish any such vulnerability, her claim that the defendants abused it was not properly particularised and I reject the plaintiff’s claims regarding it.

In my opening remarks I noted that a third respect in which the plaintiff had muddied the waters in the matter related to allegations of negligence.

Whether the defendants had acted negligently was not one of the agreed issues.

In the plaintiff’s affidavit affirmed 4 December 2023, in which she replies to paragraph 43 of Ms Ralston’s affidavit sworn 7 November 2023 (which formed part of the evidentiary materials in the Court Book at the time of the commencement of the hearing) an isolated reference to negligence appeared.

Paragraph 43 of Ms Ralston’s affidavit is as follows: [41]

The plaintiff’s reply was as follows: [42]

In the POS [43] (as noted above) the plaintiff references s 172(2)(e) Uniform Law and submits that she did not receive advice in order to obtain an order for a trustee to be appointed under ss 79 and 80(1)(e) of the FLA.

Whilst reference is made to s 172(2)(e), a claim regarding negligence is not clearly set out. As best as I can glean, it appears the plaintiff is asserting that the land was not properly vested in her ex-husband and that the defendants should have known that. Even assuming what I have just stated is the natural tenor of the plaintiff’s assertion, the plaintiff had not provided in any procedurally clear or fair way how any case in negligence is put, nor provided evidence for her assertions, nor any further arguments based on those assertions.

During the first day of the hearing, the plaintiff did not mention negligence.

However, on 2 April 2025, 5 days before the resumed hearing commenced, the plaintiff filed a statement of claim in the Common Law Division (Professional Negligence List) of the Supreme Court of New South Wales naming CGL as defendant (new proceedings).

Broadly, the particulars in the new proceedings are that the defendant owed and breached a duty of care to give the plaintiff “accurate and adequate advice and exercise reasonable care and skill” with respect to certain clauses of the consent orders made on 30 April 2019 with her ex-husband and aspects of implementation of those orders.

During the second and third days of the hearing, the parties did not expressly draw my attention to the fact that these new proceedings have been filed by the plaintiff.

In her PCS dated 12 April 2025, the plaintiff states:

Mrs Young, in her DCS, stated:

The plaintiff then, in her PCRS, stated as follows: [44]

These instances in the PCS and PRCS were the first in which the plaintiff requested the Court to defer the delivery of judgment, adjourn the proceedings or make some other specific orders by reference to the new proceedings.

On 20 May 2025, my Associate sent an email to the parties indicating that judgment would be delivered on 22 May 2025. On 21 May 2025, in circumstances in which I became cognisant of the existence of the new proceedings, my Associate at my request sent an email to the parties notifying them that the matter would be listed for mention rather than judgment.

On 22 May 2025, I raised with the parties the circumstances described above. Mrs Young for her part expressed her understanding that the statement of claim concerns different issues to the ones before me in these proceedings. [45]

I gave the plaintiff an opportunity to put her case regarding why I should determine her claim in these proceedings on the basis that negligence is in issue.

I made an observation that the plaintiff did not use the terms “negligent” or “negligence” during the three days of hearing. In response, the plaintiff stated: [46]

I am unpersuaded that the claims in negligence have been fairly and adequately raised as issues to be dealt with in the existing proceedings. The question of whether CGL’s work was negligent was not listed as an agreed issue. The plaintiff did not cross-examine Ms Ralston or any other of CGL’s employees regarding it. She has not particularised her assertions nor provided any evidence for those assertions. Mrs Young confirmed she made forensic decisions on this basis. In light of this, I reject the plaintiff’s belated attempt to assert it as an issue.

On this same basis, I also reject the plaintiff’s request to adjourn the existing proceedings, concurrently deal with both the existing and new proceedings, or to defer any further the judgment in these proceedings.

Accordingly, I made the following orders on 22 May 2025:

For abundant clarity, what I have done is address whether an issue of negligence has been fairly raised in these proceedings such that I should attempt to make a finding of “negligence” in respect of the plaintiff’s complaints regarding relief as to costs that she sought in the summons. I have determined that it was not fairly raised (including in light of forensic decisions made by Mrs Young). However, I have not, and do not propose to make any further determination as to whether, in light of my findings and the orders made by me on 22 May 2025, the plaintiff is in some way precluded or estopped from hereafter litigating issues of negligence against the defendants or at least against CGL.

It is appropriate at this stage to set out some details regarding the parties and related persons.

The plaintiff has a son, Isham (born in September 1996). [47]

The plaintiff is well educated and credentialled. She graduated from Bombay University with a bachelor’s degree in chemistry and physics. [48] She appears to have qualified for a medical technology degree and worked as a laboratory technician at a biochemist in a local hospital in India. [49] She has a postgraduate bachelor’s degree in computer management and has completed a master’s degree in business systems analysis and design in computers. [50] She worked in South Kensington, London as a business analyst for about three and a half years before moving to Australia in 1984. She worked at Telstra as an IT consultant and moved to Wellington, New Zealand, to assist Dr Shah (her then husband) to set up and run his medical practice and was a director of the company that operated the practice. [51] She understood “business” and oversaw all the management, contracts, accounts and bookkeeping aspects of the management company and attended to payment of tax and GST. [52] She has also had involvement as a director in other companies.

The plaintiff in her affidavit asserted that she is “a vulnerable person with special disadvantages”, “unwell” [53] and that “both defendants greatly abused my trust and confidence”. [54] It is unclear what the plaintiff meant by the asserted vulnerability and special disadvantages. Mrs Young addressed written closing submissions to these issues. She referenced much of the material I have recited above. [55] I am not persuaded that the plaintiff had any vulnerability or special disadvantage that amounts to any factor affecting her claim against the defendants in respect of costs.

During the hearing, the plaintiff referred to “domestic violence” and “financial abuse”. [56] To the extent that it might be suggested that the plaintiff had difficulties arising from domestic violence or financial abuse, I readily accept that there is some material before the Court which refer to those terms. [57] However, the evidence does not disclose in any detail the nature of the alleged violence. It does indicate that the allegations, or at least some of them, were disputed. [58] Indeed, in May 2019, by reason of the plaintiff’s uninvited contact with Dr Shah, his legal representative Mr Spencer foreshadowed that there may be personal violence orders sought against the plaintiff. [59] The plaintiff cross-examined Ms Ralston regarding her awareness of claims of domestic violence and financial abuse. Ms Ralston’s email of 9 August 2018 indicates she was aware of these allegations. [60] She confirmed that in cross-examination, though did not go so far as to accept that the allegations had been established. [61]

In any event, the plaintiff did not adduce any independent medical or other expert evidence suggestive that she had any particular vulnerability or “special disadvantage”.

CGL is a corporation and able to be sued as such.

Ms Ralston is a qualified legal practitioner. She was admitted as a lawyer of the Supreme Court in August 2011. She has been practising as a legal practitioner in New South Wales since January 2012. She has been working in the family law area since June 2012 and achieved Specialist Accreditation in Family Law in 2017. She has been employed by CGL since January 2014 and currently holds the position “Director and Team Leader of the Family Law Team”. [62]

Other CGL staff having some involvement with the plaintiff in her interaction with CGL include: Malcolm Gittoes-Caesar, one of the principals of CGL (Mr Gittoes-Caesar); Ambrose Teo, a support staff (Ms Teo), Colleen Cuthbert, a legal secretary (Ms Cuthbert); Diane Elven, a legal assistant (Ms Elven); Wendy Cousens, a senior legal clerk (Ms Cousens); Therese Austin, a licensed conveyancer (Ms Austin); Warrick McLean, a general manager and Emma Nichelsen, an Associate lawyer (Ms Nichelsen).

At least in relation to this litigation, three other CGL staff have had involvement, namely: Ashley Lamb, the current CEO of CGL (Mr Lamb); Caroline Hutchinson, the solicitor on the record for the defendants (Ms Hutchinson); and James Michael Ferguson, an employed solicitor assisting Ms Hutchinson (Mr Ferguson).

During the period of time that CGL acted for the plaintiff, the plaintiff used a number of email addresses and CGL communicated with the plaintiff via those email addresses. [63]

At times CGL, had some correspondence with Isham, principally by email, at least on occasions when they were unable to contact the plaintiff.

The plaintiff has at all material times in these proceedings represented herself, as she is entitled to do. Mrs Young appeared for the defendants.

During the hearing, the plaintiff performed dual roles, being an advocate conducting her own case and also separately as a witness.

The role of the Court in dealing with self-represented litigants is explained in a number of Court of Appeal decisions, including Hamod v New South Wales [2011] NSWCA 375 at [309]-[316], Bauskis v Liew [2013] NSWCA 297 at [67]-[70], and, most recently, in Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [37].

At the outset of the hearing, [64] I provided the plaintiff with necessary information about court practice and procedure to ensure a fair trial for both parties, while clearly indicating that I could not advise her on how to exercise her legal rights. I reiterated certain aspects throughout the hearing to remind the plaintiff.

The plaintiff in her evidence asserted that “I have no legal education and no legal training and no legal experience”. [65] Whilst I have no reason to doubt that is true, the plaintiff is well educated, as evident from above. The plaintiff appeared to me to understand the court processes as I explained them to her and exhibited the ability to make choices regarding those processes.

However, as I will elaborate below, the proceedings were not conducted efficiently by the plaintiff, leading to the length of the hearing being extended into a three-day hearing, well beyond the initial time allocated, being a single day.

The evidence on the hearing comprised affidavit and documentary material.

The plaintiff relied upon three affidavits of herself, affirmed on 20 September 2023, 4 December 2023 and 24 June 2024. The defendants relied upon two affidavits of Ms Ralston sworn on 7 November 2023 and 2 April 2024 and two relatively formal affidavits being one from Ashley Lamb sworn 7 November 2023 and the other from Mr Ferguson sworn 21 August 2024. Each of their deponents were cross-examined.

A bundle of documentary material included in the Court Book was tendered and marked JP-1. In addition, the defendants tendered a number of exhibits.

On the first day of the hearing, after the affidavit evidence was read and I clarified which witnesses were required for cross-examination, Mrs Young indicated to me that Ms Ralston had had childcare responsibilities later that day and they were hoping that she might be interposed for cross-examination. [66] I enquired of the plaintiff as to whether she was in a position to cross-examine Ms Ralston, indicating that I was not requesting her to do so. The plaintiff indicated that she was able to cross-examine Ms Ralston and that she did not think she would be very long. [67]

In fact, what occurred was that Ms Ralston was cross-examined for a lengthy period of time. Ms Ralston was called to the witness box just prior to 1 pm. She gave some brief evidence in chief and then, after the luncheon adjournment, the plaintiff conducted the cross-examination through the afternoon sitting and well beyond the Court’s usual 4 pm adjournment, for a total of three hours and twenty minutes.

The purpose of sitting late was attempting to give the plaintiff a fair opportunity to conduct the cross-examination of Ms Ralston, but nonetheless complete it that day, so that there may not be any ultimate need for Ms Ralston to return.

I formally excused Ms Ralston on the basis that she was no longer under cross-examination but noted that, at some point, the plaintiff may wish to seek leave to further cross-examine her. [68]

On the resumed hearing of the matter, at the commencement of the second day, the plaintiff did not seek to further cross-examine Ms Ralston. However, towards the end of the third day, the plaintiff intimated that she might wish to do so. The plaintiff had not given any such notice to CGL or Ms Ralston. [69] With regard to that, and also to the facts that the proceedings had extended several days beyond the single day estimate and Ms Ralston was not, in any event, in the precincts of the court, no further cross-examination of Ms Ralston was realistically possible. [70]

The plaintiff, in her PCRS, makes the following submission: [71]

Whilst, towards the end of the third day of the hearing (as noted above), the plaintiff raised the prospect of possibly further cross-examining Ms Ralston, at no stage prior to serving her PCRS did the plaintiff complain that she had been denied procedural fairness by the defendants in seeking to have Ms Ralston cross-examined before she was cross-examined.

In light of the context that I have set out above, I reject the submission that the plaintiff has been denied procedural fairness.

In this case, the requisite standard of proof for determining the facts in issue is on the balance of probabilities: s 140(1) Evidence Act 1995 (NSW) (Evidence Act).

Without limiting the matters the Court may take into account in deciding whether it is so satisfied that the facts in issue are established, it is to take into account (a) the nature of the cause of action or defence; (b) the nature of the subject‐matter of the proceeding; and (c) the gravity of the matters alleged: s 140(2) Evidence Act.

Evidence should be approached and weighed having regard to objective surrounding facts which are either undisputed or established by contemporaneous documents, logic and the inherent probabilities of life as they bear upon the events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ.

Having regard to the plaintiff’s complaints regarding costs disclosure and, in particular, her initial expectations and understanding of the total costs likely to be incurred, it is surprising that none of the parties saw it fit to set out the discussions between the plaintiff and Ms Ralston in the initial meeting of 29 June 2018.

The plaintiff’s affidavit evidence did not descend to any particular detail regarding how she came to engage CGL or the discussions she had with Ms Ralston or other CGL staff.

During her cross-examination of Ms Ralston, the plaintiff did not put to Ms Ralston some of the relevant conversations that she said she had had with her. It was only during Mrs Young’s cross-examination of the plaintiff that assertions of what had been said to CGL or its staff arose. Even then, it was generally in non-responsive answers to questions.

Mrs Young, in her DCS, made submissions on the legal principles relating to fact-finding and credit, [72] including citing Withyman v NSW [2013] NSWCA 10; [2013] ATR 82 per Allsop P at [65] (with whom Meagher and Ward JJA agreed at [154] and [155] respectively) and Kunc J in Saravinovksa v Saravinovski (No 6) [2016] NSWSC 964 at [464]-[473]. I have had regard to those judgments and Mrs Young’s submissions.

