Frisken v Bitar Pty Limited

HIS HONOUR: The Court is dealing with motions associated with an appeal to the Court against a costs assessment. According to Mr Bumble in Charles Dickens’ Oliver Twist, “the law is an ass”. When dealing with appeals against costs assessments, the better analogy is of a dog chasing its tail – an exercise that necessarily adds to the costs in issue, and from which a satisfactory outcome is usually beyond reach.

The appeal was commenced by summons dated 25 August 2025. The first plaintiff (Daniel Frisken), and the second plaintiff (ACN 640 543 979 Pty Ltd), purportedly pursuant to s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) (hereinafter “the Act”), lodged an appeal to this Court against a decision of the Review Panel of 17 February 2025, which in turn, dealt with a costs assessment of a costs assessor of 8 August 2022.

An application for review was filed on 27 October 2022. The original application for a costs assessment was filed on 16 November 2020 and was determined by the assessor on 8 August 2022. The costs arise out of an order of Black J of this Court, on 25 June 2021.

Relevantly, the orders of Black J (proceedings 2014/269117) were:

The costs assessment of 8 August 2022 was for $273,679.56. On review, the panel ordered costs of $364,266.76. The first plaintiff moves on a notice filed 28 November 2025 for leave to rely upon two affidavits and an accompanying exhibit pursuant to the provisions of s 89(4) of the Act, with costs of the motion to be the plaintiffs’ costs in the cause.

The first defendant moves the Court by notice filed 26 November 2025 for orders for security of costs in the sum of $50,000, a stay of the appeal until the plaintiff provides the security and an order for a lump sum cost of $5,500 (plus GST) in respect of a costs order made by the Court (Dhanji J) on 20 October 2025 and an order for costs of the motion.

As earlier stated, on 25 August 2025, the summons in this matter was filed which seeks orders setting aside the Review Panel orders and determining the costs independently of the determination of the costs assessor or the Review Panel.

The grounds of appeal are that the Review Panel erred in determining that Part 4.3 of the Act applied to the assessment of costs; erred in determining that the costs agreement was void and in determining that costs be assessed on the basis of quantum meruit; erred in undertaking the assessment on the ordinary basis (with some particulars as to periods during which indemnity costs should have been ordered); erred in determining that waiver occurred in relation to the protections and undertakings to the client; erred in the determination of hourly rates; and other grounds.

The appeal to this Court is taken under the provisions of the Act and, in particular, s 89(1) thereof. The terms of ss 89 and 90 of the Act are as follows:

As can be seen from the above extract, the legislature has prescribed that the appeal to this Court is by way of “rehearing” and fresh evidence or evidence in addition to or substitution for evidence before the Review Panel or costs assessor may, with leave, be adduced. The plaintiff seeks leave to adduce additional evidence. The evidence is not fresh.

The evidence on which the plaintiff seeks to rely is evidence from an alleged expert costs assessor, which relates to the original bill of costs. It does not relate to the assessment by the costs assessor. Nor does it relate to the assessment by the Review Panel.

The expert report was available to the plaintiff prior to the proceedings before the costs assessor and, necessarily, prior to the proceedings before the Review Panel. The plaintiff exercised a forensic judgment not to tender or rely upon the expert report.

The plaintiff, in purported reliance upon authority, submits that the appeal under s 89 “has little in common with an appeal by way of rehearing from a final judgment of a court of record”. The authority on which the plaintiff relies does not establish that proposition.

The legislature has deliberately chosen to provide that the appeal is by way of rehearing. The capacity to adduce fresh evidence and evidence in addition to or in substitution for the evidence before the Review Panel or costs assessor, is part of the process by which the appeal is a “rehearing”.

