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[2026] NSWSC 89
General information, not legal advice.
Supreme Court of NSW
2026-02-17
Payne JA
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Medium Neutral Citation: Bryony Adams on her own and on behalf of all the partners in the firm known as Herbert Smith Freehills (ABN 98 773 882 646) v PlayUp Ltd (ACN 612 529 307) [2026] NSWSC 89
Hearing dates: 10 February 2026
Date of orders: 10 February 2026
Decision date: 17 February 2026
Jurisdiction: Common Law
Before: Payne JA
Decision: (1) Pursuant to s 69 of the Supreme Court Act 1970 (NSW) an order quashing the extension decision in the purported cost assessment in the cost matter 2025/00205632.
(2) Pursuant to s 69 of the Supreme Court Act 1970 (NSW) an order quashing the appointment decision in the purported cost assessment in cost matter 2025/00205632.
(3) Pursuant to s 69 of Supreme Court Act 1970 (NSW) an order prohibiting the Fourth Defendant from proceeding with, or taking any further step in, cost matter 2025/00205632.
(4) The First and Second Defendants to pay the costs of the Further Amended Summons on an ordinary basis.
(5) The Court reserves its position whether to amend Order 4 under UCPR r 36.16 after considering a Note that the Court has directed to be provided, either jointly or separately, to the associate of Payne JA by 4pm Thursday 12 February 2026.
Catchwords: ADMINISTRATIVE LAW — Costs
ADMINISTRATIVE LAW — Judicial Review — Jurisdictional error — Determination of the Manager, Costs Assessment to extend time for filing an application for review — Decision of the Manager, Costs Assessment to appoint a costs assessor — Jurisdictional error established
COSTS — Costs assessment for a “commercial client” — Application of Legal Profession Uniform Law 2014 (NSW) s 170(1)(a) to a “commercial client” — First Defendant a public company — Second Defendant a wholly owned subsidiary of a public company — Defendants are “commercial clients” — Dispute between commercial client and law firm is beyond the jurisdiction of the costs assessment regime under Legal Profession Uniform Law 2014 (NSW) and associated regulations
Legislation Cited: Corporations Act 2001 (Cth), ss 9, 46
Legal Profession Uniform Law 2014 (NSW), ss 6, 169, 170, 171, 174, 175, 178, 196–205
Legal Profession Uniform Law 2015 (Vic)
Legal Profession Uniform Law Application Act 2014 (NSW), s 93B
Legal Profession Uniform Law Application Bill 2014 (NSW)
Legal Profession Uniform Law Application Regulation 2015 (NSW), cl 34
Suitors’ Fund Act 1951 (NSW), s 6
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 49.19
Cases Cited: Bilson v Dominic Esposito Solicitors [2019] VSC 801
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Jasmin Solar Pty Ltd v Fitzpatrick Legal Pty Ltd [2017] VSC 220
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
May v Northern Beaches Council [2023] NSWCA 205
Texts Cited: Council of Australian Governments, Legal Profession National Law Post-COAG Draft, (31 May 2011)
Council of Australian Governments National Legal Profession Reform Taskforce, Interim Report on Key Issues and Funding, (8 November 2010)
Victorian Legislative Council, Parliamentary Debates (Hansard), 20 February 2014
Category: Principal judgment
Parties: Bryony Adams on her own behalf and on behalf of all the partners in the firm known as Herbert Smith Freehills (ABN 98 773 882 646) (Plaintiffs)
PlayUp Limited (ACN 612 529 307) (First Defendant)
Fan Technologies Pty Limited (ACN 610 162 233) (Second Defendant)
Manager of Costs Assessments (Third Defendant, submitting appearance)
Maurice Castagnet (Fourth Defendant, submitting appearance)
Representation: Counsel:
S Baron Levi (Plaintiffs)
A Bailey (First and Second Defendants)
Solicitors:
Woods & Day Solicitors (Plaintiffs)
Moray & Agnew Lawyers (First and Second Defendants)
File Number(s): 2025/00298051
Publication restriction: None.