The plaintiff was cross-examined across the second and third days of the hearing.

The plaintiff made no particular submissions regarding her credit and reliability as a witness. However, in the DCS, Mrs Young is scathing of the plaintiff’s credibility based on her conduct during the hearing and cross-examination. [73]

In summary, Mrs Young made the following submissions and referenced various examples in each case, which I have had regard to:

Further, Mrs Young submitted (omitting the footnote) as follows: [78]

The plaintiff was, in my estimation, an unimpressive witness.

Much of the plaintiff’s evidence was punctuated by long pauses (noted in the transcript) [79] and was followed by the plaintiff volunteering information that had not been asked about. [80] On some occasions, the plaintiff appeared to lose train of thought and questions were repeated for her. At other times, the plaintiff made statements or gave answers which were “non-responsive” to the questions, in the sense that they did not directly address the question and were tangential. My impression is that the plaintiff, at least in relation to certain critical aspects of the questioning, simply evaded the question and stated what she wished the Court to hear. On critical issues where there is conflict between Ms Ralston and the plaintiff, I prefer the evidence of Ms Ralston.

There are important aspects of the plaintiff’s complaints which were not made out by her on the evidence and, in some respects, were shown to be incorrect. A number of examples will suffice.

First, the plaintiff’s denial that she signed CA1 on the first day of engaging CGL [81] is incorrect and I reject it.

The plaintiff stated: [82]

The fourth page of the letter from CGL dated 29 June 2018 contains the following: [83]

The plaintiff’s signature lies underneath the acceptance of the fee proposal and the date inserted is 29 June 2018. [84]

On the first day of the hearing, in the context of the plaintiff cross-examining Ms Ralston, I asked the plaintiff about the basis for asserting that the costs agreement was void. The following exchange occurred: [85]

Further, the plaintiff acknowledged in cross-examination she had been issued with a costs agreement, though seemingly complained about the disclosure of the extent of costs. [86]

Later, she asserted that she had been told to sign it in a context in which she understood costs would be only $20,000. [87]

Secondly, the plaintiff claimed that she had not received all invoices showing the rate per hour of a person doing the work and number of hours utilised by that person. [88] The defendants provided evidence showing that at least some of the disputed invoices were sent to the plaintiff by email. This was put to her during her cross-examination. I will say more below regarding provision of invoices to the plaintiff. However, for present purposes it suffices to note that the plaintiff acknowledged in cross-examination that she received all 7 of the invoices Mrs Young examined her about (Exhibits D2-D8 - see the table above for details).

Thirdly, the assertion that Mr Grew had charged $50,000 for one day is simply false. [89] There are no invoices in which Mr Grew charged $50,000 in one day. The plaintiff was cross-examined regarding the two invoices he sent [90] (26 February 2019 for $7,892.50 and 1 May 2019 for $40,425).

Fourthly, the plaintiff in her affidavit evidence asserted that she had been threatened and compelled to sign Costs Notices and authorities for payment of costs under duress and false representations. [91] During the hearing, she asserted that she had been put in a “cabin” which had been closed and forced to sign documents. [92] It later transpired that her use of the word “cabin” was likely intended by her to mean a conference room. [93] The plaintiff reiterated the assertion that she had been locked in a “cabin” and forced to sign documents. [94] I reject the plaintiff’s evidence in this regard. There is nothing in the documentary evidence even remotely supportive that any such locking of the plaintiff into a conference room and being forced to sign documents occurred. The evidence does not show that the plaintiff ever reported any such threatening conduct to the Office of the Legal Services Commissioner, or to anyone else. [95]

The plaintiff made no particular submissions in relation to the evidence of Mr Lamb and Mr Ferguson. Regarding Ms Ralston, the plaintiff stated the following in her PCRS:

Mrs Young submitted in relation to the defendants’ witnesses: [96]

As I explained above, Ms Ralston was cross-examined by Ms Sanjiv for a lengthy part of the first day of the hearing. There is no need for me to make any particular finding as to how “polite” or “kind” Ms Ralston was in giving her evidence. Her evidence, broadly speaking, accorded with the documentary material which I will recite below. She gave her evidence clearly and made appropriate concessions. I accept her evidence. I do not accept the plaintiff’s submission regarding Ms Ralston’s credit as a witness.

The plaintiff cross-examined each of Mr Lamb and Mr Ferguson. It was clear that neither of them had any particular familiarity with the plaintiff’s family law claim during the period in which CGL was acting for the plaintiff, as distinct from the awareness of the current proceedings. Both gave their evidence in a straightforward way. I accept their evidence.

For various reasons, including to preserve the integrity of evidence, it is common for judges to give witnesses who are being cross-examined a direction that the witness should not discuss their evidence with anyone whilst they are under cross-examination. The practice applies in both criminal law and civil proceedings. The power to give such a direction derives from the inherent power of a court to control its own proceedings and to ensure that a trial is fair: Western Australia Court of Appeal (Mazza, Hall and Vandongen JJA) in Snook v Western Australia (No 2) [2024] WASCA 135 (Snook) at [73].

The purposes of such a direction were elaborated in Snook as follows

Directions are typically given when a witness’s cross-examination is underway but not yet complete and the court must adjourn. There is no set form of direction that is given by judges to witnesses. The content of what is said is invariably informed by the context in each case.

Often, questions regarding communications arise where legal representatives need to discuss some matter with their client or the client’s witness, despite the cross-examination being incomplete. It may be, for example, that there is necessity to discuss with the witness travel arrangements or to locate documents called for, or perhaps to consider, in the case the witness is a party, an offer to resolve proceedings. Normally, in such a circumstance, the legal representatives for the parties speak with one another and raise with the Court the fact that it is proposed for there to be some communication with the witness for a specific purpose. Raising the matter directly with the Court in such a way facilitates transparency and minimises suspicions that proposed communication is for an impermissible purpose.

Guidelines regarding communication appear in caselaw and sometimes information guides produced by courts: see, for example, the “Practitioner and Litigant Guide to Electronic Hearings” produced by the Federal Circuit and Family Court of Australia (paragraph 3.1[10] Guidelines for Witnesses).

A helpful discussion regarding the practice was undertaken by Mr Justice Shepherd in his article “Communications with witnesses before and during their evidence” (1987) 3 Australian Bar Review 28, in particular, at 36-39. There are particular obligations on legal practitioners in respect of communications. Broadly speaking, the limitation arises only upon the commencement of the cross-examination: Potier v R [2015] NSWCCA 130 per Ward JA at [579]-[582] (Simpson and Wilson JJ agreeing at respectively [597] and [598]).

The consequences of communication by a witness with others whilst under cross-examination self-evidently will depend upon the circumstances of each particular case. In circumstances where the nature of the communication is revealed to the Court, the effect upon the assessment of the witness’ credibility or reliability can be varied. Thus:

In this case, on the second day of the hearing, whilst the plaintiff was being cross-examined by Mrs Young, I indicated that the Court would take the morning tea adjournment.

I drew to the attention of the plaintiff that she was currently under cross-examination and indicated to her that she should not discuss her evidence with anyone. [97] The plaintiff acknowledged my statement to her.

On the resumption of the hearing after the morning adjournment, Mrs Young asked the plaintiff “Did you call anyone during the recess break?” [98] She indicated that she had spoken to a “friend” but objected to identifying who she had called, asserting that it was a “personal” matter. It became evident following further questioning that the plaintiff had “discussed everything” with the friend regarding what had happened during the morning, though did not give any details beyond that description. [99] The plaintiff intimated that her reason for calling the friend was because she was stressed and needed to relieve the stress. [100] Notwithstanding the plaintiff’s objection, I indicated that it was permissible for Mrs Young to request the name of the friend, and the plaintiff declined to identify the friend.

Essentially, the plaintiff appeared to hold some belief that, at least in a relational sense, she needed permission from the friend in order to reveal the friend’s name, intimating, if it were otherwise, she would jeopardise her friendship. [101]

Apart from reiterating that the plaintiff considered the matter to be a “personal” thing, one response of the plaintiff suggested that the plaintiff might have been concerned that the friend would have to come to court. I indicated that no one (at least at that point) was asking the plaintiff’s friend to attend court. Rather, the only thing that had been asked of the plaintiff was to identify the name of the friend. [102]

I indicated to the plaintiff that I had given her adequate opportunity to inform the Court of the name of the friend and that I would proceed on the basis that she had made a conscious decision not to answer the question. Whilst I proceeded on that basis, I admitted of the possibility that at some later point of time the plaintiff may seek to indicate the name of the friend. [103] At no later point did the plaintiff reveal the name of the friend she had spoken with.

It was permissible for Mrs Young to enquire about the matter. I do not know to what, if any, extent the plaintiff actually discussed her evidence with a friend and to what, if any, extent her evidence was compromised in so doing.

Mrs Young in her DCS did not make any submissions as to how the impermissible communication should be treated. In light of the circumstances, it suffices that I make the following observation.

In circumstances in which the content of the communication has not been revealed to the Court, it is not possible for the Court to make any particular conclusion about the impact of the communication upon the plaintiff’s evidence. However, the episode reinforced in my mind what had been evident from earlier cross-examination of the plaintiff, namely that the plaintiff at times declined to assist the Court in her evidence, in this instance by failing to respond to a question that had been permissibly asked. In that sense, the nature of her evidence and her manner in giving evidence did not change after the undisclosed communication.

I find the following facts which are drawn substantially from the Court Book and supplemented from the testimonial evidence.

The family law proceedings had been on foot for well over three years prior to CGL acting. The evidence indicates that Slater & Gordon and Prominent Lawyers had previously acted for the plaintiff in respect of the family law litigation.

On 29 June 2018, Ms Ralston first met the plaintiff, and CGL opened a file and provided the plaintiff with a fee proposal. Having regard to the initial tax invoice issued, the initial conference as between Ms Ralston and the plaintiff lasted for an hour. [104]

The plaintiff’s assertion that she did not sign and date the fee proposal [105] is incorrect, and I reject the plaintiff’s evidence in that regard.

On 29 June 2018, the plaintiff signed and dated an acknowledgement that she had read and understood the fee proposal and the Terms of Business, and accepted the fee proposal on those terms. [106]

In her letter to the plaintiff dated 29 June 2018, Ms Ralston gave an estimate of fees of $50,000 exclusive of GST, being for “reviewing your file, providing advice to you in drafting relevant court documents up to 23 August 2018”. [107] The fee proposal (CA1) set out the staff of CGL who would be expected to be primarily responsible for the plaintiff’s work, with their hourly rates. [108]

Further details were elaborated in CGL’s Terms of Business, which set out rates for various staff and the following details in relation to fee estimates: [109]

Significantly, one of the documents emailed [110] to the plaintiff initially was a Family Court brochure, giving detailed information about legal costs in family law proceedings, headed “Chapter 19 Costs Notice”. The brochure [111] sets out details as to how to dispute an itemised account for party-party costs and other facts regarding, relevantly, how a client could dispute fees charged by the client’s lawyer. [112]

A period of approximately 6 weeks elapsed between 29 June 2018 and 9 August 2018.

Some indication of what was done in that period is given in the detail set out in the second tax invoice issued on 6 July 2018, the third tax invoice issued on 17 July 2018 and the fourth tax invoice issued on 9 August 2018. [113]

Relevantly, it is evident that Ms Teo on 3 July 2018 reviewed such of the plaintiff’s documentation as had been made available and sorted through pleadings, correspondence, and some details apparently regarding the Supreme Court matter. Ms Teo also, on the same day, reviewed the Family Court portal list of documents and documents provided by the plaintiff. [114] The tax invoices reveal quite a degree of activity was carried out over the period between 3 July 2018 for the following two weeks up to 17 July 2018. [115]

On 17 July 2018, it appears that Ms Teo attended at the Family Court in Sydney to file subpoenas but also relevantly to attend the exhibits room to view the Court file and copy pleadings that were not available on the Commonwealth Courts Portal. [116]

On 17 July 2018, Ms Ralston sent a letter to the plaintiff, referring to the initial costs estimate, and gave an estimate of further work that would be required from that point of time (17 July 2018) through to the next mention of the matter, being relevantly 23 August 2018. [117]

There is some inkling even at this early stage that Ms Ralston was starting to appreciate that the plaintiff’s case may involve some further significant work. In particular, she stated to the plaintiff in the letter: [118]

The revised estimate in the 17 July 2018 letter [119] for the period up to 23 August 2018 is in some respects quite unclear and inaccurate. It provides an estimate of $50,000 for the work that will be incurred from that day until 23 August 2018. Following that, it provides:

However, the “most recent invoice” attached with that letter contains an amount of $14,956.07. [120] That amount was paid from the trust account to CGL’s office account on 26 July 2018. [121] This is in addition to, and not instead of, the $10,129.90 which had already been paid by the plaintiff, being $440 in the initial meeting and $9,689.9 on 16 July 2018. [122] Hence, the costs that had been incurred as on that date were not $10,129.9, but approximately 2.5 times that amount, namely $25,085.97 (being the sum of $10,129.9 and $14,956.07).

On 9 August 2018, Ms Elven, on behalf of Ms Ralston, sent the plaintiff an email addressing a number of matters regarding costs. The email attached the first of a number of “Costs Notice” which were provided to the plaintiff. [123] The email relevantly stated: [124]

Seemingly, on or about 30 August 2018, Prominent Lawyers issued a tax invoice setting out monies said to be owed by the plaintiff to them in the sum of $22,040.80. [125]

On 31 August 2018, Ms Ralston drafted an email to Prominent Lawyers and, on 3 September 2018, read several emails from Prominent Lawyers enclosing a form of tripartite deed. [126] The deed is not in evidence. However, the plaintiff does not appear to have given Ms Ralston instructions to immediately respond to Prominent Lawyers.

