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Parties: DLAW Pty Ltd (Plaintiff)
Croft Developments Pty Ltd (First Defendant)
Manager, Costs Assessment (Second Defendant)

Representation: Counsel:
J Doyle (Sol) (Plaintiff)
P Doyle Gray (First Defendant)
Solicitors:
Houston & Associates (Plaintiff)
Croft Developments Pty Ltd (First Defendant)
Crown Solicitor’s Office (Second Defendant)

File Number(s): 2025/243922

JUDGMENT

1. HIS HONOUR: This is the determination of proceedings that were commenced by the filing of a summons on 26 June 2025 by a legal practice (DLaw Pty Ltd) trading as Doyles Construction Lawyers (“Doyles”). The principal of the practice is James Doyle, who appears for the plaintiff, instructed by Houstons and Associates (“Houstons”). The first defendant, Croft Developments Pty Ltd (“Croft”), retained Doyles to act for it between September 2021 and February 2024 in proceedings in the Supreme Court of Western Australia that were finalised by the making of orders by consent on 7 December 2023. Doyles issued 28 invoices to Croft, the first dated 6 October 2021, and then monthly (sometimes twice monthly) from August 2022 until 31 January 2024, totalling $356,725.53, which Croft paid as they fell due.

2. On 12 November 2024, pursuant to s 198 of the Legal Profession Uniform Law (NSW) (the LPUL Act), Croft, through different solicitors (“Croft’s solicitors”), filed an application for the assessment of costs that it had paid to Doyles, submitting that the correct total bill should have been $100,502.49, which was a difference of $256,223.04 (“the original costs application”). Croft paid the filing fee, which was calculated pursuant to cl 33(1)(c) of the Legal Profession Uniform Law Application Regulation 2015 (NSW) (the Regulations) (since repealed) as 1% of the costs in dispute: $2,562.23. The Manager, Costs Assessment (“the Manager”), who is the second defendant, accepted the application and assigned it to an Assessor, Bruce Bentley (“the Assessor”). The matter was given an assessment case number: 2024/00422492 (“costs assessment 492”).

3. On 14 November 2024, Croft’s solicitors forwarded a copy of the original costs application to Houstons. On 9 December 2024, Houstons wrote to the Manager, submitting that the application was an abuse of process. It is unnecessary for the purpose of the instant proceedings to canvass this issue or certain other issues that Houstons has raised in relation to the original costs application and assessment process.

4. The Assessor wrote to the parties by letter dated 6 January 2025, attaching a copy of the original costs application. Correspondence between Houstons and the Assessor then ensued in which Doyles raised further issues as to whether the costs assessment could occur. In the course of that correspondence, on 18 February 2025, the Assessor referred to ss 193 and 198(3) of the LPUL Act (relevantly extracted at [19*] below) and stated:

“The bills sought to be assessed were issued from 6 October 2021 to 31 January 2024. The Application indicates that the total amount of the bills was paid by the applicant and the respondent states that they were paid in a timely fashion, which I take to mean within the terms of payment being thirty days from the date of the invoice. The Application was filed on 12 November 2024, within 12 months of the date of the last three bills but more than 12 months after the date of the preceding twenty-five bills.

The applicant submits that the bills all relate to the same matter … . This is not disputed by the respondent. Nor is there a dispute that the last three bills are within the time provided by s198 of the Law for assessment.

The respondent’s submissions may be summarised as arguing that the Costs Agreement between the parties makes each tax invoice a discrete billing concluding what is a retainer that operates from month to month, thereby each tax invoice represents a final bill. Relevant sections of the Costs Agreement are quoted by the respondent to support this contention.

The applicant relies on s193 of [the LPUL Act] …:

The applicant submits that the tax invoice of 31 January 2024 is the final bill and the preceding twenty-seven tax invoices are interim bills which may all be assessed at the same time as the final bill.”

5. By letter dated 13 January 2025 (but not forwarded by email until 18 March 2025), Houstons informed the Assessor that it had not yet issued a final bill, stating:

“The respondent has received a further notice from counsel in respect of this matter and will after due consideration issue a further final invoice.”

