Bell v Hartnett Lawyers (No 4)

1. [1]

   The plaintiff, Mr Bell, seeks costs of these proceedings including a gross sum costs order. Hartnett, the defendant, submits that Mr Bell's costs ought to be assessed. Further Mr Hartnett relies on an 11 November 2021 order of Slattery J concerning the capping of costs.

2. [2]

   The lengthy background to this dispute is outlined in the substantive judgment Bell v Hartnett Lawyers (No 3) [2022] NSWSC 1204 and the New South Wales Court of Appeal's decision dismissing Mr Hartnett's appeal: Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell [2023] NSWCA 244. By reason of those judgments Mr Hartnett is bound by the order to pay to Mr Bell the sum of $251,255.52 which represented the amount the court considered he had overcharged. He is also required to pay interest on that amount. In the substantive judgment I also ordered Mr Hartnett to pay Mr Bell's costs on an indemnity basis.

3. [3]

   Mr Bell seeks the fixed sum of costs in the amount of $229,266.75. That figure is made up of:

4. [4]

   Mr Bell submits that a deduction of $10,000 ought to be made because of a previous costs order that was made in Mr Hartnett's favour. In October 2021, Slattery J ordered that Mr Bell pay 60 percent of Mr Hartnett's costs of Mr Hartnett's notice of motion dated 22 September 2020 in the equity proceedings. That motion concerned the service of Mr Bell's proceedings. By the time the motion was heard, appropriate service had been effected.

5. [5]

   By way of brief procedural background to this dispute, in 2016 Davies J made an order for possession in favour of Gwendoline Deakin-Bell, for whom Mr Hartnett was acting: Deakin-Bell v NSW Trustee and Guardian [2016] NSWSC 540. His Honour awarded Ms Deakin-Bell the sum of the mortgage of $30,000 together with interest and costs said to amount to $34,680.19. The possession proceedings were uncontested.

6. [6]

   After the sale of the property, the sale proceeds were paid into Mr Hartnett's trust account in the sum of $353,137.02. Mr Hartnett invoiced Ms Deakin-Bell for a total of $288,601.03 and paid himself that sum of money from the sale proceeds.

7. [7]

   On 8 September 2020, Mr Bell commenced these proceedings by way of Summons seeking a declaration of a constructive trust in relation to the sale proceeds paid into Mr Hartnett's trust account, together with freezing orders.

8. [8]

   As noted, on 22 September 2020, Mr Hartnett filed an application to dismiss the proceedings on the basis that they were not served correctly and were in the wrong jurisdiction. In early 2021, that application was dismissed. Slattery J made orders including the relisting of the possession proceedings.

9. [9]

   On 10 March 2021, Mr Bell sought to send the matter for costs assessment and for Mr Hartnett to disgorge any excess. Mr Hartnett refused.

10. [10]

    On 23 March 2021, the matter was listed for directions and Slattery J made orders directing Mr Hartnett to produce a copy of Ms Deakin-Bell's Will and to produce all invoices for legal fees and disbursements that he had rendered to her.

11. [11]

    On 7 April 2021, Mr Bell filed a statement of claim. On that same day Mr Hartnett served on Mr Bell a copy of the Will and all invoices.

12. [12]

    On 26 April 2021, the matter was listed for directions and Slattery J made orders including:

    1. (1)

       noting that Mr Bell had obtained probate;

    2. (2)

       noting that Ms Deakin-Bell was deceased;

    3. (3)

       directing Mr Hartnett to pay the surplus into Court, as had previously been ordered by Davies J and not done by Mr Hartnett; and

    4. (4)

       directing the parties to file written submissions for the disposition of the issues in the proceedings.

13. [13]

    In May 2021, the parties filed written submissions as directed, which dealt with matters including who the appropriate parties to the proceedings were, which statutory regime governed any costs assessment that might take place and the basis of any costs assessment that might take place.