On 20 September 2018, Ms Ralston emailed the plaintiff. [127] The email addressed issues regarding costs. There are elements of the email which suggest that there were complicating issues regarding the plaintiff’s actions in the matter, including compliance with providing financial documents and the plaintiff’s preparedness to take advice. The email refers to questioning as between the plaintiff and “Diane” (Elven) regarding production and noted inter alia “you simply cannot ignore Court orders”. [128] The email subsequently went on to state: [129]

The email later stated: [130]

On 3 October 2018, Ms Elven emailed the plaintiff following a telephone conversation with her enclosing (yet again) the CA1 signed by the plaintiff and CGL’s email to her dated 9 August 2018 enclosing the Costs Notice. The email further attached a letter dated 20 September 2018 regarding outstanding fees. [131]

On 26 October 2018, another email was received from Prominent Lawyers. [132]

On 29 November 2018, Ms Ralston sent an email to the plaintiff, consequent upon a conference that had occurred in person on 19 November 2018. [133] The letter addresses issues under 13 main headings.

One topic addressed was the outstanding costs owing to Prominent Lawyers. Ms Ralston’s letter relevantly stated as follows: [134]

Ms Ralston also addressed legal costs moving forward and the provision of a Costs Notice as follows: [135]

Further, the letter addressed the question of briefing counsel and provided the plaintiff information about counsel (including, relevantly, Mr Grew) and sought instructions from the plaintiff as to a preference for counsel. This part of the letter relevantly stated as follows: [136]

The Costs Notice provided with the letter of 29 November 2018 included further detail regarding costs. [137]

On 5 December 2018, the Family Court listed the plaintiff’s proceedings for a final hearing with a 5-day estimate commencing on 29 April 2019. [138]

On 17 January 2019, the plaintiff attended CGL’s offices and Ms Ralston handed the plaintiff a further Costs Notice which was not dissimilar to the Costs Notice dated 29 November 2018 but had been amended to reflect recent orders made. [139] The plaintiff signed an Irrevocable Authority notice which included the following confirmations and acknowledgements: [140]

A copy of the Irrevocable Authority attaching the Costs Notice signed by the plaintiff was emailed to the plaintiff by Ms Elven on the same date. [141]

Further on 17 January 2019, Ms Ralston sent the plaintiff an email in the following terms: [142]

On 18 January 2019, the plaintiff deposited into the CGL trust account four separate amounts totalling $100,000. [143]

On 21 January 2019, Mr Grew sent an email to Ms Ralston enclosing a form of fees agreement and disclosure. [144]

On 5 February 2019, Ms Cousens, on behalf of Ms Ralston, sent to the plaintiff an email addressing a number of matters. In particular, it addressed the briefing of Mr Grew, the provision of a tax invoice and arrangements to pay outstanding fees as follows: [145]

On 25 February 2019, the plaintiff sent to Mr Gittoes-Caesar an email raising a number of complaints. [146] Later that evening, Mr Gittoes-Caesar responded to the plaintiff’s email indicating inter alia that he almost wholly disagreed with what the plaintiff had set out in the email and indicated that if the plaintiff truly believed “even half of what you have written in that email, you should arrange to engage new lawyers immediately”. [147]

On 26 February 2019:

Further communications with Prominent Lawyers appear to have taken place on 27 February 2019, 6 and 12 March 2019. [151]

On 5 March 2019, Ms Ralston sent an email to the plaintiff addressing in detail (and outlined in red) her responses to the plaintiff’s email to Mr Gittoes-Caesar dated 25 February 2019. [152]

On 8 March 2019, the plaintiff signed and dated an acknowledgement (which I infer had been drafted by either Ms Ralston or someone at CGL). The acknowledgement was in the following terms: [153]

On 26 April 2019:

The fees payable to Prominent Lawyers do not appear to have been included by CGL in any Costs Notices until the final Costs Notice issued on 26 April 2019. The figure in that Costs Notice for monies due to Prominent Lawyers is $23,135.90. That is somewhat more than the earlier-mentioned figure of $22,040.80. The difference is not explicable in the evidence. One possibility is that additional fees were incurred by Prominent Lawyers after 30 August 2018, which were added to the $22,040.80. However, ultimately, the authority given by the plaintiff on 6 April 2022 to pay the fees of Prominent Lawyers [156] and the undertaking signed by the plaintiff on 15 June 2022 [157] was limited to the amount of the invoice in the sum of $22,040.80.

Subsequently in 2022, in the correspondence regarding the settlement of the sale of the Epping property, issues regarding the payment of Prominent Lawyers were raised and seemingly addressed. [158]

On 29 April 2019, the final hearing of the plaintiff’s family law proceedings was due to commence. It is evident that there were some settlement discussions on that day and advice was given to the plaintiff by Ms Ralston and also Mr Grew. The plaintiff signed an acknowledgement of that advice, which included, relevantly, confirmation that she had received an updated Costs Notice on 26 April 2019. At that point, the plaintiff gave instructions to continue the hearing of the proceedings. [159]

On 30 April 2019, the following day, a settlement of the family law proceedings was negotiated. [160] Orders were typed up, signed by the plaintiff and ultimately made by the Family Court. [161]

The orders contemplated that the Epping property would be sold and set out a process by which that would occur. A notation “B” was made that a solicitor at CGL who is not part of the “family law department” would act in respect of the sale of the property, on behalf of both the plaintiff and Dr Shah. [162] I will address this notation below under agreed issue 4 (alleged contempt).

On 1 May 2019, Mr Grew sent an email to Ms Ralston regarding the finalisation of the Family Court proceedings in the making of consent orders and attached a tax invoice. [163]

On 3 May 2019, Ms Austin spoke with the plaintiff and sent her an email. [164] The email introduced herself and indicated that she had been requested by Ms Ralston and Ms Cousens to contact the plaintiff in regard to the sale of the property. She attached an information sheet on selling residential property and a vendor questionnaire to be completed and signed by the plaintiff and returned to her. The email concluded with Ms Austin stating:

On 6 May 2019, Ms Ralston sent an email to the plaintiff’s son Isham requesting that he contact her. [165]

On 10 May 2019, Ms Elven on behalf of Ms Ralston, sent the plaintiff a letter addressing a number of matters. [166] The letter is detailed. It recounts the events of the listing of the matter on 29 April 2019, including the issues that were then being grappled with, the advice given by Ms Ralston to the plaintiff, and the negotiations that occurred with a view to settlement. It stated that an in principle agreement fell through and negotiations ceased at the end of the first day. [167] The letter also recounted the events of the second day, being 30 April 2019, including the fact that the plaintiff agreed to orders resolving the matter. [168] The letter then alerted the plaintiff to the fact that she would be able to vary the orders by consent, and that, if there was no such agreement to variation, that the orders “stand and must be implemented”. [169] The letter alerted the plaintiff to the fact that if she did not implement the Orders, that Dr Shah had the capacity to file an enforcement application in the Family Court. [170]

Relevantly, it seems that the plaintiff was having some regrets over agreeing to the orders and was potentially contemplating the ability to either vary the orders or delay sale of the Epping property. This is evident from the concluding paragraphs of the letter as follows: [171]

By 16 May 2019, it seems that the plaintiff was attempting to communicate directly with Dr Shah (which he had rebuffed) and Ms Ralston emailed the plaintiff addressing this, seeking transfer of funds into trust and alerting the plaintiff to risks, inter alia, in relation to non-compliance orders. [172]

On 17 May 2019, the plaintiff’s son Isham sent an email to Ms Ralston as follows: [173]

Ms Ralston replied as follows: [174]

By 20 May 2019, Ms Ralston had not received instructions and sent an email to Isham requesting he indicate what was happening and reminding him that the fees needed to be paid by the following day in order to get a discount. [175]

Further correspondence ensued from Ms Ralston to the plaintiff and to Isham.

On 23 May 2019, Ms Ralston emailed the plaintiff and Isham, expressing concern that she had not heard from them regarding implementation of orders and payment of fees. [176]

On 29 May 2019, Ms Ralston sent the plaintiff and Isham an email [177] expressing concern regarding the absence of instructions, the lack of payment of fees, and foreshadowing, in the absence of a response, ceasing to act.

On 30 May 2019, Ms Ralston sent the plaintiff an email in the following terms: [178]

On 31 May 2019, CGL sent an email to Prominent Lawyers confirming that they were no longer acting for the plaintiff. [179]

On 3 June 2019, Ms Ralston sent to the plaintiff, by registered post, a letter [180] noting that multiple emails had been sent and telephone calls made since 1 May 2019 (enclosing copies of the emails). She indicated that she had only heard once from the plaintiff, with the plaintiff indicating she did not wish to sell the Epping property despite Ms Ralston’s advice that it was part of the orders. The letter enclosed other correspondence and attached copies of the plaintiff’s acknowledgements in relation to costs and advice.

CGL’s initial retainer under CA1 appears to have been brought to an end on or about 3 June 2019. [181]

On 9 July 2019, CGL commenced proceedings against the plaintiff by statement of claim in the District Court of Parramatta, seeking to recover the then balance owing in respect of fees rendered. [182]

A process server had difficulty serving the plaintiff the statement of claim between 13 July 2019 and 4 September 2019. [183]

By 17 September 2019, Prominent Lawyers had lodged a caveat on the title to the Epping property. [184]

On 19 September 2019, CGL filed a notice of motion seeking to dispense with personal service and applying for substituted service. The application was supported by an affidavit by Mr Ferguson. [185]

On 20 September 2019, it appears that Deputy Registrar Cornish in the District Court made orders for substituted service by various means, including express post and email to a number of different email addresses associated with the plaintiff. [186] On 23 September 2019, the orders that had been made on 20 September 2019 were entered. [187]

The orders for substituted service were affected.

On 11 November 2019:

On 5 December 2019, CGL filed a notice of motion seeking a garnishee order for the Commonwealth Bank of Australia (CBA) to garnish the plaintiff’s account with the bank for debts owed by the plaintiff. That application was also supported by an affidavit by Mr Gittoes-Caesar on the same day. [191] CGL obtained the garnishee order sought on the same day. [192] On 18 December 2019, CGL caused CBA to garnish the sum of $5,872.84 in favour of CGL. [193]

On 5 February 2020, it appears that Dr Shah became sole trustee for the sale of the Epping property (which, as noted earlier, was registered in the sole name of the plaintiff). Ms Ralston indicates, and I accept, that at no time did she or any other person at CGL receive instructions from Dr Shah to prepare any contract for sale in respect of the property. [194]

On 1 April 2020, contracts for the sale of property were exchanged for a sum of $3,000,000. [195] Exceptionally, the printed timing date for completion (42 days after contract) was deleted and (in handwriting) specified as being 24 months from the date of the contract. [196] The reason for that is not particularly explained on the evidence.

In any event, from approximately 23 February 2022, while still representing Dr Shah, Mr Spencer corresponded with Ms Ralston regarding various aspects of the property sale, notably mentioning that the settlement was due to occur on 1 April 2022.

On 11 March 2022, Ms Ralston sent a letter to the plaintiff seeking instructions in respect of a number of matters, including assistance in finalising settlement of sale of the property, and addressing payment of costs. [197]

Between approximately 31 March 2022 and 5 April 2022, there were various email exchanges between Ms Ralston and/or CGL and the plaintiff. [198] By this time, Gary Pickering, solicitor (Mr Pickering), was engaged by the plaintiff to act for her in relation to the settlement of the sale of the property. [199]

On 6 April 2022, Mr Pickering sent an email to CGL, to the attention of Ms Ralston, confirming his instructions to act and attaching an authority signed by the plaintiff that authorised CGL, Prominent Lawyers and an accountant (William Buck) to make payments of invoices from the proceeds of the sale of the Epping property. [200]

It is not entirely clear what happened in relation to the involvement of Mr Pickering beyond that which I have stated.

On 25 May 2022, it appears that Mr Spencer on behalf of Dr Shah filed a form of enforcement action in the family law proceedings. [201]

On 7 June 2022, the Family Court made orders as between the parties. [202] The detail of the orders is not evident from the materials in the Court. Nonetheless, I infer that the enforcement action and the orders made by the Family Court appears to be the catalyst for the plaintiff returning to CGL for assistance in respect of finalisation of the sale of the property.