6. By letter dated 14 April 2025, the Assessor wrote to Houstons, directing Doyles to issue its final tax invoice to Croft and provide him with a copy within 7 days.

7. By letter dated 23 April 2025, Houstons wrote to the Assessor attaching “a final bill under protest”. The letter annexing the invoiced stated:

“We note that as that final invoice post dates any previous invoice it will constitute a final bill according to the analysis adopted by the learned cost assessor in his letter 18 February 2025. Of course, that final bill is outside the ambit of the present cost assessment. Accordingly, the present cost assessment consists of (adopting that analysis of the learned costs assessor) a number of interim bills only three of which are within the relevant six-month period. Accordingly, only those three bills are validly the subject of the present costs assessment application. Having been submitted to assessment and having been rejected, it appears to be an abuse to seek to bring those other claims again.

Of course, the latest bill claims the counsel’s fee and also the professional work in the management, perusal, analysis and consideration and advice in respect of the very large number of documents which were briefed to the Respondent and required for the claim and litigation and for which no proper claim has been made.”

8. This invoice was for the sum of $139,095.00 (“the April 2025 invoice”), which I note was three times more than the highest monthly invoice forwarded and paid over the period of the retainer. It included counsel’s invoice, dated 17 March 2025, for the sum of $1,595.00 including GST, which was for a half-hour teleconference with Doyles on 2 February 2023 ($145.00 ex GST) and a review of “brief, comments on draft statement of claim” on 9 March 2023 ($1,305.00 ex GST). The difference ($125,000.00 ex GST) was for work done by Doyles, itemised as:

“Professional work in the management, perusal, analysis, consideration and advice in respect of the very large number of documents which were briefed to the Respondent and required the same for the claim and litigation.”

9. By email dated 24 April 2025, Croft’s solicitors wrote to Houstons, copied to the Assessor:

“This invoice is issued nearly one year and five months after the matter concluded in November 2023 and only after the Applicant initiated costs assessment proceedings seeking a reduction in legal fees already paid and a refund of overpayment. The timing of this invoice gives rise to serious concerns that it was issued in retaliation to the client exercising their right to seek independent scrutiny of the fees charged pursuant to s 198 of [the LPUL Act] …

The Applicant at no stage instructed, agreed to, or approved the engagement of Mr Rohit Sud of Counsel. No disclosure was provided of Counsel’s fees … and the Applicant had no knowledge of this Counsel being retained.

…

The new invoice includes a lump sum charge of work that duplicates tasks already billed in prior invoices, which have already been the subject of detailed objections in this assessment. This raises serious concerns regarding double charging and the integrity of the Respondent’s billing practices. The Respondent has already billed, and been paid, $356,725.53 in fees for work carried out up to January 2024. It is untenable that a further $125,000 is now sought for unsubstantiated and unwarranted work said to be carried out beyond the date the matter concluded. …

We invite the Costs Assessor to:

Disallow the entirety of the 23 April 2025 invoice;

Consider whether this conduct amounts to professional misconduct or unsatisfactory professional conduct; and

Refer the Respondent to the Office of the Legal Services Commissioner.”

10. In letters dated 12 and 13 May 2025, the Assessor explained to the parties how the April 2025 invoice impacted his assessment, which was expressed succinctly in his letter of 13 May 2025 as follows:

“I am unable to meet [Croft’s] request to assess the invoices between 6 October 2021 and 31 January 2024 on the current Application …. I am only able to assess the invoices from 30 November 2023 to 31 January 2024 (3 invoices) on the current Application. All invoices attached to the current Application are interim bills and do not receive the benefit of s193(2) of [the LPUL Act] unless they are assessed at the same time as the final bill, being the invoice of 23 April 2025.

In order to assess the other tax invoices, which were over 12 months old when the Application was lodged, the application must include the final bill, that is, the invoice of 23 April 2025. That invoice must be brought before me and this can be done by amending the current Application to add the final bill, otherwise I am restricted to assessing only the 3 invoices referred to above.”

11. Croft’s solicitors sought to file an amended application in costs assessment 492 by forwarding it to the Assessor as an attachment to an email dated 13 May 2025, that was copied to Houstons. The only amendment was the addition of the final invoice of $139,095.00 to the costs for assessment (“the May 2025 filing”). The Assessor replied the same day, copied to Houstons:

“Please confirm lodgement within six (6) days. Advise the Registry that the matter is with me when lodging.