14. [14]

    On 27 May 2021 the matter was listed for further directions before Slattery J and the parties were required to file written submissions with respect to the efficient resolution of the proceedings and further requests raised by his Honour. This culminated in written submissions being filed by both parties in June 2021, addressing a variety of matters including:

    1. (1)

       The appropriate way that Mr Hartnett’s fees for acting in the possession proceedings ought to be fixed, including the Court's inherent supervisory jurisdiction, costs assessment, or referral to a referee;

    2. (2)

       Whether the Court had sufficient material before it to determine Mr Hartnett's costs, including the 2018 costs assessment by Mr Wall, the possession proceedings file and Mr Hartnett's invoices;

    3. (3)

       Whether Mr Hartnett was subject to the Supreme Court of New South Wales’ jurisdiction as an interstate practitioner;

    4. (4)

       The necessity of the equity proceedings remaining on foot;

    5. (5)

       The applicability of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) as it might pertain to costs assessment across New South Wales and Queensland;.

    6. (6)

       Which principles of assessment ought to apply;

    7. (7)

       The joinder of Mr Hartnett to proceedings; and

    8. (8)

       The costs of Mr Hartnett's 22 September 2020 notice of motion.

15. [15]

    On 12 October 2021, Slattery J gave judgment on those issues raised by the hearings on 23 March, 26 April, 27 May and 13 July 2021 and the various written submissions: Bell v Hartnett (No 2) [2021] NSWSC 1270. Slattery J noted that Mr Hartnett ought to be given an opportunity to explain the size of his fees for the uncontested possession proceeding, see particularly [21] and [40]. Importantly at [99]-[108] his Honour stated as follows:

16. [16]

    Slattery J reserved the question of costs but orders were made progressing the matter, including that the parties prepare lists or schedules of costs that had been charged or allegedly unreasonably incurred.

17. [17]

    Of importance was order 6, made on 20 October 2021, which restricted the additional evidence that the parties were entitled to serve without the leave of the Court. The proceedings were listed for further directions on 8 November for the Court to consider a timetable for the parties to provide "concise written submissions on the remaining issues". His Honour also noted that the Court would consider making a cost capping order prohibiting the parties from seeking to recover costs of more than $10,000 in respect of the remaining costs issues in the proceedings. His Honour was clearly concerned to limit the amount of additional evidence that would be prepared when, as identified in the order, "the Court undertakes its review and considers the exercise of its Civil Procedure Act s 98(4)(c) powers".

18. [18]

    On 26 October 2021, the plaintiff filed his amended statement of claim, including the schedule of improperly or unreasonably incurred fees, which analysed Mr Hartnett's fees charged in the possession proceedings on a line-by-line basis.

19. [19]

    On 4 November 2021, the defendant filed his defence to the amended statement of claim.

20. [20]

    On 8 November 2021, the matter was listed for directions. Slattery J noted that his orders, arising from the October 2021 judgment, had been "substantially complied with". Part of the transcript reads as follows:

21. [21]

    As noted, Slattery J expressed concern to limit the amount of evidence and referenced rational limits being imposed on the amount of evidence.

22. [22]

    As directed, the parties sent consent orders to Slattery J's chambers and on 11 November 2021 the orders were made:

23. [23]

    It is order 6, the capping order, that is primarily in issue. In particular, there is a question of whether the cap was in relation to all matters going forward or whether "remaining costs issues related to only further evidence to be relied upon by the parties or possibly all the matters that needed to be achieved" before the matter was next listed for directions before Slattery J on 16 December 2021.

24. [24]

    On 19 November 2021, the plaintiff filed his points of claim, addressing the application of the Court's inherent supervisory jurisdiction. On 1 December 2021, Mr Hartnett filed his defence to the points of claim, a reply to Mr Bell's schedule of improperly incurred fees and a bundle of material titled “Defendant's Further Evidence”.

25. [25]

    On 7 December 2021, Mr Hartnett filed a notice of motion seeking to transfer the proceedings to the Court of Appeal in its original disciplinary jurisdiction.

