Burchett v Juris Cor Group Pty Ltd t/as Juris Cor Legal

Catchwords: CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed
CIVIL PROCEDURE — Pleadings — Amendment – Statement of claim
COSTS — Solicitor/Client — Costs disclosure — Effect of non-disclosure

Legislation Cited: Legal Profession Uniform Law (NSW), Pt 4.3, s 170, s 174, s 175, s 178, s 180, s 185
Uniform Civil Procedure Rules 2005, r 13.4, r 28.1, r 28.2

Cases Cited: Autore t/as Autore & Associate Solicitors & Barristers v Folino-Gallo [2014] NSWSC 777
Bingham v Bevan (2023) 111 NSWLR 287; [2023] NSWCA 86
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Kok Hoong v Leong Cheong Mines Ltd [1964] AC 993
Robbins v The Royal Bank of Scotland plc [2010] NSWSC 39
Shaw v State of New South Wales (2012) 219 IR 87; [2012] NSWCA 102,
Southwell v Bennett [2010] NSWSC 1372
Wills v Woolworths Group Ltd [2022] FCA 1545

Category: Procedural rulings

Parties: Simon John Burchett (plaintiff)
Juris Cor Group Pty Ltd t/as Juris Cor Legal (defendant)

Representation: Counsel:
Ms M Castle (plaintiff)
Mr A McInerney SC with Mr N Kabilafkas (defendant)
Solicitors:
Bridges Lawyers (plaintiff)
GWH & Associate (defendant)

File Number(s): 2024/00414754

Publication restriction: Nil

JUDGMENT

1. The plaintiff, Mr Simon Burchett, is a barrister who performed work for clients of the defendant, Juris Cor Group Pty Ltd, a solicitor corporation, as well as work for the defendant itself. The plaintiff has commenced proceedings seeking recovery of $1,014,226.10 in fees which he says are due to him pursuant to costs agreements entered in respect of 39 matters (the Pleaded Matters), for legal work performed between 2016 and 2024.

2. The defendant defends the proceedings, inter alia, on the bases that the plaintiff failed to comply with certain disclosure obligations under s 175(2) of the Legal Profession Uniform Law (NSW) (the LPUL) and, accordingly, any agreement in relation to his costs is void. His only entitlement to recover costs, therefore, is pursuant to an application for a costs assessment under the LPUL and these proceedings, being a claim for recovery pursuant to alleged costs agreements, do not have reasonable prospects of success and ought be summarily dismissed.

3. The plaintiff commenced the current proceedings on 7 November 2024. On 26 August 2025, he served a proposed Amended Statement of Claim, seeking to add a claim for breach of an alleged implied warranty that no further information was required by the defendant to fulfil their own disclosure obligations to their clients and an alternative claim on a quantum meruit. The defendant did not consent to the amendment and, accordingly, on 17 September 2025, the plaintiff filed a motion seeking leave to file an Amended Statement of Claim in accordance with his proposal.

4. The defendant opposes leave to amend, contending that the plaintiff is precluded by s 178(1)(c) of the LPUL from bringing or maintaining the current proceedings, the proposed amended claim would be liable to be struck out and leave to amend would therefore be futile. Further, on 3 October 2025, it filed a Notice of Motion of its own, by which it seeks:

5. the summary dismissal of the Statement of Claim on the basis of no reasonable cause of action being disclosed (UCPR r 13.4(1)(b)) and/or the proceedings being an abuse of process (UCPR r 13.4(1)(c));

6. in the alternative, that the Court determine as a separate question whether the plaintiff’s claims for relief are barred in whole or in part by s 178(1) of the LPUL by reason of the matters pleaded by the defendant in paragraphs 4, 7(b), 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the Defence.

7. The defendant has since sought that the separate question be determined forthwith and proposed a revised set of questions, together with a summary of the legal propositions contended for, all of which were provided to Ms Castle, counsel for the plaintiff, on the day of the hearing. Ms Castle objected to the revised questions being considered, contending that she was prejudiced by the absence of notice and noting further that there was no motion properly before the Court in respect of the revised questions.

8. Although the defendant had also foreshadowed an application to refer the question of whether the plaintiff’s costs are fair and reasonable to a Court-appointed costs assessor, that application was not pressed.