Upon receipt of the Amended Application I will make further directions in the matter.”

12. On 15 May 2025, Croft’s solicitors wrote to Houstons: “Please find enclosed by way of service an amended application for cost assessment. Please confirm acceptance of service.”

13. Croft paid the difference in the lodgement fee, which was $1,390.95, on 21 May 2025. On 4 June 2025, the Assessor wrote to the parties, stating:

“The Supreme Court has now referred the Amended Application to me.

I presume that a copy has been sent to the respondent or its representative. If that is not the case, advise me within 24 hours.”

He directed the parties to provide to him certain itemised classes of material that were relevant to his assessment.

14. On 5 June, Houstons wrote to the Assessor, stating:

“We refer to your letter of 4 June 2025.

We advise that we have received a stamped copy of the "Amended Application" from [Croft’s solicitors].

However, we understood the process is that we would be sent a copy by the Manager and would be entitled to respond to it, if in fact there is provision for amending an application as there sems no mention of that process in the rules.”

15. By a letter dated 11 August 2025, Houstons issued to Croft a further invoice (“the August 2025 invoice”) in the sum of $1,760.00 (incl GST), incurred on 30 September 2021, being: “Fees for document perusals … less the amounts already claimed in previous invoices.” In the covering letter, which was copied to the Manager and the Assessor, Houstons said that invoice was “in respect of work not covered in our invoice 9120 dated 6/10/2021.”

16. The possibility of further invoices was foreshadowed:

“We propose to review the fees charged in a number of invoices and to further particularise the basis of the fees charged and to be charged where appropriate in order that the most careful assessment can be made of the fair and reasonable costs.”

The summons

17. The summons filed on 26 June 2025 was amended on 8 December 2025, the only difference from the original summons being the plaintiff’s ABN number. The plaintiff seeks the following orders:

18. A declaration that the Second Defendant’s decision to refer the Amended Application for Assessment of Costs (2024/00422492) filed on 15 May 2025 (Amended Application) be set aside as the Amended Application was accepted:

(a) without payment of the relevant fee; (b) without deciding that the original costs assessment application was withdrawn; and (c) without following the mandatory procedure in Regulation 34 of the Legal Profession Uniform Law Application Regulation 2015 (NSW).

2. A declaration that the first Application for Assessment of Costs (2024/00422492) filed on 12 November 2024 (First Application) was withdrawn by the filing of the amended Application on 15 May 2025.
3. An order that the costs of the withdrawn First Application be paid by the First Defendant to the Plaintiff in lieu of agreement as assessed
4. A declaration that the Amended Application filed on 15 May 2025 is invalid.

Relevant statutory and regulatory provisions

The LPUL Act

18. Part 4.3 of the LPUL Act is titled “Legal Costs”. The objectives of the Part are stated at s 169:

“169 Objectives

The objectives of this Part are—

(a) to ensure that clients of law practices are able to make informed choices about their legal options and the costs associated with pursuing those options; and

(b) to provide that law practices must not charge more than fair and reasonable amounts for legal costs; and

(c) to provide a framework for assessment of legal costs.”

19. Sections 193 and 198 of the LPUL Act relevantly provide as follows:

“193 Interim bills

(1) A law practice may give a person an interim bill covering part only of the legal services the law practice was retained to provide.

(2) Legal costs that are the subject of an interim bill may be assessed under Division 7, either at the time of the interim bill or at the time of the final bill, whether or not the interim bill has previously been assessed or paid.…

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;

…

(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 …; 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 … 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.

…

(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) … .”

The Legal Profession Uniform Law Application Act 2014

20. The Legal Profession Uniform Law Application Act 2014 (NSW) (“the LPUL Application Act”) provides at s 68:

“68 Applications for costs assessment

(1) Subject to this section, applications for an assessment of the whole or any part of legal costs are to be made in accordance with the costs assessment rules.

