280 THE COSTS ACT of 1867 31 Vie. No. 20 Amended by Criminal Code Act, 1899, 63 Vic. No. 9 ‘Acts Shortening Act Amendment Act of 1903, 3 Edw. 7 No. 10 Statute Law Revision Act of 1908, 8 Edw. 7 No. 18 ‘An Act to Consolidate and Amend the Laws relating to Costs at Common Law and to Taxation in General [Assented to 28 December 1867] ‘Acts Shortening Act Amendment Act of 1903: See now Acts Citation Act of 1903,"tie ACTS OF PARLIAMENT, Vol 1, P. 76 References 10 “Pring’s Statutes” and to Colonial Acts, were omited from the sectional notes throughout this Act by the Acts Citution ACI of 1903, s. 10, tle ACTS OF PARLIAMENT, Vol. 1 p76. Preamble repealed by the Statute Law Revision Act of 1908, s. 2 OF PARLIAMENT, Vol. 1, p. 108. le ACTS COSTS AGAINST EXECUTORS 1. Executors suing in right of the testator to pay costs. 3 & 4 Wm. 4, ¢.42's. 31, In all actions hereafter brought by executors or administrators in right of their testator or intestate such executors or administrators (unless the court or a judge shall otherwise order) shall be liable to pay costs to the defendant in case of being nonsuited or a verdict passing against them and in all other cases in which they would be liable to costs if suing upon a cause of action accruing to themselves in their own right and the defendant shall have judgment for such costs accordingly, ‘Act referred to: Civil Procedure Act, 1833, 3 & 4 Wm. 4, s. 42, has been repeated See 16 Halsbury’s Laws of England, 3rd ed. p. 479 2.20, (Repealed.) Repealed by. Statute Law Revision Act of 1908, s. 2, title ACTS OF PARLIAMENT, Vol. 1, p. 108. 21. (Repealed.) Repealed by Criminal Code Act, 1899, 5. 3, tile CRIMINAL LAW. See now the Criminal Code, 55.133, 134 ATTORNEY'S BILLS OF COSTS 22. Bills to be delivered. 6 & 7 Vic, c. 73 s. 37. No attorney nor any executor administrator or assignee of any attorney or the trustee of his estate shall commence or maintain any action or suit for the recovery of any fees charges or disbursements for any business done by such attorney Until the expiration of one month after such attorney or executor administrator or assignee of such attorney shall have delivered unto the party to be charged therewith or sent by the post to or left for him at his counting-house office of business dwelling-house ot last known place of abode a bill of such fees charges and disbursements and which bill shall be subscribed by such attorney in his proper handwritingCOSTS ACT OF 1867 a2 281 (or in the case of partnership by any of the partners either with his ‘own name or with the name and style of such partnership) or by the executor administrator or assignee of such attomey or the trustee of his estate. ‘At refered 10 Solicitors Act, 1843, 6 & 7 Vie. c. 73 (znperial), has been repealed ‘An order may be made for delivery of a bill" See ss 26,29. ‘With ‘respect to eaves where an agreement in wring wih Fespect to cons bas been ade. see the Solicors Act, 1891, Part Ty particulary se 3, 13 thereof, Pes, pos ‘Any actionNo delivery ofa bill i necessary to enable a solicitor to st off his cons in-an action brought against him bythe cient, Harrison ¥. Turner (1847), 10 QB dai? BS pant: Cooper Cass), 14 Cb, Gass Brown v. Tibbur (1863) 11 GBiN's, 435: Gut See contra, Davies ¥. Worhingion (1903). 4 WAL 130: oui pow for them nthe clint atic Heke SRoker (1835) Sod. Dn sBiP nor to bring an aeton for them upos & promissory note given fo them, Jefreyn ¥. Brons (i885), 14 M&W. 20. Tees charges or disbursements—The fees or charges refered to ate for work done. ina professional capacity, Bask y. Marin (i8es), 20H & Gi Sil. There Se" sition between professional and non-profesional disbursemenis; the former must be includes im the bil, the Tater im a cash account Professional disburse. ments ace"such as a soliior may make in the doe gisharge of his duty Which ie has Undertaken asa solicitor and: include sounsels fee, Re Mecalfe (1862), Ni Bea Os! Re” Remnant (1889), 11 Beay. 603; Re Federal Deposit Bank Lid. 1931] GWN. Se; court Tes Re’ Remmant, supral-Re Gran, Buicrait, & Co {1306} 1'ch 124 or other disbursements sanctioned by the sages ofthe profession Jee Rennans, supra.” Nonprofesonal‘daburements are” Payment. which the sSisor te mot ound to make an he performance of bt proesonal dain, and Include, porchase-money”and interes thereon, Re. Remnant, supra, and payments OF tae and giner deat” due, Re Plph (1849). 12 Beav. 307; fe Kingdom sind Wilson U908) 2m. 342 Expiration of one. month—The term “month” ig this section means calendar soonth, Acts Tntrpreton ‘Aci, 1954 to. 1960, 5. 36, tlle ACIS” OF PARLLA MENT, Vol, In p°97, and is reckoned exclusively of the days on which the bills Aslvered and the action brought, lon’ v. Heslop (1888), 8 AG. & EL S77. Ch ‘Acts Interpretation Acts, 1984 19 1962, 3 38, Vol 1. 99, Delivered unto the party to be charted therewith or sent by the post i not suficlen Gelvery Ot’ bil for the salir te show it to the party charged thu hem ake away feat ones the ator showing tended fave wrth the party charged an merely taker Back at his request, Ex parte Excevfors of Rabsan (i883) 7 ALT &4: Phipps v. Dosbney (851), 16 QB. 314; and Soe ee Roberson (1889). 43 Ch, Bu 385, Dativery to the party oe charged generally means delivery to the client Re Abbott (801), s°LT, S60" es fot sulfien (0 deliver ton relative of the Silent, Gnifey +. dasten, Dabney v- Phipow (829), 16.15, $08. Tete sulicent {o deliver to\2 servant atthe cen’ vesidence, VacGregor ¥. Kelly (1849) 3 Exch Toss on toa specially appointed agent, Re Bush (1843), 8 Beav. 66, Re Kellock Uist), So LP set” Where several ‘rejoin Sable, delivery of Bil To one bt then sulfite, Cromer" ghee (1808), 1, Camp. 437° Rinchet!'