The Estate of Frances Kedesch Michell (No 2)

1. [1]

   This Court delivered reasons for judgment on 24 September 2020 in respect of the hearing of a notice of motion filed, on 26 June 2020, by Martha Rose Pietor and Benjamin Francis Anthony Pietor (the Administrators), in which they sought a review, by the Court, under r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), of the decision of Senior Deputy Registrar in Probate Hoskinson and that certain orders, made on 29 May 2020, by her, be set aside; or alternatively, that the accounts of the estate of Frances Kedesch Michell (the deceased) be passed: see The Estate of Frances Kedesch Michell [2020] NSWSC 1300 (the principal judgment).

2. [2]

   There were two respondents (described as Defendants) named in the notice of motion, being Robert George Christie and Sasha Ralph Freeman. It was, however, only the second Respondent, Mr Freeman, who played an active part in the hearing. He was legally represented at the hearing of the notice of motion.

3. [3]

   The Administrators failed in that application and the following orders were made by the Court:

The application for a gross sum costs order

1. [4]

   Mr Freeman, now, seeks a gross sum costs order, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), requiring the Administrators to pay to him his legal costs of the proceedings in an amount of $21,705.52 (inclusive of GST) or alternatively, costs of the notice of motion in the sum of $15,088 (inclusive of GST).

2. [5]

   There had been prior proceedings, brought by Mr Freeman (numbered 2019/246755), which had been resolved by orders, made consensually, which required the Administrators to file, and pass, accounts of the estate, with no order as to costs, to the intent that, each party bear their own costs of the proceedings.

3. [6]

   It was clear from the orders that I made on delivering the principal judgment, that Mr Freeman’s entitlement to costs was limited to the costs of the notice of motion and not to the costs of the proceedings which had given rise to the notice of motion.

Preliminary Matter

1. [7]

   Before turning to the evidence on the costs application, I should mention, briefly, the principles relating to the costs of passing accounts, which was not the subject of debate in these proceedings and which costs are not part of the costs orders that I previously made.

2. [8]

   In this regard, I can do no better than refer to the decision of Lindsay J in Re Estate Ford; Application for Executor’s Commission [2016] NSWSC 6 at [66]:

3. [9]

   I shall deal with Mr Freeman’s costs of the passing of accounts later in these reasons. I do so in order to save the further delay that would occur if those costs were made the subject of separate proceedings for assessment, especially since the costs should not be substantial.

4. [10]

   I should also note, at this point, that any gross lump sum for costs recovered by Mr Freeman from the Administrators will not provide a complete indemnity in respect of the actual costs incurred by him of the notice of motion.

5. [11]

   Mr Freeman, not unnaturally, has sought an order that any shortfall should be met by requiring Ms Berntsson, who is the only other residuary beneficiary, from her share of the amount that has been recovered for the benefit of the deceased’s estate as a result of the passing of the accounts and the defence of the notice of motion, to bear one half of the difference.

6. [12]

   By email sent on 25 September 2020 (a copy of which is annexed to Mr Morris’ affidavit), Ms Golovina gave notice to Mr P Comerford (Ms Berntsson’s solicitor, in the employ of Parker and Kissane Solictors) of Mr Freeman’s intention to seek from Ms Berntsson, half of any costs not recovered, presumably out of her share of the amount refunded to the estate.

7. [13]

   There has been no appearance by, or on behalf of, Ms Berntsson and so far as I am aware, no response to the letter. I turn, now, to the role played by Ms Berntsson in these proceedings.

Involvement of Ms Berntsson

1. [14]

   In her affidavit in reply Ms Golovina stated (at pars 2–4), sworn on 8 October 2020) that:

2. [15]

   Ms Golovina’s statement is not entirely accurate. The discussion referred to by her was as follows (Tcpt, 24 September 2020, p 3(09–25)):

3. [16]

   That conversation was prompted by the following finding in the principal judgment at pars [76] and [77]):

4. [17]

   It appears, as it were, that on the prospect of receiving a further distribution from the deceased’s estate having crystallised, by orders made by the Registrar on 29 May 2020, Ms Berntsson’s interest was piqued.

5. [18]

   It seems to me that for her to share, equally, in the benefit brought about following the steps taken by Mr Freeman, she must accept, equally, her share of the burden of the costs that were reasonably incurred in obtaining the benefit. In taking the steps that he did, Mr Freeman appears to have been acting reasonably, and in the interests of himself and Ms Berntsson, in reducing the amount of costs payable out of the estate. It would provide Ms Berntsson with an enrichment to not make an order. In fairness, equity cannot countenance such a result.