(2) An application for costs assessment must—

(a) be filed with the Manager, Costs Assessment, and

(b) be accompanied by the fee prescribed by the local regulations, and

(c) be served on the other parties to the costs assessment in accordance with the costs assessment rules.

(3) The Manager, Costs Assessment may waive or postpone payment of the application fee either wholly or in part if satisfied that the applicant is in such circumstances that payment of the fee would result in serious hardship to the applicant or his or her dependants.

(4) The Manager, Costs Assessment may refund the application fee either wholly or in part if satisfied that it is appropriate because the application is not proceeded with.”

The Regulations

21. The Regulations, cll 32(1), 33 and 34, provided as follows:

“32 Applications for costs assessment—section 68 of the application Act

(1) For the purposes of section 68 (1) of the application Act, an application for costs assessment:

(a) is to be made in the approved form, and

(b) is to be accompanied by the fee calculated in accordance with clause 33.

…

33 Fee for costs assessment application

(1) The fee that is to accompany an application for a costs assessment is the greatest of the following amounts:

(a) $100,

(b) 1% of the amount remaining unpaid on the bill of costs at the time the application is made,

(c) 1% of the amount of costs in dispute when the application is made.

(2) For the purposes of this clause, the amount of costs in dispute is the total amount of costs for those legal services in respect of which the costs claimed are disputed by the person liable to pay them.

34 Procedure before application for assessment of bill referred to assessor—Uniform Law costs

(1) On receipt of an application for assessment of Uniform Law costs (other than an application by the law practice that gave 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 law practice that gave the bill accompanied by a notice advising the law practice that any response to the application must be lodged with the Manager, Costs Assessment in writing within 21 days after the law practice receives the notice.

(b) A copy of any response duly lodged with the Manager, Costs Assessment is to be sent by the Manager, Costs Assessment to the applicant.

(c) The application is to be referred by the Manager, Costs Assessment to a costs assessor for assessment as soon as practicable after any 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 (a).

(d) Any relevant response, and any 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.

…”

The hearing

The plaintiff’s submissions

22. Mr Doyle informed the Court that he is the principal of DLaw Pty Ltd trading as Doyles, and the principal of FifthLaw Pty Ltd, trading as Houston and Associates. He explained the reason for the delay in submitting the April 2025 invoice as follows:

“… our position is that we have agreed the costs that we had charged. We had agreed them every month, that the client had accepted those things as a final bill, and paid them, and we are not seeking further money than that amount, so on the one hand we've got to articulate that we have undercharged but we have agreed, that's in our contentions, that we're bound by that agreement, but that agreement is now said to be void, so we now have to justify the costs on a different basis.”

23. Mr Doyle’s fundamental submission, at its heart, was straightforward. The legislation and Regulations did not expressly provide for an application for a costs assessment to be amended or for the relevant procedure to be varied. He submitted that Brierley v Reeves (2001) 51 NSWLR 689; [2001] NSWCA 189; (“Brierley v Reeves”) is authority for the proposition that the legislation and Regulations concerning the lodging of an application for a costs assessment require strict compliance with their terms (they are “mandatory”), so that any deviation renders the purported application void. The filing and treatment by the Manager of the May 2025 filing fell short of those mandatory requirements in two ways.

24. First, upon receipt of the May 2025 filing, the Manager failed to comply with cl 34(1) of the Regulations by not giving a copy of it to Doyles, with advice that it may lodge a response within 21 days and then wait for the response before forwarding it to the Assessor.

25. Second, since there is no statutory or regulatory provision to amend a costs application (and therefore it cannot be done), the May 2025 filing, properly understood, could only be construed to be a fresh application for a costs assessment. As such, pursuant to cll 32 and 33 of the Regulations, the correct lodging fee was 1% of the total amount in dispute; that is, 1% of the original fees in dispute ($256,223.04) and the April 2025 invoice ($139,095.00) being a total of $395,318.04; that is, a lodgement fee of $3,953.18, rather than $1,390.95. The May 2025 filing rendered the earlier application was either implicitly withdrawn or otherwise “invalidated”.

The first defendant’s submissions

26. Croft submitted that orders 1 and 2 that are sought in the summons are inconsistent; if pursuant to the first prayer the amended application is void, it cannot have caused the original application to have been withdrawn.

