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Parties: Ljiljana Coshott (Applicant)
Stephen Michael Barry (First Respondent)
Martin Pearce Board (Second Respondent)

Representation: Solicitors:
Litigant in Person (Applicant)
CKB Partners (Respondents)

File Number(s): 2026/161161

Publication restriction: Nil

JUDGMENT

1. Mrs Ljiljana Coshott has been in dispute with her former solicitors, Mr Stephen Barry and Mr Martin Board, for the better part of two decades. Between 2003 and 28 August 2015, that dispute was largely concerned with costs that Mrs Coshott and her husband, Mr Robert Coshott, were liable to pay for legal services provided by Mr Barry and Mr Board. Since August 2015, the parties have also been in dispute concerning costs payable by Mr Barry and Mr Board to Mrs Coshott pursuant to costs orders in Mrs Coshott’s favour that were made by the Court of Appeal on 28 August 2015: see Coshott v Barry (2015) 91 NSWLR 1; [2015] NSWCA 257 (the 2015 Judgment).

2. By a notice of motion filed in the Court of Appeal on 4 June 2026 in proceedings that were the subject of the 2015 Judgment, Mrs Coshott seeks a judgment against Mr Barry and Mr Board for what is said to be the total of two certificates of determination of costs payable under those orders, and interest on those amounts.

3. As will become apparent, there is no basis for the order sought by Mrs Coshott, and the notice of motion should not have been filed in the proceedings the subject of the 2015 Judgment. However, rather than dismissing the notice of motion for that reason and putting the parties to the additional costs that would result from taking that course, I have concluded that the most appropriate approach is to deal with the application to the extent possible sitting in the Common Law Division. That appears to be the best course in circumstances where the parties were content for the matter to be dealt with on the papers and no factual dispute needs to be resolved and is consistent with the principles set out in ss 56 to 60 of the Civil Procedure Act 2005 (NSW).

Background

The applications for assessment by Mr Barry and Mr Board

4. In 2003 and 2004, Mr Barry and Mr Board applied for assessment of two bills of costs they had issued to Mr and Mrs Coshott. Those applications were governed by the provisions of Part 11 of the Legal Profession Act 1987 (NSW) (1987 Act), which continued to apply despite the commencement of the Legal Profession Act 2004 (NSW) (2004 Act) on 21 December 2004: see 2004 Act, cl 18, sch 9 and Coshott v Barry [2012] NSWSC 850 at [8].

5. Determination of the cost assessments was delayed because of professional negligence proceedings brought by Mr and Mrs Coshott against Mr Barry: see the 2015 Judgment at [13]. Those proceedings were dismissed on 11 October 2007: see Coshott v Barry [2007] NSWSC 1094. An appeal by Mr and Mrs Coshott was also dismissed: see Coshott v Barry [2009] NSWCA 34.

6. On 29 October 2008, certificates of determination of costs were issued in relation to each costs assessment. The certificate in relation to the first assessment (the First Certificate) allowed costs of $52,670.12. The certificate in relation to the second (the Second Certificate) allowed costs of $28,205.52. Each stated that interest was payable on the amount of costs assessed at the rate of interest prescribed by the Supreme Court from time to time but did not include any amount for interest: see 2015 Judgment at [9] and [11].

7. On 7 November 2008, Mr Coshott entered bankruptcy: 2015 Judgment at [15].

The District and Local Court Judgments

8. On 10 November 2008, Mr Barry and Mr Board filed the First Certificate with the District Court, with the result that it became a deemed judgment of that Court pursuant to s 208J(3) of the 1987 Act. The District Court entered judgment for Mr Barry and Mr Board against Mr and Mrs Coshott for $52,670.12 on the same day (the District Court Judgment). The following day, Mr Barry and Mr Board filed the Second Certificate with the Local Court for the same purpose. The Local Court entered judgment against Mr and Mrs Coshott for $28,205.52 on 12 November 2008 (the Local Court Judgment). Neither judgment included any amount for interest: 2015 Judgment [10], [12].

9. In late 2013 and early 2014, the parties filed competing applications in relation to the District Court and Local Court Judgments. Mrs Coshott sought to set aside each judgment on the basis that it was not validly entered having regard to Mr Coshott’s bankruptcy and the operation of s 58(3) of the Bankruptcy Act 1966 (Cth): 2015 Judgment at [15]. Mr Barry and Mr Board sought orders which would have the effect of including in the judgment sums interest on the unpaid costs up to the date on which the certificates were filed as judgments.

10. The reasons of the District Court and the Local Court in relation to those applications are described in the 2015 Judgment at [35]-[51]. Relevantly, Mrs Coshott failed to have each judgment set aside as against her on the basis of s 58(3) of the Bankruptcy Act. Mr Barry and Mr Board succeeded in obtaining orders for the inclusion of interest in the judgments.