9. The two motions were heard together. The plaintiff relied on the affidavit of Colin Walter Brown, solicitor, of 17 September 2025 and the exhibits thereto. The defendant relied on the affidavits of Jeffrey Wang, of 18 September 2025 and 20 October 2025 and the exhibits thereto. The defendant also relied on a Notice to Admit Facts and Authenticity of Documents, however, a Notice Disputing Facts and Authenticity of Documents had been served, so the factual issues were not thereby narrowed.

10. The issues to be determined were:

11. Has the defendant established that the plaintiff’s claim has no reasonable prospects of success in that:

(a) The absence of any costs estimate by the plaintiff in respect of any of Pleaded Matters 1, 2, 3, 4, 5, 6, 8, 11, 12, 14, 15, 16, 18, 20, 27, 28, 29, 30, 31, 33 and 39 has the effect that any purported costs agreement in respect of any of them is void; and (b) The failure by the plaintiff to provide any costs estimate prior to commencing significant work in respect of Pleaded Matters 7, 9, 10, 19, 21, 22, 23, 26, 32, 36, 37 and 38 has the effect that any purported costs agreement in respect of any of them is void.

2. If so, whether the proceedings ought be dismissed.

3. Alternatively, whether the separate question propounded by the defendant in its notice of motion, or alternatively, the separate questions advanced on the day of the hearing, should be heard and, if so, should they be determined against the plaintiff.

4. Whether the plaintiff should be granted leave to amend his Statement of Claim.

5. For reasons which follow, I am not satisfied that the proceedings ought be dismissed or that the question (or questions) propounded by the defendant ought be determined as separate questions. I have further found that the plaintiff ought be granted leave to amend his Statement of Claim.

The pleadings

10. By way of summary, the plaintiff’s claim is a claim in debt for breach of contractual obligations under 39 separate costs agreements between the plaintiff, as a barrister/law practice, and the defendant, an incorporated solicitors’ legal practice.

11. Relevantly, the defendant defends the claim on the following bases:

12. In such costs agreements as were provided (and it is now conceded that they were provided in almost all cases) there was no estimate of total costs at any time.

13. In a number of cases, the plaintiff did provide an estimate of prospective costs to be incurred but at no point gave a total estimate of all costs and the estimate that was provided came too late to be compliant with the plaintiff’s obligations under the LPUL.

14. The plaintiff is therefore precluded by s 178(1) of the LPUL from enforcing any of the alleged costs agreements, including by commencing or maintaining these proceedings.

15. Alternatively, if the plaintiff is entitled to maintain these proceedings and to enforce the alleged costs agreements, the costs agreements contained implied terms to the effect that he was only entitled to charge for services he was instructed to perform and any such charges had to be fair and reasonable. It is further alleged that the plaintiff has charged for services he was not instructed to perform and such charges were not fair and reasonable.

16. By way of reply filed on 29 September 2025, the plaintiff alleges that the defendant is estopped from relying on the allegation that the plaintiff failed to make adequate disclosure under the LPUL because each costs agreement contained a warranty that the defendant would make all necessary disclosures to the client and that it would advise the plaintiff, in writing, if it required any information from him under s 175(2). The plaintiff relied on the absence of any such request in providing legal services to the defendant and in bringing these proceedings without prior assessment under the LPUL.

Relevant disclosure principles

13. The principles which have arisen on hearing the motions concern the exercise of the discretion in respect of each of the above applications. The principles are well-settled in respect of each of these questions, and I will address their application in considering the relief sought below.

14. Substantively, the issue concerned the discharge by a legal practitioner of his, her or their obligations of disclosure under the LPUL.

Disclosure under the Legal Profession Uniform Law

15. The relevant sections of the LPUL all fall within Part 4.3.

16. Section 175 of the LPUL relevantly provides:

175 Disclosure obligations if another law practice is to be retained

(1) If a law practice (the first law practice) intends to retain another law practice (the second law practice) on behalf of a client, the first law practice must disclose to the client the details specified in section 174(1) in relation to the second law practice, in addition to any information required to be disclosed to the client under section 174.

(2) If a law practice (the first law practice) retains or intends to retain another law practice (the second law practice) on behalf of a client, the second law practice is not required to make a disclosure to the client under section 174, but must disclose to the first law practice the information necessary for the first law practice to comply with subsection (1).