PAYNE JA: On 10 February 2026, this matter came before me in the Common Law Division. The plaintiffs, Bryony Adams on her own behalf and on behalf of all the partners in the firm known as Herbert Smith Freehills (ABN 98 773 882 646), were represented by Mr Baron Levi. The first and second defendants, PlayUp Limited and Fan Technologies Pty Limited, were represented by Mr Bailey. A two-volume Court Book was tendered. Mr Bailey did not have instructions to consent to the relief sought by the plaintiffs but accepted that he could advance no submission in opposition to the making of the orders sought.
The orders I made on that day were:
- Pursuant to s 69 of the Supreme Court Act 1970 (NSW) an order quashing the extension decision in the purported cost assessment in the cost matter 2025/00205632.
- Pursuant to s 69 of the Supreme Court Act 1970 (NSW) an order quashing the appointment decision in the purported cost assessment in cost matter 2025/00205632.
- Pursuant to s 69 of Supreme Court Act 1970 (NSW) an order prohibiting the Fourth Defendant from proceeding with, or taking any further step in, cost matter 2025/00205632.
- The First and Second Defendants to pay the costs of the Further Amended Summons on an ordinary basis.
5. The Court reserves its position whether to amend Order 4 under UCPR r 36.16 after considering a Note that the Court has directed to be provided, either jointly or separately, to the associate of Payne JA by 4pm Thursday 12 February 2026.
6. Reasons reserved.
This proceeding concerns one aspect of the consumer protection provisions of the Legal Profession Uniform Law 2014 (NSW) (“LPUL”).
In February 2022, Ms Bryony Adams, a partner of Herbert Smith Freehills (“HSF”) (as it was then known), was approached by the first defendant with a request to provide legal advisory services in relation to proceedings it had commenced in the Federal Court of Australia (NSD1247/2021) against one of the first defendant’s former directors, Dr Laila Mintas.
On 15 March 2022, the primary contact of the first defendant, General Counsel Mr Kerr, returned executed copies of an engagement letter and a third party payer costs agreement engaging HSF for the provision of legal advisory services to the first defendant, and confirming that all invoices issued by the firm in relation to those services would be addressed to and paid by the second defendant. On 23 March 2022, HSF filed a Notice of Acting for the first defendant in the Federal Court.
On 31 March 2022, HSF sent a revised engagement letter and third party payer costs agreement to reflect an expanded scope of work that included estimates of the legal costs to be incurred in advising and acting for the first defendant in response to an interlocutory application to strike out the claim filed by Dr Mintas. On 7 April 2022, Mr Kerr returned executed copies of both documents.
Costs updates and monthly invoices were provided by HSF to the first and second defendants between about April 2022 and about April 2023.
Between March 2022 and September 2022, the monthly invoices for professional fees and disbursements were paid in full by the first and second defendants.
An October 2022 invoice was partially paid. The first and second defendants had paid $40,000 as against an invoice that totalled $57,352.97.
No further payments were made on invoices issued from November 2022 onwards, leaving invoices issued between November 2022 and September 2023 outstanding. This remained the case until partial payments of $1,000 per week, starting 24 March 2024, were initiated following the plaintiffs’ filing of recovery proceedings in the District Court of New South Wales (see paragraph [14] below). Since that time, outstanding amounts on certain invoices have been paid.
So far as the evidence before me revealed, the invoice from December 2022 remains partially unpaid, and invoices issued monthly between January 2023 and September 2023 remain unpaid.
On 6 September 2023, HSF ceased acting for the first defendant in the Federal Court proceedings due to non-payment of fees. The same day, a Notice of Ceasing to Act was lodged with the Federal Court.
On 31 May 2024, HSF commenced proceedings in the District Court of New South Wales (2024/00217511) against the first and second defendants for recovery of outstanding legal fees incurred in the Federal Court proceedings in the amount of $327,326.71 plus interest.