By 15 June 2022, it appears that CGL and, in particular, Ms Ralston, had received instructions to act for the plaintiff to assist with finalising the settlement of the sale of the Epping property. One issue that had arisen was that, as previously noted, Prominent Lawyers had lodged a caveat in respect of the property and the settlement envisaged removal of that caveat. [203]

Further, on 15 June 2022:

On 17 June 2022, Ms Ralston communicated with Mr Spencer regarding settlement of the sale of the property and the then recent Family Court orders. [206]

On 22 June 2022, orders were made to facilitate an interim hearing of certain of the orders in respect of the enforcement application. [207]

On 23 June 2022, Ms Ralston sent an email to the plaintiff expressing concern regarding her lack of instructions to one of the staff of CGL (Ms Nichelsen) and noting that she “cannot do anything further without your instructions”. The email indicated that the delay was causing the plaintiff to expend further fees and noted that, at that stage, the fees had reached $5,336 as a consequence of chasing the plaintiff for directions, significant telephone conversations between CGL and the plaintiff, and a form of application, seemingly in the Family Court. [208] Ms Ralston notes that there were complications as there was no agreement regarding certain matters, including: expenses to be paid to Dr Shah as a consequence of him being trustee for sale of the property or delay in settlement; the plaintiff leaving the property prior to settlement; and Dr Shah filing an application seeking possession of the property. [209]

On 8 July 2022, Mr Spencer sent an email to Ms Nichelsen and Ms Ralston, noting that the CGL had not accepted a PEXA invitation to join the workspace. [210] Later that day, Ms Nichelsen responded to Mr Spencer noting that CGL was not acting on the conveyance for the plaintiff, and accordingly did not intend to join the PEXA workspace. [211]

On 12 July 2022, Ms Elven sent to the plaintiff a letter from Ms Ralston and various attachments, including the penultimate tax invoice dated 12 July 2022. [212] The letter provided a form of Costs Notice for the enforcement application. [213]

By 22 July 2022, settlement of the sale of the property had occurred and net proceeds received. [214] Ms Elven on behalf of Ms Ralston sent a further email to the plaintiff that day, noting two phone conversations on the prior day and instructions for CGL to act for the plaintiff in respect of the enforcement proceedings filed against her. [215]

On 25 July 2022, CGL received funds from the settlement of the sale of the Epping property into its trust account. [216]

On 25 and 26 July 2022, further correspondence was sent to the plaintiff by Ms Ralston. [217]

On 27 July 2022, amended orders were made in the Family Court regarding the interim hearing of the enforcement application including, relevantly, relisting the matter from an allocated date of 5 August 2022 to 5 October 2022. [218]

On 2 August 2022, Ms Elven on behalf of Ms Ralston sent an email to the plaintiff, requesting instructions and attaching what became the final tax invoice issued to the plaintiff. [219]

On 9 August 2022, Ms Ralston had a telephone conversation with the plaintiff, in substance, indicating that if the plaintiff wished for her to continue to act (which she said she did), she would need to email Ms Ralston with instructions to send correspondence to Mr Spencer. [220] The plaintiff did not provide instructions. [221]

On 12 August 2022, Ms Elven sent a further email on behalf of Ms Ralston to the plaintiff, noting she had not received a response in relation to the draft correspondence to Mr Spencer and an indication of whether she wished CGL to continue to act in relation to the enforcement application. [222]

On 16 August 2022, the plaintiff sent an email to Ms Ralston requesting itemised bills for all the costs incurred during her court case, as well as raising other matters. [223]

On 19 August 2022, Ms Elven responded on behalf of Ms Ralston. [224]

On 21 August 2022, the plaintiff responded to Ms Ralston which, ironically, in light of the plaintiff’s allegations of duress, contained not only criticism of Ms Ralston, but a veiled threat in the following terms: [225]

On 22 August 2022, Ms Ralston responded as follows: [226]

On 2 September 2022, Ms Elven on behalf of Ms Ralston emailed the plaintiff, reminding her that the timeframe for providing material in relation to compliance with the court orders and the court hearing was fast approaching, and confirming that she had not engaged CGL to act for her for the purposes of attending the interim hearing on 5 October 2022. [227]

On 12 July 2023, CGL provided the plaintiff with a copy of an annual trust statement. [228]

On 29 August 2023, the plaintiff sent Ms Elven an email requesting that she provide the plaintiff with the last four invoices. [229]

On 31 August 2023, the plaintiff commenced proceedings against Ms Ralston personally in the New South Wales Civil and Administrative Tribunal (NCAT), seeking copies of all trust account statements and all itemised invoices. [230]

On 8 September 2023, CGL emailed a copy of certain trust statements and itemised invoices to the plaintiff, however asserting that it already provided the documents to her. [231]

On 18 September 2023, the plaintiff withdrew her NCAT application. [232]

On 20 September 2023, the plaintiff commenced these proceedings. Relevant procedural history regarding the matter is recounted in my reasons for judgment in Sanjiv No.1, which is convenient to detail:

Earlier I indicated that the plaintiff had re-agitated an issue regarding abandonment of relief. That was done in related proceedings. Thus, on 30 September 2024, the plaintiff filed a new summons against only GCL (case number 2024/361481) (new summons). The new summons claimed relief as follows:

For the purposes of this judgment, it suffices to note that, on 10 December 2024, I heard and determined an application by CGL to dismiss the new summons pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

The various issues emerge within the legal framework governing costs agreements and disclosure obligations. The plaintiff made ad hoc reference to certain provisions of the Uniform Law and some caselaw. However, the references were not presented in a particularly ordered state. Accordingly, to properly address the issues, I will first set out some details regarding the framework and the relevant practicalities.

The arrangements between law firms and clients for the provision and receipt of legal services may be attended by various terms embodied in agreements or other communications between them. Commonly, law firms and clients have a form of retainer which sets out the nature and scope of work to be undertaken, as well as the responsibilities and obligations of each party.

Such a retainer may also include provisions regarding the payment of fees for the services provided. However, it is also common for there to be a specific separate document which sets out the costs arrangements as between the parties (costs agreements).

Certain aspects of costs agreements are regulated by statutory provisions. Law firms also have disclosure obligations, which were introduced in amendments to the Legal Profession Act 1987 (NSW) with effect from 1 July 1994: GE Dal Pont, The Law of Costs (5th ed, 2021, LexisNexis) (Dal Pont) at 26. Since then, there have been further reforms.

The principal provisions regarding regulation of legal costs were embodied in Part 4.3 of the Uniform Law, with effect from 1 July 2015. Whilst there have been some amendments, there is no material difference in the applicable provisions of the Uniform Law over the time period covered by the matters in this case, from 29 June 2018 to August 2022.

One of the objectives of the Uniform Law is to promote the administration of justice and an efficient and effective Australian legal profession, by empowering clients of law practices to make informed choices about the services they access and the costs involved: s 3(d) Uniform Law.

The objectives of Part 4.3 addressing legal costs are set out in s 169 and are as follows:

The provisions of Part 4.3 do not apply to certain commercial and government clients: s 170. However, there is no suggestion that the provisions do not relevantly apply to the legal costs arrangements as between the parties in this case.

Generally speaking, a law practice must charge legal costs that are no more than fair and reasonable in all the circumstances and that, in particular, are proportionately and reasonably incurred and proportionate and reasonable in amount: s 172(1) Uniform Law.

In determining whether legal costs satisfy the proportionate and reasonable criteria as to incurring of costs and amount, regard must be had to a number of criteria and circumstances, including the retainer and instructions (express or implied) given in the matter: s 172(2) Uniform Law.

The main disclosure requirements for a legal practice are set out in s 174(1) of the Uniform Law and are as follows:

In relation to the initial disclosure under s 174(1)(a), certain information must be provided about the client’s rights: s 174(2)(a).

Further, any further disclosure under s 174(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: s 174(2)(b) Uniform Law.

The Uniform Law does not address how a law practice should determine an “estimate of the total legal costs” for the purposes of s 174(2)(a) Uniform Law.

Parker J in Crosby v Fica (No 4) [2018] NSWSC 632 at [19] considered that it was:

AsJ Wood in Cameron v Geer [2020] VSC 75 at [20] observed that estimating total legal costs is “an inexact science which involves a degree of informed guesswork”.

Dal Pont sets out a number of observations, with reference to caselaw, in relation to costs estimates and their revision which, in summary, (omitting footnotes) include the following: [234]

On the meaning of the term “total”, R Quick comments: [235]

While considering the meaning of s 174(1)(b), Beach J in Wills v Woolworths [2022] FCA 1545 (Wills v Woolworths) commented on the concept of “as soon as practicable”:

Dal Pont observes that repeated upward revision of costs estimates is unlikely to be conducive to good client relations and that client “reprobation is almost assured where the costs charged significantly exceed an estimate or even revised estimate”. [236]

Beach J in Wills v Woolworths outlined the conditions required to establish a breach of s 174(1)(b):

Costs disclosures in family law proceedings were the subject of particular requirements under the Family Law Rules 2004 (Cth) (FLR) prior to 1 July 2008. [237] Rule 19.4 of the FLR relevantly provided:

Disclosures in family law proceedings are now regulated by the relevant legal professional legislation and also the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (current FLR). The current FLR still makes some provision for costs disclosures in defined circumstances, including requiring a lawyer for a party, immediately before each Court event, to give the party written notice of certain information, including the party’s actual costs up to and including the Court event, the estimated future costs of the party up to and including each future court event, and any expenses paid or payable to an expert witness. [238]

Additionally, particular disclosure obligations arise in relation to settlement of litigious matters generally: s 177 Uniform Law.

A 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: s 174(3) Uniform Law.

The disclosure must be in writing, but the requirement for writing does not affect the law practice’s obligations to ensure the client’s consent and understanding: s174(6) Uniform Law.

This obligation of taking all reasonable steps self-evidently requires the exercise of professional judgement depending upon the facts and circumstances of each case and the nature and understanding of the client. [239] It is said that the term “reasonable” suggests that the test is an objective one, and not necessarily met in each instance by the following of a set procedure. [240]

Non-compliance with disclosure obligations by the law practice has particular consequences. It is unnecessary to set out all the relevant consequences. The following may be noted.

First, non-compliance with disclosure obligations renders the costs agreement concerned (if any) void: s 178(1)(a) Uniform Law.

Secondly, the client is not required to pay legal costs until they have been assessed, or any costs dispute has been relevantly determined: s 178(1)(b).

Thirdly, 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 the dispute has been determined: s 178(1)(c) Uniform Law.

One example of non-compliance with the disclosure obligations is Re Jabe [2021] VSC 106 where McMillan J made a finding that the exclusion of certain expenses meant that an estimate was not provided with respect to “total legal costs”:

In Rusca Bros Services Pty Ltd v Dlaw Pty Ltd (No 2) [2019] FCA 1865; (2018) 140 ACSR 533, Markovic J held that an estimate was insufficient for the purposes of s 174 in circumstances where, at its outer limit, it was approximately 2% of the total amount billed and was expressed as “being subject to change as the matter proceeds”, with no further estimates being provided: see [77].

It has been said that a breach of the obligation to provide an updated cost disclosure will result in the costs agreement being void from the date of the contravention, rather than from the date of commencement of the costs agreement: Wills v Woolworth at [28] per Beach J.

Division 4 of the Uniform Law addresses rights in relation to costs agreements and the content of costs agreements. A client has the right to require and to have a negotiated costs agreement with the law practice (s 179 Uniform Law) which may be enforced in the same way as any other contract: s 184.

Costs agreements must be written or evidenced in writing, and they may consist of a written offer that is accepted in writing or (except in the case of a conditional costs agreement) by other conduct: s 180(2), (3) Uniform Law.

A costs agreement that contravenes or is entered into in contravention of any provision of Division 4 of Part 4.3 Uniform Law is void: s 185(1) Uniform Law.

Billing in relation to costs is also regulated and addressed in Division 5 of Part 4.3 Uniform Law. The bill may be in the form of a lump sum bill or an itemised bill: s 186 Uniform Law.

A law practice must ensure that the bill includes or is accompanied by a written statement setting out the avenues that are open to the client in the event of a dispute in relation to legal costs and any time limits that apply to the taking of such action: s 192 Uniform Law.

A law practice may give a client an interim bill covering part only of the legal services the law practice was retained to provide: s 193 Uniform Law.

There are certain restrictions on commencing proceedings to recover legal costs. In particular, a law practice must not commence legal proceedings to recover legal costs from a client unless a bill has been given for the costs and the bill complies with the requirements of the Uniform Law and Uniform Rules: s 194(1) Uniform Law.

A law practice must also not commence proceedings to recover legal costs where the costs in the bill provided are the subject of a costs dispute before a designated local regulatory authority until the authority has closed or resolved the dispute: s 194(2)(a) Uniform Law.

Further, the law practice must not commence legal proceedings to recover costs until at least 30 days after the later of the date on which the person is given the bill (or if a request is made for an itemised bill, the date on which that is provided): s 194(2)(b) Uniform Law.

There are particular provisions regarding assessment of legal costs. The principal provisions are set out in Division 7 of Part 4.3 of the Uniform Law.

An application for an assessment of the whole or any part of legal costs payable to a law practice may be made by a client who has paid them or is liable to pay them to the law practice: s 198(1)(a) Uniform Law.

However, any such application for assessment pursuant to s 198 must be made within 12 months after: the bill was given to, or the request for payment was made to, the client; or the legal costs were paid if neither a bill nor a request was made: s 198(3) Uniform Law.

Having set out the relevant framework, I will now firstly address the sub-issues I identified above that bear upon the first agreed issue regarding the repayment of monies to the plaintiff, and then I will address the remainder of the agreed issues.

The plaintiff’s summons seek relief asserting that CGL had agreed to carry out work for her for a limited sum of money. No such claim is evident from the plaintiff’s first affidavit affirmed 20 September 2023. Nor, subject to the following, is it evident from the plaintiff’s affidavit affirmed on 4 December 2023. That affidavit contains the following (admitted as submissions):

The plaintiff in her POS asserted: [243]

Mrs Young in her DCS submitted (omitting footnotes): [244]

During the hearing, the plaintiff asserted costs of $20,000 had been mentioned by her as a figure in the initial conference with Ms Ralston on 29 June 2018. Ms Ralston, she says, indicated that subpoenas would need to be issued and the work would be completed for $50,000. She claimed she was told that was all that would ever be charged to her for the handling of her case. [245]

In cross-examination, Ms Ralston denied that the costs for the whole case would be $50,000 as distinct from being an estimated amount up to the next court date. [246]

In CA1, the estimate was: [247]

Mrs Young correctly observes that it was not expressed to be a fixed quote and was made subject to variables and changes during the course of the matter. [248] There is no suggestion in CA1 that only $50,000 would be charged for the entire matter. Nor is there any suggestion it was an estimate of total costs.