…

17. Section 174 of the LPUL relevantly provides:

174 Disclosure obligations of law practice regarding clients

(1) Main disclosure requirement A law practice—

(a) must, when or as soon as practicable after instructions are initially given in a matter, provide the client with information disclosing the basis on which legal costs will be calculated in the matter and an estimate of the total legal costs; and

(b) must, when or as soon as practicable after there is any significant change to anything previously disclosed under this subsection, provide the client with information disclosing the change, including information about any significant change to the legal costs that will be payable by the client—

together with the information referred to in subsection (2).

…

(6) Disclosure to be written A disclosure under this section must be made in writing, but the requirement for writing does not affect the law practice’s obligations under subsection (3).

…

18. Section 178 of the LPUL provides:

178 Non-compliance with disclosure obligations

(1) If a law practice contravenes the disclosure obligations of this Part—

(a) the costs agreement concerned (if any) is void; and

(b) the client or an associated third party payer is not required to pay the legal costs until they have been assessed or any costs dispute has been determined by the designated local regulatory authority; and

(c) the law practice must not commence or maintain proceedings for the recovery of any or all of the legal costs until they have been assessed or any costs dispute has been determined by the designated local regulatory authority or under jurisdictional legislation; and

(d) the contravention is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any principal of the law practice or any legal practitioner associate or foreign lawyer associate involved in the contravention.

19. Other relevant provisions include:

170 Commercial or government clients

(1) This Part does not apply to—

(a) a commercial or government client; …

(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; …

180 Making costs agreements

(1) A costs agreement may be made—

…

(c) between a law practice and another law practice that retained that law practice on behalf of a client; or

…

(2) A costs agreement must be written or evidenced in writing.

…

185 Certain costs agreements are void

(1) A costs agreement that contravenes, or is entered into in contravention of, any provision of this Division is void.

Note

If a costs agreement is void due to a failure to comply with the disclosure obligations of this Part, the costs must be assessed before the law practice can seek to recover them (see section 178(1)).

(2) A law practice is not entitled to recover any amount in excess of the amount that the law practice would have been entitled to recover if the costs agreement had not been void and must repay any excess amount received.

…

Whether the plaintiff’s claim is untenable

20. In order to succeed on its motion, the defendant must establish that the Statement of Claim does not disclose any reasonable cause of action and/or the proceedings are an abuse of process.

21. The power to dismiss claims at an interlocutory stage is an exceptional power and only ought be exercised where the plaintiff’s claim is so clearly deficient that it would be inappropriate to allow the proceedings to continue: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129–130. Where there is a material dispute on a question of law, summary dismissal may be granted notwithstanding that extensive legal argument may be necessary to demonstrate the hopelessness of the claim. The power to dismiss ought not be exercised if the proceedings require determination of seriously disputed questions of fact.

22. In Shaw v State of New South Wales (2012) 219 IR 87; [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ at CL agreed) at [32] elaborated on the General Steel test for summary dismissal:

“The question is ... whether the claims in question are so obviously untenable or groundless that there is ’a high degree of certainty’ that they will fail if allowed to go to trial; and whether this is one of the ’clearest of cases’ in which the court may accordingly intervene to prevent the claims being litigated.”

23. The defendant says that the plaintiff’s position is untenable because the LPUL provides a code for the recovery by legal practices of costs. If a legal practice, in this case the plaintiff, has not complied with the stringent requirements of Part 4.3 of the LPUL, it has no recourse for the recovery of fees other than to pursue its claim through the assessment process. In this case, the breaches of the LPUL are clear and, accordingly, these proceedings cannot be maintained. While initially framed as an application for summary dismissal, Mr McInerney, Senior Counsel for the defendant accepted that a stay of these proceedings would, in practice, be an appropriate outcome. The defendant’s contentions were as follows:

24. Section 175(2) of the LPUL required the plaintiff, as the second legal practice for the purpose of the section, to make disclosure to the defendant, being the first legal practice, for the defendant to comply with its own obligation to the client under s 175(1).

25. The disclosure obligation on the plaintiff, at a minimum, included the information required under s 175(1), being the basis on which his costs would be calculated in the matter, an estimate of the total legal costs and, where there was a significant change to anything previously disclosed, information disclosing the change including information about any significant change to the legal costs due to him that would be payable by the client.

26. Where the plaintiff has failed to comply with his obligation under s 175(2), he is barred by reason of s 178(1)(c) from bringing or maintaining proceedings to recover his costs until they have been assessed or any costs dispute has been determined by the Legal Services Commissioner, being the designated local regulatory authority under the LPUL.