., Hom {ids 2'Camp. 275; Orenhay, V. Lemon (182%), 2.Bow & Ry, KB. 361: Phipps 1 Dabney (IBS), 16 OB. 814: Mant. Suh (1899), 4 1 Ne 334 "Ax 1 proot of posting, see Silbect v. Carber (1845), 7 QB. 846, ‘Aci Bnet sent by post one month before setion unless is posed at, such tine that it would, im the Ordinary course pow, be delivered tothe party 10 be {hnegt one ese ealendar mon before the caminencemen of the action, Browne Walock (i912) LR 3T6r [191 H3) AIL ER Rep 731." Ct, Acts Ineyprection ‘Aol "DE to 1962, 39, tie ACTS OF PARLIAMENT, Vol, tp. 100 “The ill most give the ciem such reasonable information as will enable him to uke advice ss to ts tation; need ot be 30 explicit on he face f i as (0 Enable asoictor a on wthou further Ingury, whether the. charges are froper, High. Ousey (1897), 7 EB, 378; Waller v Lacy (1840), 8 Dow Nea" partite fora of beading is aecematy, Chomp v- Stokes (1861), 6 3 EN, #83." 'the bit oust Sndeate the party to be charged with I Mant Smith Tieso)e @ HeG'N, D8 bun we fr abclent if this appears from. document282 costs Vol. 4 sscompasyiag I, Teporv. Hod (IMS), 3 Dow. dL 16; Chomp w Stolen, Seer Satan ted teen SR 2,0 BL Shoe 5, Ste ‘The items must be specified and charged separately, ‘not included in one lump a, rami iuiers et eu ee aoe! done Hemp Witten a bnae aig SS OF se ee OB GPNS Et aa a sa AS Gi si ppm tl SO, Cone vgn IS had tr eon pera yy bw eed, ong GBT St Bs AE ae fe Seger i Bea 8 a x roe Se ms etlad ast cee ee me os CM) 34 CE, ott a Foe Theres twte eS” Spe Myson, ee (10), {ibey Sa ame eat eae 2 arrange mos eater aaa Tee Tits Sega ent Sia GAR A Ts Tie bat SASS se Coileah AN, is ies der 3) GW Sal eae ea eee teenie ae aed Site a eee Crile, il connes gme go {T33) 20h, 58a ee thy bee Ss SEP eae Masia aod Ef Sp i Cups ih High iste teacher Ten, Cane seucemr tials atheists deel Ss, Reaateate, faceat, Be Ste OT a Ok ee a a are ofc iat Sa a ee Be i eg od hs Dao: nt 23. Evidence of delivery of bill. 6 & 7 Vie. ¢. 73 s. 37. It shall not in any case be necessary in the first instance for such attorney or the executor administrator or assignee of such attomey or trustee of his estate in proving a compliance with this Act to prove the contents of the bill he may have delivered sent or left but it shall be sufficient 10 prove that a bill of fees charges or disbursements subscribed in the ‘manner aforesaid was delivered sent or left in manner aforesaid but nevertheless it shall be competent for the other party to show that the bill so delivered sent or left was not such a bill as constituted 1a bona fide compliance with this Act Where party leaving colony. Provided always that it shall be lawtul for any judge of the Supreme Court t0 authorize an attorney to commence an action or suit for the recovery of his fees charges of disbursements against the party chargeable therewith although one month shall not have expired from the delivery of a bill as aforesaid on proof to the satisfaction of the said judge that there is probable cause for believing that such party is about to quit the colony, Act referred (0 Solicitors Act, 1843, 6 & 7 Vic. . 73 (Imperial) has been repeated TAXATION OF COSTS 24, Taxation of bills within a month. 6 & 7 Vie. ¢. 73 s. 37. Upon the application of the party chargeable by such bill within such month fan appointment for taxation of the same may be obtained as of course and without order of a judge from the master in equity in case the whole of the business contained in such bill shall have been transacted in the Supreme Court in its equitable jurisdiction or in any matter Of lunacy or shall relate to conveyancing business from the judge in insolvency in case of the whole of such business shall have been transacted in the Supreme Court in its insolvency jurisdiction andCOSTS ACT OF 1867 2245283 from the prothonotary of the Supreme Court in every other case ‘including criminal business and though the business or part ‘of the business contained in such bill shall not have been transacted in the Supreme Court and thereupon such bill and the demand of such attorney executor administrator trustee or assignee shall be taxed and settled by such officer without any money being brought into court ‘and the Supreme Court or a judge thereof shall restrain such attorney or executor administrator or assignee of such attorney or the trustee of his estate from commencing any action or suit touching such demand pending such taxation and the costs of such taxation shall as hereinafter provided be paid according to the event of such taxation, Act referred Solicitors Act, 1843, 6 & 7 Vic. e. 73 (Imperial) has been repealed. ‘The word "ot" where Brstly occurring in the ninth line of this section appears to ben error of inadvertence in drafting. "Applications for taxation are governed by s.29. As to applications for taxation by peranns not chargenble withthe bill, see 5. 30 ‘With rspeci fo tnaton, where an areerient ip rig has been made between solicitor and client, see the Solicitors Act, 1891, 3 15, p- 298, post. As (0 allowance (Of interest, see Ibid, 8.17 ‘Generally with respect to taxation of costs, sce RS.C. (1900), Order 91, title SUPREME COURT. See particularly rules 82-823, 34. ‘With respect to taxation of carts between partis in criminal matters, see the (Criminal Codes. 