In the interests of what is just and fair in the circumstances and having considered the material provided, the MCA has extended the time for the costs assessment application.
On 22 July 2025, in relation to the debt recovery proceedings commenced by HSF in the District Court, Judicial Registrar J Howard ordered that those proceedings be stayed “until such time as 5 days after the First Defendant and Second Defendant’s application number 2025/00205632, filed in the New South Wales Supreme Court on 27 May 2025, is determined”.
On 25 July 2025, the fourth defendant, Mr Castagnet, advised the parties that he had been appointed as a Costs Assessor in respect of the application (“appointment decision”):
ASSESSMENT NO: 2025/00205632
I have been appointed by the Supreme Court of New South Wales as Cost Assessor in respect to this application for assessment of the above Client v Law Practice costs.
….
I note that the costs applicant was first instructed after 30 June 2015.
Accordingly, the assessment will be conducted under the provisions of the Legal Profession Uniform Law (NSW) No 16a (the LPUL), the Legal Profession Uniform Law Application Act 2014 (N**SW) No 16a (the LPULA Act) and the Legal Profession Uniform Law Application Regulation 2015 (the LPULA Regulation).
On 29 July 2025, solicitors for the plaintiffs told the fourth defendant that the plaintiffs would be commencing proceedings in this Court to have the extension decision and the appointment decision set aside.
On 5 August 2025, a summons seeking judicial review was filed in the Common Law Division of this Court. The plaintiffs sought orders that the extension decision and the appointment decision be set aside and that the fourth defendant be prohibited from taking any further step in the costs assessment. The third and fourth defendants filed submitting appearances save as to costs.
On 27 October 2025, a further amended summons was filed, seeking the following orders:
INTERIM RELIEF
- An order restraining the fourth defendant from conducting the first and second defendants’ costs assessment until further order of the Court.
FINAL RELIEF
Pursuant to section 93B(3) of the Legal Profession Uniform Law Application Act 2014 (NSW) and rule 49.19 of the Uniform Civil Procedure Rules 2005 (NSW):
2. An order that the decision of the third defendant made on 11 July 2025 to extend time to the first and second defendants to lodge a costs assessment application (the Extension Decision) be set aside.
- An order that the decision of the third defendant made on or after 11 July 2025 and communicated to the parties on 25 July 2025 to appoint the fourth defendant as Costs Assessor (the Appointment Decision) be set aside.
- An order that the first and second defendants’ application for an extension of time to lodge an application for cost assessment (the Application) be dismissed.
In the alternative to orders 1 – 3 2 - 4, pursuant to section 69 of the Supreme Court Act 1970 (NSW):
- An order in the nature of certiorari quashing the Extension Decision.
- An order in the nature of certiorari quashing the Appointment Decision.
Further:
6A. Pursuant to section 69 of the Supreme Court Act 1970 (NSW), an order in the nature of prohibition prohibiting the fourth defendant from proceeding with, or taking any further step in, the purported costs assessment in Costs 2025/00205632.
- An order that the first and second defendants pay the plaintiffs’ costs.
- An order under section 6 of the Suitors’ Fund Act 1951 (NSW) that the plaintiffs be granted an indemnity certificate entitling the plaintiffs to be paid out of the Suitors’ Fund the plaintiffs’ costs.
- The first and second defendants to pay costs to the plaintiffs on an indemnity basis in respect of the Application pursuant to section 6 of the Suitors’ Fund Act 1951 (NSW).
10. Such further or other relief as the Court deems fit.
(a) to ensure that clients of law practices are able to make informed choices about their legal options and the costs associated with pursuing those options; and
(b) to provide that law practices must not charge more than fair and reasonable amounts for legal costs; and
(c) to provide a framework for assessment of legal costs.