26. [26]

    On 9 December 2021, the matter was listed for directions before Slattery J and orders were made for the plaintiff’s evidence on the defendant’s transfer application.

27. [27]

    On 14 December 2021, the matter was listed for directions before the Chief Judge in Equity who referred the matter back before Slattery J for directions.

28. [28]

    On 16 December 2021, the matter was listed for directions before Slattery J who ordered that the Points of Claim and Points of Defence be taken to be pleadings in both proceedings, and referred the transfer application to the Court of Appeal.

29. [29]

    On 7 February 2022, the matter was listed for directions in the Court of Appeal and was set down for hearing, with incidental orders made for submissions.

30. [30]

    On 22 March 2022, the transfer application was heard by Basten JA and dismissed. Mr Hartnett was ordered to pay Mr Bell's costs of his motion forthwith: Bell v Hartnett [2022] NSWCA 42.

31. [31]

    On 4 April 2022, the matter was listed for directions before the Equity Registrar and orders were made for Mr Hartnett to file an amended Reply to the Points of Claim.

32. [32]

    On 19 April 2022, the matter was listed for directions before the Chief Judge in Equity and was referred back to the Equity Registrar for the allocation of a hearing date.

33. [33]

    On 28 April 2022, the matter was set down for a two-day hearing. On 9 August 2022 the matter was listed for pre-trial directions before me. The matter was heard over two days, commencing 24 August 2022. In the substantive judgment on 8 September 2022, I ordered that Mr Hartnett pay Mr Bell's costs on an indemnity basis.

34. [34]

    On 12 October 2023, the Court of Appeal dismissed Mr Hartnett's appeal and ordered him to pay Mr Bell's costs. Obviously, this judgment does not deal with the costs in the Court of Appeal.

The proper construction of the capping order

1. [35]

   Mr Hartnett submits that the effect of the capping order made by Slattery J on 11 November 2021 is that Mr Bell is not entitled to seek to recover more than $10,000 for costs incurred after 8 November 2021. I do not accept that is the proper construction of the order read in context.

2. [36]

   The principles concerning the construction of Court orders, including consent orders, are not in dispute. For example, in Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265, Campbell J considered the authorities on construing orders at [38]-[44]:

3. [37]

   His Honour concluded at 45:

4. [38]

   At the time of the capping order, as noted, and as evidenced in the October 2021 judgment, and the directions hearing on 8 November 2021, Slattery J was very concerned about the cost and extent of further evidence for what his Honour considered was a case akin to a gross sum costs order application.

5. [39]

   I do not accept that the capping order was intended to cap all costs incurred after 8 November 2021 for all purposes and no matter what occurred. Instead, in my view, the order was intended to cap the quantum of costs that were charged by either party in relation to the anticipated further minimal evidence and likely points of claim and defence and submissions that were required by 16 December 2021.

6. [40]

   I consider such a construction is further supported by the following.

7. [41]

   There are a number of complex issues that had already been ventilated between the Court and the parties as evidenced in the October 2021 judgment, including the Court's power to review fees as between Mr Hartnett and Gwendoline Deakin-Bell, the operation of the Court's inherent supervisory jurisdiction, the possible application of s 99 Civil Procedure Act 2005 (NSW) and the possible application of s 98(4)(c) Civil Procedure Act 2005 (NSW). As already noted there were other issues at play, including the interrelationship or otherwise of the New South Wales and Queensland laws applying to the dispute and the question of equitable priorities concerning the surplus of the sale proceeds.

8. [42]

   At the time of the capping order, Slattery J was not prepared to fix Mr Hartnett's fees, nor send them to a costs assessor. Instead, his Honour intended to determine the question of those fees after Mr Hartnett had been given an opportunity to explain and justify the quantum that he had invoiced. Very little evidence was anticipated. Again I refer back to [99]-[108] of the October 2021 judgment, and particularly to [101] where his Honour stated:

9. [43]

   At the time of the capping order, Slattery J did not know that Mr Hartnett would make an application to transfer the proceedings to the Court of Appeal. It was also not known how long the actual hearing would be. I consider the capping order was made in circumstances where it was intended that in December 2021, when the matter was next listed before Slattery J in the ordinary course, a mechanism would have been designed to bring all of the matters to a final hearing, whether that was on the papers or otherwise.