862, title CRIMINAL LAW. Where a solicitor has charged a Tump sum he can not afterwards, on taxation being applied for, carry ina. dotiled bill of costs, except to support the reason ableness of the amount ‘orginally charged, unless by mistake items have. been omitted, Re MeGrath (1911), 12 NZOLR. 786. ‘A taxing offcer his power to. dllow the items of a bill of costs rendered against 4 husband by a wifes slletor, on the ground that Such costs aré notin. the ruture of necessaries, Ex parte Fealy (1919), 19 SR. (NSW.) 399; 26 CLR. 407, Shall restrain... , ‘from commencing’ any setion—The order restraining 3 solicitor from commencing any action must be personally served, fe Cunningham (i886), 48° E-T. Tee, The remedy for disobedience to the order is by attachment, Dent ¥. Basham (1834), 9 Ex. 408. ‘See also the 42. English and Empiee Digest, 159; R. v. Towner (1897), Tard i, 25. Taxation after one month, 6 & 7 Vie. 73 s. 37. In case no such application as aforesaid ‘shall be made within such month as aforesaid then it shall be lawful for the Supreme Court or a judge thereof either upon the application of the attorney or the exécutor administrator or assignee of the attorney or the trustee of his estate whose bill may have been so delivered sent or left as aforesaid or upon the application of the party chargeable by such bill with such directions and subject to such conditions as the court or judge making such reference shall think proper to refer such bill and the demand of such attorney or executor administrator or assignee of such attorney or the trusive of his estate thereupon to be settled and taxed by such officer of the court as aforesaid and in case any such reference as aforesaid shall be made on the application of the party chargeable by such bill then without any money being brought into the court ‘and such court or judge may restrain such attorney or the executor administrator or assignee of such attomey or the trustee of his estate from commencing or prosecuting any action or suit touching such demand pending such reference upon such terms as shall be thought fit284 costs Vou. 4 Taxation after twelve months. Provided always that no such reference as aforesaid shall be directed upon an application made by the party chargeable with such bill after a verdict shall have been gbiained judgment signed or a, writ of, inquiry executed in any action forthe recovery of the demand of such attorney or executor adminis: trator or assignee of such attorney or the trustee of his estate or after the expiration of twelve months afer such bill shall have been delivered sent oF left as aforesaid except under special circumstances to be proved to the satisfaction of the Supreme Court or a judge thereof to whom the application for such reference shall be made. ‘Ast refered 10 Solicitors Act, 1883, 6 & 7 Vic. c. 73 (Imperial) has been repealed For practice on applications, see 5. 29 An onder for taxation under this section should not be made ex parte, Re Bellas (8TH), 2 SER. WT When a sunmons for taxation is ised under this section, an inferior court, pulpal iy serra om pocciing Wiha acon te bl. peng therein, Rev. Police Magirate at Brisbane, 1986) St. Re Qa: 245, 29 QP 14 Im the case of an application after one month the court may give such directions and impose such condiions as thinks proper, Re Gavtell (18S), Ph. 376: Re Pender (1846), 2 Ph. 69, Re Brockman, (1908) 2 Ch. 170 eves by sh bles he gainer bysevera clients Jointly all shat jon n the apeiation ro reer the Bill to be taked, though the court will make the order on the application of one Hf others Fle tpg Lothar any ight 4 aye ss Re Har (1845) 0 Be Be" Danson and Bryon (1860). 28 env. 605. - Where ine refiner tr not fou each cent iy entited to taxahon of ihe whole bie Re Allen, ‘Davies ¥.. Chatwood (1879), 11 Ch. D. 244; Re Colquhoun, EX porte Ford’ G884), § Be Gi &\G. 2; ‘but to avoid multiply" of tations the Upon the application of the pa sourt wil if possible, order & single taxation i the presence of al pares interested. ‘te"Salaman. "(i894)" 2'Ch. "201. The application, may. also, be "bythe person fepreentative of the client, JeDerzon'y. Warrington i840). 7 MM. & Ws WSs and fee Langford (Lady) v. Mahoney (1843), 4 Dr. & War. 81; Re Dalby’ (1885), SP neav. 469, or hig trustee in bankrupicy. Stephens v_ Davies (1837), 6. Le (O'S) Charaan parker (HEM. Bowl, eBime @ Co: (1865) TRS 'Eg. 72; Re allingham (1886), 34 Ch. D: 36 : feria {or am order 1, tx i ait admin, of the ftanes and when the right ulspute it is required the order mst be made by a judge, Re Morgan (ssi, QL. a. f ‘The bill which may be seferred to taxation isnot confined toa signed bil for one enclosed with a signed leer, Re Pender (1845), 8 Beav. 299; fone Walker (ies7), 16 Md We 446. Except, under speci cicomstances—"Thowe are wide, comprehensive, snd flexible words, aid Tibink - tht no court can er ought 10 lay Gown any exhaustive definition of them. Charges, which in one ease would be. specal ‘circumstances "another, would nol be such iti for the gcretion of the fudge to sy what ate special ‘ircumsiances in particular ‘case, es Ld. te Re Norman, GiiaGhe'16 QD: 615. The mow owal special Srcumitanes are. presure and bprerehirge, Re Currie (1840), 9 Heav. 60S" Re Harruon Ui8sT)" 10° Bony. ST: ‘ee Rance (1856), 23 Beav. 177, Re Sladden (1847), 10, Beaw- 488;. Re Foster Ex parte Walker (1860),2 De GF. J, 105, Re Newman (1861), 2.Ch. App. 107; br gvercharge amounting Wo fraud, Re Harding (1847), 10 Beav’ 290: Ke fand Lonaden (1884), 30 LT. 336; ‘Re Pybus (1887), 35 Ch. D. 5 Sout fot confined io them, Re’ Norman, supra; Re ‘Boycott (1885), BUTE Re Cheer (8912 Ch Bye Wa aa Cape 04) 1 Kb. Se Re Ga Solictior (1969), $3 Sol fo, 489, "A verdict pos a reference to taxaion is'a verdict, and’ does not create special circomances, Re White (1913), 30 WW. in’sW) Tat See also, Re Bill of Costs, Leeper to Goldman, (1980) QW.N. 27 See, further, 42 English and Empire Digest, 177COSTS ACT OF 1867 s5.2526 285 (COSTS OF TAXATION 26, Payment of costs of taxation, 6 & 7 Vic. ¢. 