The making of a specified gross sum costs order

1. [19]

   UCPR, r 42.7, relevantly, provides as follows:

2. [20]

   The general costs of proceedings, as referred to in UCPR, r 42.7, are those costs of proceedings which are not the subject of a special costs order. Costs of an application include both costs of, and costs incidental to, the application: Hancock v Rinehart (Lump sum costs) [2015] NSWSC 1640 at [14] (Brereton J, as his Honour then was) citing Wentworth v Wentworth (Court of Appeal (NSW), Clarke JA, with whom Priestley JA and Grove AJA agreed, 21 February 1996, unrep) at 17.

3. [21]

   Section 98(4)(c) of the Civil Procedure Act provides that, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to a specified gross sum instead of assessed costs. Section 98(6)(a) provides that in this section, costs include “the costs of the administration of any estate or trust”.

4. [22]

   In Harrison v Schipp (2002) 54 NSWLR 738 at 742; [2002] NSWCA 213 Giles JA noted, at [21]:

5. [23]

   The principal purpose of this type of order is to avoid the expense, delay and aggravation of further protracted litigation arising from the assessment process: Hamod v New South Wales [2011] NSWCA 375 at [816]–[817] (Beazley JA, as Her Excellency then was and with whom Giles and Whealy JJA agreed).

6. [24]

   Based upon prior experience, and the evidence read on the costs application, it is probable that any further costs assessment is likely to be unduly protracted and add to costs unnecessarily: Harvey v Barton (No. 4) [2015] NSWSC 809 at [44] (Slattery J); Coshott v Parker (No 3) [2015] NSWSC 1195 at [73] (Hall J); Russo v Russo (No 4) [2016] NSWSC 1133 at [4] (Slattery J).

7. [25]

   The additional costs of assessment would also impose a significant financial and other burden on the respective parties, and the only other beneficiary, as well as aggravation in carrying out the assessment, which is likely to be out of proportion to the amount in issue.

8. [26]

   This view is supported by evidence given by Ms Golovina, which is to the effect that the award of a gross sum costs would substantially save further costs, and time, and that based upon her enquires, additional costs of 9.5 per cent of the total professional fees (plus GST) would be incurred as a result of any assessment, (estimated to be $2,000 (plus GST), in addition to which, she will incur expenses in respect of instructing said consultant, in the order of $550 (plus GST)). Further unquantified costs, are said to flow from any assessment, including in relation to the costs of preparing an application; the objections and responses; the filing fee; the assessor’s fee; and the parties’ costs in conducting the assessment. As to the duration of the costs assessment process, Ms Golovina states that given “the likely size of itemisation in this matter” an assessment would take approximately 4 months from the appointment of an assessor. That estimate, she says excludes, any time involved if any assessment were the subject of an appeal. She did not, however, refer to the “Guideline For Costs Payable Between Parties Under Court Orders” issued by the Supreme Court of New South Wales on 16 March 2019.

9. [27]

   Avoiding further delay is particularly important in the present case, as there has already been a significant delay in the completion of the administration of the deceased’s estate because of the different proceedings to which I have referred in the principal judgment. Making the orders will, undoubtedly, assist in bringing finality to the litigation involving the deceased’s estate and avoid the further delay in the completion of that administration, including the distribution of the balance of the estate.

10. [28]

    In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23, Einstein J summarised the principles which inform the exercise of the discretion to specify a gross sum, at [9]:

11. [29]

    His Honour’s summary was cited, with approval, in Hamod v New South Wales by Beazley JA, with whom Giles and Whealy JJA agreed, at [793]. Her Honour continued, at [816]:

12. [30]

    And at [820]:

13. [31]

    Ball J wrote in Baychek v Baychek [2010] NSWSC 987 at [11]:

14. [32]

    As Black J, more recently, wrote in Re Beverage Freight Services Pty Ltd [2020] NSWSC 797 at [19]:

15. [33]

    For other recent summaries of principles, also see National Australia Bank Limited v Sayed [2020] NSWSC 1316 at [9]–[15] (Ward CJ in Eq).

16. [34]

    Generally, the making of a gross sum costs order involves a two-stage process, the first stage being that the Court must be satisfied that the circumstances of the case warrant the making of a gross sum costs order, and, the second being to determine the quantum of the costs.