The submission distinguishing the process of this appeal from the procedure prescribed by s 75A of the Supreme Court Act 1970 (NSW) does not withstand scrutiny nor withstand appropriate analysis. The Court, under s 75A, on appeal after a hearing deals with the appeal by way of “rehearing”. [2] In that process the Court may receive further evidence. [3]

Further, the Court is given the power and/or jurisdiction to make any order or give any direction which ought to have been given or made or which the nature of the case requires. [4]

Moreover, the requirement to show special grounds for the receiving of further evidence applies only in circumstances where there has been a trial or hearing on the merits. Otherwise, the Court may receive such further evidence under s 75A as principle would provide.

By the provisions of s 75A(6), the Court on appeal under s 75A, has the powers and duties of the Court, body or other person from whom the appeal is brought. The analogy between s 75A of the Supreme Court Act and s 89 of the Act discloses the similarity in the provisions between each section.

The similarity is appropriate. The provisions of s 75A of the Supreme Court Act apply, except to the extent of any inconsistency, to an appeal of the kind that would be taken against a cost assessment. [5] In Kostas, the High Court was dealing with an appeal from the then Consumer, Trader and Tenancy Tribunal, not a court.

The nature of a “rehearing” which is the term deliberately utilised by the legislature to describe the nature of the appeal under s 89 of the Act, is the subject of much authority. The term is one of precision, and the delineation of different appeals has been the subject of authority for a very long time.

In Lacey, [6] the High Court dealt with that which was described, relevant to those proceedings, as three kinds of appeal and said:

As is clear from the above extract, the classification of appeals is qualified by the necessity to examine the statutory scheme in each case, and the comments make clear that the above taxonomy is not exhaustive. Sir Frederick Jordan CJ classified appeals by six variations, some of which are judicial review proceedings and would not, currently, be classified as appeals at all. The three above classifications are categories that are most often used and are understood by courts and the legislature. [8]

In Coal and Allied, supra, the High Court referred to the nature of different appeals, and for present purposes, it is informative to extract that further passage. The passage is in the following terms:

In Gazecki v McCabes, [10] the Court of Appeal considered the nature of a costs appeal under s 89 and said:

The proposition is also clear that, on a rehearing, the appellant must show error of a kind that warrants intervention. The error that must be disclosed is one that may arise as a consequence of the different evidence that is before the appeal, but nevertheless, error must be disclosed. [12]

In SZVFW, [13] Gageler J (as his Honour the Chief Justice then was) said:

There are a number of aspects that require comment. First, a number of the grounds of appeal seem to suggest proceedings in the nature of a hearing de novo rather than a rehearing. Second, that which is clear from the provisions of s 89 of the Act is that the hearing before the Court is not a hearing de novo and is not an opportunity for one or other aggrieved party to start afresh.

As earlier stated, the suggested additional evidence is that which was available to the plaintiff prior to the original costs assessment and prior to the Review Panel proceedings. By available, it should be understood that the evidence was in existence and in the possession of the plaintiff.

A forensic decision was taken not to adduce the evidence. It matters not what the reason for the forensic decision was. The appeal to this Court is not an opportunity to restart the whole of the proceedings.

Furthermore, the expert report relates to the original bill of costs, not the determination by the costs assessor or the determination by the Review Panel. Its relevance is marginal and restricted to the exercise that may become necessary after the determination of whether the appeal is to be successful.

In the circumstances, leave to adduce the evidence sought to be adduced is refused. If or when the plaintiff is successful on the issue of the determination of the merits of the appeal, the issue may be revisited by the appropriate court or judge.

I deal next with the issue of the motions for security of costs. Costs are within the discretion of the Court and an order for costs or security for costs is a matter to be determined by the Court in the exercise of that jurisdiction. The discretion must be exercised judicially.

Costs, including security for costs, is not a punishment for the party ordered to give security. The order for the payment of security is a means by which a respondent to proceedings, in this case, can have some comfort that the exercise will, if unsuccessful, be compensated by an appropriate order for costs. Security for costs is dealt with, at least in part, by the terms of Uniform Civil Procedure Rules 2005 (“UCPR”), r 42.21.