73s, 37. Upon every such appointment or reference if either the attorney or executor administrator or assignee of the attomey or trustee of his estate whose bill shall have been delivered sent or left or the party chargeable with such bill having due notice shall refuse or neglect to attend such taxation the ofcer fo wiiom such appointment or reference shall be made may proceed to tax and settle such bill and demand ex parte ‘and in case any appointment or reference as, aforesaid shall be obtained or made upon the application of the party chargeable with such Bill or upon the application of such attorney or the executor adminis- trator of assignee of such attorney or trustee of his estate and the party chargeable with such bill shall attend upon such taxation the costs of such appointment or reference shall except as hereinafter provided for be paid for according to the event of such taxation that is to say if such bill when taxed be less by a sixth part than the bill delivered sent or left then such attorney or executor adminis trator or assignee of such attomey or trustee of his estate shall pay such costs and if such bill when taxed shall not be less by a sixth part than the bill delivered sent or left then the party chargeable with such bill making such application or so attending shall pay such costs and every order to be made for obtaining such appoiatment or such reference as aforesaid shall direct the officer to whom such reference shall be made to tax such costs of such appointment or reference to be so ppaid as aforesaid and to certify what upon such taxation shall be found to be due to or from such attorney or executor administrator or assignee of such attorney or trustee of his estate in respect of such bill or demand and of the costs of such appointment or reference (if payable) Provided always that such officer shall in all eases be at liberty 10 certify specially any circumstances relating to such bill or taxation and the court or fudge shall nll cases be at liberty to make thereupon such order as such court or judge may think right respecting the payment of the costs of such taxation Provided also that where such reference as aforesaid shall be made as hereinbefore provided then the said court or judge shall be at liberty it it shall be thought fit to give any special directions relative to the costs ‘of such reference Court may order delivery of bill and delivery up of deeds, And provided further that it shall be lawful for the said court or judge in ‘any case to make such order for the delivery by any attorney of the executor administrator or assignee of any attorney or trustee of his estate of such bill as aforesaid and for the delivery up of deeds documents for papers in his custody possession or power of otherwise touching the same in the same manner as has heretofore been done as regards such attorney by such court or judge where any such business had been ‘transacted in the court. Act referred to Solicitors Act, 1843, 6 & 7 Vic. c.°73 (Imperial) has been repealed. For practice on applications, see 6. 29.286 costs ‘ Where the tanaton it wpog the aplication of the slicer, the lent, i he does mot attend, cannot be ordered 10 pay the costs of the taxalion, EE parte Woollet: (1844), 12'M. & W. 504. Where the bill is reduced on taxation by a sixth part, the costs are not in the discretion of the court; the words of the section are imperative, Higgins V. Wooteor (1826), 3B. & C. 760. However small the sum beyond one-sixth which is taken off, the solicitor is cequaly “liable, Swinburn'v. Hewitt (1838), 7" Dow. 314." Tteins ig the cash Scout "ate ‘nc” taken int comideratin’ a ‘ppingthe rule, but prope ‘disbursements ‘are, Re Haig (1849), 12 Beav. 307; and the whole of ‘clang to profsional cares must by comired: Re Dibors and Orborm i913] SKB: S62) (1911-13) All ER. Rep. 877. Expenses paid digetly to the witacises by the cleat cannot be taken into sccoun le No.2) 1873} 4 SCR. 22 They were allowed, Paretlic“eleeumatances” io Se withdrawn fromthe iin’ Re MacDomnel, Frenchman and Hanan (1910) St" Ge, Has, (940) QWN. Special cireumstances were certfed in Re X (1918), 35 WN. (NS.W. iy rept 10 the dscrlin a to contin thls ase, See Re Richard, (1913) ? Order for the delivery by . attorney... «of such bill, ete-—"The powers of the court to. order delivery of 1 bil and taxation rest, im the Ars piace, on the ‘original. jurisdiction of the court over its offcers: in the second place on Uthis section) which empowers the court to order delivery. of ‘bil i here) oul ander the Ac rte he bl orton eee ester, Bernao w. Four {ian 5 RB, 908, a p31 Garrats 7, tle SUPREME COURT. The cout may o ny as ghilry to tation but ao ty crc (o acer whaler th Special cirsumstances 83, would cause i 1 be referred to taxailon, Duflett¥. MCEVOY (GRS5) 10" App. Cas 300. The court has no jurisdiction to order s solicitor 10 furn toa hg sat "oho he rls Tomah tare Services Re Grith, Egor ond Grifith (1891), Penns: a i Delay in soning for delivery of 4 fll will not rliee a stor trom the ition tlre il where eat nit potion the materia Ae ols, e901 Bich. 107, Re Fotonbe ABS S Bese toe Re Von C88 9, lef come "he andor, {1893] tems, disallowed, om the round that they are for, non-professional work ad slould not ave ‘ocen Inco in the bil should be taken ato consideration for the purpose of estimating whether one-ssth of the bill hag been tax Re Dibsr nd Forel (Dai), ASH (NSW) 209 folowing Re Clank CASI). 