IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMERCIAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CI-17-05902

C & F NOMINEES MORTGAGE SECURITIES LTD	Plaintiff	
		
v		
		
HEND KARBOTLI (also known as HIND ISSA) & ORS	Defendant	

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JUDGE:	HIS HONOUR JUDGE MACNAMARA 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	16 October 2020	
DATE OF JUDGMENT:	1 November 2020	
CASE MAY BE CITED AS:	C & F Nominees Securities Ltd v Karbotli (No 3)	
MEDIUM NEUTRAL CITATION:	[2020] VCC 1843		

REASONS FOR JUDGMENT
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Subject:		Costs	
Catchwords: 	Costs orders in favour of land owner claiming registered mortgage a forgery – indemnity under s110 of the Transfer of Land Act 1958 – whether costs order against Registrar of Titles should extend to entire costs of mortgagor or only amount not recovered or irrecoverable from mortgagee – basis of assessment of costs – whether costs agreements void – Legal Profession Act 2007 (Qld), ss300, 319, 323, 324, 326, 327 – whether “uplift fee” may validly be included in costs agreement other than conditional costs agreement whether costs order against plaintiff or defendant Registrar of Titles should be stayed
Legislation Cited:	Transfer of Land Act 2020; Legal Profession Act 2007 (Qld); 	Legal Profession Act 2007 (Qld)
Cases Cited:	Emma Tait Nominees Pty Ltd v Laprese [2020] VSC 508; Polygram Records Inc v Raben Footwear Pty Ltd [1996] FCA 634; Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189;Tipperary Developments Pty Ltd v The State of Western Australia (2009) 258 ALR 124; Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3) [2012] VSC 399; Frost v Miller [2015] QSC 206; BGM v Australian Lawyers Group Pty Ltd [2014] WASC 290; Catto v Hampton Australia Limited (in liq) [2008] SASC 231; Sunland Waterfront (BVI) v Prudential Investments Pty Ltd (No 4) [2013] VSC 669; Wilson v Bauer Media Pty Ltd [2018] VSC 161; Clyne v New South Wales Bar Association (1960) 105 CLR 186; In re Veron [1966] 1 NSWR 511; In re Evatt; Ex parte New South Wales Bar Association [1967] 1 NSWR 609; In re A Solicitor; Ex parte the Law Society [1912] 1 KB 302; Hazeldine v Hosken [1933] 1 KB 822; Campbell’s Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386; Pittman v Prudential Deposit Bank Limited (1896) 13 TLR 110; Choules v Siglin [2002] WASC 230
Judgment:	Within 14 days of this day the parties must bring in short Minutes to give effect to these reasons.		

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr R. Moore	Wotton & Kearney	
			
For the Defendant

For the Registrar of Titles	Mr J. Twigg QC with
Ms E. Tadros

Mr J. McKay
	Marino Law

Department of Environment, Land, Water and Planning	

HIS HONOUR:

Background
1	On 22 July this year, I published reasons dismissing a claim by the plaintiff, C & F, to enforce a mortgage against the property of the first defendant, Ms Issa, and sustained her counterclaim which sought to avoid the mortgage and have it removed from the Register under the Transfer of Land Act [2020] VCC 987.  On 28 August I made orders giving effect to that determination which I ordered stayed pending the hearing and determination of appeal proceedings commenced by C & F.  I reserved the question of costs and the extent of an indemnity which I found the counterclaimant, Ms Issa, was entitled to as against the Registrar of Titles.  These reserved issues came on for hearing before me on 16 October 2020.
2	Unless my substantive determination be reversed or varied by the Court of Appeal, it was common ground that as to the costs of the trial, Ms Issa was entitled to her costs assessed on the standard basis as against the unsuccessful plaintiff, C & F, on the basis of the long established principle that costs follow the event; viz the dismissal of C & F’s claim and the success of Ms Issa’s counterclaim.  Again, in the events that had occurred and on the basis of the findings that I made in my substantive determination, Ms Issa would be entitled to an indemnity under s110 of the Transfer of Land Act as against the Registrar of Titles based upon the Registrar’s registration of the mortgage which I determined should be avoided and deregistered.  This indemnity would extend to Ms Issa’s costs of the proceeding to the extent that these were not recoverable from C & F.  What divided the parties was how the liability of C & F under the Court’s ordinary costs jurisdiction on the one hand, and the liability of the Registrar to provide an indemnity under s110 of the Transfer of Land Act on the other, should interact and also whether the costs award as against C & F should, as to certain specific portions of the trial costs, be made on a full indemnity rather than merely the standard basis.
Contentions on behalf of Ms Issa as to interaction of orders
3	Mr Twigg QC and Ms Tadros relied on what they said was an enlarged and enhanced costs power granted to the Court by s65C of the Civil Procedure Act (Vic) 2010 and s110 of the Transfer of Land Act which, I accepted in my principle determination, entitled Ms Issa to indemnity as against the Registrar of Titles.  Therefore, they said, the Registrar should be ordered to pay “the total amount of Ms Issa’s loss as principal relief, to be assessed by the Costs Court in default of agreement.”  Such order, they said, should be made pursuant to s110 of the Transfer of Land Act and not as an order in the Court’s costs jurisdiction under s78A of the County Court Act 1958.  They referred to s17D(1)(d)(i) of the Supreme Court Act 1986.
4	They proposed an order entitling the Registrar to recover as against C & F the costs of the proceeding on the standard basis subject to uplift to a full indemnity basis.  This regime, they said, would enable Ms Issa to make an early recovery of her costs and to relieve her of the possible embarrassment of having to conduct potentially two separate costs assessment applications before the Costs Court.  An order might be made, they said, granting the Registrar access to their client’s file for the purposes of prosecuting a costs assessment as against C & F.  No problems of privilege would arise, said Ms Tadros in submissions in reply, if the order entitling the Registrar to have the costs of Ms Issa on a standard basis (subject to particular additional orders for indemnity costs) were stayed pending the outcome of the appeal to the Court of Appeal.  Once the appeal was resolved, privilege issues would fall away.  (Transcript (“T”) 97)
5	They said the order which they propose could be regarded as analogous to a Sanderson order.
Contentions on behalf of the Registrar as to interaction of orders
6	Mr McKay of counsel on behalf of the Registrar referred to certain paragraphs of my principal determination.  At paragraph [122] I had said:
“There remains, however, the question whether [Ms Issa] can recover the outlay by way of costs which she has made in this proceeding to the extent that they are not recoverable from C & F, which is to be regarded as her principal antagonist in this dispute.”
7	And my further statement at [127] where is said:
“The issue of costs of the proceeding by way of relief ancillary to the principal determinations in the proceeding remains outstanding.  The form of costs indemnity accruing to Ms Issa is at least partially dependent on the costs order made in the proceeding, generally.”
8	Mr McKay said, therefore, the proper analysis of the interaction of orders as to costs against C & F on the one hand, and the Registrar on the other, should be that the Registrar’s liability is to extend only to the costs of the proceeding to the extent that they are not recoverable as against C & F.  The approach of rendering the Registrar liable for the entirety of the costs, subject to a right of indemnity, was inappropriate.