27. The plaintiff failed to provide either a costs agreement or a costs estimate in respect of Pleaded Matter 31. He is therefore barred from seeking recovery in these proceedings in respect of it. This is disputed as a question of fact as the plaintiff contends that an exchange of email correspondence comprised the relevant agreement.

28. The plaintiff failed to provide any costs estimate at all in respect of the following Pleaded Matters: 1, 2, 3, 4, 5, 6, 8, 11, 12, 14, 15, 16, 18, 20, 27, 28, 29, 30, 33 and 39. He is therefore barred from seeking recovery in these proceedings in respect of any of them.

29. The plaintiff failed to provide any costs estimate prior to commencing significant work in respect of the following Pleaded Matters: 7, 9, 10, 19, 21, 22, 23, 26, 32, 36, 37 and 38. In each of these Matters, the defendant says that the plaintiff proffered a costs agreement that did not contain an costs estimate, that he issued invoices and only later made estimates in respect of subsequent work to be performed. He is therefore barred from seeking recovery in these proceedings in respect of any of them and the costs agreements are void ab initio by operation of s 178(1)(a) and 185(1) of the LPUL.

30. The defendant acknowledges that Pleaded Matters 13 and 35 do not present a case for summary disposal by reason of a failure to disclose.

31. The plaintiff says that the true construction of Part 4.3 provides that the plaintiff did not have the same, overarching obligation of disclosure to the client that the defendant had under s 174. He had complied with all of his obligations under the LPUL. The defendant’s motion ought be dismissed for the following reasons:

32. Section 170(1)(a) and (2)(a) make clear that Part 4.3 does not apply where the client is a “commercial or government client”, which is defined to include a law practice.

33. In Pleaded Matters 2, 4, 14 and 26, the defendant itself – a law practice – was the client and there was, therefore, no obligation to make any disclosure to it and the balance of the provisions in Part 4.3 do not apply.

34. In each of the Pleaded Matters, the evidence relied on by the defendant shows that the plaintiff disclosed the basis on which he charged and the work that he anticipated would be performed. The evidence also shows that the parties had a long-standing professional relationship in which the defendant would have become well-acquainted with the plaintiff’s work practices and charging and billing habits. Accordingly, the plaintiff had complied with his obligations and the extent of the necessary disclosure in respect of each Pleaded Matter could only be assessed in the context of the whole of the circumstances at the time, including the defendant’s existing knowledge.

35. On its true construction, s 175 does not require the plaintiff to give an estimate of total costs. In Autore t/as Autore & Associate Solicitors & Barristers v Folino-Gallo [2014] NSWSC 777, while considering the LPUL’s predecessor legislation, Harrison AsJ found that, where a barrister had disclosed the rates that he would charge for specific items of work and when he would invoice, the solicitor who was responsible for providing instructions was in a position to estimate the range of total legal costs and to explain the major variables that would affect their calculation (at [60]). This is a complete answer to the defendant’s summary judgment application in respect of all of the Pleaded Matters.

36. At the very least, in the absence of binding authority that distinguished or disapproved Autore, the plaintiff’s contention that he was not required to disclose a total estimate is supported by authority, consistent with the text of the statute and is reasonably arguable.

37. At least with respect to the Pleaded Matters at [23(6)] above, the question of whether a costs estimate was made “as soon as practicable” after instructions were given or after a significant change, as required by s 174(1)(a) or (b) respectively, is an evaluative exercise which depends on an analysis of the relevant circumstances. This is not a matter suited to summary disposal.

38. Similarly, the extent of any disclosure that the defendant made to its clients is relevant to the question of whether any further information was necessary to be disclosed by the plaintiff to enable the defendant to make such disclosure. This is also a question of evidence, which the plaintiff would be entitled to test by way of subpoenas, notices to produce and cross-examination. The context of the parties’ long association, in which the defendant could be taken to have some knowledge of the professional practices of the plaintiff (including the warranty in the costs agreement described at [12] above), would also be relevant.

39. Even if the costs agreements were void by operation of s 178(1) or s 185, in the case of the Pleaded Matters at [23(6)] above, they would only be avoided from the date after which it was reasonably practicable to have made the updated disclosure. This would turn on the evaluative analysis described at [25(6)] above.