170 Commercial or government clients
(1) This Part does not apply to—
(a) a commercial or government client; or
(b) a third party payer who would be a commercial or government client if the third party payer were a client of the law practice concerned—
but this section and sections 181(1), (7) and (8), 182, 183 and 185(3), (4) and (5) do apply to a commercial or government client referred to in paragraph (a) or a third party payer referred to in paragraph (b).
(2) For the purposes of this Law, a commercial or government client is a client of a law practice where the client is—
(a) a law practice; or
(b) one of the following entities defined or referred to in the Corporations Act—
(i) a public company, a subsidiary of a public company, a large proprietary company, a foreign company, a subsidiary of a foreign company or a registered Australian body;
(ii) a liquidator, administrator or receiver;
(iii) a financial services licensee;
(iv) a proprietary company, if formed for the purpose of carrying out a joint venture and if any shareholder of the company is a person to whom disclosure of costs is not required;
(v) a subsidiary of a large proprietary company, but only if the composition of the subsidiary’s board is taken to be controlled by the large proprietary company as provided by subsection (3); or
(c) an unincorporated group of participants in a joint venture, if one or more members of the group are persons to whom disclosure of costs is not required and one or more members of the group are not any such persons and if all of the members of the group who are not such persons have indicated that they waive their right to disclosure; or
(d) a partnership that carries on the business of providing professional services if the partnership consists of more than 20 members or if the partnership would be a large proprietary company (within the meaning of the Corporations Act) if it were a company; or
(e) a body or person incorporated in a place outside Australia; or
(f) a person who has agreed to the payment of costs on a basis that is the result of a tender process; or
(g) a government authority in Australia or in a foreign country; or
(h) a person specified in, or of a class specified in, the Uniform Rules.
Section 170(1) expressly preserves regulation of conditional costs agreements and a prohibition on contingency fees as applicable to commercial or government clients under Part 4.3. These sections do not refer to the LPUL costs assessment framework set out in ss 196–205.
Section 9 of the Corporations Act defines a public company in the following terms:
public company means a company other than a proprietary company or a CCIV and:
(a) in section 195 and Chapter 2E, includes a body corporate (other than a prescribed body corporate) that:
(i) is incorporated in a State or an internal Territory, but not under this Act; and
(ii) is included in the official list of a declared financial market; and
(b) in Chapter 2E does not include a company that is not required to have “Limited” in its name because of section 150 or 151.
46 Meaning of subsidiary**—general**
A body corporate (in this section called the first body) is a subsidiary of another body corporate if, and only if:
(a) the other body:
(i) controls the composition of the first body’s board; or
(ii) is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the first body; or
(iii) holds more than one-half of the issued share capital of the first body (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or
(b) the first body is a subsidiary of a subsidiary of the other body.
The LPUL was introduced in New South Wales in 2014 by the Legal Profession Uniform Law Application Bill 2014 (NSW). The Council of Australian Governments (“COAG”) draft legislation that preceded the LPUL, including what is now Part 4.3, contained the s 170 exclusion (and associated costs assessment regime, though it has since been modified): Council of Australian Governments, Legal Profession National Law Post-COAG Draft, (31 May 2011) at 72 (“COAG 2011 Draft Legislation”).
Proposals for the LPUL were developed by COAG between 2009 and 2011. From 2011, New South Wales and Victoria worked together to adopt that framework into law following the withdrawal of other States and Territories from the process. The COAG 2011 Draft Legislation provided for the exclusion of commercial or government clients from the draft legal costs regime, while retaining the same “carve-outs” for contingent and conditional costs agreements as were present in the previous legislation.
An interim report by COAG addressing key issues in the development of the LPUL made clear the purpose of the exclusion of commercial and government clients (Council of Australian Governments National Legal Profession Reform Taskforce, Interim Report on Key Issues and Funding, (8 November 2010) at 4):
Commercial or government clients
The Taskforce agrees that, given their sophisticated nature, commercial and government clients do not need to be covered by the same consumer protection provisions in relation to legal costs and consumer complaints as other consumers of legal services.