11. On 13 March and 2 April 2014, Taylor SC DCJ made orders in the District Court proceedings which included a judgment against Mrs Coshott in the sum of $37,528.84. That amount related to interest from 30 days after deemed service of the bill of costs until the date of the First Certificate, and “pre-judgment interest” from 1 January 2009 (the District Court Orders): see Barry v Coshott (No 2) [2014] NSWDC 57. That judgment was in addition to the judgment entered on 10 November 2008 referred to above: see 2015 Judgment at [36].

12. On 20 March 2014, Bradd LCM made orders in the Local Court proceedings which included a judgment against Mrs Coshott in the sum of $41,099.84 with effect from 11 November 2008 (the Local Court Orders). That amount included interest to the date the Second Certificate was filed as a judgment.

The decision of the Court of Appeal

13. Mrs Coshott commenced three proceedings in the Court of Appeal seeking to challenge the District and Local Court Orders. One proceeding (2014/109540) was commenced by filing a notice of appeal from the District Court Orders and Local Court Orders, purportedly as of right. Another (2014/217301) was commenced by filing a summons seeking leave to appeal from the Local Court Orders (together, the Appeal Proceedings). The third (2014/217333) was commenced by summons seeking judicial review (the Judicial Review Proceeding). At least by the time of the hearing before the Court of Appeal on 11 December 2014, the Appeal Proceedings were confined to the Local Court Orders, and the Judicial Review Proceeding was confined to the District Court Orders. The three proceedings were heard together by the Court on 11 December 2014.

14. Mrs Coshott was partially successful. In a judgment given on 28 August 2015, the Court of Appeal relevantly concluded that neither the District Court nor the Local Court had authority to give judgment for interest on the unpaid costs, on the basis that there was no authority under s 208J(3) to enter judgment for anything other than the amount of the certificate, or the amount of the certificate that remained unpaid: see 2015 Judgment at [129]-[130]. The Court of Appeal set aside the Local Court Orders and District Court Orders and ordered that Mr Barry and Mr Board pay 50 per cent of Mrs Coshott’s costs of (a) the Appeal Proceedings; and (b) the Judicial Review Proceeding (the Costs Orders). The full text of the orders is as follows:

In proceedings 2014/00217301; 2014/00109540:

(1) Grant leave to appeal from the decision of Bradd LCM of 20 March 2014.

(2) Order Mrs Coshott to file the draft amended notice of appeal at White Book page 266 within 7 days of delivery of this judgment.

(3) Appeal allowed in part.

(4) Set aside the judgment entered by Bradd LCM on 20 March 2014 against Mrs Coshott in the sum of $41,099.84.

(5) No order as to the costs of the Local Court proceedings, to the intent that each party bear its own costs.

(6) Order Stephen Michael Barry and Martin Pearce Board to pay 50 per cent of Mrs Coshott’s costs in this Court and to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise qualified.

Summons seeking judicial review – 2014/00217333

(7) Extend the time for commencing the proceedings seeking judicial review of the District Court decisions to 23 July 2014.

(8) Set aside the orders of Taylor DCJ made on 2 April 2014.

(9) Dismiss the Judicial Review Summons insofar as it sought to challenge the judgment and orders of Bradd LCM made on 20 March 2014.

(10) No order as to the costs of the District Court proceedings, to the intent that each party bear its own costs.

(11) Order Stephen Michael Barry and Martin Pearce Board to pay 50 per cent of Mrs Coshott’s costs of the Judicial Review Summons and to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise qualified.

Assessment of costs payable under the Costs Orders

15. As the Appeal Proceedings and the Judicial Review Proceeding had been commenced prior to 1 July 2015, the assessment of costs payable under the Costs Orders was subject to the provisions of the 2004 Act and the Legal Profession Regulation 2005 (NSW) (2005 Regulation): see cl 59 of the Legal Profession Uniform Law Application Regulation 2015 (NSW).

16. It is necessary to say something about those provisions briefly. Under s 353 of the 2004 Act, a person who is entitled to receive payment of costs as a result of a costs order may apply to the Manager, Costs Assessment (the Manager), for an assessment of those costs. The Manager is to refer the application to a costs assessor (see s 357(1) and r 122 of the 2005 Regulation), who must conduct the assessment in accordance with the provisions of subdivisions 3 and 4. On making a determination of costs, the assessor is to issue a certificate that sets out the determination: s 368(1). Section 368(5) provides:

In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed.

17. Section 369 enables the assessor, in determining an assessment of costs payable under a court order, to determine by whom and to what extent the assessor’s costs are payable. Where those costs are payable by a party to the assessment, the assessor is required to forward the certificate to the Manger and to advise the parties that the certificate has been so forwarded and will be available on payment of the costs of the costs assessor: s 368(5A)-(6).