40. I have preferred the submissions of the plaintiff. In my view, it is at least arguable, in respect of all of the Pleaded Matters, that s 175 does not require full disclosure by a barrister of all of the matters which a solicitor is required by s 174 to disclose to the client. The question of what is “necessary” is likely to require an evaluation in the context of the relevant factual matrix, which includes the solicitor’s knowledge of the matter, and of the barrister’s work and billing practices. Similarly, the determination of when disclosure would be “as soon as practicable” also requires an evaluation based on an assessment of the evidence in its full context. Finally, there is a live issue of fact concerning Pleaded Matter 31. These matters are not appropriate for determination on a summary basis.

41. Even if I were to find the plaintiff in breach in respect of the Pleaded Matters at [23(6)], I doubt that, on its true construction, s 178 of the LPUL would have the effect that the costs agreement is void ab initio. This impacts the exercise of my discretion because, even if the plaintiff was in breach but the relevant costs agreement is only voided from the date of contravention, he would nevertheless still be entitled to recover in respect of rights accrued prior to that date if the agreement were only void in futuro.

42. It is at least arguable that this is the case, and, on the basis of Wills v Woolworths Group Ltd [2022] FCA 1545, I consider this to be the better view.

43. In Wills, Beach J stated:

“[28] But importantly, the proper construction of ss 174(1)(b) and 178(1)(a) indicates that a failure to comply with the disclosure obligation under s 174(1)(b), which necessarily is an obligation which arises after initial instructions are given and an initial disclosure is made pursuant to s 174(1)(a), will result in the costs agreement concerned being void in terms of its operation in futuro rather than ab initio. So where a law practice fails to provide an updated estimate of total legal costs ‘as soon as practicable after there is any significant change’ to the estimate of total legal costs previously disclosed to the client, the costs agreement between the law practice and the client is only void from the date of the contravention, rather than from the date of commencement of the costs agreement. To suggest the latter would be absurd and is not consistent with the text when read in context and with the relevant statutory purpose sought to be achieved.

[29] First, s 178(1)(a) uses the present tense ‘is void’ rather than ‘is and was at all times from inception void’.

[30] Second, if the legislature intended the latter, it would likely have had a claw back for all legal costs previously paid by the client from the date of inception. But there is no such claw back; contrast this with s 185(2). Indeed, s 178(1)(c) only speaks about present or future recovery of legal costs which by definition have not yet been paid. Likewise, s 178(1)(b) only speaks to legal costs not yet paid.

[31] Third, it is implausible to suggest that a valid costs agreement say running for 2 years with legal costs happily being paid thereunder should suddenly become void ab initio merely because at the 2 years mark there was a deficiency in a disclosure of a forward estimate of costs from that 2 years mark. Such a consequence would be disproportionate. Further, it would be against the s 169(a) objective. If a disclosure is deficient at the 2 years mark, the proportionate response is to void the costs agreement at that time in terms of going forward as the deficient disclosure would have denied the client an informed choice going forward from that 2 years mark. But it makes no sense to void the agreement ab initio. If the legislature intended such an unnecessarily penalising outcome, it should have expressly made this clear.”

30. In Bingham v Bevan (2023) 111 NSWLR 287; [2023] NSWCA 86, the Court of Appeal (Basten AJA, Meagher and White JJA agreeing) at [43] said:

“… there is a temporal issue to be determined. Different consequences may apply where the initial disclosure is inadequate and where the initial disclosure is adequate, but there is a significant change in circumstances which requires a fresh disclosure, which is not made. In the latter case, is the costs agreement operative and effective prior to the change in circumstances, or does the failure to make a fresh disclosure in changed circumstances render the agreement void from the moment it was entered into?14 It must also be noted that disclosure will not be contemporaneous with the creation of a costs agreement: disclosure must include information about the client’s rights to negotiate a costs agreement with the law practice: s 174(2)(a).”

The footnote in the above passage in Bingham referred to paragraphs [28] to [31] of Wills.

31. In my view, the plaintiff’s claims are at least arguable. Further, there appears to be no basis to dismiss Pleaded Matters 2, 4, 13, 14, 26 and 35, which will go forward in any event.

32. Accordingly, the defendant’s motion for summary dismissal is refused.

Separate determination

33. In its notice of motion, the defendant also sought separate determination of the following question:

“[W]hether the plaintiff’s claims for relief are barred in whole or in part by section 187(1) of the Legal Profession Uniform Law (NSW), by reason of the matters pleaded by the Defendant in paragraphs 4, 7(b), 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of its Defence.”