The National Law defines a range of legal services consumers as ‘commercial or government clients’. Several stakeholders, including the Law Council and the Large Law Firm Group, submitted that commercial or government clients do not require the same degree of consumer protection afforded to other clients under the National Law. They suggested that commercial or government clients are well equipped to negotiate legal costs without the need for mandatory disclosure, and to resolve costs disputes directly with their law practice.
Proposal: the Taskforce proposes that:
commercial or government clients should not be covered by the legal costs regime— subject to certain exceptions based on public policy grounds (eg, certain restrictions on conditional costs agreements), and subject also to the power of these consumers to ‘contract in’ to the provisions with their legal services provider; and
commercial or government clients should not be covered by the consumer complaint regime on the basis that they are sufficiently sophisticated to address such concerns directly with the legal practitioner or law practice involved. Commercial or government clients may, however, make complaints of a disciplinary nature in relation to a legal practitioner.
Sophisticated commercial or government clients will not be covered by the costs disclosure, charging and complaints regimes that are intended to provide protection for smaller, ‘retail’ clients.
The first defendant, PlayUp Limited (“PlayUp”), is a public company. The company was registered on 20 May 2016. The second defendant, Fan Technologies Pty Limited (“Fan Technologies”) is a subsidiary of PlayUp.
On 14 March 2022, the first defendant formally engaged the plaintiffs. An engagement letter sent by the plaintiffs and signed by the first defendant identified the second defendant, Fan Technologies, as having agreed to pay the legal costs of the first defendant. The second defendant thus meets the definition of a third party payer under s 171(1)(a) of the LPUL:
171 Third party payers
(1) For the purposes of this Law—
(a) a person is a third party payer, in relation to a client of a law practice, if the person is not the client and—
(i) is under a legal obligation to pay all or any part of the legal costs for legal services provided to the client; or
(ii) has already paid all or a part of those legal costs under such an obligation; and
(b) a third party payer is an associated third party payer if the legal obligation referred to in paragraph (a) is owed to the law practice, whether or not it is also owed to the client or another person; and
(c) a third party payer is a non-associated third party payer if the legal obligation referred to in paragraph (a) is owed to the client or another person but not the law practice.
The plaintiffs’ claim is that the extension decision and the appointment decision were affected by jurisdictional error and that any further step in costs matter 2025/00205632 would be outside jurisdiction as PlayUp and Fan Technologies are excluded clients under s 170 of the LPUL.
The concept of “jurisdictional error” was explained in the joint reasons of three members of the High Court of Australia in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 per Kiefel CJ, Gageler and Keane JJ (footnotes supplied):
[23] Jurisdiction, in the most generic sense in which it has come to be used in this field of discourse, refers to the scope of the authority that is conferred on a repository. In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision-maker to make a decision of a kind to which the statute then attaches legal consequences. It encompasses in that application all of the preconditions which the statute requires to exist in order for the decision-maker to embark on the decision-making process. It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision-making process in order for the decision-maker to make a decision of that kind. A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have ‘such force and effect as is given to it by the law pursuant to which it was made’ [Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 613 [46]].
[24] Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as ‘involving jurisdictional error’ is to describe that decision as having been made outside jurisdiction [eg, Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 606 [17]]. A decision made outside jurisdiction is not necessarily to be regarded as a ‘nullity’, in that it remains a decision in fact which may yet have some status in law [Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 613 [46]; Jadwan Pty Ltd v Department of Health and Aged Care (2003) 145 FCR 1 at 16 [42]]. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as ‘no decision at all’ [Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 615 [51]]. To that extent, in traditional parlance, the decision is ‘invalid’ or ‘void’ [Baxter v NSW Clickers’ Association (1909) 10 CLR 114 at 157; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at 24 [63]].
[2] Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact, [Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33 at 64 [94]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft (2021) 273 CLR 21 at 37-38 [20]] it is ‘in law … no decision at all’ [Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 616 [53]] and is in that sense ‘void’ [Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 133 [24], 143 [62]].