17. [35]

    In relation to the second stage, although the usual practice of the Court, when making a lump sum costs order, is to apply a discount that does not mean that the Court must apply a percentage discount to the sum sought by the successful party: Bechara v Bates [2016] NSWCA 294 at [15] (Beazley P, Meagher JA and Payne JA).

18. [36]

    Generally, the range of discounts that may be applied is between 10 per cent and 30 per cent: Guha v Guha [2020] NSWSC 1337 at [73] (Ward CJ in Eq); Re Palladium Consulting Pty Ltd [2013] NSWSC 92 at [14] (Black J); Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863 at [11] (Beech-Jones J); Starr-Diamond v Diamond (No 4) [2013] NSWSC 811 at [22]–[23] (Slattery J); Andy Vuong Duc Pham v Enterprise ICT Pty Ltd [2020] NSWSC 1089 at [72] (Sackar J).

19. [37]

    In determining the specified gross sum, the Court takes a broad brush approach, exercising its discretion with fairness, reasonableness, proportionality, doing justice to both parties, and not in any scientific or formulaic manner. The process, self-evidently, does not envisage that something similar to that involved in a traditional taxation or assessment of costs should take place: Bechara v Bates at [14].

20. [38]

    The Administrators, as the party liable to pay the costs, bear the onus of showing that any costs claimed were unreasonably incurred, or unreasonable in amount: Hancock v Rinehart at [61] (Brereton J, as his Honour then was).

21. [39]

    Any reluctance by the Court to make a gross sum costs order has increasingly dissipated over the last decade or so: In the matter of Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280 at [29] (Brereton J).

22. [40]

    In the circumstances, I have little hesitation in dealing with the costs issue on the basis of a gross sum costs order. The circumstances of the case clearly warrant the making of such an order.

The evidence and the submissions

1. [41]

   In support of his application, Mr Freeman relied on an affidavit of his solicitor, Ms Rada Golovina, sworn on 30 September 2020. Ms Golovina had appeared at the hearing of the notice of motion, without counsel.

2. [42]

   In her affidavit in support, Ms Golovina stated that she was admitted as a solicitor of this Court in 2012 and had practised as a solicitor since then, acting for parties to proceedings in various courts in New South Wales. She is the principal of her firm, RMG Law & Associates. She then went on to set out, in a list, the types of work she, and one would think most, lawyers, perform on a day to day basis.

3. [43]

   The purpose of the affidavit, so Ms Golovina stated, was to detail:

4. [44]

   She stated that any opinions expressed were based on her training, study and experience, such expertise, she qualified as having been acquired from “reading the determinations by costs assessors and a review panel and reading the Law Society Costs Guide, 7th Edition for Chapter 4 of the Uniform Law and Costs Assessments”.

5. [45]

   To her affidavit she annexed a copy of her conditional costs agreement with Mr Freeman dated 1 July 2019. The scope of work provided that it was in relation to the application by the Administrators seeking an order to have accounts passed by the Registrar. After the filing of the Administrators’ notice of motion, Ms Golovina, by letter to Mr Freeman dated 28 June 2020, provided an updated estimate of costs as being between $12,000 and $15,000 (plus GST) and 25 per cent uplift fee, which she estimated to be between $3,000 and $3,750.

6. [46]

   Ms Golovina stated that since being retained, the work she had done included, but was not limited to:

7. [47]

   Her hourly rate has been $275 (plus GST). Based upon a comparison with, for example, the hourly rate of Mr Toltz (the consultant of Piper Alderman and the solicitor on record for the Administrators, which was between $590 (plus GST) and $580 (plus GST), and which upon moderation by the Registrar was reduced to the “commercial rate” of $470 (plus GST) and $440 (plus GST), respectively, Ms Golovina’s hourly rate was quite modest.

8. [48]

   On 28 September 2020, Ms Golovina rendered an invoice to Mr Freeman in the amount of $25,769.05. An itemised bill of costs attached to the invoice revealed charges for the period 27 June 2019 and 28 September 2020, inclusive, in the amount of $17,449.50 to which a 25 per cent uplift fee ($4,362.37) was added bringing the sub-total to $21,811.87. To that amount, GST ($2,181.18) and disbursements ($1,776) were also added.

9. [49]

   She stated, by submission rather than direct evidence, that, by reference to the Costs Assessment Rules Committee guidelines, on assessment of costs, an assessor would allow the rates she has charged.