27. The plaintiff’s contention that, pursuant to Brierley v Reeves, cl 34(1) of the Regulations requires strict adherence, is patently incorrect. Rather, Croft submitted, the test is substantial adherence, relying upon Kennett v Muc t/a GH Healey & Co [2013] NSWSC 119 (“Kennett v Healey”). The terms of the two statutes and Regulations are consistent with a general implied power to amend an application for a costs assessment. By way of a hypothetical illustration, the first defendant noted that the application form includes the parties’ contact details. Assuming strict compliance is the test, if the solicitor or client should change their phone number, email address or physical address, or if there was an error in those details entered onto the form, the application would be invalid and the party seeking the costs assessment would have to start all over again.

28. Another example follows from to ss 198(8) and (9) of the LPUL Act. If a costs Assessor determines that it is appropriate to add a party to the assessment, it follows that the application is effectively amended to reflect that determination.

29. Croft conceded that the Manager had not served the amended application in accordance with cl 34(1)(a) of the Regulations but noted that Croft’s solicitor and the Assessor had ensured that Houstons had received a copy. Croft submitted that the terms of s 68(2)(c) of the LPUL Application Act do not specify who or how the application for costs assessment is to be served on the other parties, other than “in accordance with the costs assessment rules”. However, there were no such rules at the time the amended application was lodged, and the Regulations did not exclude service being effected other than by the Manager.

30. Croft submitted that amending the original costs application was appropriate in the circumstances created by the plaintiff issuing the April 2025 invoice in respect of the same retainer and period of work under review pursuant to the original cost application.

Consideration

31. The plaintiff’s reliance on Brierley v Reeves is misplaced. That case concerned a different issue, namely, whether the jurisdiction to have costs assessed is enlivened when an application is made within the period prescribed for such an application but it is not accompanied by the required fee, which had not been waived or postponed within the relevant time: see Brierley v Reeves at [8]. The appellant in that case had submitted that his application could be heard if it was filed within 12 months, even though it had not been lodged with the requisite fee and the fee had not been waived in that period. The relevant statutory provision (s 203 of the Legal Profession Act 1987 (NSW), since repealed), was similar in substance to the combined effect of ss 68(2)(a) and (b) of the LPUL Application Act and to s 198(3) of the LPUL Act.

32. In determining the issue in favour of the respondent, the majority (Rolfe A-JA, Handley JA agreeing) noted the mandatory nature of the provision but confined their interpretation of it to the circumstances of the case. At [40]:

“To have a bill of costs referred to a costs assessor, in the circumstances of the present case, an application ‘is to be made’ pursuant to the section, which requires a form of application prescribed by the Legal Profession Regulation “accompanied” by the prescribed fee, unless or to the extent to which that requirement is varied pursuant to s 203(4). This involves doing two things: making the application and paying the prescribed fee unless or to the extent to which dispensation has been achieved. That dispensation must be achieved within the prescribed period. There is no provision for extending the time. If the requirements are not met within the specified time then there is no jurisdiction for the proper officer to exercise.” (emphasis added)

33. In Kennett v Healey, Adamson J considered whether the failure by a party seeking a costs assessment of party/party costs to lodge an objection received from the other party with their application, where that was a requirement of s 354(1)(a) of the Legal Profession Act 2004 (NSW) (repealed) and, more particularly, of cl 125(1) of the Legal Profession Regulations (2005) (repealed). Her Honour found that the communication from the other party was not an “objection” within the terms of cl 125(1), but added that in her view Parliament would not have intended that failure to comply with a procedural requirement would invalidate the costs application or the consequential assessment where its purpose was to do no more than “ensure, for reasons of efficiency, that the area of dispute between the parties to the assessment is as well delineated before the application for assessment is lodged as it can be.”

34. Her Honour continued:

“59 Secondly, any adverse consequences of an objection not being attached to an application for assessment are easily overcome. In any event s 359 of the Act requires the costs assessor to give the parties a reasonable opportunity to make written submissions. Any objection that had been omitted from an application for assessment could conveniently be submitted as part of that process. The receipt of any objection does not qualify the obligation of the Manager to refer the application to a costs assessor for assessment. Therefore the timing of receipt of an objection is irrelevant, as long as it is received before the deadline set by the costs assessor for submissions.