10. [44]

    Even if that construction is incorrect, and in any event, I consider it appropriate to vary that capping order pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 42.4(4). Rule 42.4 provides:

11. [45]

    I consider that here there are “special reasons” to vary the cap that was imposed by Slattery J, and it is in the interests of justice to vary the specification of maximum costs. Those reasons include that the matter did not progress as expected by Slattery J, including because of Mr Hartnett's application to the Court of Appeal. Further the hearing took two days, and the focus of the hearing was no longer simply a matter of a lump sum costs order, but instead concerned the supervisory jurisdiction of the Court and a consideration of the voluminous material before the Court.

12. [46]

    I reject Mr Hartnett's submission that that rule would not be invoked by the Court, because the capping order was made by consent. The language of the rule is clear. What is required is for the Court to reach an opinion that there are special reasons for varying the order, and it is in the interests of justice to do so, whether or not the original capping order was made by consent.

13. [47]

    I also consider the special reasons include the findings made in the substantive judgment and the order of indemnity costs. I do not consider it would be just to cause Mr Bell to bear all his costs beyond $10,000 in the circumstances. I consider that the cap ought to be raised to the amount actually incurred less any appropriate discount considered in relation to the gross sum costs order.

14. [48]

    The principles concerning a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) are well known. That section relevantly provides:

15. [49]

    An application for a gross sum costs order can be made as long as costs have not been referred for assessment. That has not occurred here. In Ahern v Aon Risk Services Australia Limited (No 2) [2022] NSWCA 39 at [14]-[18], the Court of Appeal, consisting of Meagher, White and Brereton JJA, summarised the operation of the discretion encapsulated in the section:

16. [50]

    The opposition that is raised by Mr Hartnett to a gross sum costs order is as follows.

17. [51]

    First, it is said that there is insufficient material before the Court to carry out an informed assessment of actual costs. Mr Hartnett relies on principles outlined in Colquhoun v District Court of New South Wales (No 2) [2015] NSWCA 54, where the Court of Appeal considered there was insufficient evidence, upon which to base a gross sum costs order at [6]-[8]:

18. [52]

    Mr Hartnett submits that Mr Bell's evidence is lacking in several respects, each of which will now be dealt with.

19. [53]

    First, it is said that there has been no attempt in the evidence to distinguish between the issues that were capped and the evidence relating to other matters. Based on my assessment of the proper construction of the capping order, it is only that time spent between 8 November and 16 December 2021 that would have been the subject of such costs capping.

20. [54]

    The records in evidence, which include the McVittie Legal’s invoice and Mr Sykes' invoice, indicate that the time spent during that period was an amount of more than $10,000 but not a significantly greater sum. However, as noted above, I consider it appropriate to vary that cap in any event to the amount charged less any appropriate discount for a gross sum costs order.

21. [55]

    Secondly, it is said that there is no evidence of the amount of costs likely to be recoverable on an assessment. McVittie Legal's Costs Agreement with Mr Bell is in evidence and it shows the principal lawyer charges an hourly rate of $450 plus GST, and the paralegals are charged at $160 plus GST. Those rates appear to be very reasonable commercial rates and it has not been suggested by Mr Hartnett otherwise.

22. [56]

    The standard of evidence required for the Court to make a gross sum costs order will vary from case to case as noted by Darke J in Stoddart (NSW) Pty Ltd v Kellyville Building Pty Ltd [2019] NSWSC 1480 at [26]. I consider the authorities referred to by Mr Hartnett can be distinguished here.