Despite that, it is evident that approximately 6 weeks into the retainer, the plaintiff had approached Ms Ralston’s assistant Ms Elven indicating that she understood that “the whole of the matter would be finalised for a sum of $50,000”. That the plaintiff had this understanding is evident from Ms Ralston’s email dated 9 August 2018. [249]

Ms Ralston by the email emphasised that the original fee estimate provided to the plaintiff was $50,000 for costs up to and including 23 August 2018. To the extent that the plaintiff was under any misapprehension about the notion that the costs of the whole of the work to be performed by CGL for her in relation to the family law matter will be limited to a sum of $50,000, that was addressed by the email.

Further, as mentioned above, the plaintiff signed and dated an acknowledgement that she had read, understood and accepted the fee proposal in the above terms.

I reject the plaintiff’s claim that she had been promised the fees would be limited to a sum of $50,000.

The summons does not raise any specific question regarding a failure to disclose a total amount of costs, nor does it appear in the plaintiff’s affidavit of 20 September 2023. Nonetheless, the issue about the total amount of costs was alluded to by the plaintiff in her second affidavit dated 4 December 2023 as follows: [250]

During the opening day of the hearing, whilst the plaintiff was in the midst of cross-examining Ms Ralston, the plaintiff asserted that had she known from the outset that the total amount of costs she would incur was within the order of “half a million” dollars, she would not have engaged CGL to provide legal services to her. [251] The plaintiff also challenged Ms Ralston as to whether she had given an estimate before each legal service was provided. [252]

The plaintiff further challenged Ms Ralston regarding her reply affidavit and in particular whether there had been non-compliance with the disclosure obligations. Ms Ralston disagreed. [253]

The plaintiff’s POS relevantly states (responding to matters in the DOS): [254]

Pausing there, the plaintiff’s second “reply” appears to raise a “main disclosure requirement” issue pursuant to s 174(1)(a) of the Uniform Law (reproduced above).

The first “reply” raises a second “main disclosure requirement” regarding significant changes to prior disclosures pursuant to s 174(1)(b) of the Uniform Law (also reproduced above).

During the hearing, Mrs Young did not directly deal with the issue of a breach of a “main disclosure requirement” under s 174(1)(a) of the Uniform Law to disclose an estimate of “the total legal costs” “when or as soon as practicable after instructions are initially given”.

Nonetheless, Mrs Young did, in her DCS, state as follows (omitting footnotes): [255]

The plaintiff in her PCRS submitted as follows: [256]

Further, the plaintiff in her PCRS, stated: [257]

What occurred in the matter is that, initially, CGL provided the plaintiff with information disclosing the basis on which the legal costs would be calculated. [260] The provision of that information satisfied the first aspect of the requirement under s 174(1)(a) of the Uniform Law.

Further, CGL provided an estimate of the costs up to and including the next Court listing. [261] However, as at 29 June 2018, CGL did not provide an estimate of the “total legal costs” as that term is understood, to satisfy the second aspect of the requirement of disclosure pursuant to s 174(1)(a) of the Uniform Law.

In relation to the plaintiff’s claim for repayment of fees and her claim that, had she known that the total fees would have approached approximately $500,000, she would not have engaged CGL, it is necessary to give some consideration as to whether CGL breached its disclosure obligation to give an estimate “when or as soon as practicable” after instructions were initially given of the total legal costs as required by s 174(1)(a) of the Uniform Law.

I have set out above what occurred between 29 June 2018 and 9 August 2018.

By the time the plaintiff engaged CGL, she had already been involved in what appears to have been strongly contested family law proceedings for well over 3.5 years, having engaged and liaised with two prior sets of solicitors (Slater and Gordon and Prominent Lawyers). At the time of initial engagement, CGL did not have access to the plaintiff’s prior file.

Ms Ralston does not give any specific affidavit evidence regarding what steps were taken to obtain the plaintiff’s file from her prior lawyers. As best I can glean from the Court Book material, no immediate steps were taken by Ms Ralston to obtain the plaintiff’s file from Prominent Lawyers on or shortly after 29 June 2018. The first correspondence with Prominent Lawyers appears to occur on or about 31 August 2018 (as I have noted above). I infer from the tax invoices what occurred prior to then was that Ms Ralston was able to obtain certain of the court documents referable to the plaintiff’s case by accessing the Family Court portal and arranging for Ms Teo to attend at the Family Court to inspect the court file.

The plaintiff asked Ms Ralston what had been discussed with her regarding the initial invoice. [262] Ms Ralston indicated that, initially, she was made aware that there were some outstanding costs orders that had not been paid, an issue with the superannuation fund, some subpoenas that needed to be issued, and in her words “insufficient financial disclosure”. She was aware there were significant outstanding issues in the matter and that Justice Watts had wanted to set the matter down for a final hearing as soon as possible. From her perspective, there was quite a lot to consider during the period of time through to the next listing, including to reflect on the status of the matter and on what needed to be done. [263]

The plaintiff questioned Ms Ralston about the fact that, on 29 June 2018, she was not given an estimate of the total amount of costs (said to be $500,000 for the entire family law matter). [264] This aspect of the questioning was messy, in part because Mrs Young objected to a number of the questions the plaintiff was asking and in part because some of the questions were in the form of assertions or phrased in a way that involved various different questions being asked at once.

Essentially, Ms Ralston indicated in cross-examination that she initially provided an estimate of costs at the time of engagement to cover CGL getting across the matter and to work out what work would be incurred prior to the next court date. [265]

In cross-examination, Ms Ralston addressed the 9 August 2018 estimation. By 9 August 2018, she had accessed the pleadings on the online portal and understood from previous orders what preparation was required for the final hearing. This enabled her to indicate the work likely to be undertaken over the following months and prior to a final hearing. [266]

The plaintiff did not suggest to Ms Ralston in cross-examination that it was “practicable” to give an estimate of total costs between the period of 17 July 2018 (when CGL seemingly had available the parts of the plaintiff’s file material that was not otherwise available on the court portal) and 9 August 2018. Above, I have set out particular communication that Ms Ralston had with the plaintiff regarding the costs estimate in the email dated 9 August 2018.

Ms Ralston indicated that, as at 9 August 2018, no hearing dates had been allocated.

In substance CGL was using (family law) Costs Notices to serve dual functions of compliance with the FLR but also compliance with the “main disclosure” requirements of s 174(1) of the Uniform Law.

In light of the above, I am not persuaded that CGL was in any realistic position to give an immediate estimate of “total legal costs” at the time of the first conference on 29 June 2018. I remain unconvinced that it was “practicable”, up until the first Costs Notice was issued on 9 August 2018, for CGL to give an estimate of “total legal costs” in respect of the matter. In my estimation, it was not unreasonable for CGL to give an estimate, dovetailing with the provisions of the current FLR, of the costs up to the next relevant “court event”, namely on 23 August 2018.

Overall, I am not persuaded that Ms Ralston or CGL acted in such a way, or failed to act in such a way, as to transgress the disclosure obligation to provide an estimate of the total legal costs “as soon as practicable after instructions are initially given” within the meaning of s 174(1)(a) of the Uniform Law.

Costs Notices were issued by CGL on 9 August 2018, [267] 29 November 2018, [268] 17 January 2019 [269] and 29 April 2019. [270]

Whilst the first and subsequent Costs Notices purported to set out figures which may be construed as giving an estimate of the “total fees”, none of those Costs Notices until the final Costs Notices came remotely close to accurately estimating the overall amount of fees actually rendered.

When one reads the Costs Notices, there are many figures that are set out in the notices. To work out what the “total fees” are, one has to add various items together under two categories, being total legal costs and disbursements to date (which includes total costs and disbursements paid and total costs and disbursements outstanding), and expenses yet to be paid (which includes costs incurred but not yet paid, costs incurred but not yet charged and estimated future costs). A form of subtotal that is provided in the Costs Notices is only a summation of the items under expenses yet to be paid. There is then a final “TOTAL” which represents the subtotal plus the total costs and disbursements outstanding subtracting the monies held in trust. There is no figure that represents an estimation of the total fees in the matter.

Over time, the total estimate increased. Thus, the four respective Costs Notices (if one totalled the figures within them) amounted to disclosures of $131,865.42 [271] on 9 August 2018, $268,369.39 on 29 November 2018, [272] $376,735.89 on 17 January 2019, [273] and $479,270.29 on 26 April 2019. [274]

Estimation of legal costs for solicitors is often a difficult task. Generally, it will be based on certain fixed factors and certain variable factors. Some, perhaps many, of those variable factors will be outside the control of the solicitor acting for the client.

The plaintiff did not cross-examine Ms Ralston regarding any of the detail of the estimates in the Costs Notices.

I have the impression from the evidence that estimation of costs in this matter was a challenging task.

The lengthy email letter which Ms Ralston sent to the plaintiff on 29 November 2018 gives some contextual insight to the ever-increasing costs estimates in the concluding two paragraphs under the section headed “11. Legal fees moving forward and Costs Notices” (set out above, but for ease of reading, reproduced below): [275]

In the absence of particular challenges by the plaintiff to Ms Ralston’s estimates under the Costs Notices, I remain unpersuaded that the estimates given (even though they did not until the Final Costs Notice give estimates that accorded with the total costs eventually rendered) were other than genuine and appropriate estimates given in difficult circumstances.

The “significant change” disclosure obligation under s 174(1)(b) Uniform Law has at least two aspects to it. One aspect is disclosure of a “significant change” per se. A second aspect is provision of information about such a “significant change”.

In dealing with the first aspect, namely a “significant change”, the following may be noted.

The adjective “significant” ordinarily conveys something that is “important; of consequence”: Macquarie Dictionary, online ed. The noun “change” relevantly conveys a “variation; alteration; modification; deviation; transformation”: Macquarie Dictionary, online ed.

The notion of a “significant change” is, in context, an important, material or noticeable alteration from a prior costs “disclosure”, which bears upon or informs the choice the client made regarding the client’s “legal options”. It may be a change, for example, regarding the basis on which legal costs will be calculated and/or the estimate of the total legal costs.

Without purporting to limit what may constitute a “significant change”, it may for example have a quantitative or qualitative aspect to it. Thus, if a prior disclosure of “total legal costs” has been $50,000 and the law practice formed the view that the total costs are likely to be $100,000, that would arguably constitute a “significant change”.

Secondly, apart from that, the disclosure obligation requires provision to the client of information about the change. Without attempting to be exhaustive, information about the change would likely be some form of explanation as to why the numerical estimate was significantly different from an earlier estimate of “total costs”.

In terms of the first aspect, namely advising of a “significant change”, I have already made the observation that it was not until the Final Costs Notice that CGL’s estimate approached in a numerical sense the amount of costs finally rendered.

However, clearly, the estimate of the amount of total costs being disclosed under each Costs Notice was increasing. The plaintiff did not cross-examine Ms Ralston as to the monetary amounts disclosed under each of the respective Costs Notices issued on 9 August 2018, 29 November 2018, 17 January 2019 and 26 April 2019. To the extent that the plaintiff’s claim for repayment is based upon an alleged breach of the obligation under s 174(1)(b) for disclosure “as soon as practicable after” the earlier disclosures of any significant change to anything previously disclosed, I remain unpersuaded that there was a material breach by Ms Ralston or CGL regarding that.

Regarding the second aspect, namely the provision of information (such as an explanation) about any disclosed “significant change”, Ms Ralston in her 29 November 2018 letter to the plaintiff listed a number of complicating factors, which led her to the view that “the Final Hearing is likely to run 4 days”. The factors being: [276]

To the extent that the plaintiff contends there was no “significant change” upon which CGL could base their updated numerical cost disclosure, I reject that line of reasoning. The “significant change” to what had been “previously disclosed” is the increase in the total costs estimate itself and information was provided by Ms Ralston regarding that.

As to the plaintiff’s challenge that she had not been provided an estimate before each legal service was provided, [277] Ms Ralston indicated that she provided fee estimates for the work that was to be incurred in general terms for the preparation and attendance at the hearing but acknowledged that she did not set out each and every action to be taken. [278] I accept her evidence. It is unclear to me whether the plaintiff had some expectation that each and every item of work that was separately itemised on each and every one of the bills needed to be the subject of some estimate disclosed to the plaintiff. In the unlikely event that that is the plaintiff’s assertion, I reject any submission that there is such an obligation. The “total costs” disclosure obligations are intended to give the client an insight as to the likely overall cost of the work the subject of a retainer which will inevitably take place over a period of time. In practice, it does not usually (and rarely would) envisage disclosure on a day by day, hour by hour nor item by item basis.

The plaintiff’s summons does not expressly seek relief arising from non-receipt of costs agreements. However, the plaintiff in her affidavits dated 20 September 2023 [279] and 4 December 2023 [280] raised such a complaint.

There is no agreed issue to that effect. However, it was addressed during the hearing, including with submissions from Mrs Young, and accordingly I will deal with it.

In her POS, the plaintiff addressed this in part. She submitted: [281]

The plaintiff did not in her PCS expressly address the issue further.

However, Mrs Young, in her DCS, addressed two aspects.