14 Beav. 173, and’ got following Re Taxation of Coss, (1936) 1 KB. 823; [1936] AUER: Rep. p49! See ako, 42. English and Empire Digest, 217, 138. MODE AND CONSEQUENCES OF TAXATION 27, Skill and responsibility to be considered. In taxing any bill for preparing or drawing any deed contract case or other document it shall be lawful for the taxing officer and he is hereby required in estimating the proper sum to be charged for such transaction to consider the skill and labour properly employed and the expense and responsibility incurred in the preparation thereof. Compare Solicitors Act, 1891.18, p. 299, pos the Leases Act of 1847, s. 3, tite TANDEORD AND TENANT. ‘The drawing of a document is the application of the mind to the work, not the actual witing. Therefore ‘where ‘2 aumber of leases are dravn for a Glient in the same form, which is printed, each lease should be separately taxed, ‘he’ Marsland “(1890), 4 QUI. 3. See also, Re Federal Deposit Bank, (1937] QWN. 38.COSTS ACT OF 1867 5.2629 287 28. Assistance of prothonotary. 6 & 7 Vic. c. 73 s. 42. In all cases in which such bill shall have been referred to be taxed and settled by the prothonotary of the Supreme Court such officer shall be at liberty to request the master in equity to assist him in taxing and setting any bill or any part of such bill and such officer so requested shall thereupon proceed to tax and settle the same and shall have the same powers in respect thereof as upon a reference to him and shall return the same with his opinion thereon to the prothonotary. ‘Act refered to: Solictors Act, 1843, 6 & 7 Vic. e. 73 (Imperial) has been repealed. 29. Form of application for taxing. 6 & 7 Vie. c 73 s. 43. All applications made under this Act to refer any such bill as aforesaid to be taxed and settled and for the delivery of such bill and for the delivery up of deeds documents and papers shall be made in the matter of such attorney Certificate of office. and upon the taxation or re-taxation and settlement of any such bill the certificate of the officer by whom such bill shall have been taxed shall (unless set aside or altered by order decree oF rule of court) be final and conclusive as to the amount thereof ‘and payment of the amount certified to be due and directed to be paid may be enforced according to the course and practice of the Supreme Court Enforcement of payment. and it shall be lawful for such court oor a judge thereof to order judgment to be entered up for such amount with costs unless the retainer shall be disputed or to make such other ‘order thereon as such judge shall deem proper. At Solitons Act 1843, 6 & 7 Vie. 73 (Imperial), has been repel “The applications refered to may be made under ss. 24.26, and ne 30, I Applications ust be rade bY” ofiinaing summons (H&S.C"(1900)," Order os. get Cyt BupieRIE COURTS ‘Where, asi application as un appropriate anndiment of the tie of th Bul GF Cass, 1300) OWN. ‘Aso inet amounts to a ttainer, see Piney V, Begnall (1782), 3 Dou. Kp. “15S"Cimplication from cts 'ot pares); G ER daz ett of parent ot of co) 468: Catre to repudiate employment by thind pay): et, Hall, Laver (iee2) ire tig’ Reynolds Howell 1873). °C K€ BQ 398 (action commenced Without authority): Parrodr vo Behely (i849),'5 JP. (Eng.) 711. Ceaviog papers Sein soins Andes Boynton (19), 13 O38 {content consitation Srder): Souwhall'v. Reddy (1838), 1 F. & F. 177 Couthoriing solicitor to conduct Stit"houeh ‘not spurt); (Bly 'v. Fiadgate, (1891) 1 Che 337 Lnvestment of fonds by solistor tedstes).” See also the Preliminary Note, p. 278, ante, nthe following caus there ras helg fo be no relate, Dent v. Halli (4909), T Taunt 495: Drake ¥. Lewin (1838), 4 My.730,_Aikinuon v. Abbott {1858}! 3 Drew: 251; Fenton v. Queen's Ferry Wire’ Rope Con (i868), (Re 9 Ba, 261: Wray. v_ Kemp”(188%),026 Ch... 169: James y- Rlcknall” (1887), 20 QBD. 164 Porter. Praer (1912), 29 TLR. 91; West Bnd Hotels Syndicate Leds Bayer (1912), 29 TLR. 92; Re’ Becker, Purnell ¥. Paine, (1918) 2 Ch. 12. Where there isa confict as to the auihorty beiveen the solicitor and the client without further evidence, weight must be” given 9 the, afldavit agus, rather than the affidavit of the Soliton, Re Paine (1912), 28 TLR. 201. "Where the taxing office’ has found that a Balances due 10, an allorney on a ‘yt of ost, jedpment wil not be entered up forthe defendant Jeger v. Gannon (isi) PSCR NT Ch Ee parte Lloyd, (1908), 23, WN. (NSW) 167, “Tie Court has not furndiction (o\ order that‘ slctor (e pven credit for amapeyt alge to have ben pallor the stent at he request, Br parte Wie (i908), 30° WIN (NSW) T7 inary summons, the Court allowed summons, Ke Thynne and Mocariney's288 costs, Vol. 4 As nde tense none of ede, ne ht SPSS ULAR BST OR SEWN TAXATION ON BEHALF OF THIRD PARTIES 30, Third parties applying for taxation. 