23. [57]

    In Colquhoun, the Court only had a bare statement of the costs and disbursements, however here I have the relevant invoices and a breakdown of hourly rates. This is more than a bare statement. Conversely there are several cases where reliance on itemised invoices and similar evidence has been held to be sufficient in the circumstances of the applications brought. Recent examples include Romanos v Punjabi Fusion Group Pty Ltd [2023] NSWSC 1395 (see especially [34]-[40] (Schmidt AJ)); and Jacups v LawCover Pty Ltd [2023] NSWSC 598 (see especially [45]-[47] (Rothman J)).

24. [58]

    In Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy trading as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327, Leeming JA expressed concerns with the way in which costs were calculated due to the fact that Fraser Clancy Lawyers, the applicant on the motion, was conducting legal work for itself in the substantive litigation and the figure claimed was grossly disproportionate to the legal work undertaken. It was on those bases that Leeming JA raised the issue of a lack of independent evidence of what the outcome of a costs assessment would bring. For that reason his Honour considered there to be insufficient evidence to warrant making a gross sum costs order.

25. [59]

    That is not the case here. As noted in various authorities, expert evidence is not necessary. Further, where hourly rates and invoices have been provided, there is no absolute requirement for the opinion of a solicitor concerning the assessment process.

26. [60]

    I am satisfied that here reliance on the itemised invoices, rather than expert evidence, does not sensibly result in the conclusion that justice permits the refusal of a gross sum costs order. I consider that the evidence can be readily understood and assessed. I consider the evidence supports the conclusion that the Court's power to make a specified costs order can be fairly exercised in relation to Mr Bell's costs, with the necessary confidence that an appropriate sum which does justice between the parties can be arrived at: Hamod v New South Wales [2011] NSWCA 375 at [813].

27. [61]

    Mr Hartnett also raised complaint concerning Mr Bell's Costs Agreement. One complaint is that the Costs Agreement is speculative. The relevant clause in the Costs Agreement provides:

28. [62]

    It was submitted that whether such fee agreements create a liability for costs is a matter to be determined by a costs assessor. Mr Hartnett relied upon Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145 at [38]. That case concerned an appeal from a costs assessor, and the Court of Appeal accepted that it was appropriate for a costs assessor to look at the nature of the retainer in making an assessment. Mr Hartnett did accept that the Court has the power to consider a gross sum costs order, even in circumstances where there is a conditional Costs Agreement, but submitted it was a question of the proper construction of the Costs Agreement, and further a question of evidence as to whether there had been compliance with it.

29. [63]

    I note that other Courts have accepted that a lump sum costs order can be made irrespective of whether a Costs Agreement is conditional or contingent: see eg Royal v El Ali (No 3) [2016] FCA 1573 at [43]-[44] (not disturbed on appeal: Zreika v Royal (No 2) [2019] FCAFC 237).

30. [64]

    I also reject Mr Hartnett's submission that it is open to him to challenge the terms of the Costs Agreement or an alleged lack of sufficient disclosure by the lawyers to Mr Bell. I accept that the authorities to which I was taken by Mr Bell indicate that such challenges are a matter for the client of the solicitors, not an opponent.

31. [65]

    I consider the proper construction of the Costs Agreement requires “success” which needs to be read in conjunction with the work which McVittie Legal agreed to carry out, which included "gathering information and challenging the funds retained by Gwendoline Deakin-Bell/Mr Beau Hartnett after the sale of your late mother's home". On any interpretation of the word "successful", Mr Bell has successfully challenged the funds retained by Gwendoline Deakin-Bell/Mr Beau Hartnett and obtained an order that moneys be returned to him.

32. [66]

    Further complaint is made about the obligation of Mr Bell to pay disbursements because of the language of the clause which reads:

33. [67]

    Mr Hartnett submitted there is no evidence that Mr Bell gave permission for the disbursements which are now being sought as part of the gross sum costs order. I reject that submission. It amounts to a suggestion that the lawyers involved in these proceedings have been acting without instructions. It also would mean that Ms Pickering's affidavit is false where she gives evidence that Mr Sykes was retained, that filing fees were incurred, that transcripts were paid for, and that the Court Book was created. She gives evidence that Mr Bell's total legal costs for disbursements are as she sets out. She was not challenged on that evidence.