34. At the hearing, the defendant advanced a different set of questions (the revised questions) as follows:

“1. Whether, on the proper construction of ss 174(1), 175(1), 175(2) and 178(1) of the [LPUL], the information necessary to be disclosed by the second law practice to the first law practice pursuant to s 175(2), for the purpose of the first law practice complying with s 175(1):

(a) is an estimate of the total legal costs of the second law practice?

(b) if the answer to sub-paragraph (a) is Yes, is the consequence of the second law practice not giving to the first law practice an estimate of the total legal costs of the second law practice:

(i) that the costs agreement of the second law practice is void under s 178(1)?

(ii) that the second law practice must not commence or maintain proceedings for the recovery of any or all of the legal costs until they have been assessed under s 178(3)?

2. Whether, on the proper construction of ss 174(1), 175(1), 175(2) and 178(1) of the [LPUL], the information necessary to be disclosed by the second law practice to the first law practice pursuant to s 175(2), for the purpose of the first law practice complying with s 175(1):

(a) is that as soon as practicable after there is any significant change to the estimate of total legal costs, the second law practice must provide to the first law practice information disclosing the change, and any significant change to the estimate of total legal costs that will be payable?; and

(b) if the answer to sub-paragraph (a) is Yes, is the consequence of the second law practice not providing to the first law practice information disclosing the change, and any significant change to the estimate of total legal costs that will be payable:

(i) that the costs agreement of the second law practice is void under s 178(1)?

(ii) that the second law practice must not commence or maintain proceedings for the recovery of any or all of the legal costs until they have been assessed under s 178(3)?

3. Whether, on the proper construction of ss 174(1), 175(1), 175(2) and 178(1) of the LPUL, the Division 4.3 of the LPUL excludes judicial and curial remedies per se, or alternatively that Division 4.3 of the LPUL excludes the following judicial and curial remedies:

(a) an estoppel to [the] effect pleaded at paragraph 2.8(j) of the plaintiff’s Reply;

(b) a breach of warranty as pleaded in the plaintiff’s proposed Amended Statement of Claim (PPASOC) at paragraph 7A; and

(c) a claim on the common money count of quantum meruit as pleaded in the PPASOC at paragraph 7B.

4. Whether, in respect of the following matters pleaded in schedule A to the plaintiff’s Statement of Claim, the plaintiff is barred [from maintaining] proceedings for the recovery of any or all of his legal costs until they have been assessed:

(a) matters in which the plaintiff did not ever provide any estimate of his total legal costs, being matters 1, 2, 3, 4, 5, 6, 8, 11, 12, 14, 15, 16, 18, 20, 27, 28, 29, 30, 33 and 39; and

(b) matters in which the plaintiff did not provide an estimate of his total legal costs before he had first invoiced the defendant in respect of legal services provided by the plaintiff, and invoiced in respect of that work, being matters 7, 9, 10, 19, 21, 22, 23, 26, 32, 36, 37 and 38.”

35. Ms Castle objected to the revised questions being considered. She pointed out that there was no amended motion to properly bring them before the Court, she had not had time to consider the revised questions and it would be unfair to require her to deal with the questions without first giving her an opportunity to consider them.

36. I accept Ms Castle’s criticisms and do not consider it appropriate to consider the revised questions. However, even if I had done so, I would not have exercised my discretion to determine them separately in this hearing, or to order that there be a separate hearing in respect of them.

37. The power to order the separate determination of any question derives from UCPR 28.2, which provides:

The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.

38. UCPR 28.1 defines “question” to include:

any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.

39. In Southwell v Bennett [2010] NSWSC 1372 at [15], Hallen AsJ (as his Honour then was) set out the relevant principles as follows (citations omitted):

“(a) The rule speaks of ‘questions’ and not ‘issues’ and does not differentiate between questions of fact, or law, or partly of fact and partly of law.

(b) The judicial determination of a ‘question’ must involve a conclusive, or final, decision based on concrete and established, or agreed, facts, for the purpose of quelling a controversy between the parties.

(c) The rule permits the Court to hear and determine the separate question at any point before, at, or after, any trial or further trial in the proceedings, rather than only as a preliminary question.

(d) Whether such an order should be made is a matter for the court’s discretion, which discretion must be exercised judicially, but cannot otherwise be fettered.

(e) As a general rule, the discretionary power to order separate determination of a question should be approached with caution.

(f) In exercising its discretion, the overriding purpose of the Civil Procedure Act 2005, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect.

(g) Generally, all questions of fact and law should be determined at the one time.

(h) While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not.