6 & 7 Vic. c. 73 s. 38. Where ‘any person not the party chargeable with any such bill within the meaning of the provisions hereinbefore contained shall be liable to pay or shall have paid such bill either to the attorney his executor administrator or assignee or the trustee of his estate or to the party chargeable with such Dill as aforesaid it shall be lawful for such person his executor administrator or assignee or the trustee of his estate to make such application for a reference for the taxation and settlement of such bill as the party chargeable therewith might himself make tand the same reference and order shall be made thereupon and the same course pursued in all respects as if such application was made by the party so chargeable with such bill as aforesaid Provided always that in case such application is made when under the provision herein contained a reference is not authorized to be made except under special circumstances it shall be lawful for the court or judge to whom such application shall be made to take into consideration ‘any additional special circumstances applicable to the person making Such application although such circumstances might not be applicable 10 the party so chargeable with the said bill as aforesaid if he was the party making the application. ‘As amended by the Acts Citation Act of 1903, s. 10, title ACTS OF PARLIA- MENT, Vou I. p76. st 0: lors Act, 1843, 6 & 7 Vie, c. 73 (Imperial) has been repeated. See $$. 24, 5, 29. AS to cases in which a written agreement has been made between solicitor and dient, see Solicitors Act, 1891, 55.4, 15, DP. 294, 298, Post “This section applies only when the taxation ie between solicitor and client, ‘Re Grundy, Kershaw & Co. (1881), 17. Ch. D. 108; Re Cowdell (1883), $2 LJ. Ch. 246. The taxation {e aubject fo. the same conditions. aa though it were ai the instance of the client. Re Wells (1648), 8 Beav. 416; Re Jones (1845), 8 soy. 479; Re Fron (1886), 9 Beav. 117s" Re Harrison (887). 10, Beav, 57 Ke Philpots (1853), 18 Beav, 84; Re Taylor (1884), 18 Beay. 165; Re Newman (067), 2°Ch. App. 707. ‘bil delivered without prcalig ond with denial of igh to any bili Vile to taxation. Ex parte Levy (1902), 19 W.N, (NSW.) 282. “The following i Re Gray, 901) 1 Ch. 239% ne Carew (i884), 8 Bese. 180: Re Leen C18 sv. 410; Re Thoma (1844), S'Beay. 43! Palmer’ v._ Linsell, (1840),,8 "Scott 483; Re Bignold (1845), 9 ean. 269; Re Gra. (19011 Ch 239," Re Longborham & Sons, {1904 2. Ch 152i" Re Cohen’ arid. Cohen, [1903] 2h. 187; a. mworigagor’s trustee in Irankruptey, Re Allinghom (1886), 32 Ch. D, 36: a subsequent eocumbrancer, er Tastes (i888), S18" Beaw.185;_ Re “Jessop (1863). 32. Beav.. 406; the Tiguidator of company, Re Shewbury and Leiceuer Ry. Co., Re Yardy (1851). 20°Li. Ch, 325; 4 pervon obliged to sve in anothers name, Re Masters (1833), 2 pew Ty a barge tos compromise who has agreed to pay cos, Re Hartley (isot), 30 (Beav. 6h, Ke Grundy, Kershaw & Co. (1881), 17. Ch, D. 108; Re Halberd nd’ Crowe (1884), TL AT. 748: Ke Chapman (1903), 20 TLR. 3; hugh nr Bo gro ei aed sum, Ke Herne, pore Boe P83 Qib. 726; fe Morris (1872), je person supplying funds for a"eonviets defence, Re’ Mis (485), 19°11. Jo. tb, the el fre°not within the secuon: a person who fas voluniarly paid the bil, ReCOSTS ACT OF 1867 5.2991 289 Becke and Flower (1844), 5 Beav. 406; Langford v. Nott (1820), 1 Jac. & W. 251; a ratepayer; whero the bill is payable oul of the rate, Re Barber, Ex parte Manchester and Leeds Ry. Co. (1845), 14 M. & W. 720, ‘See, further, 42 English and Empite Digest, 168. 3, Bills agus trues asignees administrators or executors 6 & 7 Vic. ¢. 73's. 39. It shall be lawful in any case in which a trustee assignee executor or administrator has become chargeable with any such bill as aforesaid for a judge of the Supreme Court if in his discretion he shall think ft upon the application of a party interested in the property out of which such trustee assignee executor or administrator may have been paid or be entitled to pay such bill to refer the same land. such attorney's or executor’s administrator's or assignee’s demand ff the demand of the trustee of his estate thereupon to be taxed and settled by the proper officer aforesaid with such directions and subject to such conditions as such judge shall think ft for the payment of what may be found due and of the costs of such reference to or by such attorney or the executor administrator or assignee of such attomey or the trustee of his estate by or to the party making the application having regard to the provisions herein contained relative to applications for the like purpose by the party chargeable with such bill so far as the same shall be applicable to such cases and in exercising such discretion as aforesaid the said judge may take into consideration the extent and nature of the interest of the party making such application Provided always that where any money shall be so ditected to be paid by such attorney or the executor administrator or assignee of such Attorney or the trustee of his estate it shall be lawful for such judge if he shall think fit to order the same or any part thereof to be paid to such trustee assignee executor or administrator so chargeable with such bill instead of being paid to the party making sue application ‘and when the party making such application shall pay any money to such attorney or executor administrator or assignee of such attorney ot the trustee of his estate in respect of such bill he shall have the same right to be paid by such trustee assignee executor or administrator so chargeable with such bill as such attorney or executor administrator or assignee of such attorney or the trustee of his estate had. ‘Act feferred (0: Solitors Act, 1843, 6 & 7 Vic. ¢. 