10. [50]

    As noted above, in broad terms, as the amount that it was submitted should be ordered to be paid by way of a gross sum costs order, Ms Golovina estimated the sum of $21,705.52 (inclusive of GST), being such costs “of and incidental to the proceedings from 1 July 2019 until 28 September 2020”; or alternatively, the sum of $15,088.00 (inclusive of GST) for costs on the notice of motion. Those amounts, she concluded, were fair and reasonable, given:

11. [51]

    At par 44 of her affidavit, Ms Golovina included a breakdown of the estimated total costs of Mr Freeman. By cross-referencing those amounts to the itemised bill of costs rendered to him, to which reference has already been made, Mr Freeman’s costs (inclusive of GST) may be summarised as follows:

12. [52]

    As I have stated, whilst the Administrators did not oppose the making of a gross sum costs order, they did not accept the quantum of the amounts claimed by way of Mr Freeman’s costs and disbursements.

13. [53]

    In opposition to the quantum of costs, the Administrators relied upon an affidavit, sworn on 7 October 2020, from Mr Simon Jacob Morris, a solicitor in the employ of their solicitors, Piper Alderman.

14. [54]

    It was the contention of the Administrators that the costs sought did not constitute Mr Freeman’s costs of the notice of motion, but rather that, at least in part, they related to the preparation, and service, of Ms Golovina’s initial affidavit and accompanying submissions on the costs application, which were unnecessarily incurred due to Mr Freeman’s failure to meaningfully engage, and resolve the issue of costs, with the Administrators. They also submitted that the amounts claimed did not constitute the ordinary costs which, without more, would be payable under the costs order.

15. [55]

    The evidence of the Administrators included a reference to correspondence from their solicitors, with a view to resolving the application for a gross sum costs order. There was reference to a letter emailed to Ms Golovina on 2 October 2020, in which an offer was made to pay the sum of $8,526.76 to Mr Freeman, calculated as 100% of the property search fees stated in the invoice ($176 (inclusive of GST); and 80% of the fees which appeared to have been invoiced to Mr Freeman in relation to the notice of motion (but not including any fees referable to the preparation and service of Ms Golovina’s affidavit and submissions in support, being 80% of the total amount of $10,438.45 (inclusive of GST).

16. [56]

    Although the offer had been rejected by Mr Freeman, the Administrators indicated that they would consent to the making of a gross sum costs order against them in favour of Mr Freeman in the sum of $8,526.76.

17. [57]

    The Administrators’ solicitors, also acknowledged, as they had done at the hearing of the notice of motion, that any costs ordered to be paid to Mr Freeman, would be borne by the Administrators’ solicitors, Piper Alderman.

18. [58]

    Ms Golovina replied to Mr Morris’ affidavit, in an affidavit sworn on 8 October 2020. She disputed matters pertaining to her apparent lack of efforts to come to a resolution of the proceedings and in particular, pars 33 and 34 of Mr Morris’ affidavit which related to Mr Freeman’s recovery of costs out of any further distribution to Ms Berntsson.

19. [59]

    Neither of the deponents was cross-examined, so I am unable to determine where the truth of the matter lies.

20. [60]

    Pausing there, I turn, now, to consider each of the bases upon which the Administrators dispute the quantum of the amounts sought to be recovered by Mr Freeman.

21. [61]

    First, they submitted that, in addition to his costs of the motion, Mr Freeman has sought to recover amounts (solicitor fees and disbursements) invoiced by Ms Golovina in respect of proceedings numbered 2019/246755 commenced by Mr Freeman against the Administrators, on 8 August 2019, seeking orders to require the Administrators to pass accounts of the estate of the deceased and a notice of motion filed by the Administrators on 22 November 2019 to seek to pass the accounts of the deceased’s estate, in these proceedings. As identified in the table above, the amount said to constitute the costs, on the ordinary basis, of those proceedings, was $5,882.25 (inclusive of GST).

22. [62]

    Turning to the recovery of the costs of the preparation, and service of Ms Golovina’s affidavit and submissions in support, on the application for a gross sum costs order, the Administrator’s submitted those amounts were not recoverable, as they were unnecessary due what they state was an “[inability] to meaningfully engage with Mr Freeman to seek to resolve the issue of costs”.