(i) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. It sometimes happens that it turns out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid.

(j) Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings.

(k) Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial: ABB v Freight Rail [1999] NSWSC 1037.

(l) Often, a separate question is heard on the basis of:

(i) agreed statements of fact;

(ii) a narrow point to be determined; and

(iii) a hearing that is able to be conducted within a short time (or a short time relative to the total length if the hearing of the separate question were not to be dealt with).

(m) Factors that tend to support the making of an order, include that the separate determination of the question may:

(i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings*;*

(ii) contribute to the settlement of the litigation.

(n) It may be appropriate to determine a separate question, even if it will not resolve all the issues, provided that there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided, or if the decision will obviate unnecessary and expensive hearings of other questions. The determination of the one question should enable a sensible reassessment of litigation risks, which is generally likely to encourage some form of settlement discussions.

(o) Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial — possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding. There is always a risk of inconsistent findings arising from determination of separate questions.

(p) Whilst the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties.

(q) It is a relevant consideration to weigh the time likely to be taken in the hearing of a separate question and the availability of hearing dates for that purpose, against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing will take place.

(r) Each case will have its own dynamics that dictate the relative importance of various factors to be considered in exercising the discretion conferred.

(s) It is necessary that there be precision, both in formulating the question, and in specifying the facts upon which it is to be decided.”

40. As set out by his Honour at [15(e)] of Southwell, the power should be exercised with care. Nevertheless, if the proceedings would be disposed of if the question were resolved in favour of the defendant, its separate determination would be appropriate: Robbins v The Royal Bank of Scotland plc [2010] NSWSC 39 per Barrett J (as his Honour then was) at [15].

41. Ms Castle’s criticisms of the formulation of the proposed separate question in the notice of notion were:

42. The reference to the claims being barred “in whole or in part” was unparticularised and on its face indicated that the separate question would not dispose of the whole proceeding or lead to any saving of time or costs.

43. The separate question propounded in the notice of motion failed to address the factual and legal overlap between the matters raised in the Defence and those raised in the Reply, most significantly the estoppel, which would nevertheless still fall for determination at a final hearing. (It appears that this was implicitly accepted by the defendant in the formulation of the revised questions at [34] above).

44. Even if the questions were answered in the defendant’s favour, Pleaded Matters 2, 4, 13, 14, 26 and 35 would still require determination.

45. There would therefore be no real time or costs saving and a risk of inconsistent findings of fact.

46. With respect to the revised questions, they raise no new issues other than the question of whether the estoppel claim in the Reply offends the principle that it would set up an estoppel in the face of the LPUL: Kok Hoong v Leong Cheong Min**es Ltd [1964] AC 993 at 1015-1017. I do not read Kok Hoong as operating that way in the present case. Viscount Radley, delivering the opinion of the Privy Council, considered that the principle that a party cannot set up a defence in the face of a statute operates differentially according to the objects of the statute itself. It does not preclude all estoppels even where the statute declares certain transactions to be unenforceable or void: at 1015.

47. Even if I were to consider the revised question, I would not be so satisfied that the principle, that a party cannot set up a defence in the face of a statute, operates in the present case that I would consider there to be any utility in determining it as a separate question.

48. I do not see any utility in determining the proposed separate question advanced in the defendant’s Notice of Motion. In my view, there are factual and evaluative questions that require determination and the Court ought not proceed without giving the parties the opportunity to test the evidence in this regard. I apprehend there is a risk of inconsistent findings of fact. In any event, I consider the determination of a separate question would be unlikely to meaningfully shorten proceedings or to result in any cost savings.

49. For the above reasons, I decline to order the separate question sought at order 2 of the defendant’s Notice of Motion or in accordance with the revised questions.

Amendment

46. The plaintiff also seeks leave to amend his Statement of Claim by the addition of the following paragraphs:

“7A. Alternatively, on the basis of the allegations of non-disclosure by the Plaintiff (which are denied) made by the Defendant in its Defence, the Plaintiff says as follows:

7A.1 Pursuant to the terms of each of the Costs Agreements, the Defendant warranted expressly in writing that it would make all disclosures to the clients required by s.175(1) of the LPUL and, that the Defendant would advise the Plaintiff in writing, if it did at any time require any information from him under LPUL s.175(2) of the LPUL to make those disclosures.

7A.2 The Defendant did not at any time advise the Plaintiff, that it required any such information from him (in addition to information provided by the Plaintiff or at all) to make disclosures to the clients of the Defendant.