9	Further, Mr McKay said that the assessment of costs awarded as against the Registrar should be made in accordance with the Court’s Rules, Order 63A, and therefore in accordance with the scales of costs provided for in those Rules.  He referred to Rule 63A.34A.  He said it could be determined that the s110 indemnity extended to costs of legal proceedings because of the express reference to them in sub-s 110(3).  The reference in paragraph (b) to “costs … in … any legal proceedings” should be regarded as remitting one necessarily to this Court’s costs jurisdiction under s78A of the County Court Act.  He said the evidence disclosed that Ms Issa had not yet paid her legal costs and therefore this “[was not] a case where the claimant seeks to recoup their expenditure from the Registrar.  Rather, [Ms Issa] seeks to be exonerated from the costs liability she has incurred to her legal practitioners to the extent those costs are not recovered from C & F.”  He said costs may be awarded as part of a s110 indemnity on a basis other than full indemnity.  He referred to the decision of Quigley J in Emma Tait Nominees Pty Ltd v Laprese [2020] 508 [62] – [65].  He said that in the Emma Tait case the Court awarded costs on a full indemnity basis under the Court’s costs jurisdiction rather than as a judgment in debt or damages.  He referred to [79] of her Honour’s judgment.  Mr McKay said, “If you just make a general order for indemnification without any scrutiny, then essentially that’s going to mean that the sums demanded by the legal practitioners for Ms Issa are just paid without scrutiny.”  (T26, L31 – T27, L4)  Mr McKay said, “The making of a ‘Sanderson’ order in [the] circumstances is unnecessary, and would undermine or obscure the basis on which the indemnity is being granted in the first place."
Interaction of orders – conclusion
10	The material parts of s110 of the Transfer of Land Act 1958 are quoted at [121] of my substantive determination.  That section grants to a person in Ms Issa’s circumstances an entitlement to be indemnified against any loss or damage sustained by her as a result of the amendment to the Register constituted by the registration of C & F’s mortgage.  The link between the loss and damage sustained and the Registrar’s actions which must be established giving entitlement to indemnity is causal.  Emma Tait Nominees Pty Ltd v Laprese [2020] VSC 508 [21] per Quigley J.  This indemnity is perfectly general in its terms.  The several paragraphs of s110(1) do not set out a series of specific and limited classes of indemnity which the section provides.  Rather, they constitute a list of actions and omissions by the Registrar and related matters which enliven a right to indemnity for a person suffering loss or damage as a result of such matters.  This section does not in any way limit the width of the indemnity aside from requiring the existence of a causal link to the types of outlay for which indemnity may be recovered.  Sub-section (3), therefore, operates by way of a specific limitation upon the generality of sub-s(1).  Even were sub-s(3) not to be found in the section, the general indemnity granted by sub-s(1) would be wide enough to extend to legal costs, whether incurred in the course of litigation in the form of a proceeding, or entirely outside the litigious context provided, only that the necessary causal link be established.  The exclusionary provisions of sub-s(3) have no application to the present case.  There has been no finding that Ms Issa contributed to her loss, thereby excluding paragraph (a) of the sub-section.  I have found that these proceedings were brought with the Registrar’s consent and therefore paragraph (b) has no application, with the sub-section in its entirety inapplicable.  I cannot see how it can be proper to read down the indemnity entitlement of Ms Issa by some sort of implication to be drawn from the inapplicable exclusionary provision.
11	The indemnity granted by s110(1) involves no element of the law of suretyship.  Therefore, there is no warrant to regard C & F as being, in effect, the principal debtor or obligor.  Even if that were wrong, absent some specific provision there is no rule in the law of suretyship that remedies against the principal debtor must be exhausted before the surety is resorted to.  Precisely how matters may play out in the assessment of costs invites consideration of a number of permutations and combinations, perhaps not all of which might now be obvious.  If the assessment of costs as against C & F be deferred pending the hearing of its application for leave to appeal and any appeal which might be brought pursuant to leave, Ms Issa can be guaranteed only a single visit to the Costs Court, should it come to that, in enforcing her entitlements as against the Registrar.  No doubt scenarios may be imagined in which either no visit by Ms Issa to the Costs Court at all or only one might result if the orders are structured as advocated by the Registrar.  The course advocated by Ms Issa, however, produces a greater certainty that she and her legal advisers will not be forced to go from pillar to post.
12	I turn, finally, to the role of the Costs Court.  By virtue of s17D(1)(d)(i) the Costs Court has an entitlement to assess costs where “there is an entitlement to costs by or under any Act …”.  Section 110(1) of the Transfer of Land Act is a provision under an Act providing an entitlement to (inter alia) legal costs.  The Costs Court therefore has jurisdiction to assess those costs independent of their being costs of a proceeding under the Rules of this Court.  Mr Twigg and Ms Tadros conceded that Ms Issa’s entitlements should not extend to any costs that were incurred unreasonably or were in an unreasonable amount.  The order for indemnity should expressly include such a proviso.  Rule 63A.34A of the Courts Rules provides as follows:
(1)	 Subject to the provisions of these Rules, all costs taxed by the Cost    Court shall be taxed as follows—
(a)	as to all business done on or after the commencement of these Rules, according to the County Court costs scale or the relevant Scale of Costs as in force at the time the costs were incurred;
(b)		as to all business done before the commencement of these Rules, according to the Scale of Costs in use in the Court at the time the costs were incurred.
(2)	Subject to the provisions of any Act for the time being in force in actions which have been remitted or transferred to the County Court from some other Court, the costs incurred in such other Court before such remission or transfer shall be taxed according to the scale of costs and fees in use in such other Court at the time such costs were incurred, unless the Court or Judge otherwise orders.
(3)	  Witnesses’ expenses and interpreters’ allowances shall be fixed in                   accordance with the scale in Schedule 2.
13	The effect is that an assessment by the Costs Court made under the Rules of Court would be constrained by the Court’s scales and the items allowable as costs under those scales.  Costs as between solicitor and own client in this State, even in litigious proceedings, are not in my experience billed by the solicitors to their own clients in accordance with the scales of costs prescribed by the Rules.  Rather, such costs are rendered in accordance with costs agreements between the practitioners and the client.  Such agreements are regulated by the Legal Profession Uniform Law having effect in Victoria pursuant to the Legal Profession Uniform Application Act 2014.  These matters are dealt with at Part 4.3 Division 4 of the Uniform Law.  Unless the Costs Court were of opinion that the relevant costs agreement by its nature and general effect rendered Ms Issa liable for costs unreasonably incurred or in an unreasonable amount, the assessment should be made in accordance with the relevant costs agreement and not by reference to the Court’s Scale of Costs.  Rule 63A.34A should be excluded.
14	It follows that in my view there should be an order of indemnity against the Registrar in favour of Ms Issa pursuant to s110 of the Transfer of Land Act 1958 for her costs in the proceeding in the form described, with the Registrar entitled to an indemnity against C & F for that liability to the extent described below, rather than the regime advocated by the Registrar which would render him liable for only the shortfall of Ms Issa’s costs not recovered from C & F.
The costs order against C & F
15	As previously noted, it was common ground that C & F should be required to pay at least Ms Issa’s costs of the proceeding on the standard basis.  In light of what I have said above, this obligation should be expressed as a right of recovery in favour of the Registrar in light of the Registrar’s more general liability to indemnify Ms Issa under s110.  The remaining question is as to whether several items of C & F’s costs liability should be assessed, as contended by Ms Issa’s counsel and Mr McKay for the Registrar, upon a full indemnity basis rather than on the standard basis.
16	The items in question are as follows:
(a)	C & F’s summary judgment application;
(b)	the costs thrown away by Ms Issa as a result of C & F’s deficient discovery;
(c)	the costs of proving the facts set out in Ms Issa’s notice to admit to C & F dated 3 March 2020, namely:
(i)	preparation, filing and service of:
A	the Expert Report of John Heath dated 13 January 2020;
B	the Supplementary Expert Report of John Heath dated 11 March 2020;
C	the witness statements of Ms Issa, Jennifer Halik and Mr Steele; and
(ii)	conferencing with each witness and preparation of giving evidence;
(iii)	the oral examination and cross-examination of Ms Issa and Jennifer Halik;’ and
(iv)	preparation with respect to the above;
(d)	corresponding with C & F in relation to Mr Skeels’ position of conflict.
Contentions on behalf of Ms Issa
17	As to the summary judgment application, Mr Twigg and Ms Tadros said those costs should be payable on a full indemnity basis because C & F lacked a proper basis for bringing the application and should have realised it was bound to fail.  In any event, they said, it should have withdrawn its application as soon as it received an email from Mr Picken admitting that he did not personally witness Ms Issa sign the solicitor’s certificate and C & F’s then solicitors were acting in a position of conflict at the time of making and continuing the application.
18	They said Mr Skeels of C & F swore an affidavit in support of the summary judgment application stating that he did not believe that Ms Issa had any real prospect of defending C & F’s claim.  (Court Book 107)  At that time, they said, he knew Ms Issa was not legally represented and penniless as a consequence of fraud and did not have copies of the executed mortgage.  The Queensland Police Criminal Investigation Branch was investigating the frauds.  Ms Issa said she did not sign the C & F mortgage and was a victim of fraud and C & F had not complied with s87A of the Transfer of Land Act.  C & F had had no direct contact with Ms Issa and was relying substantially on a certificate from Mr Picken.  They said in accordance with the overarching obligations established by s18 of the Civil Procedure Act (Vic), it was evident that there was no proper legal basis for the summary judgment application and it should have been withdrawn.  Ms Issa’s solicitors explained why this was in correspondence.  Ms Issa was forced to brief counsel to resist.
19	Next, they drew attention to Mr Skeels’ failure to disclose documents.  First, they referred to his refusal to provide information to Ms Issa’s daughter, including copies of executed mortgage documents and evidence establishing Ms Issa’s identity as the person signing as mortgagor.  (T288 L18 – T290 L9)  The executed documents, they said, were provided to Ms Issa only when the summary judgment application was launched.
20	When C & F filed its affidavit of documents, it did not disclose its correspondence with Mr Picken revealing the circumstances in which he gave his certificate.  These documents were disclosed only in a supplementary affidavit of documents of 23 September 2019 and a further supplementary affidavit of documents of 7 April 2020, a few weeks before trial.  All of this, they said, was in violation of C & F’s obligation of cooperation.  (s20 Civil Procedure Act (Vic))
21	Next, they referred to the Notice to Admit Facts requiring an admission that Ms Issa had not signed the mortgage, had not attended a face-to-face interview and that Mr Picken had falsely represented that he had verified Ms Issa’s authority and identity.  They noted that C & F had filed a Notice of Dispute disputing all of these matters despite Ms Issa’s denials on oath and the existence of some but not all of the handwriting expert reports ultimately relied on.  These notices of dispute required Ms Issa to file a supplementary report by expert, Mr John Heath, and statements by Ms Issa, her daughter, Ms Halik, and solicitor, Mr Mark Steel “on the basis that Ms Issa would be put to proof on all the facts which should have been admitted.”  At the outset of the trial, counsel for C & F did not distinctly admit these matters but informed me that he would not be cross-examining the expert handwriting witness, Mr Heath.  (T6 L12)  They referred to the costs ruling of Foster J in Polygram Records Inc v Raben Footwear Pty Ltd [1996] FCA 634.
Registrar’s contentions
22	Mr McKay, on behalf of the Registrar, endorsed the position put on these matters on behalf of Ms Issa. (T88-9)
Contentions on behalf of C & F
23	Mr Moore, counsel for C & F, opposed the making of any orders for costs on a full indemnity basis against his client.  Mr Moore said that C & F had acted reasonably relative to the summary judgment application and had withdrawn it when in possession of an affidavit by Ms Issa swearing that she had not executed the mortgage.  He contended that it was not incumbent on C & F to withdraw simply based on the unsworn assertion in Ms Issa’s defence to that effect.  He noted that C & F had agreed to have the costs on a standard basis designated as costs of the proceeding.  In the events that have occurred, this necessarily means that the costs go to Ms Issa.
24	As far as Mr Skeels’ having a conflict of interest, Mr Moore noted that Mr Skeels did withdraw following the abandonment of the summary judgment application but the alleged or actual conflict of interest “did not expose Ms Issa to any increased costs with respect to the summary judgment application”.  Mr Moore referred to the well-known judgment of Harper J in Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 [7] – [8] where his Honour set out some seven instances in which an award of costs on a full indemnity basis other than the standard (or in those days, party-party) basis.  Mr Moore conceded that the category was not closed but contended that in any event none of those applied to Mr Skeels’ conflict.
25	As to the contentions based on the Notice to Admit, Mr Moore referred to the decision of the Western Australian Court of Appeal in Tipperary Developments Pty Ltd v The State of Western Australia (2009) 258 ALR 124.  He said there the Court of Appeal held, with respect to the Western Australian equivalent to Rule 63A.18, that the Rule had no operation unless the Court made findings as to the various matters covered by the Notice to Admit.  In the present case, said Mr Moore, most of the matters which C & F was called upon to admit were not the subject of express findings by the Court.  He said any of the costs of expert witnesses were incurred before the Notice to Admit and therefore were incurred whether or not C & F had made admissions.  He said Mr Heath’s supplementary report was prepared prior to the Notice of Dispute and those costs were incurred without knowing that an admission would be made or not.  The final Heath report, he said, related to documents that were not the subject of the Notice to Admit.  Finally, he said, the witness statements by Ms Issa, Ms Halik and Mr Steele were prepared both for this proceeding and also for a related proceeding, CI-18-05722, concerning a different mortgagee.  [That proceeding was listed to be heard concurrently with this one but following discussions after both matters were called on for trial, the other proceeding settled.]
26	As to the late disclosure of the Picken documentation, Mr Moore said that until Mr Picken was joined as a party to this proceeding on 27 September 2018, he was a likely witness for C & F and therefore the correspondence was protected by “litigation or client privilege”.
Reply on behalf of Ms Issa
27	Mr Twigg and Ms Tadros said that any privilege which might have attached to the correspondence with Mr Picken was lost when that correspondence was forwarded to Ms Quan of Cornwall Stodart on 21 June 2018.  The failure to make early discovery or timely discovery of those documents, they said, was “due to Mr Skeels’ position of conflict.”  They said the Tipperary case was distinguishable because the language of the Western Australian Rule was different from the language of the Rule in this State.  The matters in the Notice to Admit that were not specifically found in my final determination were steps along the way to the ultimate conclusion that the mortgage in question was forged.  The facts in the Tipperary case were quite different, they said.  As to Mr Moore’s reliance on the Ugly Tribe case, they said that the more recent decision of Croft J in Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3) [2012] VSC 399 [11] – [22] and [59] represents a more recent and more comprehensive analysis on the subject of indemnity costs than the judgment of Harper J in Ugly Tribe.  They referred to a passage from Dal Pont Law of Costs (2nd Ed) 539-40 [16.51].
Indemnity costs – conclusions 
Summary judgment application
28	In my view, the strictures applied to C & F’s conduct in mounting a summary judgment application are not justified.
29	Traditionally, plaintiffs’ summary judgment applications were made under Order 14 of the previous Rules of the Supreme Court.  Such applications were made by summons which was required to be filed 14 days after the defendant filed an appearance (Order 14 Rule 2).  The time limit meant that such applications necessarily occurred before the defendant filed his, her or its defence.  Plaintiffs obviously preferred to succeed on their applications but a subsidiary objective was to obtain a statement by, or on behalf of, the defendant on oath of the defence to be relied on.
30	When the present pattern of Rules was adopted in 1987, Order 22 permitted plaintiffs’ summary judgment applications to be made at any time and not, as had previously been required, before pleadings.  More recently, Order 22 has been amended so as to align it with s62 and s63 of the Civil Procedure Act (Vic) 2010.  Since, under these provisions, a plaintiff must contend that there is no substance in the defendant’s defence, a plaintiff’s summary judgment application now cannot be launched before the defendant files his, her or its defence.  The approach taken by Mr Skeels requiring the defence to be sworn to seems to be steeped in the tradition deriving from the earlier versions of the Rules.  Given that defences are merely allegations and are not sworn to, it does not seem to me to be unreasonable for a plaintiff to require a defence, particularly one as fundamental as an allegation of forgery, to be sworn to before conceding that it raises a triable issue.
31	As to the Sunland Waterfront case and the passage from Dal Pont relied upon and applied by Croft J, his Honour and Professor Dal Pont were dealing with a quite different situation from the present; viz where an entire proceeding without a proper basis had been commenced and maintained.  What is said there cannot simply be transposed to the present situation.  In any event, I am not persuaded that Mr Skeels acted unreasonably.  Mr Skeels ultimately withdrew from acting for C & F entailing an admission that he was subject to a conflict of interest.  The launching and maintenance of the summary judgment application not being unreasonable for reasons I have given, cannot be regarded, therefore, as a consequence of the situation of conflict of interest. 
32	The Rules as to notices to admit seem, to me, simply to be inapplicable.  They are intended to cover a situation where a party declines to admit matters which are ultimately proven, with the party seeking the admission being entitled to the costs of proof even in the face of an overall loss.  Given that Ms Issa was the winning party, the question as to whether there should be an award of indemnity costs depends on whether the failure to admit, or to put it another way, the action in disputing the relevant matter, was so unreasonable as to justify an award of indemnity costs.  This seems to have been the approach taken by Foster J in his costs ruling in Polygram Records Inc v Raben Footwear Pty Ltd [1996] FCA 634 relied upon by Mr Twigg and Ms Tadros.  In that case, his Honour concluded that a refusal to admit certain facts in the face of a notice to admit for what his Honour characterised as “tactical reasons” was sufficient to attract an indemnity costs order.  With some hesitation, his Honour rejected a contention that as to some of the matters, the non-admitting party is entitled to put the other party “to proof”.  His Honour referred to the modern approach to commercial litigation.
33	In the present instance, a central issue in the proceeding is whether in fact the mortgage in question was a forgery.  This was a matter of such importance that putting Ms Issa to proof went beyond mere “tactics”.  In my view, it was not unreasonable in the circumstances for C & F not to make the admission.  To know that Mr Picken was not, as his certificate might have led one to believe, present when the mortgage was executed, does not in itself prove that the person who signed as mortgagor was not Ms Issa.  Whether it was Ms Issa who signed in her name as mortgagor was, in the circumstances, a matter peculiarly within her knowledge.  These considerations are also relevant to the conclusion I have reached that it was not unreasonable for C & F to launch and maintain, until Ms Issa went on oath as to the forgery, its summary judgment application.
34	I turn, finally, to the delay in discovery of the Picken documents.  Whatever might be said about privilege claims at an early stage, they had ceased to be available by the end of September 2018 or perhaps months earlier.  If I accept the contentions put on behalf Ms Issa, the documents were of great importance and must have been perceived as such; no satisfactory explanation as to their late discovery has been given.  However, these documents were discovered prior to trial.  No explanation of the additional costs incurred, save at the highest level of generality has been given.  In failing to make an award on a full indemnity basis, as I believe I should, I am conscious that this does not deprive Ms Issa of her costs on the standard basis for whatever additional attendances were generated by the delay.
35	I am not persuaded that it is appropriate to make an award on a full indemnity basis as to any of the costs payable by C & F.
Certification for counsel
36	Ms Issa had proposed that the Court grant certificates for the appearance of Mr Twigg QC and Ms Tadros and that I certify for certain days and hours of attendance and preparation.  There has been no attack or criticism of the rates proposed.  Mr Moore, however, has said that it would be appropriate to leave it to the Costs Court to make a determination as to the number of days involved in, for instance, trial preparation.  In my experience, it is quite common for Judges to certify, not merely rates for counsel, but also particular periods of time for preparation.  What is sought by those certificates is, in my view, not obviously unreasonable or inappropriate.  I propose giving the certificates which have been sought.
Postscript
37	In his submissions in reply, Mr McKay agreed that particular issues might arise as to whether there should be a stay on the cost order or orders, depending on whether, as he contended, the Registrar’s costs liability to Ms Issa should only “backstop” C & F’s primary liability, or, on the other hand, that the Registrar should be rendered primarily liable on a full indemnity basis with a right of indemnity to the extent of C & F’s liability, whether it be on the standard or full indemnity basis.
38	He said that:
“I can see that that may create issues in terms of whether a stay would be granted. To be honest, I don't have instructions on that point. I haven't asked my instructing solicitor what his view would be on that matter.” (T87, L12-17)
39	Mr McKay sought leave to file a further submission by the close of business on 19 October. (T98, L28 – T99, L13)
40	In purported reliance on the leave granted, Mr McKay filed a document styled “Further Submissions of the Registrar of Titles” dated 19 October 2020, consisting of two paragraphs dealing with the issue of “stay”.  In the opening paragraph, which was headed “Introduction”, he said, “In the course of preparing these submissions, counsel for the Registrar has identified a further matter of substantial relevance to the final orders themselves”.
41	There then followed some seven paragraphs under the heading “Costs Agreements Void”, which had not previously been argued or foreshadowed.
42	In support of Ms Issa’s costs applications, her solicitor, Mr Steele of Marino Law, which is based in Mermaid Beach, Queensland, swore an affidavit dated 28 August 2020, setting out certain background facts said to be relevant to the costs issues between the parties.  Paragraphs 20-28 of that affidavit dealt with the issue of client fee agreements.  These paragraphs described how Ms Issa had attended his office for advice and he had carried out certain preliminary investigations.  Discussions were undertaken as to the basis on which Mr Steele’s firm might charge its costs. At paragraph 26, Mr Steele said:
“Ms Issa entered into a Client Fee Agreement with Marino Law pursuant to which Marino Law would act on Ms Issa's behalf with respect to the removal of various fraudulent mortgages registered against the Bulleen Property [that is, the property the subject of the present proceeding] on a deferred fee basis with a 25% uplift fee. Now produced and shown to me marked ‘MLS-11’ is a true copy of that Client Fee Agreement.” 
43	According to the following paragraph [27], Mr Steele said that Ms Issa entered into an “updated Client Fee Agreement”.  This second agreement was exhibited as “MLS-12”.  According to Mr Steele (paragraph [28]), this second agreement “was updated with a detailed revised estimate as to costs that would be incurred in running the matter through to a trial”. 
44	It was these costs agreements which, according to Mr McKay, were “void”.  He continued:
 “it is plain that Ms Issa seeks to have her loss [for which indemnity is sought against the Registrar] assessed on the basis that the sums due under the cost agreements are recoverable from the Registrar. The availability of such relief depends on the validity of the said cost agreements.” (Further Submissions, paragraph 2)
45	Mr McKay said that clause 32.1 of each agreement chose Queensland law as its proper law.  Mr McKay noted, “both Ms Issa and her solicitors … are based in Queensland”.  His submissions proceeded, therefore, upon the basis that statutory regulation of the agreements was to be found in the Legal Profession Act 2007 (Qld).  No other counsel challenged this position.
46	Mr McKay continued:
“The costs agreements rendered payment of the fees conditional on the successful outcome of the case (clauses 4.7 to 4.10, item 22 of the schedules).” (Further Submissions, paragraph 3)
47	He said that s323(3)(e) of the Queensland Act required that there be included a five day cooling off period, which was not to be found in either agreement.  As a result, by virtue of s327(1) of the Queensland statute, they were void.  He referred to Frost v Miller [2015] QSC 206.  Therefore, said Mr McKay, to the extent that Marino Law had rendered bills in accordance with the terms of the agreement, those bills were rendered “on the wrong basis”.  He referred to BGM v Australian Lawyers Group Pty Ltd [2014] WASC 290.  Consequently, those costs were not recoverable.  He referred to s329(1) of the Queensland Act.
48	This led one, he said, to Rule 63A.59 of the Court’s Rules, which provided that:
“…subject to any Act or any order of the Court or any agreement between the solicitor and the client [the solicitor’s costs] be taxed on the  standard basis in accordance with Rule 63A.30”.
49	He said that since the costs agreements were void, Ms Issa’s costs were to be assessed and to be recoverable on no more than the standard basis:
“Pursuant to rule 63A.63, the costs are to be assessed in accordance with the Supreme Court Rules, which, at Part 5, set out the usual procedures for an application to the Costs Court”.
50	Pending assessment by the Costs Court, no amounts were payable to Marino Law and, therefore, no indemnification order should now be made.
51	Following assessment of the costs on the court’s scale would be recoverable.  Therefore, any order made in favour of Ms Issa under s110 of the Transfer of Land Act should:
“be limited to requiring the Registrar to indemnify Ms Issa for any costs and disbursements ordered to be paid to Ms Issa by C & F that are not recoverable from C & F (this being consistent with the Registrar’s concession that Ms Issa should not bear any risk of C & F becoming insolvent).”
52	Ms Issa’s solicitor complained that these new matters, based on the Queensland statute, were raised on behalf of the Registrar following conclusion of argument and without leave.  They sought a further opportunity for their counsel to make submissions.  I was dismayed that these new issues were raised at so late a stage.  In the circumstances, I had the matter listed for further argument on 1 November 2020.
53	Mr Twigg and Ms Tadros said:
“Properly construed, the costs agreements defer payment of the client’s fee liability and no part of the payment of legal fees is conditional upon Ms Issa’s success in the proceeding, which is required as the necessary condition to be a ‘conditional costs agreement’ [within the meaning of the Queensland statute]”.
54	It was only conditional costs agreements, they said, which were required by that statute to include the five day cooling off period.  
55	They said, even if Mr McKay’s contentions on this point were sustained, the monies that Ms Issa has already paid to her solicitors would not be affected by the avoidance of the agreements.  They referred to Catto v Hampton Australia Limited (in liq) [2008] SASC 231 and Sunland Waterfront (BVI) v Prudential Investments Pty Ltd (No 4) [2013] VSC 669 [29], where Wood AsJ followed Catto’s case.  They referred to the various provisions in the agreement.
56	They said that, even if the agreements were “void”, this did not immunise Ms Issa from liability for costs.  They referred to Wilson v Bauer Media Pty Ltd (Costs) [2018] VSC 161 [30] per John Dixon J.
57	As to Rule 63A.59, they noted that this Court has a discretion and contended that that discretion should be exercised so as to order costs on a full indemnity basis.
58	In reply, Mr McKay said that the submission made by Mr Twigg and Ms Tadros that the agreements were not “conditional costs agreements” within the meaning of the Queensland statute proved too much.  If they were not such agreements, then there would be no entitlement to recover the proposed 25 per cent uplift, which Marino Law claimed.  Such an uplift was recoverable, he said, if, and only if, the agreement in question was “a conditional costs agreement” entered into in compliance with the Queensland statute.  
59	In allowing for the uplift, the statute created a negative implication that such an uplift would not be recoverable in any other circumstance, viz under any agreement which was not “a conditional costs agreement” as defined.  Mr McKay concluded by saying that acceptance of Ms Issa’s interpretation of the Queensland statute would open up such wide loopholes in its operation that the statutory purpose would be thwarted.  Such interpretation therefore should be rejected.
Conclusions as to validity of costs agreement
60	It is necessary, first, to consider a number of pertinent provisions in the Queensland Legal Profession Act 2007.  
61	Section 326 of the Queensland statute provides:
“Subject to this division and division 7, a costs agreement may be enforced in the same way as any other contract.”
62	The effect is that, subject to express provisions to the contrary in the statute, the common law of contract applies to the recovery of costs by a solicitor.   The common law of Australia on this point would include any relevant public policy rules based on champerty and maintenance.
63	Section 300 defines the phrase “conditional costs agreement” for the purposes of the relevant part (3.4) as follows:
“conditional costs agreement means a costs agreement that provides 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, as mentioned in section 323, but does not include a costs agreement to the extent to which section 325(1) applies.” 
64	It defines the phrase “scale of costs” in the same section as follows:
“scale of costs includes the costs for a court prescribed under the Supreme Court of Queensland Act 1991 in relation to a matter.” 
65	The phrase “uplift fee” is defined in the following terms:
“uplift fee means additional legal costs, excluding disbursements, payable under a costs agreement on the successful outcome of the matter to which the agreement relates.” 
66	Section 319 provides, generally, that legal costs are recoverable under a costs agreement or under the applicable scale of costs or, if neither of these applies, “according to the fair and reasonable value of the legal costs provided”.  
67	Section 323 of the statute provides inter alia:
“(1)	A costs 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.
 …
 (3)	A conditional costs agreement—
	(a)	must set out the circumstances that constitute the successful outcome of the matter to which it relates; and
	(b)	may provide for disbursements to be paid irrespective of the outcome of the matter; and
	(c)	must be—
		(i)	in writing; and
		(ii)	in clear plain language; and
		(iii)	signed by the client; and
	(d)	must contain a statement that the client has been informed of the client’s right to seek independent legal advice before entering into the agreement; and
	(e)	must contain a cooling-off period of not less than 5 clear business days during which the client, by written notice, may terminate the agreement.” 
68	The present costs agreements do not include the cooling off period referred to in s323(3)(e).  
69	Section 324 provides that a conditional costs agreement “may provide for the payment of an uplift fee” and, in the case of a litigious matter, such fee “must not exceed 25 per cent of the legal costs, excluding disbursements, otherwise payable”.  Sub-section (6) prohibits a “law practice” from entering into a costs agreement “in contravention of this section”. 
70	Section 327(1) provides that a costs agreement entered into “in contravention of any provision of this division [that is, including s324] is void”.  Sub-sections (3)-(6) of s327 provide as follows:
“(3)	However, a law practice is not entitled to recover, as set out in section 319(1)(b) or (c), any amount in excess of the amount the law practice would have been entitled to recover if the costs agreement had not been void and must repay any excess amount received.
 (4)	A law practice that has entered into a costs agreement in contravention of section 324 is not entitled to recover the whole or any part of the uplift fee and must repay the amount received in relation to the uplift fee to the person from whom it was received.
 (5)	A law practice that has entered into a costs agreement in contravention of section 325 is not entitled to recover any amount relating to the provision of legal services in the matter to which the costs agreement related and must repay any amount received relating to those services to the person from whom it was received.
 (6)	If a law practice does not repay an amount required by subsection (3), (4) or (5) to be repaid, the person entitled to be repaid may recover the amount from the law practice as a debt in a court of competent jurisdiction.” 
71	The first crucial question to be resolved is whether the agreements in question fall within the definition of “conditional costs agreement”.  The first agreement entered into on 11 May 2018, being Exhibit MLS-11 to Mr Steele’s affidavit, provided, under the heading “Where this is a Deferred Payment Client Agreement” as follows:
“4.7	If this is a deferred payment client agreement, then we have agreed to defer payment of  the  amount  charged  by this  firm  (excluding  disbursements  and  third  party  costs) until  there  has  been  an  advance  of  funds  to  you  sufficient  to  pay  all  or  part  of this amount, until final settlement of your matter or the retainer ends for any other reason.
 4.8	For all deferred payment client agreements,  we will also charge an additional  fee (an Uplift  Fee)  of  twenty  five  percent  (25%)  of  our  total  professional  fees  and  office charges. This is referred to as an Uplift Fee.   An Uplift Fee is in consideration of our firm's  acceptance  of  the  risk  associated  with  acting  for  you  on a  deferred  payment basis and  the delay  before we are paid for our  services.   We  will charge this Uplift Fee, unless there has been an earlier written agreement between us to the contrary.
 4.9	If  you  do not proceed  with  your  matter  for whatever  reason,  or should  you make  an election to retain alternate representation or to be self-represented, we shall issue an invoice  for  the full amount  charged  by this  firm  to that  date (including  the Uplift Fee where appropriate).    This  invoice  must  be  paid  within  our  standard  payment  terms being seven (7) days.
 4.10	You  have  the  right  in  accordance  with  Legal  Profession  Act  2007  (Qld)  to  obtain independent legal advice before entering into this agreement.” 
72	Item 22 of the Schedule provides that the agreement in question is a Deferred Payment Client Agreement.
73	The second agreement entered into on 8 February 2019, being Exhibit MLS-12, covers the same ground in slightly different words:
“4.7	If this is a deferred payment client agreement, then we have agreed to defer payment of the amount charged by this firm (excluding disbursements and third party costs) until this retainer ends for any reason or any of the following events. occurs:
	(a)	a final judgement is made by a Court pursuant to which you receive either monetary compensation or possession of the Property or both; or
	(b)	a final judgment is made against you by a Court; or
	(c)	the matter is discontinued or dismissed for any reason; or
	(d)	if there is a settlement or compromise of any claim (whether in part or in whole) pursuant to which you receive either monetary compensation or possession of the Property or both.
 4.8	For all deferred payment client agreements, we will also charge an additional fee an (Uplift Fee) of twenty five percent (25%) of our total professional fees and office charges. This is referred to as an Uplift Fee. An Uplift Fee is in consideration of our firm's acceptance of the risk associated with acting for you on a deferred payment basis and the delay before we are paid for our services. We will charge this Uplift Fee, unless there has been an earlier written agreement between us to the contrary.
4.9	If you:
	(a)	do not proceed with your matter for whatever reason; or
	(b)	make an election to retain alternate representation or to be self-represented; or
	(c)	terminate this Agreement for whatever reason,
	then our professional fees, office charges, any disbursements per clause 6 of this Agreement and any Uplift Fee thereof, will become immediately due and payable and we shall be able to issue an invoice for the full amount charged by this firm to that date. This invoice must be paid within our standard payment terms being seven (7) days.
 4.10	You have the right in accordance with Legal Profession Act 2007 (Qld) to obtain independent legal advice before entering into this agreement.” 
74	I heard no specific submissions on the phrase “is conditional” in the definition of “conditional costs agreement”.  In my view, the natural meaning of that phrase in this context is that the payment of some or all of the costs depends on success.  Or, to put it another way, that the relevant part of the costs are not to be payable in the absence of success.  A consideration of both of the provisions in Clause 4.7 indicates to my mind that the agreements are not of that character.
75	So, for instance, under the May 2018 agreement, the costs are said to be payable “at final settlement of your matter or [when] the retainer ends for any other reason”.  This would render the costs payable at the conclusion of the retainer, even in the case of a 100 per cent defeat for the client.  Likewise, under the February 2019 agreement, the costs would be recoverable, for instance, where “a final judgment is made against you by a court” (Clause 4.7(b)).  Such could not be regarded as a “successful outcome”, as that phrase is used in the definition of “conditional costs agreement”.
76	I turn, next, to the difficult question as to whether, as provided for in the Queensland statute, no “uplift fee” could be recoverable unless the relevant agreement were “a conditional costs agreement” as defined.  This was the position taken by Mr McKay on behalf of the Registrar.
77	There is nothing in the general law of contract, as stated in the common law of Australia, which would preclude recovery of an “uplift fee” except by operation of the public policy rules arising out of the doctrines of champerty and maintenance.  To put it another way, it is only if these doctrines would otherwise preclude the recovery of a 25 per cent uplift fee that this fallback position on behalf of the Registrar could be sustained.
78	As to this matter, Mr Twigg and Ms Tadros referred me to Professor Dal Pont’s work “Law of Costs” (4th edition).  The learned author noted at paragraph 3.46, page 68, that an arrangement whereby a legal practitioner undertook work whereby the practitioner would look only to what costs might be recovered from the opposing party, which arrangements he described as “speculative fee agreements” would be fully enforceable in accordance with the decision of the High Court in Clyne v New South Wales Bar Association (1960) 105 CLR 186, 203.
79	Dealing with what the professor described as “Percentage and uplift fee agreements”, which would appear to be an accurate description of the agreements in question here, he said:
“3.44	Percentage fee agreements are unenforceable as being champertous.  Uplift fee agreements could be viewed as being in substance a share of the proceeds of judgment and thus possibly champertous at law. This draws support from the courts’ ‘substance over form’ approach in this context. It has been held, to this end, that a deduction of an arbitrary and excessive amount from the proceeds of judgment on the successful conclusion of the matter is in substance a bargain for a share of the proceeds that might be recovered.” (Dal Pont Law of Costs (4th edition) page 64)
80	This passage might be thought to be supportive of Mr McKay’s contentions on this point.  Professor Dal Pont cites two decisions of the New South Wales Court of Appeal from the 1960s in support: In re Veron; Ex parte the Law Society of New South Wales [1966] 1 NSWR 511, 519 and In re Evatt; Ex parte New South Wales Bar Association [1967] 1 NSWR 609, 619.
81	In re Veron was a disciplinary proceeding in which the Law Society of New South Wales sought a finding against Mr Veron of professional misconduct.  The court found that, as a matter of course, Mr Veron deducted £1,000 from personal injury settlements obtained by him on behalf of his clients in straightforward motor accident or “running down” cases.  The court, Herron CJ,  Sugerman and McLelland JJA accepted evidence from a gentleman whom it described as “a reputable solicitor who [conducted] a busy practice in running-down cases and third-party litigation”, that normal fees for such work would “vary between £50 and £80, the latter sum being maximum in his experience”.  
82	After reference to some English cases, the court on the same page said that: 
“…the amount to be received by the solicitor, over and above any amount to be recovered from the defendant as party and party costs, must inevitably come out of the amount of the verdict or compromise, and hence it might be said that to the extent the bargain was in substance for a share or part or portion of the proceeds that might be recovered”.
83	In In re Evatt, a similarly composed Court of Appeal was:
“of the firm opinion that [counsel’s fees as charged were] such as could not be justified by the work done or the degree of responsibility undertaken. It was, we believe, known to [the barrister] that they would not be paid by the defendants’ insurers in the party and party costs, so that the largest proportion would come out of the plaintiffs’ verdicts, for the most part these being people of modest means, to say the least of it.”  ([1967] 1 NSWR 609, 618)
They made findings against counsel.
84	These two instances are examples of gross overcharging.  It is difficult to regard either of these cases as establishing a rule that any charge as between solicitor and own client in excess of what was recovered or recoverable on a party/party or standard basis from the other party should, for that reason alone, be regarded as champertous, such that an agreement which provided for the recovery of such amounts should be unenforceable.
85	In reaching its conclusion that the solicitor in In re Veron had been guilty of professional misconduct, the New South Wales Court of Appeal referred to a number of English authorities.  In In re A Solicitor; Ex parte the Law Society [1912] 1 KB 302, Darling J considered a motion on behalf of the Law Society for a finding that the solicitor in that instance had been guilty of professional misconduct where he established a debt collecting company conducting proceedings on its behalf on the basis that it charged 2½ per cent commission on the amounts recovered under £50 and 1½ per cent on amounts recovered in excess of £50.  Darling J said:
“The terms on which the respondent [solicitor] conducted the business was such that they amounted to champerty in law.  Champerty, as the word implies, was originally common in times when there was little property of any value except land.  Most early litigation was about land, and when the bargain was one which resulted in the partition of a field, what was recovered was champ parti between the solicitor and the person who claimed it. One got so much and the other so much, and that was forbidden because it led to speculative litigation, and the harassing of persons who ought to feel secure in their rights, for the benefit of lawyers and other speculative parties. The facts of this case bring it absolutely within the definition of champerty given in In re Attorneys and Solicitors Act 1870 by Sir George Jessel MR in his judgment. After dealing with several other points, he continued: ‘I may, however, say, for the guidance of the parties, that the agreement is, in my opinion, pure champerty as it gives to the solicitor, in the event of success, what is equivalent to a tenth part of the property to be recovered’.
	Now the respondent [solicitor] had a distinct interest in the amount which he would recover.  His commission for bringing an action was to be governed, the percentage being fixed, by the amount recovered.” ([1912] 1 KB 302, 312-13)
86	The New South Wales Court of Appeal also referred to Hazeldine v Hosken [1933] 1 KB 822, a decision of the English Court of Appeal.  In this case, the solicitor sought indemnity under a professional negligence policy from the consequences of having entered into what was found to be a champertous agreement.  The court held that since the champertous agreement was illegal, no recovery could be made for the consequences of entering into it.  Scrutton LJ said:
“For a long time champerty has been an offence known to the law.  For centuries it has been an offence for a person to maintain another in prosecuting an action on the terms that he shall have a share of the proceeds that may be recovered. … In the statute 33 Edw. 1, stat. 2, I find this passage … ‘Champertors be they that move pleas and suits or cause to be moved either by their own procurement, or by others, and sue them at their proper costs for to have part of the land in variance, or part of the gains’.  A man who has nothing to do with the merits of an action promotes it or carries it on so that he may get part of the gains of the plaintiff. … Thus, in contentious business, an agreement to remunerate a solicitor by a share of, or commission on, or sum proportioned to the amount of, the property to be recovered, is bad …” ([1933] 1 KB 822, 831-2)
87	The agreement there in question entailed the client being assured that if the relevant proceeding failed he would be liable for no professional charges, but if damages were recovered, 20 per cent was payable to the solicitor.  
88	In Campbell’s Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386, the High Court had to consider a number of issues relative to proceedings commenced in the Supreme Court of New South Wales on behalf of tobacco retailers claiming to recover monies paid by them to tobacco wholesale companies representing the amount levied on the wholesale companies for licence fees pursuant to a New South Wales statute.
89	The High Court had held that statute to be unconstitutional with the result that the amounts “passed on” to the retailers could be recovered by them against the wholesale company.  The proceedings were commenced in the Supreme Court of New South Wales under the rules of that court as “representative proceedings” and were financed by a litigation funder.  A number of matters were urged by the wholesale companies seeking a stay of the relevant proceedings.  The proceedings were stayed by decision of the majority of the court on the basis that they were not properly characterised as representative proceedings in accordance with the Supreme Court of New South Wales’ rules.