[3] Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed [Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 573 [71], 574 [73]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 455 [81], citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]]. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, [See, eg, Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 32-33 [23]-[24], 35 [32]-[33]; SZMTA (2019) 264 CLR 421 at 444 [44]] but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness [See, eg, Craig v South Australia (1995) 184 CLR 163 at 179; Kirk (2010) 239 CLR 531 at 572 [67]; Hossain (2018) 264 CLR 123 at 134-135 [30], 147-148 [70]-[72]; SZMTA (2019) 264 CLR 421 at 455 [81]].
[4] A statute which contains an express or implied condition of a conferral of decision-making authority is not always to be interpreted as denying legal force and effect to every decision that might be made in breach of that condition [Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389 [91]]. Only by construing the statute so as to understand the limits of the statutory conferral of decision-making authority is it possible to determine, first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision-making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force) [Hossain (2018) 264 CLR 123 at 133 [24], 133-134 [27], 147 [72]; SZMTA (2019) 264 CLR 421 at 456 [83]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136 at 154-155 [53]].
[5] Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged in the statutory context within which the decision has been made. Given the broad range of decisions in which errors might be made, the large variety of statutory schemes in which those decisions might be made, and the range of circumstances which may attend the making of any particular decision, it is impossible to divine a rigid classification of the errors that constitute jurisdictional errors [See Kirk (2010) 239 CLR 531 at 574 [73]; Hossain (2018) 264 CLR 123 at 137 [42]]. There are no bright lines to be drawn – ‘[t]he nature of the error has to be worked out in each case concerning a specific decision under a particular statute’ [MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at 543 [101]; Nathanson v Minister for Home Affairs (2022) 276 CLR 80 at 117-118 [78]; Thornton (2023) 276 CLR 136 at 162 [77]].
[23] A declaration of invalidity usually flows from a finding of jurisdictional error. That is because a decision that involves jurisdictional error is a decision that ‘lacks legal foundation and is properly regarded, in law, as no decision at all’: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [51]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24].
In the application for an assessment of costs filed on 27 May 2025, the first and second defendants alleged infringements of Division 3 Part 4.3 of the LPUL. The first and second defendants explicitly relied upon ss 174 and 175 of the LPUL, being sections that a commercial entity is disallowed from relying on by virtue of s 170. The first and second defendants are commercial entities, as defined. The consequences asserted as flowing from these purported breaches were identified by reference to ss 178 and 204 of the LPUL; provisions that cannot be relied on by commercial clients.
The third defendant, a ‘‘Manager, Costs Assessment’’ under the LPUL costs assessment regime, responded to the application made by the first and second defendants on 11 July 2025. In making the extension decision, the costs assessor acknowledged the exclusion of commercial or government clients from the LPUL costs assessment regime, but also indicated that the “client” definition in s 6 of the LPUL may be in conflict with the restriction in s 170. No party sought to support this reasoning in this Court and it is unsustainable. The clear language of s 170 provides that commercial or government clients are excluded from this part of the LPUL costs assessment regime. The express statutory purpose which emerges from the extrinsic materials is wholly consistent with this statutory language of exclusion.
The assessor concluded that:
In the interests of what is just and fair in the circumstances and having considered the material provided, the MCA [Manager, Costs Assessment] has extended the time for the costs assessment application.
The determination of the MCA to (1) extend time (the “extension decision”) and (2) subsequently appoint an individual costs assessor pursuant to the costs assessment regime under s 198(4) of the LPUL Part 4.3 and cl 34(1)(c) of the Legal Profession Uniform Law Application Regulation 2015 (NSW) (the “appointment decision”) were outside of the third defendant’s power, because at all relevant times the first and second defendants were commercial clients as defined by the LPUL.
For the same reason, the fourth defendant subsequently had no authority to conduct a costs assessment or take any further step in that assessment, as his appointment related to a dispute between parties not subject to the regime under which the relevant duties are referrable.