34. [68]

    Complaint is also made concerning clause 9 on the basis that Mr Bell may remain liable for fees beyond any gross sum costs order. That clause reads:

35. [69]

    I do not accept that that clause has any work to do in the context of a gross sum costs order. If McVittie Legal seeks costs from Mr Bell beyond those in the gross sum costs order, then he would have an opportunity at that time, should he wish, to challenge that claim.

36. [70]

    I do not accept any of Mr Hartnett's submissions as to why it is not appropriate for a gross sum costs order, and, instead, that it would be preferable to send costs to an assessment. I consider that, like in Ahern, a gross sum costs order will help avoid further delay and acrimony between these parties in circumstances where there is a demonstrated history of both.

37. [71]

    Given Mr Hartnett's approach to most steps in the litigation, I accept that the cost and time of an assessment process is likely to be disproportionate to the importance and complexity of what is in dispute about Mr Bell's costs.

38. [72]

    The Court is entitled to adopt an “impressionistic” or “broad brush” approach to quantification: see Ahern at [42]. A gross sum costs order must have regard to the actual costs incurred in the particular circumstances of the case, taking into account the matters the parties have raised for consideration. Generally speaking the invoices in evidence here set out a reasonable description of the work done in order to identify their connection with these proceedings and the amounts that are claimed in respect of them.

39. [73]

    As to quantification, the Court is also entitled to take into account that if assessed on the ordinary basis, the usual outcome is that the costs recovered represent a proportion in the range of 60 to 85% of total costs incurred; see, for example, Bechara v Bates [2016] NSWCA 294 at [69].

40. [74]

    It can be accepted that where an indemnity costs order has been made, that costs over 80% of the total incurred may be awarded on an assessment. However here, I consider that the total amount claimed by Mr Bell needs to be adjusted downwards from the 90% of solicitors’ costs and 100% of disbursements which are claimed, less the $10,000 of Mr Hartnett’s 2020 motion.

41. [75]

    I consider that the solicitors’ costs component of the bill of costs should be reduced because of possible duplication. For example, there are multiple time entries on 23 August 2022. Further, there are time entries in relation to the notice of motion in the Court of Appeal heard by Basten JA. They are not costs that I can order.

42. [76]

    I also consider there ought to be a reduction of Mr Sykes' costs. The invoices demonstrate that Mr Sykes has had the carriage of the substantive work involved in the proceedings, which has then been implemented by McVittie Legal. For example, most of the solicitors' time entries concern correspondence and the like. However, I do consider that more time than may be considered reasonable on an assessment has been charged and ought to be reduced. Further, Mr Sykes' invoices also refer to the proceedings in the Court of Appeal.

43. [77]

    Having taken a broad brush approach and taking into account those matters, and allowing for contingencies and a potential margin of difference in a costs assessment process, I have concluded that an appropriate gross sum costs figure is $185,000.

44. [78]

    The plaintiff has been successful in obtaining a gross sum costs order and therefore I consider ought to have his costs of the motion. That is not resisted by Mr Hartnett.

45. [79]

    Mr Bell seeks a gross sum costs order for the motion in the sum of $3,245 which is based on Mr Sykes spending three hours to prepare the costs application and half a day to prepare submissions and appear in court, plus GST. That gross sum costs order does not provide any sum for the filing of the motion nor the preparation of the affidavit of Ms Pickering, or the preparation of the Court Book. Mr Hartnett did not raise any reason why that sum would not otherwise be appropriate and I am prepared to award Mr Bell that sum.

46. [80]

    Therefore, I make the following orders:

    1. (1)

       Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), within 28 days the defendant is to pay the plaintiff a specified gross sum of $185,000 for costs and disbursements, instead of the costs being assessed.

    2. (2)

       The defendant is to pay the plaintiff's costs of the notice of motion in the fixed sum of $3,245.