18. The course taken by Mrs Coshott to assess the costs payable under the Costs Orders was not straightforward. On 21 September 2015, she made an application for assessment in relation to one of the proceedings the subject of Order (6) (the 2015 Assessment). After the application was referred to an assessor (Mr Christopher Wall), she indicated through her solicitor that the application was intended to relate only to the Judicial Review Proceeding (which was the subject of Order (11)), and that “a separate application for the [assessment of] the costs under the other costs order [will] be prepared and lodged after this assessment is completed”: see Coshott v Barry [2017] NSWSC 1220 (the 2017 Judgment) at [15]-[16]. However, the bill of costs on which Mrs Coshott relied contained items which also related to the other proceedings, a matter which evidently caused difficulty for the assessor and the other parties in dealing with the application.

19. In light of this, on 18 April 2016, Mr Barry lodged an application for assessment of the costs payable under Order (6) (the 2016 Assessment). This application was referred to the same assessor. Mrs Coshott requested that the application be withdrawn, for various reasons, and threatened to seek prerogative relief from the Supreme Court: see 2017 Judgment at [27]-[28].

20. On 12 August 2016, the assessor completed the 2015 Assessment and sent his certificate of determination (the August 2016 Certificate) and reasons to the Manager in accordance with s 370 of the 2004 Act. The certificate stated that Mrs Coshott was entitled to be paid $44,328.06 in respect of the Judicial Review Proceeding. The assessor determined that the costs of the assessment should be paid by Mrs Coshott, as the difficulties associated with the approach taken by Mrs Coshott “very greatly increased the costs of the assessment”: 2017 Judgment at [32]. The certificate and accompanying reasons were not released to the parties at the time, in view of the operation of s 368(6).

21. However, before the assessor had determined the 2015 Assessment (and evidently before Mrs Coshott received the August 2016 Certificate and reasons), on 9 August 2016 Mrs Coshott filed a summons in the Common Law Division seeking judicial review of the Manager’s referral of the two assessments to the same assessor. The summons was heard by Fagan J on 5 September 2017 and was dismissed with costs on the same day: see the 2017 Judgment.

22. By the time of the hearing before Fagan J, the summons was confined to the assessor’s determination of the 2015 Assessment as reflected in the August 2016 Certificate. The circumstances in which Mrs Coshott came to obtain a copy of the August 2016 Certificate and the assessor’s reasons were described by Fagan J in the 2017 Judgment as follows:

[25] To enable [Mrs Coshott] to litigate her application for judicial review in the proceedings now before me, she sought from the registrar and was granted leave to obtain a copy of the assessor's determination of the 2015 assessment and the accompanying reasons. The determination and reasons were tendered on the hearing of the further amended summons. The assessor’s assessed costs of carrying out the assessment have not yet been paid, as counsel for [Mrs Coshott] acknowledged to the Court. I therefore required and received an undertaking to the Court from counsel on behalf of [Mrs Coshott] and her solicitor, Mr Prassas, that no step would be taken to lodge or register the certificate for the purpose of obtaining judgment on it against Messrs Barry and Board until the assessor's costs of the assessment have been paid.

23. The 2016 Assessment was completed on 21 June 2018, when the assessor issued his certificate of determination (the June 2018 Certificate) and reasons and sent them to the Manager. The assessor determined that the amount of costs payable under Order (6) was $35,994.00, and that Mrs Coshott should pay the costs of the assessment because “the bill was compiled very poorly” and “The claim for costs made in [the 2015 Assessment] and in this matter was very much greater than what was reasonable”.

24. On 4 April 2018, Mr Barry wrote to the Manager requesting under s 371 of the 2004 Act that the assessor make a new determination in relation to the 2015 Assessment. This was on the basis that the assessor was said to have failed to take into account the fact that Order (11) only provided for payment of 50 per cent of Mrs Coshott’s costs of the judicial review proceeding.

25. On 17 April 2018, the assessor sent a letter to the parties in which he (1) noted that his costs of the assessment had not been paid, (2) accepted that he had failed to apply a 50 per cent reduction of Mrs Coshott’s costs, and (3) said that he was not inclined to amend the August 2016 Certificate until either party paid the costs of the assessment. In the event those costs were paid, he said the amount of costs determined in the certificate would be reduced by 50 per cent to $22,164.03. After receiving further submissions from the parties, on 24 April 2018 the assessor wrote to the parties stating that he had issued an amended certificate of determination in relation to the 2015 Assessment to the Manager, which would be made available to the parties on payment of the costs of the assessment.

26. Nothing appears to have happened for a period of about eight years. Then, on 17 April 2026, Ms Coshott paid the costs of the 2016 Assessment and on 20 April 2026, Mrs Coshott filed the June 2018 Certificate as a judgment of the Supreme Court. It was entered as a judgment in the amount of $35,994.00 on the same day.