60 Furthermore significant inconvenience would be likely to arise if a failure to attach an objection in compliance with cl 125 invalidated the costs assessor's final determination. Much time and cost would be taken if that were to occur. The waste would be entirely disproportionate to the likely consequences of the failure to attach the objection to the application, given that an objection could be made in written submissions in any event. …”

35. Her Honour distinguished Brierley v Reeves, stating at [61]:

“I accept [counsel for the defendant’s] submission that [Brierley] is distinguishable since it concerned differently worded legislation and since the relevant failure was the failure to make an application for waiver within a specified time limit as distinct from a failure to attach a document.”

36. Although Adamson J’s observations were obiter, the distinction that her Honour drew in the circumstances of Kennett v Healey between matters of procedure and more substantive requirements in the statutory and regulatory scheme has parallels in the circumstances of the instant case.

37. In Attorney General for New South Wales v XX [2018] NSWCCA 198 the Court succinctly stated the principles of statutory construction:

“134 The relevant principles of statutory construction are well-established. As was said by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] (Project Blue Sky), the ‘primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’, with the meaning of the provision to be ‘determined by reference to the language of the instrument viewed as a whole’. Their Honours also referred to the statement of Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397; [1955] HCA 27 that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. They also emphasised at [71] that a court must strive to give meaning to every word of a provision.

135 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [47], the majority emphasised that the ‘language which has actually been employed in the text of legislation is the surest guide to legislative intention’, but that the ‘meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy’: see also Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. In Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [44], the majority emphasised that the ‘purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction’.

136 However, as was emphasised in SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34 (SZTAL), the text cannot be considered without regard to its context and purpose. The majority stated the principle in the following terms at [14]:

‘[14] The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.’

See also Gageler J at [35]-[39]; Interpretation Act 1987 (NSW) s 33.”

38. In applying those principles, I take note of the objectives of Part 4.3 of the LPUL Act at s 169, in particular, s 169(b): “that law practices must not charge more than fair and reasonable amounts for legal costs”. A relevant circumstance is the pattern of Doyles’ billing: regular monthly invoices that ceased the month after the matter settled, then 15 months later, which is five months after the lodging of the application for a costs assessment, the April 2025 invoice was issued. It is unsurprising that the legislative and regulatory scheme does not, in terms, accommodate such a rare scenario, let alone one where the solicitor sends a further invoice four months later for work allegedly done four years before, and foreshadows even more invoices.

39. The issue here is whether it was open to the Manager to amend the original application to include the April 2025 invoice, where the Manager has adjusted the fee so that there is compliance with cl 33(1)(c) of the Regulations, in respect of the amended total amount of costs that are in dispute. The plaintiff is not disadvantaged by the amended application, since he claims that it is for work done in the same period and for the same matter as Croft’s original application.

40. The interpretation of s 198 of the LPUL Act, s 68 of the LPUL Application Act and cll 32, 33 and 34 of the Regulations for which Doyles contends is not made out. Those provisions do not exclude an application for a costs assessment being amended in appropriate circumstances to better achieve the objectives of the relevant Part of the LPUL Act. Indeed, the circumstances of this case are such that the purpose of the statutory scheme would be defeated if each time that Doyles issued another invoice for work done years before, in the period relevant to the original costs application, it had to be abandoned and a fresh application made.

41. Similarly, the plaintiff has not demonstrated any injustice or loss by the amended application being served upon him by Croft’s solicitor rather than by the Manager, and the loss of an opportunity to lodge an objection to the Manager in respect of the inclusion of the April 2025 invoice with the other invoices. Analogously to Adamson J’s observations extracted at [34*] above, Doyles had (and still has) an opportunity to make submissions to the Assessor concerning the amended application.

42. Accordingly, I dismiss the summons. Both parties have advised that they do not wish to be heard against an order for costs being made and determined in the usual way.

Orders

43. I make the following orders.

44. The plaintiff’s amended summons, filed on 8 December 2025 is dismissed;

45. The plaintiff is to pay the first defendant’s costs.

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