73 (Imperial) has been repealed. See 5°29, sso, RSC. (1900), Order Si, rules 35, 36, 83, 97, ttle SUPREME count. Cerin liability for costs is imposed on executors and administrators by at Under this section creditor may apply for taxation of an executors bill paid out of the deveased's estate, Re Janes and Bverett, [1904] 2 Ch, 363; fat a bankrupt, after discharge, Is pot entided ‘to obtain taxation of the bill of cons: fined. by ie trustee, Re Leadbuter (1878), 10 Ch. D388. “As to, cestuls ‘gue’ trustent tn regard to" trustee's bil, see Re Downes (1844), 5 Beav. 425; Re Brown (1867), Lik 4 Ba, 464 Except fn special “circumstances re-axation will not be ordered where the already. been taxed (S34) ot Dald, in which Tater. case, the ‘mist be such as fo support an order on” the ‘application of the person originally liable, Re Welloorne, [1901] 1 Ch. 312, No’ taxation can be Grdored atter the expiration of twelve. moathe {rom payimest, Ke Downes (1844), Sbeav. 425; Re Matsey (1845), 8 Beav. 498; Re’ Rees (i849), 12 Beav, 256 The taxation is-a6 between the original parties, Re Brown (1867), LR. & BoE Reson," pre Marwicn (1839), 8 Wik 15; Re Mer, (1903) 2 i See, further, 42 English and Empire’ Diges, 173, 174. 10290 costs Vou 4 32. Delivery of bill to third parties. 6 & 7 Vic. &. 73 s. 40. For the purpose of any such reference upon the application of the person not being the party chargeable within the meaning of the provisions of this Act as aforesaid or of a party interested as aforesaid it shall be lawful for the Supreme Court or 2 judge thereof to order any such attorney or the executor administrator or assignee of any such attorney or the trustee of his estate to deliver to the party making such application a copy of such bill upon payment of the costs of such copy. ‘Act referred 10 Solicitors Act, 1843, 6 & 7 Vic. c. 73 (Imperial) has been repented ‘Compare the last paragraph of s. 26, and ste notes thereto. ‘The references referred to are those mentioned in ss. 30 and 31 LiMITATION 33, Taxation of bill after payment, 6 & 7 Vie. €. 73 s. 41. The payment of any such bill as aforesaid shall in no case preclude the court for judge from referring such bill for taxation if the special circum- stances of the case shall in the opinion of such court or judge appear to require the same upon such terms and conditions and subject to such directions as to such court or judge shall seem right Provided aay that the application for such reference be made ‘within twelve calendar months after payment ‘Act reterred Solicitors Act, 1883, 6 & 7 Vie. c, 73 (Imperial) has been repeated “This section docs not refer to 4 payment in respect of the lability for costs not made as. payment of 8 bill of Gove, ey of & proper account showing the Toms: or details‘of the fers charger and abirsements, Re Walon Homi, U915}°S.R Gas 34; 1913] QWIN, Se Duper. hfcevoy 1885), 10 App. Cat S00; ke “ccafelas Coss (ASTD). 8 WHE UNSW) 8 except where RE costs iave teen pald by 2 third party, Re Chapman (1903), 20 TLR: 3 ‘The, giving of security may consituie payment, Re Boyle, Ex parte Turner (assi)r s'De OM, ©. 440; Fempleman v? Bay UBB), 16 LANC 9k as may fetenia’ by se anlistor of money belonging to the elie wih the hier exprest onsen, Re David (1861) 30 Bedy. 278: Hltcheock ¥. Seton, [18921 2 Ch, 3331 Be Foss hlbrough, Paki’ and Fox, (19112 Ch Ll, bat oo wtost sch crpees coment he Scr (a0), Lik. NO Ea, eS, Re Siogdon Br pare Baler GHEG7}, SOE. 385) Re Wear, King ond dame, Be pore Clough, (1692) 1 Qi 10a; Ae Frape, Ex parte Pertet, [i893] 3.Ch. 284, “Deboting te client in tne practitioner's books wih ihe atiouat of ‘te bil doce not Gonsitst. payne, Ex porte the Executors of obson (1885). 7 ALT. 98. "A. payment on aecount {roo sufilent, Re Woodard (1809), 18 W.R. 9T Re dngove (IRB), 96 Sal Jo Snes Cally (1501), 49 WAR. 316; Waton y. Rodwell (1878), 7 Ch, Be 625, for is the delivery of 'a-negisbie acteument fore whole mun ules fis Bonoureds Re Harrier (84a). 13 M. &W. 5; Re Peoch(I844), 2 Dow. & L331 ‘Re Romer and Hasler. 893] 2 QB. 286; Re @ Solcttor (1894), 38 Sol 10.2391 Ray’ ¥" Newton, (913) | KB, 2, StewartMoore v. Spratte (i917), 3a TLR. 113, Ta which ‘ate the date of payments that on which was honoured, Sujer ve Wags (844), Blur 1093; Re Harries 184s). 13 M&W. 3. ‘The fais om However, show that was the intention ‘of the parties that the laument sho te taken ar payment in any even, Re Naren, supra, Re Romer and Haslam, Reaper (18st), 10 Beaw. 384 Payment to 4 solilortrudee of bill delivered to his eo-rustes does not reclide taxation a the Instance of benefelaries, Re Litehfelds Cons (1917), Sd WNSWVSW) 5. is ose Greumstanece, cf. x25, and noes thet. The sme pins sre applied ‘ner this section, except that they at. perhaps, applied more stacy ‘A‘srong case tit be made Re Browne, Ex pare Jeferer (852), 1 De GM. & SSE Re Barrow (1853), 17 Beaw, 547; Re Abbod (188s), 18 Bea. 395, There Io Field rule a0 to wha consiies special crcumstances in eath case the CourtCOSTS ACT OF 1867 5.3234 291 hag a discretion, Ke Chowne (1884), 52 LT. 75; Re Norman (1886), 16 QBD. 1675, and a Court of Appeal will noi interfere unless that discretion has not been exe slicall, Re ‘Cheeoman, {1891} 2 Ch. 289; Gane and Kilner ¥. Linley (1908), 53'Sol. Jo. 198, The mest Usual cigcumsiances are overcharge and pressure, ‘and overcharge accompanied by fraud, Re Bennett (1845), 8 Beav. 467 (refusal 12 Somplee, excent on payment of il without eppertunity for consideration) Re Let (i802), 31 Beav. 488 (refusal to’ hand over tile deeds required to complete) Pressure and fraud are not however, the only grounds for interference, and the Sour direct tndion' case of cxeaune overcbarg, Re Norman (ig), 16 QED" 673; Re Eley (1881), 37-Ch, D. 40; though not where itis trifling, Re Brake (1848), 8 Beay. 123; Re Weish (1850), 12 Beay. 490; Re Chowne (1884), SLT 15. a 6 a ‘After twelve months have elapsed taxation cannot be ordered, Binns v. Hey (1843), T Dow. &'L, 661: Re Wilton (1843), 13 LJ.QB. 17; Re Harper (1847), {0 Beas 388; Re Weifhome, (1901) Y Ch." 312, following Re Downes (1848), Seay 495." See also Rea Solctor. 