First, in relation to the plaintiff’s assertion that “I have not received a copy of the costs agreement executed by all parties. If such a costs agreement exists…”, Mrs Young submitted (omitting footnotes): [284]

Secondly, in relation to the plaintiff’s assertion that “I did not sign and date the fee proposal referred to in paragraph 12 as this fee proposal was not acceptable to me …”, Mrs Young submitted (omitting footnotes) that: [285]

It is clear that, on 29 June 2018, Ms Ralston sent to the plaintiff CA1 containing a ‘Fee Proposal’ (scope of work with an estimate of fees) with a ‘Terms of Business document’, a ‘Marriage, families & separation brochure’, a ‘Chapter 19 Costs Notice’ and a ‘Fact Sheet - Legal costs in family law matters’. The plaintiff signed and dated the ‘Fee Proposal’. [286] The plaintiff, as I have noted earlier, in cross-examination, accepted that she has received it (though made complaints about its disclosure content).

To the extent that the plaintiff claims that she was not provided with CA2, I reject any such submission. I am satisfied that CA2 was provided to the plaintiff by email on 15 June 2022 and signed and returned by her on that date. [287]

The plaintiff, in cross-examination, reluctantly accepted that she had received it and signed it using DocuSign, [288] though asserted she had done so “under pressure” [289] claiming it was like “putting the gun on my head”. [290] I reject the assertion that she was forced to sign it by CGL or by Ms Ralston. There is nothing objectively in the surrounding contemporaneous material (or otherwise) that lends any material support for such an assertion.

The plaintiff in her affidavit dated 4 December 2023 stated: [291]

By reference to the invoice numbers listed in the table at CB 807, the plaintiff’s claim is to be understood as not having received the first 7 invoices but to have received invoices 8-11.

I can find no evidence that the plaintiff was sent or received the first, sixth, eighth and tenth invoices dated respectively 29 June 2018, 29 September 2018, 5 February 2019 and 8 May 2019 at least on or about those dates.

As to the first invoice dated 29 June 2018, Ms Ralston does not refer to it as being one of the documents provided to the plaintiff by her secretary (Ms Cuthbert) on that date. [292] Further, the email by which the plaintiff was sent CA1 and the attachments does not refer to the invoice being attached. [293] In the Annexure “A” table attached to Mrs Young’s DCS in her final column headed “Comments”, there is a note that the first invoice was issued and paid in person. However, as far as I can detect, there is no evidence to that effect. CGL asserts that the plaintiff paid the invoice. [294]

As to the sixth invoice dated 24 September 2018, as far as I can detect, there is no evidence that it was sent to the plaintiff. However, by reference to an authority given by the plaintiff on 17 January 2019 [295] and monies provided by the plaintiff the following day, that invoice was paid. [296] It seems unlikely that the plaintiff paid that invoice if she had not already received a copy of it.

As to the eighth invoice dated 5 February 2019, whilst I cannot detect any letter or email by which it was sent to the plaintiff, she (as noted above) states that she received it. It was part paid [297] and, on 6 April 2022, the plaintiff signed an authority for the balance of it to be paid. [298]

As to the tenth invoice dated 8 May 2019, I cannot detect any letter or email by which it was sent to the plaintiff on or about 8 May 2019. However, on 17 May 2019, Ms Ralston sent Isham an email addressing issues regarding Mr Grew’s fees and, relevantly, the first document attached to that email appears to be the CGL invoice dated 8 May 2019. [299] On 21 May 2019, another copy of that invoice (as well as other documents) was sent to the plaintiff, copied to Isham. [300] Further, the plaintiff (as noted above) states that she received it (at some point) and, in any event, on 6 April 2022, the plaintiff signed an authority for the balance of it to be paid. [301]

Other than those 4 invoices (1, 6, 8, and 10), there is evidence that the plaintiff received the remaining 9 invoices on or about the date of the invoice (second invoice on 6 July 2018; [302] third invoice on 17 July 2018; [303] fourth invoice on 9 August 2018; [304] fifth invoice on 17 August 2018; [305] seventh invoice on 19 November 2018; [306] ninth invoice on 6 March 2019; [307] eleventh invoice on 28 May 2019; [308] twelfth invoice on 12 July 2022; [309] and thirteenth invoice on 2 August 2022. [310] )

It is curious that there is no express evidence in the proceedings that the first and sixth invoices were actually served on the plaintiff. Some observations can be made. First, the plaintiff sought all invoices in the NCAT proceedings and then discontinued them. Secondly, she has, by force of these proceedings, clearly received those invoices which were paid (as will be seen below) over six years ago. Thirdly, the plaintiff did not challenge specific work referable to those invoices. In light of this, I do not consider that any specific relief regarding provision of those two invoices is now warranted.

The eighth invoice dated 5 February 2019 was (as noted above) received by plaintiff, part paid [311] and, on 6 April 2022, the plaintiff signed an authority for the balance of it to be paid. [312] The tenth invoice was (as noted above) also acknowledged by the plaintiff as being received by her (at some point) and, in any event, also on 6 April 2022, the plaintiff signed an authority for the balance of it to be paid. [313] In light of this, I do not consider that any specific relief regarding provision of those two invoices is now warranted.

The assertion that the plaintiff had not been provided with details of invoices showing the rate per hour of the person doing the work and number of hours utilised by that person [314] is incorrect.

Each of the invoices billed to the plaintiff sets out an itemised time schedule in respect of the work billed including itemising each item of work (including work for which time had been spent but no amount charged), the date of the work, initials of the person doing the work, [315] the details of the work, the charge rate, the unit of time spent on the work, and the amount charged.

The plaintiff was cross-examined regarding an example of this, with respect to the tax invoices dated 9 and 17 August 2018. In particular, she was shown the above-mentioned details at CB 103. [316] When confronted with this, the plaintiff made other complaints suggestive that the details “doesn’t tell that why the same email has been done twice or why the work is being done by two people”. [317] The plaintiff also complained “I am dissatisfied the way it has been handled, the way it is being charged, the way the people, so many people been involved.” [318]

Complaints about how the work was handled or why a number of different people were involved in the work for the plaintiff were not listed as agreed issues.

Neither of the parties set out in any detail what was discussed in the first conference. However, the Terms of Business document which the plaintiff was provided with on the day of the first conference with Ms Ralston, which she acknowledged receiving, does address as its first item the question of who at CGL would look after her work. The printed information states (correctly) that the Fee Proposal names the staff primarily responsible for carrying out the work. [319] Further, it indicates that the lawyers work in teams and that sometimes work will be delegated to another person and that some work will be done by support staff such as paralegals: [320]

I reject the plaintiff’s contention that she was not provided with the appropriate detail regarding the invoices and the fees incurred. In particular, CGL provided the rate and hour details of those who carried out work for her matter, and set out how that work may be delegated. During the time that CGL acted for the plaintiff, she had an opportunity to discuss how her work was being handled and request further information. She has not provided evidence that she did that and that, for example, CGL refused to provide those details. To the extent that the plaintiff submits there were unnecessary costs flowing from the way CGL handled her matter, I reject that contention and address it further under the exorbitant costs issue.

What I describe as the instructions issue is sourced from what the plaintiff states in her affidavits.

In her first affidavit dated 20 September 2023 she as follows: [321]

In the plaintiff’s affidavit affirmed 4 December 2023, the plaintiff states: [322]

The agreed statement of issues did not specifically identify the nature of the plaintiff’s complaint with respect to “instructions”.

The plaintiff’s POS referenced “instructions” on two occasions.

First, as I have outlined earlier in this judgment, part of the plaintiff’s summarised answer to the repayment issue was an assertion “Defendants wasted my money (without seeking my instructions) to obtain garnishee orders knowing that these garnishee orders made by an inferior court (District Court) are not valid until set aside”. I deal with the validity of the District Court judgment under that separate issue. It suffices to say that, once CGL obtained judgment, they did not need the plaintiff’s instructions to garnish her bank account.

Secondly, under the contempt issue, the plaintiff makes reference to 2 emails, being an email from Mr Spencer to Ms Nichelsen and Ms Ralston regarding sale of the Epping property on 8 July 2022 (1:40pm) [323] and Ms Nichelsen’s reply to Mr Spencer also on 8 July 2022 (3:04 pm). [324] The plaintiff asserts: [325]

I have dealt with this question below under the contempt issue.

Other than those instances, the plaintiff’s POS did not explain or indicate with any precision the nature of the plaintiff’s complaint with respect to “instructions”. The plaintiff did not in opening clarify the nature of her complaint in this regard.

During the plaintiff’s cross-examination of Ms Ralston, a couple of matters were raised regarding instructions.

First, the plaintiff put to Ms Ralston that CGL received “instruction” from Dr Shah “to join PEXAs workplace”, which Ms Ralston denied, responding that there was an “invitation”. [326] As noted I have addressed the joining PEXA complaint in dealing with the alleged contempt issue.

Secondly, the plaintiff made complaints about the engagement of Mr Grew. [327] I have dealt with that under the exorbitant costs issue.

During Mrs Young’s cross-examination of the plaintiff, the plaintiff acknowledged that she had given “very detailed instructions” to GCL regarding her husband’s business affairs. [328] In response to a question regarding whether the plaintiff gave CGL instructions that she wanted her husband’s business affairs investigated [329] she gave a lengthy answer, in the midst of which she intimated that, in some way, Ms Ralston had not followed some instructions she had given: [330]

The plaintiff did not challenge Ms Ralston regarding this issue in any appropriate way.

It is self-evident from the material which I will refer to below that there were clearly occasions in which CGL did request instructions from the plaintiff. Further, it is clear that, generally speaking, the plaintiff did give instructions.

The background I have outlined above reveals many instances of Ms Ralston and CGL requesting instructions from the plaintiff. On many occasions, the plaintiff failed to respond or give any such instructions which led CGL to being unable to act in relation to certain matters.

At least one reason for the difficulty is hinted in Ms Ralston’s email dated 9 August 2018 in which Ms Ralston had acknowledged the part of the “instruction” difficulty arose “simply because the family violence is quite difficult for you to talk about”, [331] resulting in more involvement from Ms Ralston than she had hoped.

On 9 August 2018, one of the items charged to the plaintiff related to Ms Hutchinson reading the plaintiff’s instructions in relation to the draft family violence section of the affidavit and drafting additions and amendments accordingly. [332]

On 15 August 2018, there is a further charge by Ms Hutchinson for amending the plaintiff’s affidavit “in accordance with your handwritten instructions”. [333]

On 20 September 2018, Ms Ralston emailed the plaintiff with an update. Significantly, the letter highlighted issues in the plaintiff providing instructions. The final page of the letter contains the following paragraphs: [334]

The plaintiff did not seek in any specific way (such as by reference to charges in invoices) to identify instances in which she had not given instructions.

Where the plaintiff did not provide instructions, it appears that CGL simply continued to urge her to do so, and did not otherwise undertake any significant actions or work. The plaintiff did not identify any particular instances of substance in which CGL undertook such work without any mandate from the plaintiff to do so.

In relation to the alleged failure to “provide the plaintiff with copies of her instructions”, that is problematic. The plaintiff did not identify any particular legal principles by which she asserted she was entitled to be provided with so-called “copies of instructions”. No particular instance was identified by the plaintiff whereby she appears to have requested to be provided with some form of copy of her instructions or made a complaint that she had made a request and not been provided with such a copy.

Instructions may be provided in many different ways. An email or a letter may be provided by a client to the solicitor. If an email is sent, normally the client will retain a copy of the email. If a letter has been sent, the client may or may not have kept a copy of the letter. If a client gives instructions by a telephone call to a solicitor, the solicitor may or may not have made a file note recording any such instruction.

Entitlement as between solicitor and client to documents is informed in part by the express terms of the retainer between them and in part by the general law.

Some terms regarding entitlement to documents are addressed in the Terms of Business: [335]

However, there does not appear to be any further specific detail in the Terms of Business regarding which documents are regarded as being CGL’s documents and which documents are regarded as being the plaintiff’s documents.

Subject to any express or implied agreement between the parties and any statutory provisions, the question of entitlement as between solicitor and client to documents is dealt with under the general law: see e.g. Wentworth v De Montfort (1988) 15 NSWLR 348 (Wentworth). However, even in cases where there is dispute over entitlement as to documents, the court generally requires some precision regarding what is actually in dispute: Wentworth at 351B-C.

The plaintiff did not provide any particulars regarding her complaint in this regard nor any submissions in respect of it.

As a practical matter, in relation to the alleged failure to “provide the plaintiff with copies of her instructions”, it is clear from what I have outlined above that CGL did in many emails and other communications with the plaintiff recite the instructions that the plaintiff had given.

In light of all the above, the plaintiff has not persuaded me that CGL have breached any entitlement she has to receive a copy of specific instructions which she asserts she has provided to the defendants.

The plaintiff made the following assertions in her affidavit affirmed 4 December 2023: [336]

In her PCS, the plaintiff stated: [337]

Mrs Young, in her DCS, submitted: [338]

The plaintiff, in her PCRS, asserted as follows: [339]

Duress is (relevantly) conduct by which one person applies pressure or undue persuasion on another, to induce that person to do something or refrain from doing something. Duress may take the form of constraint by injury, confinement, or threats: Encyclopaedic Australian Legal Dictionary (LexisNexis).

The party alleging duress has an onus of proving that illegitimate pressure was brought to bear on him or her when he or she entered into the relevant agreement. If that onus is met, the opposing party must prove that the pressure had no causative effect (of deflecting the will) such as to cause the party to enter the agreement: Barton v Armstrong [1976] AC 104 at 120 per Lord Cross of Chelsea; [1975] 2 WLR 1050; Elite Realty Development Pty Ltd v Sadek [2022] NSWSC 1333 (Peden J) at [234]; Elite Realty Development Pty Ltd v Sadek [2023] NSWCA 165 at [20] per Payne JA (Mitchelmore and Stern JJA agreeing at [113] and [114] respectively). In Wang v Yu [2023] NSWSC 1182, I addressed principles regarding duress and the effect of duress if it is established, the requirement for election and the effect of any affirmation at [181]-[211].