90	The High Court also considered arguments which had found favour in the Supreme Court that, aside from the issue arising under the rules, the proceedings as funded were champertous, thus contrary to public policy and an abuse of process, and should be stayed on that basis alone.  The majority of the High Court, Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ rejected this argument.  They conducted a lengthy survey of the history of the doctrines of champerty and maintenance, noting that in New South Wales, as in other jurisdictions, these matters had been abolished as crimes or torts, but remained potentially available as public policy arguments as to the enforceability of contracts.  Their Honours said:
“What this brief and incomplete survey of the state of the English law, as it stood by the early years of the 20th century, may be understood as revealing is that the law of maintenance and champerty depended more upon assertion of consequences said to follow from the existence of the common law criminal offences of maintenance and champerty, than it did upon any close analysis or clear exposition of the policy to which the rules were intended to give effect.” (2006) 229 CLR 386, 429 [77] 
91	Professor Dal Pont also referred to a decision of the English Court of Appeal in Pittman v Prudential Deposit Bank Limited (1896) 13 TLR 110, where the English Court of Appeal, Lord Esher MR, Lopes and Rigby LLJ held that an assignment of a judgment to a solicitor by his client executed after judgment was entered but agreed upon beforehand.  The Master of the Rolls said:
“In order to preserve the honour and honesty of the profession it was a rule of law which the Court had laid down and would always insist upon that a solicitor could not make an arrangement of any kind with his client during the litigation which he was conducting so as to give him any advantage in respect of the result of that litigation.  That might be said to be on account of the fiduciary relation between the solicitor and the client. But the doctrine was founded upon a higher rule. The responsibility of persons engaged in the profession of the law was very great and their conduct must be regulated by the most precise rules of honour.  The Court thought that, unless the rule was carried out to its fullest extent, there would be a temptation to solicitors which they should not be subjected to.  It was useless to say that in the particular case the solicitor was not tempted and that he acted from the most honourable motives. The law was universal that, without considering the motives of the particular solicitor, a solicitor must not persuade his client, or indeed accept from his client a voluntary offer, so as to obtain any advantage dependent upon the result of the litigation which he was then conducting.” (1896) 13 TLR 110, 111
92	Commenting upon the effect of the Campbell’s Cash and Carry decision of the High Court of Australia, Professor Dal Pont said that the reasoning of the majority of the court:
“makes it difficult to sustain the view that lawyers should be prohibited in public policy from ‘funding’ an action in the expectation of profiting via a percentage of the client’s winnings.  As the law stands, however, statutes in each jurisdiction explicitly proscribes percentage fee agreements. Yet the law does not preclude a law practice actually having an interest in a litigation funder, even if funding its own clients.” (Op cit, 3.45, page 65)
93	These considerations and what I find to be the ordinary meaning of the Queensland statute demonstrate that there is no ground, on the basis of some purposive approach to statutory construction, to depart from that ordinary meaning.
94	In Choules v Siglin [2002] WASC 230 [30] Murray J summarised his conclusions as to champerty and maintenance as follows:
“I would summarise my conclusions in the following way: maintenance is the improper support or promotion of litigation. There would seem to be no closed category of cases where relevant impropriety of that kind might be established, but maintenance will not lie merely in the support of litigation for a party by a stranger to the litigation. It will lie in some wrongful intermeddling, some interference with the processes of the courts, some oppression or attempt at a collateral advantage. Champerty is the employment of such impropriety for a share of the spoils by way of reward. In a grave or clear case such an arrangement may amount to an abuse of the processes of the court of sufficient gravity by reason of the unfairness or injustice involved, to warrant a stay of the proceedings, at least until the abuse is remedied, even in a case where it is recognised that the plaintiff has a legitimate claim which may be stifled, even permanently, by the grant of a stay.”
95	In Clairs Keeley v Treacy (2003) 28 WAR 139 the Western Australian Court of Appeal stayed an action brought against a law firm by a number of former clients with the assistance of a litigation funder as an abuse of process.  The Court was influenced by the existence of an “uplift” clause in the funding arrangement with the plaintiff law firm.  Crucially, the terms of this arrangement were disclosed to the funder, but not to the plaintiffs.  [155] – [158] per Templeman J.
96	In deciding to grant a stay Templeman J, with whom Pullin and Wheeler JJ concurred, placed primary weight on the risk of “intermeddling” by the litigation funder.  He also referred to improper conduct by the solicitors in “accepting an interest in the proceeds of the litigation” [181].  This decision, decided before Campbell’s Cash and Carry v Fostif, represents a very different approach to the subject of litigation fundng from the one adopted in that case by the High Court.  It would be wrong to see the Clairs Keeley decision as a guide to the determination of this issue.  In particular, the “uplift” fee here was not, as in Clairs Keeley, introduced without the knowledge of the client, Ms Issa.
97	Returning to the present case, the “uplift” fee charged is calculated by reference to what the costs as calculated on a time basis under the relevant costs agreements would otherwise be, not as a percentage of recovery.  None of the strictures in the older cases, as to the evils of giving solicitors a percentage interest in recovery proceedings, would appear applicable.  Nor do these costs agreements entail the sort of arbitrary and egregiously extortionate overcharges considered by the New South Wales Court of Appeal in In re Veron.
98	Overcharging is now specifically defined as potentially constituting either unsatisfactory professional conduct or professional misconduct (Legal Profession Uniform Law s298, paragraph (d)), thereby avoiding some of the more strained reasoning in cases such as In re Veron.  
99	The 25 per cent uplift fee is not in the realm of the sort of overcharging exemplified in In re Veron.  The High Court majority in Campbell’s Cash and Carry was dealing with the issue of private litigation funders, not solicitors.  Nevertheless, as Professor Dal Pont notes, it is difficult to see why the more liberal approach exemplified in that case should not likewise apply to legal practitioners.
100	More pertinently, the law has always drawn a distinction between costs as between party and party to litigation on the standard basis, as the court’s rules now characterise party/party costs, and full indemnity costs.  Such costs have never been intended to provide a 100 per cent indemnity for a successful litigant, but only so much as will do justice between the parties.  The premise is that, as between the solicitor and his or her own client, costs may be charged in excess of what is recoverable on a party/party basis in the event of success.
101	To that extent, the almost universal costs arrangements outside the scope of perhaps “no win no fee” regime assume that a solicitor will, in the event of success and in reliance on his or her lien, be entitled, in the event of recovery of judgment, to part of the judgment for those additional costs.  The proposition that any costs claimed in excess of scale costs is necessarily champertous and therefore legally unenforceable must be rejected.  
102	The effect on “uplift” arrangements is that, in the absence of statute, their enforceability is potentially open to doubt, for the reasons explained by Professor Dal Pont.  There is no clear rule that an uplift arrangement is per se unenforceable absent a statutory enabling provision, which is what Mr McKay’s contention here must be.
103	Having concluded that the costs agreements here are not “conditional costs agreements” within the meaning of the Queensland statute, and rejected the propositions that no uplift fee may validly be charged, save as part of a conditional costs agreement, I conclude that there is no reason to treat the present costs agreements as unenforceable.
104	Following that extraordinarily lengthy excursus necessitated by Mr McKay’s further submissions on behalf of the Registrar, I return to the point which I had reached before Mr McKay raised these new matters.
105	Mr McKay did not disagree with the proposition that the Registrar’s liability for Ms Issa’s costs of this proceeding would not be affected by the outcome of any projected appeal by C & F.  On the other hand, were C & F now required to pay costs to Ms Issa in the normal course, they would be received by her or on her behalf and dispersed to her solicitors and counsel.  It would be open to doubt that those monies could be recovered in the event that C & F were successful on appeal.  C & F would therefore be exposed potentially to irreparable damage.  The argument to stay C & F’s costs liability until the hearing and determination of the proposed appeal is therefore strong and should be accepted.
106	Turning, then, to a proposed stay on the Registrar’s liability for costs, given the concession made by Mr McKay, since his costs liability will not be affected by the outcome of the appeal, there is no ground for staying it.
107	These considerations, as to the need to stay the costs order against C & F and the lack of justification for staying the costs award against the Registrar, buttress the matters to which I referred above in support of the view that the costs liability should be directed primarily to the Registrar and without any stay, with the Registrar’s right of indemnity against C & F stayed pending the outcome of the appeal.
108	As explained above, Ms Issa’s file could be made available to the Registrar to assist in a costs assessment if that were necessary, because any privilege issues would be resolved once the appeal was concluded.
109	I will invite counsel to submit short Minutes within 14 days of the date of these reasons to give effect to them.