1961] 2 AMER 321° If no bill has been delivered taxation may be ordered, notwithstanding the lapse of twelve montis, Re Calls (1901). 49 WR. 316; Re Hilson & Hemming, US SP SR." Od. 3a; T1913) OWN. 9 See further 42 English and Empire Digest, 184 RETAXATION 34, Retaxation. 6 & 7 Vie, c, 73 s. 40. No bill which shall have been previously taxed and settled either under an appointment or order ‘of reference shall be again referred unless under special circumstances the court or judge to whom such application is made shall think fit to direct a retaxation Review of taxation Provided nevertheless that where a bill of ‘costs shall have been taxed an order for review of the taxation may be made after rule or summons to show cause by the Supreme Court or a judge thereof and it shall be lawful for such court or judge in case they for he shall think fit thereupon to direct the proper officer aforesaid to review and correct such taxation instanter Rehan om order fo review tain may exami wits. 20d wed eee ies Tor be panel tue te ca fhe ppt al bl etn ne nies ft Sout ee aed an order fora esi of wat ay bene pt oe Stier thatthe teat dof ay Caine wines va oe uthng oyna oon Mendes Sahat, 647 i 78 dg ter pe esos Saclay a ion ten ee SES oy anole oem at Sno hers eo meres Da or aay ay pe ting a Saige in a Ay. a es Sei Te CART Oe ; Fe rh ie tt oes a te ptt sno spans RETR pe ten tes reel oe BS Panta taay POT eh Gat aati, Ment 2 ga Sy SRD sk ia GW heal ar SERS UNS BE IDO Oe als SU Earache Ae ae is (0. ak a Bae FB Ste tat Sieg i Wal ao Er (98) SO. 4 xe ltt wr ie oe by el Sa US. St. : ee dy oe ie on ier ok gf arco succes ye ab as oc eM ate tee eet ts ott Ne dint aaa IEE CRS GMECE Se See SE te eh BELLS, URI AES 27 8 IPGL22 costs Vol. 4 2? anvoronmens of costs (on claim and counterclaim), see Smith v, Maude (1946), TCLR 129; 52 ALR 257 (Dinon J). See also Korner v. H. Korner & Co. Lid. [1951] Ch. 10; 66 TLR, 469; [1950] 2 AIT ER. 481, where the Court 9f Appeal enunciated principles on which the costs of suecessful defendants should be apportioned: On allowance of two counsel, see Smith v. Madden, sup & Coote Pry. Lid. (1945), 63 WN. (NSW) 2. ‘The practice of allowing junior counsel (except ‘equal to two-thirds of the fee allowed to his leader e proper and shold be followed, ‘ot only as t0 fee on brief but also as 10 refrehers and conferences, Re Willems: Queensland Trustees Lid. v. Willams ond Others, 1949] QW, 4¥ pet Philp] Sec, also as 10 the reasonableness of counse!’s fee and junior counsel's fee, Re Trout, Bernays & Co, {1985} St. R Gd. 398, See McKeough v. Smith, (1984) QW.N. 50 in relation to mileage charges of «bul held 'to have been incaatiogsly incurred See also, Re Helly, Ex parte Dennis, (1985) St. R. Qd. 451, where the High ‘Court refused Teave to appeal Other cases are noted “under RSC. (1900) Order 91, rule 119, title SUPREME COURT. See, further. 42. English and Empire Digest, p. 159. 35. (Repealed.) Repealed ty the Criminal Code Act, 1899, s. 3, ttle CRIMINAL LAW. See row the Criminal Code, s. 134 1) Hawkine v, Angus special circumstances) a fee POWERS OF THE COURT 36. General rules may be made by the judges. 15 & 16 Vie. c. 76 5. 223. “It shall be Tawiul for the judges of the Supreme Court or a majority of them of whom the Chief Justice shall be one from time to time to make all such general rules and orders for the effectual execution of this Act and of the intention and object hereof and for fixing the costs to be allowed for and in respect of the matters herein contained and the Performance thereof and for apportioning the costs of isues and also for altering the number of days by this Act limited for the retum of any writ oF for the doing of anything by this Act prescribed or authorized to be done and substituting other days for the same as in theit judgment shall be necessary or proper Separate scales of costs. and if they shall see fit so to do to establish separate scales of costs in actions having regard severally to the amount sued for or the value of the matter sought to be recovered. Provided that nothing herein contained shall be construed to restrain the authority or limit the jurisdiction of the said court or the judges thereof to make rules or orders or otherwise to regulate and dispose of the business therein, ‘Act referred to: ‘The Common Law Procedure Act, 1852, 15 & 16 Vie. c. 76 (Imperial) has been repeated. See slo the Supreme Court Act of 1921. s. 11 (2) (vi) tile SUPREME. couRT, COMMENCEMENT AND SHORT TITLE 37. Commencement of Act. Short title. This Act shall commence on the thirty-first day of December one thousand eight hundred and sixty- seven and may be referred to as the Costs Act of 1867.