Ms Ralston denies ever compelling or threatening the plaintiff to sign any Costs Notices or authorities. [340] She indicates that it is her usual practice to step out of the room once she hands a client a retainer to allow them the opportunity to consider the document without her presence, which she believes she did throughout the work she undertook for the plaintiff. She denies any actions that may have placed the plaintiff under duress and denies that at any time advice was given to the plaintiff using threats or false representations. [341]

Subject to two matters, I did not detect any instance in which the plaintiff made any duress assertion while cross-examining Ms Ralston.

First, early in the cross-examination of Ms Ralston, there was the following exchange: [342]

Mrs Young made repeated objections to the form of the questions. [343]

Secondly, the plaintiff, in prefacing one question, used the word “forcing to sign”. When I asked the plaintiff about this, she did not assert duress but rather stated as follows:

I have referred to the plaintiff’s evidence about threats and being locked in “cabins” (conference rooms) above, which I reject. I accept Ms Ralston’s evidence.

I find that no case of duress is made out.

The plaintiff complained that the total amount of costs, $482,865.35, was exorbitant. [344] She also complained that the amount of invoices which were in fact rendered were beyond what she claimed had been estimated, which I have dealt with above under the disclosure of total costs estimate issue. [345]

The claims regarding exorbitant costs related firstly to the costs of CGL and secondly to the costs of Mr Grew.

In her POS, the plaintiff in providing her summarised answer to issue 1 (repayment of fees) made reference to excessive costs and raised 8 matters as I have earlier set out (in addressing comments under the avoidance of increased legal costs issue). I have elsewhere in this judgment addressed those matters.

In her PCS, the plaintiff stated: [346]

Mrs Young disputed that the fees charged by CGL were exorbitant in the context of the matter and submitted quantum alone is not sufficient to establish that allegation. [347]

In terms of the fees being allegedly exorbitant, the plaintiff challenged Ms Ralston regarding this. Ms Ralston indicated that she was of the view that the fees were within the fee estimate and reflective of the complexity of the case, indicating that part of the complexity involved a non-compliant superannuation fund, a medical practice and an allegation of wastage made by the other side against the plaintiff. [348]

Ms Ralston’s assertion that the fees “were within the fee estimate” is strictly speaking incorrect. However, that does not mean that estimates (initial and subsequent) were not valid for disclosure obligation purposes (as I have addressed above) nor does it mean that the costs are exorbitant.

Mrs Young made reference to these aspects and numerous other matters, highlighting the complexity of the work in her DCS. [349] Suffice it to say that I accept the general tenor of Mrs Young’s submissions in this regard.

Whilst the plaintiff alleged that there was not enough detail in the invoices and that certain same items have been charged many times, [350] she did not directly challenge Ms Ralston in respect of such matters.

I reject her contention that CGL’s costs were exorbitant.

Another aspect of the plaintiff’s “exorbitant fees” complaint was an assertion that she had not agreed to retain Mr Grew and that he had charged exorbitantly, being an amount of $50,000 in one day. [351]

In her PCS, the plaintiff stated: [352]

Mrs Young, in her DCS, disputed the claims regarding Mr Grew charging $50,000 for one day. [353] Mrs Young further submitted: [354]

Whilst the reference to s 175 of the Uniform Law in the plaintiff’s PCS appears to be the first time that the plaintiff made specific reference to s 175, it does not seem to me that it is a “new issue”. The matter was clearly the subject of debate and cross-examination during the hearing. Mrs Young has briefly responded to it as I have set out immediately above (submitting that the plaintiff was fully informed regarding counsel’s engagement).

The plaintiff’s complaints regarding Mr Grew should be rejected.

First, it is clear that the plaintiff had agreed expressly or impliedly to retain Mr Grew. In this regard, I note the following:

I cannot readily locate within the Court Book materials any email by which Mr Grew’s form of fees agreement and disclosure were emailed to the plaintiff at least on or about the date that they were provided to CGL. However, the Costs Notice provided to the plaintiff on 17 January 2019 set out details of the estimated charges for Mr Grew per day both for the preparation and attendance on the hearing (being $3850 per day inclusive of GST, for a total of $38,500). [364] The disclosure was at least provided on 17 May 2019 in the following context.

On or about 17 May 2019, an issue arose regarding Mr Grew’s costs. At 10:18 AM, Isham sent Ms Ralston an email as follows: [365]

At 10:48 AM, Ms Ralston replied as follows: [366]

Thus, whilst I cannot locate any indication that Mr Grew’s fees disclosure and first invoice were provided to the plaintiff in January 2019, they were provided on 17 May 2019. Further, an estimate of his costs, being $38,500, was provided in January 2019 via the Costs Notice of 17 January 2019.

In light of the above, there can be no real doubt that the plaintiff had given instructions to CGL to brief Mr Grew and that she was aware that Mr Grew had been briefed. There is no suggestion that at this stage or subsequently, the plaintiff had not obtained nor been provided with sufficient disclosures regarding the fees that Mr Grew proposed to charge.

Secondly, the plaintiff challenged Ms Ralston in cross-examination regarding the engagement of Mr Grew as counsel. Ms Ralston denied that she had engaged Mr Grew knowing that the plaintiff had any opposition to his engagement and further indicated that at no point of time did she recollect the plaintiff raising any concern regarding the engagement of Mr Grew. [367] I accept her evidence.

Thirdly, it is clear that subsequently Mr Grew carried out work and provided invoices for that work. [368] The plaintiff did not identify how Mr Grew’s form of fees agreement and disclosure was deficient.

Fourthly, Mr Grew did not charge $50,000 in one day. [369]

Therefore, I reject the plaintiff’s contentions that she did not agree to brief Mr Grew and that his costs were exorbitant.

Initially, and from time to time, the plaintiff transferred monies into CGL’s trust account.

The plaintiff, in her 20 September 2023, affidavit claims: [370]

In her PCS, the plaintiff stated as follows: [371]

Mrs Young in her DCS states: [372]

I understand Mrs Young’s submission to be that the “issue” was not raised “by the plaintiff with [373] Ms. Ralston”.

To the extent that this was a complaint, the plaintiff did not further explain or develop the complaint as an issue. It was not stated as an agreed issue. Ms Ralston did not appear to address the issue in her affidavits. Nor did the plaintiff ask Ms Ralston (nor the other defendants’ witnesses) about this issue.

Overall, there seemed to be 3 aspects to the plaintiff’s complaint.

First, the tenor of her complaint in her first affidavit is that CGL had no authority to transfer funds paid by the plaintiff into trust in order to pay invoices rendered by CGL. Secondly, during the hearing, the plaintiff asked Ms Ralston a question that was a little confusing as it made reference to “statutory invalidity”. However, the question asked, with reference to the garnishee order based on the District Court judgment, was whether the amounts were invalidly deducted. [374] Thirdly, the reference by the plaintiff in her PCS seems to directly relate to the period in 2022 regarding proceeds of sale of the Epping property.

Despite the seeming lack of engagement by the parties on the issue, it is not evident to me that there is any substance to the plaintiff’s complaints.

As to the first issue, the first Terms of Business document [375] contained the following provision regarding drawing of monies held in CGL’s trust account on the plaintiff’s behalf: [376]

The second Terms of Business document [377] sent to the plaintiff on 15 June 2022 contained a like provision. [378]

There is no specific affidavit evidence from Ms Ralston as to how the funds were transferred from trust to pay invoices. However, the following can be discerned from documents in the Court Book, especially the trust ledgers.

As to the first invoice dated 29 June 2018 for $440, despite the comment in the Annexure “A” table attached to Mrs Young’s DCS that the first invoice was issued and paid in person, as far as I can detect there is no evidence to that effect. Nonetheless, by the time that CGL came to issue the statement of claim in the District Court proceedings, the invoice is recorded as having a nil balance, it having been paid. [379]

The second invoice issued on 6 July 2018 in the sum of $9,689.90 contains, on the front page, a nil balance. The trust ledger indicates that the transfer of funds from trust to the office account to pay the invoice occurred by a transaction on 16 July 2018. [380]

The same applies to the third invoice dated 17 July 2018 in the sum of $14,956.07. [381] The trust ledger indicates that funds were transferred to pay that invoice from the trust account on 26 July 2018. [382]

The fourth invoice dated 9 August 2018 in the sum of $45,775.85 was in part paid from monies transferred from the trust account on 20 August 2018 in the sum of $15,185.43 [383] and the balance ($30,590.42) was subsequently paid by receipts and transfers recorded in the trust ledger on 30 October 2018 (being receipts respectively of $10,000 and $30,000 and a transfer of $590.42). [384]

The fifth invoice dated 9 August 2018 in the sum of $26,293.03 was paid by monies transferred from the trust account, also on 30 October 2018. [385]

The plaintiff agreed to the Terms of Business documents and I find that the above-mentioned term gave authority to CGL to draw monies held on the plaintiff’s part in trust to pay outstanding fees, in circumstances in which they had sent to the plaintiff invoices and had not received any objection to use of monies held in trust within a period of 7 days. That appears to have provided authority for payment of at least the second to fifth invoices.

Further, apart from the general authority, the plaintiff also signed an Irrevocable Authority on 17 January 2019 in respect of monies to be placed into CGL’s trust account and use of those monies to pay fees for counsel and otherwise to reduce her existing debt with CGL as set out in the Costs Notice. [386]

The sixth invoice dated 24 September 2018 in the sum of $23,869.95 and the seventh invoice dated 19 November 2018 in the sum of $71,685.14, totalling $95,555.09 were paid on 18 January 2019. Ms Ralston, in her 7 November 2023 affidavit, indicates that under the Irrevocable Authority signed on 17 January 2019, the plaintiff gave the necessary authority for the payments. [387] The following day, the plaintiff made payments totalling $100,000 ($40,000, $5,270, $1,000 and $53,720) to GCL’s trust account. [388] The trust ledgers show a series of transfers from CGL’s trust account which appear to have been applied to pay at least in part (and arguably in full) those invoices. [389]

As I have noted above, there is no evidence before me that the sixth invoice was actually sent to the plaintiff at the relevant time. Therefore, there is doubt as to whether the provisions of the Terms of Business regarding payment from the trust account are engaged with respect to that invoice. However, in any event, the Irrevocable Authority signed by the plaintiff authorised CGL to transfer funds to reduce the existing debt as set out in the Costs Notice.

Accordingly, I find that all transfers of funds from the trust account were appropriately authorised.

The plaintiff at one point on the first day of the hearing, in her cross-examination of Ms Ralston, made reference to the District Court judgment [390] and asserted that it was “infected with statutory invalidity”, which seemingly appeared to be an assertion that CGL had garnished a sum of $5,872.84 from the plaintiff’s bank account invalidly. [391]

In her PCS, the plaintiff asserted the following: [392]

Mrs Young, in her DCS, responded as follows: [393]

I will deal with this below under the District Court judgment issue. It suffices to state at this point that, having obtained a judgment in the District Court, it was not necessary for CGL to seek the plaintiff’s permission in order to garnish the bank account.

As to the complaint regarding use of money from the proceeds of sale of the Epping property, the following may be noted.

As I have recounted above, on 6 April 2022, Mr Pickering sent an email to CGL to the attention of Ms Ralston confirming his instructions to act and attaching an authority signed by the plaintiff authorising, relevantly, CGL as to payment of invoices from the proceeds of the sale of the Epping property. [394] The authority listed amounts which are outstanding in respect of CGL’s invoices dated 5 February 2019, 6 March 2019, 8 May 2019 and 28 May 2019, totalling $252,604.80. [395]

On 15 June 2022, the plaintiff signed by Docusign an undertaking authorising proceeds of sale of the Epping property to be paid, including, relevantly, to discharge a CBA Viridian Line of Credit, a sum of $22,040.80 to Prominent Lawyers, a sum of $252,604.87 to the CGL office account (in respect of outstanding costs), a sum of $5,000 to Dr Shah or as he directed, a sum of $20,000 to the plaintiff, with the balance to be paid to the CGL trust account. [396]

In her PCS, the plaintiff stated: [397]

I have referred above to Mrs Young’s DCS response regarding this. [398]

The plaintiff’s submissions that the District Court judgment is invalid [399] are misconceived. There is no claim in these proceedings to set aside the District Court judgment. In the related proceedings (see Sanjiv No.1), I addressed aspects of the plaintiff’s collateral attack on the District Court judgment at [65]-[85]. For reasons explained in Sanjiv No.1, if the plaintiff seeks to set aside the District Court judgment, the appropriate mechanism to do that is to apply to the District Court. There is no need for me to repeat what I address there. Put simply, the plaintiff has never taken any of the available steps open to her to attempt to set aside the District Court judgment.

The plaintiff’s claims that the District Court judgment is in some way inherently invalid as a result of an excess of jurisdiction (citing New South Wales v Kable (2013) 252 CLR 118 at 133; [2013] HCA 26) or by reason of some form of jurisdictional error (citing Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58) are also misconceived.

There is no principled basis for the Court on this application to proceed as if the District Court judgment is invalid or void.

I reject the plaintiff’s submissions otherwise.