23. [63]

    The factual basis of that assertion was the number of attempts (on 15, 17 and 18 September 2020) made by the Administrators, through Piper Alderman to Ms Golovina, to ascertain Mr Freeman’s recoverable costs of the motion and Ms Golovina’s refusal, or failure, to provide any information going to the quantification of those costs: Affidavit, Simon Jacob Morris, 7 October 2020 at pars 17, 20, 23.

24. [64]

    Those communications occurred after the conclusion of the hearing of the notice of motion and appear to have been precipitated by the following notations and directions, of the Court, upon reserving judgment:

25. [65]

    Although Ms Golovina did not respond to the issues raised in pars 17, 20 and 23 of Mr Morris’ affidavit, she did aver to a letter emailed to Piper Alderman on 17 September 2020 (a copy of which she annexed to her affidavit), in which an offer was made to settle the proceedings for $12,000, to which she received no reply. Of course, this letter was emailed prior to the date of the principal reasons for judgment being delivered.

26. [66]

    (On 24 September 2020, upon delivering judgment, the parties were encouraged to speak with another about the issue of costs so as to avoid the burden of further, and unnecessary, costs being incurred (Tcpt, 24 September 2020, p 1(41) – p 2(01); p 2(44–45).)

27. [67]

    The Administrators submitted that Ms Golovina failed to comply with the Court’s encouragement and that she did not confer, meaningfully, with Piper Alderman after the reasons for judgment were delivered. Instead, she simply proceeded to serve Mr Freeman’s application for a gross sums costs order.

28. [68]

    (Although it would be an error to characterise the course Ms Golovina took as a failure to comply with a “direction” of the Court, because no such direction was made, if she did, in fact, refuse to provide Piper Alderman with information necessary to identify, and substantiate, the recoverable costs of the unsuccessful notice of motion, this refusal might, nevertheless, be considered to be other than in accordance with a legal representative’s obligation to facilitate the just, quick and cheap resolution of the real issues in the proceedings as required by s 56 of the Civil Procedure Act.)

29. [69]

    Bearing in mind the nature of the submissions advanced, it is of little surprise that agreement on the quantum of Mr Freeman’s costs could not be reached.

30. [70]

    Despite Mr Freeman having earlier articulated a view that so far as the Administrators’ costs were concerned they had appeared excessive and disproportionate to the value of the net distributable estate, it seems he was, nonetheless, still prepared to incur further costs in arguing the issue of the quantum of costs.

31. [71]

    Turning then to the costs that it was submitted should not be payable under the order for Mr Freeman’s costs, on the ordinary basis. As earlier stated, Mr Freeman’s conditional costs agreement with Ms Golovina includes an uplift fee of 25 per cent. The Administrator’s submitted that they should not be required to pay any uplift fee in circumstances where the fee does not constitute a cost that is payable on an ordinary, as distinct from the indemnity, basis.

32. [72]

    Further the Administrators submitted that they should not be required to pay printing and photocopying charges totalling $440 (inclusive of GST) invoiced to Mr Freeman. Although those charges have not been itemised, in their submission there was no reasonable basis upon which Mr Freeman could contend that those charges constituted costs referable to the notice of motion given the limited use of hard copy documents and given that counsel was not briefed to advise, or appear on the notice of motion, there would have been limited, if any real, necessity for the photocopying of documents.

33. [73]

    I do not know why the costs of photocopying were incurred, but, based upon the evidence, I am unable to conclude that they had not been, or that they were unreasonable.

Determination

1. [74]

   As stated, there was really no dispute that Mr Freeman should be awarded his costs of the notice of motion, by way of a gross sum. The only question is the quantum of those costs.

2. [75]

   In my opinion, the Court is well placed to make a broad brush determination of Mr Freeman’s costs of the notice of motion, both on the ordinary basis, and on the indemnity basis. In determining what amount should be fixed by way of a lump sum, I have had regard to the affidavit evidence of each of the parties, their submissions, and the manner in which the notice of motion was conducted.

3. [76]

   Section 181 of the Legal Profession Uniform Law 2015 (NSW) (LPUL) deals with “conditional costs agreements” and states at sub-section (1) that such an agreement may provide that the payment of some, or all, of the legal costs is conditional on the successful outcome of the matter to which those costs relate. Section 182(1) of the LPUL provides that a conditional costs agreement may provide for the payment of an uplift fee.

4. [77]

   Section 182(2)(b) of the LPUL provides the uplift fee must not exceed 25 per cent of the legal costs (excluding disbursements) otherwise payable.