In these proceedings, Mr Frisken, the first plaintiff, is the appointed receiver and manager of the partnership between Hebbel Constructions and Bitar Pty Ltd in respect of the property development business. The second plaintiff is a corporation which is not trading. The first plaintiff was discharged as receiver of the partnership on 15 July 2021, having provided an undertaking as to the receivership costs on 25 June 2021.

The second plaintiff, as previously stated, no longer trades but was previously trading as the law practice of Yates Beaggi Lawyers. The evidence before the Court is that the company now trading as Yates Beaggi Lawyers is a different company from the second plaintiff in these proceedings and that different company is generating significant annual profits. There is no suggestion that the second plaintiff, who is not trading, is generating profits or has assets. Indeed, the contrary is the case as inferences available from the evidence discloses.

The affidavit of Peter Stewart Speed of 2 December 2025 refers to the inability of the second plaintiff, while operating as the law practice, as at 5 September 2022, to pay an amount of $16,929 that was outstanding for just short of one month. Those fees were paid by a defendant. Further, the affidavit of Mr Speed refers to the affidavit of Mr Amirbeaggi of 5 September 2022 in which it was stated that they were “unfunded in relation to the matter”.

By leave of the Court, Mr Amirbeaggi responded to the affidavit of Mr Speed of 2 December 2025, by a further affidavit of 9 December 2025. The explanation for that which was referred to in the immediately preceding paragraph was to the effect that the first plaintiff “was not in funds, and was not in a position nor able to meet payment of tax invoices … in relation to the matter”. The payment of the $16,929 was required to be met from day-to-day cash flow.

No evidence is adduced, in response to the issues raised as to the inability of the second plaintiff (and the first plaintiff) to fund or meet the costs that may be ordered against them, which suggests that either plaintiff is capable of meeting the costs. The inference is that such evidence does not assist the plaintiffs’ case on this application.

Impecuniosity of an individual is not a basis upon which security for costs ought to be ordered. However, the same cannot be said of a corporation, particularly in circumstances where it is admitted that the corporation is no longer trading. The circumstance, which I accept, that the law firm is now operating through another corporate entity does not assist in relation to the capacity of the second plaintiff to pay the costs of the defendant if ordered to do so.

Further, it is clear, given the receiver status of the first plaintiff and his liability, not under the costs order but by reason of an undertaking to the Court, that the first plaintiff is, in effect, suing for the benefit of the corporation. Again, there is no evidence to counter the inference available that the first plaintiff will be unable to pay the costs of the defendant if ordered to do so.

In those circumstances, the provisions of UCPR r 42.21(d) and (e) apply. Even if they were not to apply, then in the exercise of the discretion of the Court, the Court determines that security of costs should be provided. I do not consider that the appeal has a high probability of success. It is a real possibility that there shall be a costs order against the plaintiffs.

Further, as a result of the basis upon which the first plaintiff sues and the inferences available as to the funds available to the second plaintiff, there is a real need in the interests of facilitating the just, quick and cheap resolution of the real issues between the parties to order security for costs.

The Court is required to assess independently the amount of security that should be forthcoming and the manner in which the costs of these motions should be resolved. I earlier remarked as to the never-ending nature of costs appeals and applications. Such issue informs the exercise of discretion as to the costs of these motions.

The evidence and experience in litigation points to the claimed security being more than reasonable. The court will order security of $50,000.

The costs of these motions must be dealt with bearing in mind that costs ordinarily follow the event. The defendants/respondents to the plaintiffs’ motion have been successful and have been successful on their own motions. They are entitled to be compensated for their costs. Nevertheless, if the plaintiffs are successful on the “substantive” appeal, it seems unjust for them to be liable for the defendants’ costs of these ancillary orders. In the circumstances, it is just for costs to be the defendants’ costs in the cause.

For the above reasons, the Court issues the following orders and directions: