Dive Lawyers Pty Ltd t/as Dive Lawyers & Notaries v The Manager, Costs Assessment

Supreme Court of NSW|2024-06-13|Before: Elkaim AJ, Mr J, Mr P

Introduction

The plaintiff commenced these proceedings by a summons filed on 27 March 2024. An amended summons was filed on 29 April 2024. The first defendant, The Manager, Costs Assessment, has filed a submitting appearance.
The summons is supported by an affidavit of Mr Thomas Dive dated 1 May 2024. There is another affidavit from Mr Dive, dated 11 June 2024, but only concerns costs. The second defendant, again restricted to costs, relies on an affidavit of Mr Adam Vainauskas, dated 31 May 2024. Mr Dive is a director of the plaintiff. Mr Vainauskas is the second defendant's solicitor.
In written submissions filed before the hearing the plaintiff clarified the orders that it sought. They are: "1. The decision of the Manager, Costs Assessment, to decline to accept for filing the Application for Assessment (the Application) on 22 August 2022 and subsequently confirmed in writing on 27 February 2024, is set aside. 2. The Plaintiff is to file the Application with the costs assessment system within seven days of the date of this order. 3. The Manager, Costs Assessment, is to accept the Application for filing, and subject to compliance with reg 34(2) of the Legal Profession Uniform Law Application Regulation 2015 (NSW), refer the Application to a Costs Assessor."
It is immediately apparent that none of the orders sought are against the second defendant. The second defendant consents to the orders, and positively submitted they were appropriate. What the second defendant does oppose is the plaintiff receiving a costs order in its favour against the second defendant in respect of the summons.
Accordingly, the dispute between the plaintiff and the second defendant was not as to the substantive orders sought, but rather as to the costs of the summons.
Notwithstanding the limits of this dispute the plaintiff also sought reasons for the court making the substantive orders. The second defendant, in this regard, agreed. Senior counsel, in his written submissions, stated: "Regardless of whether the parties submit, do not oppose or consent to the proposed orders, the court must be satisfied and decide for itself that the proposed orders are appropriate."

Background

The background is as follows: 1. The plaintiff is an incorporated firm of solicitors. 2. In May 2020 the second defendant retained the plaintiff to act for her in a dispute with solicitors who had previously acted on her behalf. The retainer originally concerned a financial agreement with her former solicitors but later expanded to include various other disputes. 3. The first invoice sent to the second defendant, for work done by the plaintiff, was dated 30 June 2021 and sought payment of $32,385.61. 4. Another invoice, in respect of different work, and restricted to disbursements, was dated 30 July 2021, for $18,359.58. 5. The plaintiff terminated the retainer from the second defendant in an email sent on 4 August 2021. 6. On 10 August 2021 the plaintiff sent the second defendant an invoice for $9,405.30 and then, the following day, an invoice for $87,759.10. 7. None of the amounts in the above four invoices, or any part of them, were paid by the second defendant. 8. On 12 August 2021, the second defendant disputed the termination of the retainer, stating that she was entitled to 28 days' notice. The plaintiff then continued to act for the second defendant but did not charge for any work done after 11 August 2021. 9. On 18 August 2021 the second defendant made a complaint to the Office of the Legal Services Commissioner (the OLSC) about the plaintiff. The making of the complaint stopped time running in respect of the recovery of costs (Legal Profession Uniform Law No 16a of 2014 (NSW), s 194). 10. On 23 August 2021 the second defendant, by email, told the plaintiff that she had referred the plaintiff's invoices to a "costs assessor to be reviewed." This was asserted to be untrue, a characterisation strongly rejected by the second defendant. 11. On 29 June 2022 the OLSC wrote to the plaintiff stating that the Commissioner had "determined to close the costs dispute part of the complaint." Mr Dive was overseas when his office received this notification. 12. Following Mr Dive's return, and in particular on 22 August 2022, the plaintiff tried to file three costs assessments. One was immediately accepted for filing. A second was accepted on 14 October 2022. The third assessment has never been filed. The first defendant told the plaintiff that the assessment could not be filed because "the application was 1½ weeks outside the 12 month period following the last invoice issued in that matter." 13. According to Mr Dive, the first defendant "advised that this prevented him accepting the third costs assessment application because the current interpretation of the LPUL excluded any extension of time being considered for law practices - it only applied to clients and third party payers." 1. The above advice from the first defendant is the subject of the summons. The plaintiff says that the first defendant was wrong in giving this advice and that the third application for a costs assessment should have been accepted for at least consideration of whether an extension of time should be granted. 2. The OLSC concluded its investigations into the second defendant's complaint on 29 June 2023.The plaintiff was cautioned for failing to provide written costs estimates to the second defendant.
The first defendant's decision is reviewable in this court in the same way as the court might review a decision of a registrar (Legal Profession Uniform Law Application Act 2014 (NSW) s 93B). Rule 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) states: "… if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit."
Basten J commented upon r 49.19 in Voicu v The Owners-Strata Plan No 1624 [2020] NSWSC 296, at [20]: "Reviews under that power are not restricted, even in the sense that an appeal would be restricted, to identifying error of law or error of any particular kind. They are certainly not restricted to errors of the kind necessary to engage the supervisory jurisdiction. Nevertheless, in accordance with the principles established in In Re the Will of FB Gilbert, the Court will not readily interfere with directions given as a matter of practice and procedure."

Was the first defendant correct to refuse the filing of the third application for a costs assessment?

I think it necessary to set out the first defendant's position in full. The first defendant wrote to the plaintiff on 27 February 2024 stating: "Proposed costs Applicant: Dive Lawyers Pty Limited t/as Dive Lawyers & Notaries Proposed Costs Respondent: Azam Hakimi Sabzavari Fard (aka Neda Hakemi) I refer to the costs assessment application you have lodged for filing on 15 February 2024. In considering your application, it appears to have been lodged late outside the prescribed timeframe in s198(3) of the legal Profession Uniform Law (NSW) 2014, ('the Act'). In answer to item 2(a) of the application you have listed a number of invoices for assessment. They include tax invoices dated 30 July 2021, and 11 August 2021. As the originating bill/invoices, sought to be assessed, were first provided to the client more than 12 months prior to this costs assessment application being filed, the MCA as the Designated Tribunal, cannot find based on the available material, there is jurisdiction for this application to proceed. Having said that, your application cannot be processed and is returned to you. Section 198(3) of the Legal Profession Uniform Law (NSW) 2015 ("the Act") states: (3) An application under this section must be made within 12 months after-- (a) the bill was given to, or the request for payment was made to, the client, third party payer or other law practice; or (b) the legal costs were paid if neither a bill nor a request was made. The statutory timeframe identified above refers to the first time the event relied upon in section 198(3) occurring, to commence the 12 month timeframe. Furthermore, there is the clear intention that a timeframe is to apply, to provide parties with finality of their costs dispute, with the exception of the ability for the Designated Authority to extend time, if warranted, in accordance with the Act. For completeness, sub section 4 of section 198, permits an application made out of time to be considered; "… on application by the costs assessor or the client or third party payer who made the application for assessment". It is silent on a law practice and another law practice, despite including particular reference to a client and third party payer and costs assessor. It would appear that sub section 4 does not permit the MCA, as the "Designated Tribunal", to consider or grant an extension to an out of time application made by a law practice. Or, for it to be referred to a costs assessor as it would not be a properly made application within the prescribed timeframe set out in sub-section 3. More importantly section 198 of the Act and the Uniform Law generally appears silent on a statutory power permitting the MCA, as the "Designated Tribunal" to extend time for a law practice to seek an extension of time. The omission of a law practice from sub-section 4, despite being identified in in sub-section 1, could be construed as an intention not to include a party, a law practice or another law practice, that perhaps should and ought to be aware of the prescribed timeframe within the Act. The MCA does not believe the words "on application by the costs assessor" assists a law practice to make a costs assessment application out of time, as a late application would not properly get to a costs assessor. For the said application to be made by a costs assessor, a properly filed application first needs to be lodged in time, by a party who can make the application listed in sub-section 1, to facilitate the assignment and referral to the costs assessor. In conclusion, to adopt an approach, assigning all matters lodged by a law practice or another law practice, regardless of them being in or out of time, would require the MCA to act with ignorance of the statutory timeframe, in sub-section 3. That is despite the clear legislative purpose for a 12 month timeframe to apply. It is only when consideration is given, and the view is taken, that a properly made application has been made, can and should a costs assessment application be referred or assigned to a costs assessor. With those comments in mind, again, there does not appear to be jurisdiction for this costs assessment application to proceed and your updated costs assessment application has not been accepted for filing. Yours faithfully B Bellach Manager, Costs Assessment"
The plaintiff says the first defendant adopted an erroneous approach. What the first defendant should have done, according to the plaintiff, was to accept the application for filing and then refer it to a costs assessor to "make a determination as to whether it is out of time or not and if it is will refer it to the Manager, Costs Assessment, to determine whether it can be dealt with."
The applicable legislation is the Legal Profession Uniform Law. A costs assessment is defined in s 6 as "an assessment of legal costs under Part 4.3."
Part 4.3 begins at s 169 and extends to, and includes s 208. Section 198 concerns applications for costs assessment. The section states: 198 Applications for costs assessment (1) Applications for an assessment of the whole or any part of legal costs payable to a law practice may be made by any of the following - (a) a client who has paid or is liable to pay them to the law practice; (b) a third party payer who has paid or is liable to pay them to the law practice or the client; (c) the law practice; (d) another law practice, where the other law practice retained the law practice to act on behalf of a client and the law practice has given the other law practice a bill for doing so. (2) An application under this section is to be made in accordance with applicable jurisdictional legislation. (3) An application under this section must be made within 12 months after - (a) the bill was given to, or the request for payment was made to, the client, third party payer or other law practice; or (b) the legal costs were paid if neither a bill nor a request was made. (4) However, an application that is made out of time may be dealt with by the costs assessor if the designated tribunal, on application by the costs assessor or the client or third party payer who made the application for assessment, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12-month period. (5) Subsection (4) does not apply to an application made out of time by a third party payer who is not a commercial or government client but who would be a commercial or government client if the third party payer were a client of the law practice concerned. (6) If the third party payer is a non-associated third party payer, the law practice concerned must provide the third party payer, on the written request of the third party payer, with sufficient information to allow the third party payer to consider making, and if thought fit to make, an application for a costs assessment under this section. (7) If an application for a costs assessment is made in accordance with this Division - (a) the costs assessment must take place without any money being paid into court on account of the legal costs the subject of the application; and (b) the law practice must not commence any proceedings to recover the legal costs until the costs assessment has been completed. (8) A costs assessor is to cause a copy of an application for a costs assessment to be given to any law practice or client concerned or any other person whom the costs assessor thinks it appropriate to notify. (9) A person who is notified by the costs assessor under subsection (8) - (a) is entitled to participate in the costs assessment process; and (b) is taken to be a party to the assessment; and (c) if the costs assessor so determines, is bound by the assessment. (10) If there is a non-associated third party payer for a client of a law practice, then, despite any other provision of this Division, the assessment of the costs payable by the non-associated third party payer does not affect the amount of legal costs payable by the client to the law practice.
Section 198 says an application for a costs assessment may be made by a law practice. Subsection (3) says that the application must be made within 12 months after the bill was given to the client (referring in this case to the sending of the last invoice). Subsection (4) concerns applications that are out of time. The Designated Tribunal referred to in the subsection is the first defendant.
Going back a step, ss (2) says that the application for a costs assessment is to be made "in accordance with applicable jurisdictional legislation." Regulation 34 of the Legal Profession Uniform Law Application Regulation 2015 (NSW) dictates the actions of the first defendant upon receipt of an application for a costs assessment.
No part of either s 198 or reg 34 permits the first defendant to reject the filing of an application for a costs assessment because it is out of time. It is important to repeat the distinction between the filing of the assessment and the consideration of the assessment, the latter including whether or not an extension of time will be granted. I note that, as pointed out by the plaintiff, the procedure included in s 198(4) is not strictly an application for an extension of time but rather an application for a determination as to whether the assessment can proceed notwithstanding that it was filed after the time limit imposed by s 198(3).
Under s 198(4), in order for a late costs assessment application to proceed there must have been a determination "after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12-month period."
Clearly this determination can only take place after the filing of the application for the costs assessment has taken place. The filing permits the determination to be made; or, absent filing, there cannot be the necessary determination.
Returning now to the first defendant's letter of 27 February 2024 in which the reasons behind the rejection of the filing of the costs assessment application are set out. The first defendant relies on s 198(4), and in particular on the words "on application by the costs assessor or the client or third party who made the application for assessment" as limiting the persons who may apply for the relevant determination. Because these persons do not include a law practice, reasoned the first defendant, there was no capacity for the first defendant to determine whether there should be an extension of time. Accordingly, if the first defendant could not make this determination, then there is no basis upon which the application could be filed. In other words, if filed, it could not be dealt with.
My first observation is that s 198 does not provide an explanation of why a law practice is not able to apply for a determination but a client or third party payer are able to do so. It may be that there is an element of consumer protection, but that does not explain depriving a law practice of rights given to clients and third party payers. A law practice, in particular a small practice as seems to be the case here, is just as likely to miss an important date as a consumer.
My second observation about s 198(4) is that it permits an application for the relevant determination to be made by the costs assessor. The costs assessor is not a person who has made an application for an assessment; rather he is the person making the assessment. There is no overt reason why the costs assessor would be making the application for an extension of time.
I think the answer lies in the terms of reg 34. The regulation is headed "Procedure before application for assessment of bill referred to assessor-Uniform Law Costs". Regulation 34(2) states: On receipt of an application for assessment of a bill of costs for Uniform Law costs by the law practice giving the bill, the Manager, Costs Assessment is to deal with the application as follows: (a) A copy of the application is to be given by the Manager, Costs Assessment to the person who was given the bill of costs and is to be accompanied by a notice advising the person that any objection to the application must be lodged with the Manager, Costs Assessment in writing within 21 days after the person receives the notice. (b) A copy of any objection duly lodged with the Manager, Costs Assessment is to be sent by the Manager, Costs Assessment to the applicant with a notice advising the applicant that any response to the objection must be lodged with the Manager, Costs Assessment in writing within 21 days after the applicant receives the notice. (c) A copy of any response duly lodged with the Manager, Costs Assessment is to be sent by the Manager, Costs Assessment to the person who lodged the objection. (d) The application is to be referred by the Manager, Costs Assessment to a costs assessor for assessment: (i) if no objection is duly lodged with the Manager, Costs Assessment - as soon as practicable after the period referred to in paragraph (a), or (ii) if an objection is duly lodged - as soon as practicable after a response is duly lodged with the Manager, Costs Assessment or, if no response is duly lodged, as soon as practicable after the period referred to in paragraph (b). (e) Any relevant objection or response, and any objection or response that is lodged out of time, is to be sent by the Manager, Costs Assessment to the costs assessor to whom the application for assessment is referred.
Pursuant to reg 34, after the initial dealings with the application, as set out in sub regs (2)(a), (b) and (c), the application is then sent to a costs assessor. Having received the application the costs assessor, no doubt being aware of the time limitation in s 198(3), would not be able to continue the assessment but would be able, under s 198(4) to refer the matter to the first defendant for a determination of whether time could be extended.
It would be no answer to this procedure to say that an application could not be filed as it was out of time, because s 198 clearly contemplates the first defendant dealing with an application which has been filed by a client or third-party payer who has also made an application regarding a determination concerning a late filing.
I am accordingly of the view that the procedure dictated by reg 34 requires the acceptance for filing of an out of time application for assessment which is then to be referred to a costs assessor who, when noting that the application is out of time, will refer it (or apply to) the first defendant to determine whether or not "it is just and fair for the application for assessment to be dealt with after the 12-month period."
I was informed that the issue before me was not the subject of any previous decision in New South Wales. Section 198 is in the same terms in the equivalent Victorian legislation. However, under the Victorian system there is a Costs Court which acts as the costs assessor for the purposes of s 198.
There is no equivalent to reg 34 in the Victorian system. Accordingly, the plaintiff said that decisions in Victoria could be no more than "illustrative" of the procedure that should be taken in New South Wales. I think the attitude taken by the plaintiff is correct although I would elevate the effect of the Victorian decisions from illustrative to persuasive.
The first decision I was referred to was Eventus Lawyers Pty Ltd v Richens [2021] VSC 370. The case involved an application for a costs assessment by a law firm which had been filed after the 12-month period. Ginnane J, from [17]-[19] said this: "The fact that the summons was filed late does not impose an absolute bar to the Costs Court hearing the costs assessment because s 198(4) provides that a costs assessment can be dealt with after the 12-month period imposed by s 198(3) if, after having regard to the delay and the reasons for it, the Court determines that it is just and fair to do so. The relevant costs assessor the Costs Court comprising the Judicial Registrar. A Judge of the Court is the designated tribunal required to determine whether it is just and fair to deal with the assessment after the 12-month period has expired. On 20 October 2020, Gourlay JR, as the costs assessor, determined that the application had been made out of time and referred the application to the Court to determine whether it should be heard out of time."
The second decision was Peter Szabo Family Law Pty Ltd (in liquidation) v Thomas Young [2023] VSC 756. Watson J, at [4], said: "On 6 October 2023, Conidi JR referred the application for extension of time to a judge of the Court for determination under s 198(4) of the LPUL. I note that for the purposes of s 198(4) of the LPUL the Costs Court constituted by Conidi JR is the "costs assessor" and that the referral enlivens my jurisdiction under s 198(4)."
I therefore think it appropriate to make the orders sought by the plaintiff. These are not the orders sought in the amended summons, but no objection was taken by the second defendant to the making of different orders, in fact to a large extent being orders proposed by the second defendant.

Costs of the summons

As noted above, the second defendant agreed with the orders sought but resisted the plaintiff's application that she should pay the costs of the summons. In short, the second defendant submitted that she should not pay the costs because she was not a 'loser' of the litigation which was essentially a challenge to a procedural decision made by the first defendant.
In addition to resisting a costs order against her, the second defendant sought a costs order in her favour limited to the question of the argument on costs. This was effectively an application that the plaintiff pay her costs for an appearance before a Registrar on 3 June 2024 and her costs of the hearing.
The plaintiff submitted that the second defendant should pay the costs because she had acted unreasonably. The lack of reasonableness was to be found in the following conduct of the second defendant: 1. The second defendant had persistently failed to pay any costs to the plaintiff since originally retaining the plaintiff in May 2020. 2. The second defendant had tried to negotiate an invoice for disbursements, despite these being "hard" costs that had been "carried" by the plaintiff. 3. The second defendant's complaint to the OLSC had prevented the plaintiff from pursuing a costs assessment until the complaint was finalised. 4. The second defendant had erroneously sent an email to the plaintiff on 23 August 2021 stating that "your invoices are send to costs assessor to be reviewed", a statement which was not correct. 5. The second defendant had incorrectly asserted in correspondence that the plaintiff was prevented, by s 198(3) from applying for an assessment. 6. It was always open to the second defendant to have herself applied for an assessment of costs.
In relation to the second defendant's application for costs, the plaintiff submitted that if the second defendant agreed with the orders sought, she could have filed a submitting appearance.
On the part of the second defendant, I was referred to a letter from her solicitors to the plaintiff dated 17 May 2024 suggesting orders consistent with reg 34 and putting the plaintiff on notice that she would seek costs should the plaintiff persist in seeking costs against her.
As pointed out by the plaintiff, the court has a wide discretion in respect of costs which might include a situation where "a party has provoked litigation by its conduct prior to litigation." In this regard I was referred to Azmac Pty Limited (in liquidation) (No 2) [2020] NSWSC 363.
I think circumstances in which pre-litigation conduct is taken into account need to be, if not exceptional, at least starkly in favour of a corresponding order. I do not think that is the situation here. It is important to note the following: 1. The complaint to the OLSC ultimately did have substance leading to a consumer caution being issued to the plaintiff. 2. Although the complaint stopped the running of time there was a short period during which the application could have been filed, noting in particular that steps to prepare it had already taken place. 3. Although the second defendant's email on 23 August 2021 was not precisely correct, the second defendant did refer the invoices to the OLSC. 4. The statements of law said to be incorrect as emanating from the second defendant are at least arguable, and consistent with the first defendant's attitude to late claims by a legal practice.
I do not think the plaintiff has established a basis upon which the costs of the summons could be ordered against the second defendant. The summons is a product of the first defendant's decision. This decision was not in any way influenced by the second defendant. Without more, the appropriate order would be that each party pay its own costs.
Turning now to the second defendant's application for costs of the costs argument, the plaintiff's primary response was that it had always been open to the second defendant to file a submitting appearance. The difficulty with this response is that the plaintiff had persisted in its quest to have the second defendant pay the plaintiff's costs, a matter which reasonably required the continuing appearance of the second defendant.
I think the letter from the second defendant's solicitors on 17 May 2024, in which consent to orders very similar to those ultimately adopted by the plaintiff were proposed, should have caused the plaintiff to desist from pursuing costs from the second defendant. I think the plaintiff acted unreasonably in not taking this attitude and should pay the second defendant's costs related to the costs argument.

Final orders

I make the following orders: 1. The decision of the Manager, Costs Assessment, to decline to accept for filing the Application for Assessment (the Application) on 22 August 2022 and subsequently confirmed in writing on 27 February 2024, is set aside. 2. The Plaintiff is to file the Application with the costs assessment system within seven days of the date of this order. 3. The Manager, Costs Assessment, is to accept the Application for filing, and subject to compliance with reg 34(2) of the Legal Profession Uniform Law Application Regulation 2015 (NSW), refer the Application to a Costs Assessor. 4. No order is made as to costs between the plaintiff and the first defendant. 5. As between the plaintiff and the second defendant, each party is to pay its own costs of the proceedings, except that the plaintiff is to pay the second defendant's costs in respect of the second defendant's appearance before the Registrar on 3 June 2024 and at the hearing on 13 June 2024.

Amendments 19 June 2024 - Paragraph 7(15) - changed "provide cost estimates" to "provide written cost estimates". Paragraph 37(1) - changed "a caution" to "a consumer caution". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2024

Legal Profession Uniform Law Application Regulation 2015(NSW)

(Legal Profession Uniform Law Application Act 2014(NSW)s 93B).

At a glance

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