7A.3 The Plaintiff relied on the absence of such advice by the Defendant in providing and continuing to provide legal services to the Defendant, assuming that the Defendant agreed, and it was the fact, that no further information from him was required and in bringing these proceedings, without prior assessment under the LPUL.

7A.4 Consequently, if the Plaintiff is found to have failed to disclose any information required for the Defendant to make disclosure to a client under s 175(1) LPUL (or otherwise), as alleged by the Defendant in its Defence (which is denied), then, the Defendant is in breach of its said warranty and liable to the Plaintiff in damages for the amount of any invoice thereby rendered otherwise unrecoverable.

7B. In the further alternative, the Plaintiff repeats paragraphs 4.1 and 6 above and says that in respect of each of the matters referred to in Schedule A he is entitled to be paid on a quantum meruit basis in the amount of each of the unpaid invoices on the basis that:

7B.1 the Defendant requested the Plaintiff to provide legal services;

7B.2 the Plaintiff provided those legal services;

7B.3 the Defendant knew they were to be paid for and were not being provided for free;

7B.4 the Defendant continued in each matter to request the provision of legal services and to receive the benefit of them on behalf of clients or, in relation to matters 2, 4, 14 and 26, for itself.”

47. The defendant opposes the amendments on the bases that:

48. The plaintiff cannot contract out of his statutory obligations and both the warranty claim and the estoppel pleaded in the Reply are impermissible attempts to do so.

49. As the plaintiff was in breach of his disclosure obligations under s 175, the prohibition on the pursuit of any curial remedy in s 178 extends to all such claims, including claims on a quantum meruit, unless the assessment procedure is first undertaken. Accordingly, proposed paragraph 7B is untenable and amendment would be futile.

50. The plaintiff contends that:

51. The warranty claim does not indicate the plaintiff is seeking to contract out of his statutory obligations. Rather, it provides a factual basis for the estoppel claim in the Reply. In any event, it does not allege an agreement not to be bound by the terms of the statute but identifies a factual context in which the parties understood what information was “necessary” to be provided to the defendant for the purpose of its own compliance with s 174.

52. The quantum meruit claim is proffered as an alternative and there is no prejudice to the defendant by its inclusion in these proceedings.

53. I consider that both claims are arguable and there is utility in allowing the claims, particularly the breach of warranty claim, to proceed. They appear to raise no areas of factual inquiry not already in issue and there is no prejudice to the defendant in allowing the amendments at this stage. To the extent that the quantum meruit claim is an alternative to the plaintiff’s contractual claim, it is an enquiry that the parties would need to undertake in some form and indeed, the enquiry appears necessary to consider the defendant’s contentions at [11(4)] above.

54. I will therefore allow the amendments on the usual basis that the plaintiff pays the costs thrown away by reason of the amendment but that the defendant pay the costs of the motion.

Conclusion

51. I will grant the plaintiff leave to file an Amended Statement of Claim in accordance with his Notice of Motion of 17 September 2025. I will refuse the relief sought by the defendant in its Notice of Motion of 3 October 2025.

52. As to costs, I note that the plaintiff has received an indulgence, however, given the overlap of issues in the two motions and the plaintiff’s success on both of them, I consider it appropriate that the defendant pay the plaintiff’s costs of both. I therefore find that the appropriate order is that the defendant pay the costs of the two motions but that the plaintiff pay any costs thrown away by reason of the amendments. If either party seeks a different costs order, they may seek an order under r 36.16 of the UCPR.

Orders

53. The orders of the Court therefore are:

54. In respect of the plaintiff’s Notice of Motion of 17 September 2025:

(a) Grant leave to the plaintiff to file an Amended Statement of Claim in the form annexed to his Notice of Motion of 17 September 2025. (b) The plaintiff to file his Amended Statement of Claim on or before 19 December 2025. (c) The plaintiff to pay the defendant’s costs thrown away by reason of the amendment to the Statement of Claim. (d) The defendant to pay the plaintiff’s costs of the plaintiff’s Notice of Motion.

2. In respect of the defendant’s Notice of Motion of 3 October 2025:

(a) Dismiss the defendant’s Notice of Motion. (b) The defendant to pay the plaintiff’s costs of the defendant’s Notice of Motion.

3. The proceedings be stood over to Thursday, 5 March 2026 for directions before the Judicial Registrar.

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