This dispute between a commercial client and a law firm is beyond the jurisdiction of the costs assessment regime as defined in the LPUL and associated regulations.
Two Supreme Court of Victoria decisions relating to the interpretation of an identical question under Part 4.3 under the Legal Profession Uniform Law 2015 (Vic) have held that “commercial clients” are not permitted to use the cost assessment regime contained in that Part: Jasmin Solar Pty Ltd v Fitzpatrick Legal Pty Ltd [2017] VSC 220 and Bilson v Dominic Esposito Solicitors [2019] VSC 801.
Mr Bailey, counsel for the first and second defendants, indicated that he had nothing to say in opposition to the making of the orders sought by the plaintiffs or to their form (Tcpt, 10 February 2026, p 5(22–34)):
HIS HONOUR: Mr Bailey, do you have anything to say about the form of proposed order … 6, 6A?
BAILEY: No. No.
HIS HONOUR: So … you do or do not have instructions to consent to the making of those orders?
BAILEY: I don’t have instructions to consent to the making of those orders.
HIS HONOUR: But you have nothing to say in opposition to the matter?
BAILEY: I say nothing in opposition. Yes.
In relation to orders 4–5, I made an order for costs on an ordinary basis (order 4) but permitted written submissions to be filed about amending the form of that order (order 5). The parties made supplementary submissions in accordance with order 5.
The plaintiffs had originally sought an order which permitted the recovery of costs associated with the impugned decisions as part of the costs of the judicial review proceedings. No authority was advanced clearly supporting that approach. The plaintiffs nevertheless sought orders that the plaintiffs be awarded their costs “of and incidental to” the Further Amended Summons, so that the matter may be further addressed, if necessary, in any assessment of costs.
I am not persuaded to amend the orders I have made in that respect. Neither party identified any directly relevant authority which permitted the recovery of costs associated with an impugned decision as part of judicial review proceedings in which a plaintiff was successful. It is not helpful in those circumstances for me to amend the order to include costs “of and incidental to” the judicial review proceedings. Simply put, I am not persuaded to depart from the orders I have already made in circumstances where authority has not been drawn to my attention permitting an order to be made for the recovery of costs associated with the impugned decisions as part of the costs of judicial review proceedings.
In so concluding I am not ruling against the plaintiffs’ ability to recover such an amount on assessment or, perhaps as an incident of legal costs incurred in relation to the District Court proceedings (2024/00217511). To be clear, I am not expressing a view about the recoverability of costs by the plaintiffs in any of these circumstances.
For the foregoing reasons, I decline to amend order 4 of the orders made on 10 February 2026.
**********
Bryony Adams on her own and on behalf of all the partners in the firm known as Herbert Smith Freehills (ABN 98 773 882 646)
PlayUp Ltd
(2018) 264 CLR 123
(2024) 280 CLR 321
(2002) 209 CLR 597
(2003) 145 FCR 1
(1909) 10 CLR 114
(2018) 264 CLR 1
(2021) 272 CLR 33
(2021) 273 CLR 21
(2010) 239 CLR 531
(2019) 264 CLR 421
(2001) 206 CLR 323
(2015) 257 CLR 22
(1995) 184 CLR 163
(1998) 194 CLR 355
(2023) 276 CLR 136
(2021) 273 CLR 506
(2022) 276 CLR 80
On 27 May 2025, the first and second defendants filed an application with this Court seeking an extension of time for an assessment of the costs charged by HSF pursuant to s 198 of the LPUL.
On 19 June 2025, HSF submitted a response that the application should be dismissed as the costs applicants (the first and second defendants) were commercial clients and the relevant costs regime under which assessment was sought was not applicable to this dispute.
On 11 July 2025, the third defendant, the Manager, Costs Assessment (“MCA”), made a decision in respect of the application, that the time for assessment should be extended (the “extension decision”):