Summary

27. As a consequence, prior to the filing of Mrs Coshott’s notice of motion, she had (in April 2026) obtained a judgment in the Supreme Court for $35,994.00 in respect of the costs order she had obtained in the Court of Appeal in respect of the Appeal Proceedings that were the subject of the 2015 Judgment. In addition, the costs assessor has issued an amended costs certificate in the amount of $22,164.03 in respect of costs incurred by her in the Judicial Review Proceeding that was the subject of that judgment. That costs certificate has not been made available to the parties because the relevant fees have not been paid.

The application for judgment

28. Mrs Coshott’s notice of motion is filed in one of the Appeal Proceedings. It seeks the following order:

Judgment for the appellant in the amount of $149,529.80, being the total amount or ordered costs quantified by the Certificates of Determination of Costs in Costs Assessments 2015/305470 and 2016/119050 plus interest thereon pursuant to section 101(4) of the Civil Procedure Act 2005.

29. The motion is supported by an affidavit from Mr Coshott, which annexes a copy of the orders of 28 August 2015, the August 2016 Certificate, the June 2018 Certificate and part of the reasons accompanying the June 2018 Certificate. The affidavit asserts that the costs of “proceedings 2014/00109540 and 2014/00217333” have been assessed at $35,994.00 and $44,328.06, that those amounts do not include interest, and annexes interest calculation sheets purporting to calculate “post-judgment interest” on the amounts of the August 2016 Certificate and June 2018 Certificate from 28 August 2015 to 30 June 2026.

Consideration

30. Mrs Coshott’s application is totally misconceived.

31. Mrs Coshott has a judgment from the Supreme Court in the amount of $35,944.00. That judgment was obtained by filing the June 2018 Certificate pursuant to s 368(5) of the 2004 Act. That provision allows for the filing of a certificate of determination “in the office or registry of a court having jurisdiction to order the payment of that amount of money”. To the extent an amount of costs has not been paid, the certificate is “with no further action, taken to be a judgment of that court for the amount of unpaid costs”. Under s 372, “A costs assessor’s determination of an application is binding on all parties to the application and no appeal or other assessment lies in respect of the determination, except as provided by this Division [that is, Division 11]”.

32. There was no appeal from the 2016 Assessment in accordance with Division 11 of the 2004 Act. There can be no appeal to the Court of Appeal from the judgment entered by the Court on 20 April 2026. That is not a judgment for the purposes of s 101(1) of the Supreme Court Act 1970 (NSW). Rather, as Kirk JA explained in Cappello v Homebuilding Pty Ltd [2024] NSWCA 88 at [37], it is an administrative process, like its predecessor in s 208J(3) of the 1987 Act, and its successor in s 70(5) of the Legal Profession Uniform Law Application Act 2015 (NSW), that is designed to facilitate enforcement of a certificate of determination by treating it as though it were a judgment of the relevant court.

33. Nor does the relevant Court (in this case, the Supreme Court) have power to amend the judgment by, for example, including an amount for interest. This was explained by the Court in the 2015 Judgment, speaking of the predecessor provision in s 208J(3):

[129] … The deemed judgment under s 208J(3) entered in the records of the court of filing must reflect the operation of s 208J(3), and no more. While such a deemed judgment will not necessarily be identical to the certificate — because it is not for the amount specified in the certificate, but for so much of it as is unpaid — the only integers are the certified amount and the amounts paid on account. There is no authority for the inclusion of any other amount.

34. The Court of Appeal also made clear in the 2015 Judgment that it would be a matter for the costs assessor to include interest in his or her determination, and if interest was not included, it could be recovered by an action at law: at [131].

35. It follows that the order which Mrs Coshott seeks is not one that a Judge of the Supreme Court would be authorised to make. It appears that Mrs Coshott is inviting this Court to make the same error that was made by the Local Court and District Court in 2014.

36. It is unclear on what basis Mrs Coshott claims to be entitled to any order in relation to the $44,328.06. The certificate on which she relies has been amended and the amended costs certificate has not been made available to the parties because the relevant fees have not been paid.

37. The only rights Mrs Coshott has in respect of that certificate is to exercise the rights of appeal conferred by Division 11 of the 2004 Act. That Division permits an aggrieved party to apply for a review of the costs assessor’s determination “within 30 days after the certificate … has been forwarded to the parties”: s 373(1). It also provides for an appeal from the decision of a costs assessor to the District Court on a point of law (s 384) or by leave of the District Court: s 385. The same appeal procedures are available from a decision of a review panel: s 382. There is no right of appeal from the costs assessor’s determination to the Court of Appeal.

Orders

38. The notice of motion filed on 4 June 2026 must be dismissed with costs.

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