Before I conclude my determination on the first agreed issue (with reference to the sub-issues), I will address the plaintiff’s contention that the defendants breached ss 169(a) and 172 of the Uniform Law. [400]

The plaintiff’s submission that the costs rendered by CGL are excessive because of alleged poor quality of work pursuant to s 172(2)(e) of the Uniform Law [401] is misjudged. Section 172(2)(e) provides that regard must be had to whether the legal costs reasonably reflect the quality of the work done. The plaintiff referred to Templeton v Australian Securities and Investments Commission [2015] FCAFC 137; (2015) 108 ACSR 545 at [34] where the Federal Court considered the concept of reasonable remuneration, stating that a lack of proportionality between the cost of the work done relative to the value of the services provided may indicate overcharging. The plaintiff claims:

To the extent that the plaintiff relies on the legal fees to establish substantial loss (reflecting poor quality of work), I have dealt with her claim of exorbitant costs above. To the extent that the plaintiff contends there was poor quality of work on the basis that CGL did not advise her to seek orders for a trustee to be appointed, a number of points can be made.

First, no relief is claimed in the Summons on the basis that s 172 has been breached. Secondly, the plaintiff did not properly set out her assertion regarding the alleged failure to advise. For example, she did not set out why CGL should have provided that advice, at which point they should have done so, and the consequences of not doing so. Thirdly, the plaintiff’s limited cross-examination of Ms Ralston in relation to the issue revealed that Ms Ralston did not believe she gave advice in relation to a trustee for sale, [402] and that, at the time the plaintiff’s husband was appointed as trustee for sale of the Epping property, CGL was not instructed or engaged in the matter. [403] Ms Ralston’s understanding was that the plaintiff was not complying with Court orders in relation to the sale process and, as a consequence, her husband made an application to be trustee for sale. Further, on 29 May 2019, Ms Ralston sent the plaintiff an email urging the plaintiff to provide instructions and expressing concern that her husband may seek to enforce the orders and ask the Court to appoint him as trustee. Shortly after, in the continued absence of instructions from the plaintiff, CGL ceased to act for her.

In light of the circumstances in which the plaintiff’s husband was appointed as trustee for sale of the Epping property, and noting that the plaintiff has not properly set out her contention regarding the alleged failure to advise, I find that she has not established that CGL carried out their work with poor quality such that their fees were not reasonable under s 172.

The plaintiff’s submission that the defendants breached s 169(a) of the Uniform Law [404] is also misconceived. Section 169(a) sets out, as I have indicated above, one of the objectives of Part 4.3 Uniform Law. The plaintiff refers to the comments of Bellew J in Bevan v Bingham (2023) 111 NSWLR 7; [2023] NSWSC 19 (Bevan) at [68]. However, the comments were made in different circumstances. In Bevan, it was common ground that, having provided his original estimate of costs, no ongoing updates of his estimated costs were provided by the plaintiff at any time: at [22]. Further, his Honour (at [68]) was responding to an argument that a costs agreement could only be regarded as void ab initio under s 178(1)(a) if the contravention of the relevant obligation occurred at the same time the agreement was entered into, with reference to the Uniform Law’s objective of “promoting regulation of the legal profession that is efficient, effective, targeted and proportionate” under s 3(e). His Honour rejected the contention, reaffirming that proper disclosure is required to allow clients to make informed choices about the services they access and the costs involved under s 3(d).

The plaintiff’s reference to the decision of Chen J in Benjamin & Khoury Pty Ltd v Rahme (No 4) [2023] NSWSC 1162 at [37] [405] must also be understood in context. Chen J stated:

At the time CGL commenced proceedings to recover outstanding costs, there is no evidence to suggest that CGL had contravened its disclosure obligations in order to engage s 178(1)(b). The provisions of s 178 only require consideration to the extent that compliance of a law practice with disclosure obligations is put in issue: Petselis v Tatarka (2019) 57 VR 375; [2019] VSC 8 at [60] per Keogh J. On the day CGL commenced proceedings to recover outstanding costs, judgment was entered for CGL. At that time, it does not appear the plaintiff had put in issue CGL’s compliance with disclosure obligations. To the extent the plaintiff now puts it in issue, I have found that CGL did not contravene its disclosure obligations and therefore s 178(1)(b) is not enlivened. Further, the plaintiff, so far as the evidence discloses, has never applied for an assessment of costs between herself and CGL nor applied to extend the time to submit any application for such an assessment.

Having regard to what I have set out here and my findings in relation to the preliminary matters, I reject the claim that the defendants are required to repay any monies to the plaintiff.

Should the Court make an order for a gross sum costs assessment under s 98 of the Civil Procedure Act 2005 (NSW) (CPA) and, if so, in what amount?

The second agreed issue is undoubtedly sourced from part of the relief the plaintiff seeks in Order 3 of the summons as follows: “An order to make a gross sum costs assessment under s 98 of the Civil Procedure Act …”.

The plaintiff in her PCS made reference to s 174 of the Uniform Law and submitted as follows: [406]

Mrs Young in her DCS disputed that s 98 of the CPA gives this Court the power to make a gross sum costs order for solicitor/client costs incurred in respect to proceedings previously litigated in the Family Court of Australia. [407]

Mrs Young also submitted that: [408]

The plaintiff in her PCRS replied as follows: [409]

I do not regard it as necessary to address the ambit of the Court’s power to regulate costs under s 98 of the CPA.

Whether the Court should make an order for a gross sum costs assessment is also essentially foreclosed by my findings regarding the preliminary matters.

Undoubtedly, the Court has power in an appropriate case to make an order for payment of a specified gross sum of costs instead of assessed costs. However, none of the usual circumstances in which the Court is likely to make such an order are relevantly engaged on the facts of this case.

Even if, conceptually, the Court was minded to intervene in some way in this case to make such an order, the plaintiff has not provided the Court with any evidence sufficient for the Court to even remotely start to make an assessment of a specified gross sum. The relevant principles regarding supporting evidence and determination of an amount are summarised in Ritchie’s Uniform Civil Procedure NSW at [s 98.65], which in part states as follows:

The plaintiff’s reference to the decision of Kunc J in Arambatzis v Foundas (No 2) [2024] NSWSC 859 at [10] and [11] is inapt and has no relevant application in the circumstances of this case. That equally applies to the plaintiff’s assertion that, somehow or other, it is appropriate for the Court to apply a 30% discount to the fees that were charged by CGL based on comments of the Court of Appeal in Gabrielle v Abood (No 4) [2023] NSWCA 100 at [10] and [11].

Suffice it to say I do not find that a gross sum costs order should be made.

If the Court is not prepared to make a gross sum costs assessment under section 98 of the CPA, should the Court appoint a referee pursuant to rule 20.14 of the UCPR to make a determination as to costs which the plaintiff is liable to pay to CGL?

This third agreed issue is clearly sourced from part of the relief the plaintiff seeks in Order 3 of the summons, as follows: “An order to …. or reference to a referee under UCPR 20.14”.

In her PCS, the plaintiff stated: [410]

Mrs Young, in her DCS, submitted: [411]

The plaintiff, in her PCRS, replied: [412]

In light of my findings in relation to agreed issues 1 and 2, there is no relevant basis to appoint a referee to make a determination in relation to costs.

Did the defendants commit contempt of Court for wilfully, knowingly and deliberately breaching and failing to comply with paragraph 2.4.3 of the Family Court orders made in No. SYC6488/2014 on 30 April 2019?

The plaintiff in her summons complains that the defendants disobeyed Order 2.4.3 of the Family Court orders made on 30 April 2019. [413]

Mrs Young in her DOS addressed this agreed issue and made a number of submissions which I have had regard to. For present purposes, it is helpful to set out the plaintiff’s submissions, which are essentially a reply to Mrs Young’s submissions on the issue.

The plaintiff in her POS, in respect of this agreed issue, submitted as follows: [414]

Mrs Young in her DCS made detailed submissions regarding the alleged contempt as follows (omitting footnotes): [417]

The plaintiff in her PCRS replied as follows: [421]

Further, the plaintiff stated as follows: [422]

The Family Court orders relevantly provided: [423]

Notation B of the Orders states as follows: [424]

In her affidavit in support of the relief in the summons, the plaintiff stated what she asserted was a form of charge for contempt as follows: [425]

During the hearing, the plaintiff asserted that Order 2.4.3, when read with notation B, created a responsibility in CGL to act in relation to the sale of the property and that they had failed to do so. [426] The plaintiff sought to cross-examine both Mr Lamb and Mr Ferguson regarding this, notwithstanding that they had no relevant involvement in the sale of the property.

The notion that CGL breached Order 2.4.3 such that it amounts to a form of civil and/or criminal contempt of court (as alleged by the plaintiff) [427] is entirely misconceived.

First, properly construed, Order 2.4.3 is an obligation on the parties, not on CGL.

Secondly, at no stage did the plaintiff (nor Dr Shah) relevantly ask CGL to prepare a contract for sale for the Epping property.

The plaintiff’s complaint appears to relate to 2 time periods. The first in May 2019 and the second in July 2022.

In relation to the period in May 2019, I have set out the narrative of events above based on the correspondence between the parties. In summary, it is clear that, on 3 May 2019, Ms Austin spoke with the plaintiff and sent her an email. [428] The email introduced Ms Austin to the plaintiff and requested instructions regarding some of the property. Thereafter, between 6-30 May 2019, Ms Ralston sought instructions from the plaintiff and it is clear that the plaintiff declined to give instructions to Ms Ralston and CGL to act on the sale of the Epping property. [429] The reason the plaintiff declined to give instructions is not expressly evident from the correspondence. However, as I have noted earlier, by at least 10 May 2019, it seems the plaintiff was contemplating trying either to vary the Court orders or to delay the sale of the Epping property. [430]

The above narrative is consistent with Ms Ralston’s affidavit evidence that, whilst the Family Court orders dated 30 April 2019 envisage that the parties will instruct CGL to prepare a contract for the sale of the property and the “property team” at CGL will open a file, due to lack of instructions leading up to 30 May 2019, CGL ceased to act for the plaintiff. [431] Whilst the plaintiff cross-examined Ms Ralston to the effect that she had in some way breached Order 2.4.3, [432] Ms Ralston confirmed that CGL was no longer instructed at the time and so CGL did not prepare any contract for sale. [433] I accept Ms Ralston’s evidence.

In relation to the period in July 2022, the plaintiff further challenged Ms Ralston in respect of her reply evidence that CGL did not act for her in respect of the sale of the Epping property as the plaintiff did not provide CGL with any instructions to do so (noting that the plaintiff was in April 2022 represented by Gary Pickering, solicitor, in respect of the settlement of the sale of the property). [434] Ms Ralston disagreed that her evidence regarding that was incorrect. [435] I accept her evidence.

The plaintiff’s particular complaint for the second period relates to an alleged refusal on 8 July 2022 by CGL to accept an invitation to join a PEXA workspace at the invitation of Mr Spencer. [436] As I have indicated above, Ms Nichelsen responded to Mr Spencer, noting that CGL was not acting on the conveyance for the plaintiff, and accordingly did not intend to join the PEXA workspace. [437]

Briefly, at the end of the plaintiff’s cross-examination of Ms Ralston, the plaintiff made reference to the email Ms Ralston had sent on 22 August 2022.

In her PCS, the plaintiff stated as follows: [438]

The plaintiff’s reference to the above-mentioned single sentence in the email fails to reveal the context. Rather than that sentence demonstrating that CGL had undertaken to prepare a contract for sale and disobeyed Order 2.4.3, the contrary is the case. I have set out the full content of the email earlier. However, the second point emphasises the lack of instruction from the plaintiff: [439]

The notion that somehow Ms Ralston or CGL had breached an order was mystifying to Ms Ralston, who stated: [440]

Seemingly, there was no response to Ms Ralston’s question in that regard. Certainly, none appears in the Court Book.

Thirdly, as observed by Mrs Young, it is entirely unclear how the Supreme Court has jurisdiction to deal with a claim for contempt relating to an order made by the Family Court. [441] Whilst it may be acknowledged that the Supreme Court has power to deal with, not only contempt of itself but contempt of any inferior court, the Family Court is not an inferior court within the same court hierarchy: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 360 per Dixon CJ, Fullagar, Kitto and Taylor JJ; [1955] HCA 12.

Those matters are sufficient to dispose of the plaintiff’s claims. It is not necessary to address Mrs Young’s further submissions regarding the alleged deficiency of the charge of contempt for non-compliance with Supreme Court rules Part 55 r 7. [442]

The plaintiff in Order 5 of her summons seeks pre-judgment interest and costs “such as payment for court fees”. This was formalised into agreed issue 5.

The plaintiff, in her POS, submitted as follows: [443]

Mrs Young, in her DCS, submitted: [444]

The plaintiff, in her PCRS, simply responded as follows: [445]

Finally, the plaintiff concluded:

Having regard to my findings above, it is unnecessary to decide whether the plaintiff is entitled to any order for pre-judgment interest.

Costs are in the discretion of the Court, subject to the CPA, rules of Court and any other Act: s 98(1)(a) CPA. The Court has full power to determine by whom, to whom and to what extent costs are to be paid: s 98(1)(b) CPA. The Court may order that costs are to be awarded on the ordinary basis or on an indemnity basis: s 98(1)(c) CPA.

The general position is that if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: r 42.1 UCPR. If the Court makes an order for dismissal of the proceedings, then generally speaking, unless the Court orders otherwise, the plaintiff must pay the defendant’s costs of the proceedings to the extent to which they have been dismissed: r 42.20(1) UCPR.

In light of my findings, I intend to dismiss the plaintiff’s summons.

There is, in my opinion, no principled basis for departing from an order that costs follow the event. Nonetheless, I apprehend that Mrs Young, by her submission in DCS [54], intends to seek a specific order regarding costs and, accordingly, I will give the parties an opportunity to make a specific submission regarding.

For the reasons detailed above, I dismiss the plaintiff’s summons.

I will address the issue regarding submissions on costs upon delivery of these reasons for judgment.