5. [78]

   An “uplift fee” is not part of the ordinary costs of the Plaintiff: G E Dal Pont Law of Costs, (3rd ed, 2013, LexisNexis) at [17.55]; Stojanovski v Stojovski [2016] NSWSC 976 at [41]–[52]. (Also see, Day v Perpetual Trustee (Supreme Court (NSW), Macready M, 3 August 2001, unrep) in which the Court dealt, at length, with the reasons for not usually allowing the charge of an uplift factor. It is regarded as a financing cost which should not be passed on to the losing party.)

6. [79]

   It follows that Mr Freeman is not entitled to the uplift factor in determining the ordinary costs that are to be paid by the Administrators. Accordingly, I omit from the quantum of costs, calculated on the ordinary basis, the estimate of the uplift fee identified by Ms Golovina.

7. [80]

   Taking into account all of the matters, I fix the amount of Mr Freeman’s costs, at $13,000, inclusive of GST, as the gross amount that ought to be paid by the Administrators to Mr Freeman in respect of his costs, calculated on the ordinary basis, of the notice of motion. As he has succeeded in obtaining more than the amount that was offered on behalf of the Administrators, I have also included, in this amount, an amount for the costs of the argument on costs. (I have not included any amount as claimed as to the costs of the argument before the Senior Deputy Registrar in Probate.)

8. [81]

   I am of the view that this sum is sufficiently conservative such that it will not overcompensate Mr Freeman for the costs and disbursements, calculated on the ordinary basis, of the notice of motion and the costs of the argument on costs with which I have dealt.

9. [82]

   The amount reached includes an amount for GST. In the event that RMG Law & Associates is registered for GST and claims an input credit for that GST, which it pays, then the amount of GST received should be refunded to the Administrators (or if the costs are paid by their solicitors, to those solicitors): see Goods and Services Tax Ruling 2001/4.

10. [83]

    In relation to the indemnity costs, doing the best I can, I assess the gross sum, calculated on the indemnity basis, to be $22,000, including the costs of the passing of accounts which should be borne by the estate, as well as the costs of the gross sum costs application. Since Mr Freeman will recover $13,000 from the Administrators, the remaining amount to be paid, out of the amount recovered for estate will be $9,000.

11. [84]

    In reaching my conclusion that Ms Berntsson should bear her share of those costs, I refer to the remarks of Vaughan Williams LJ in Bonner v Tottenham & Edmonton Permanent Investment Building Society [1899] 1 QB 161 at 176:

12. [85]

    Since both Mr Freeman and Ms Berntsson share the residue of the estate equally, each should bear one-half of that remaining amount (being, at least in part, the difference between costs calculated on the ordinary basis, and in part the costs calculated on the indemnity basis).

13. [86]

    The consequence of this conclusion is that each will bear, out of his and her share of the remaining estate of the deceased, $4,500. This will leave about $28,000 to be distributed equally between them.

14. [87]

    Naturally, I have considered whether to delay the determination of this aspect to enable Ms Berntsson to be heard. However, I remember that her solicitors were informed of the proceedings by Ms Golovina. As Ms Berntsson has left it to Mr Freeman to fight the battles in regard to the nature and value of the deceased’s estate, and bearing in mind the amounts involved, it would not be in the just, cheap and quick determination of these proceedings, to delay the making of orders on that basis.

15. [88]

    The Court:

    1. (1)

       Orders that the Administrators pay the second Respondent’s costs of the notice of motion filed on 26 June 2020, and the costs of the gross sum costs application, quantified on a gross lump sum basis under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) as $13,000, inclusive of GST.

    2. (2)

       Orders that the costs, calculated on the indemnity basis, of the second Respondent, of the passing of the accounts, the notice of motion filed on 26 June 2020, and the costs of the gross sum costs application, be quantified on a gross lump sum basis under s 98(4)(c) of the Civil Procedure Act 2005 (NSW), as $22,000, inclusive of GST.

    3. (3)

       Orders that the difference between the second Respondent’s costs, calculated on the ordinary basis, and his costs calculated on the indemnity basis, being $9,000, be paid out of the estate of the deceased, and from the amount repaid to the estate ($37,133.69).

    4. (4)

       Orders, in the event that RMG Law & Associates is registered for GST and claims an input credit for any GST which it pays, then the amount of GST received should be refunded to the Administrators (or if the costs are paid by their solicitors, to those solicitors).

    5. (5)

       Makes no order as to the cost of the first Respondent, to the intent that he will bear his own costs, if any.