Hale v Apostolakos trading as Diamond Conway [2025] NSWDC 348 | Case summary | Zoe

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Hale v Apostolakos trading as Diamond Conway [2025] NSWDC 348 | Case summary | Zoe

The particulars were sought to obtain some specificity with respect to the allegation being made in paragraph 9 of the defence. Clearly non-compliance of disclosure obligations could come in several ways, most simply by the absence of a fee disclosure. Alternatively, the fee disclosure could be deficient - here, for example, the precise allegation as reflected in the submissions of Diamond Conway on their motion is that the plaintiff failed to comply with his disclosure obligations because, first, his disclosure letter was given at time that was too remote from when he was retained and secondly, he failed to give an estimate of his fees.
Diamond Conway’s solicitors replied to the request for particulars on 20 September 2024. They stated that paragraph 9 of the defence made no reference to s. 175(2) of the LPUL. Given the nature of that reply, it was reasonable for the plaintiff to proceed on the basis that, however paragraph 9 was being put, it was not based on a failure to comply with s. 175(2) of the LPUL.
The plaintiff’s solicitors, by letter dated 30 September 2024, did not leave the matter there but rather pressed Diamond Conway about paragraph 9 of the defence. In that letter they pointed out that s.175(2) of the LPUL was the only section in division 3 of part 4.3 of the LPUL that has any relevance for disclosure obligations as between law practices and made clear that the plaintiff was now proceeding on the basis that no allegation was being made that he failed to comply with s.175(2) of the LPUL. They observed that on that basis, it was difficult to see how the defendant could allege that the plaintiff is barred from recovering his fees by reason of s.178 of the LPUL.
Further, having been served with Diamond Conway’s notice of motion, they said, by letter dated 7 April 2025 to Diamond Conway’s solicitors, that in the light of the exchange of correspondence referred to above, there was no disclosed basis for the relief sought in order 2.
Diamond Conway’s solicitor replied by email on 7 April 2025 without meaningfully responding to the letter of 7 April 2025.
No further correspondence touching on the request for particulars is in evidence. On 4 August 2025, Diamond Conway filed submissions in support of their motion. In those submissions, Diamond Conway exposed the specific basis for the allegation in paragraph 9 of the defence, namely the matters referred to in paragraph 10 above.

Mr Doyle Gray, Counsel for Diamond Conway, submitted that “however packaged” the plaintiff’s claim is one of contract or quasi-contract. He submitted that as a result, the plaintiff’s estoppel plea does not change that fact and is merely a repackaging of the claim which remains statute barred by reason of s.14(1). He relied on the decision in Coshott v Lenin [2007] NSWCA 153 per Mason P at [12]-[14].
In my view, Coshott v Lenin provides no assistance to Diamond Conway in this regard. It was a case in which the Court of Appeal found that an inadequately pleaded claim for the payment of fees allegedly due to a solicitor was properly seen, in that case, as a claim either in contract or for services rendered (a claim in quantum meruit). In that context, the Court held that however one packages such a claim, that is, by way of contract, or by way of a restitutionary claim, it remains a claim within the meaning of s.14(1) (i.e. either contractual or quasi-contractual). Nothing in Coshott v Lenin suggests that there is any impediment on a plaintiff seeking to raise, by way of reply, an allegation that a defendant is estopped from raising a limitation defence. Such an estoppel is not itself a claim for relief, but rather an appeal to equity in support of the contractual or quasi contractual claim being advanced in the statement of claim.
No submission was made that as a matter of law the estoppel pleaded was unavailable to the plaintiff; obviously whether it is made good or not will depend on what is established as a matter of fact.
Given that the plaintiff’s reliance on the estoppel referred to will require factual findings which may well be the subject of conflicting evidence, the Court is not able to determine Diamond Conways’ limitation defence in a summary way. The issue will need to be dealt with at a final hearing. The only basis advanced to resist this was Diamond Conway’s reliance on Coshott v Lenin which I have found is inapposite and does not assist them on this issue.
It is unnecessary to deal with the submissions concerning the time at which the plaintiff’s cause of action arose because even if Diamond Conway is correct (and I do not express any view about that), the proceedings cannot be summarily dismissed given the estoppel plea in reply for the reasons set out above. Accordingly, I dismiss Diamond Conway’s claim for relief in paragraph 1 of their Notice of Motion.

Because of those failures (or any one of them), Diamond Conway submit that s.178(1) prevents the plaintiff from maintaining these proceedings and accordingly they should be summarily dismissed. Unlike, s.14 of the Limitation Act, in my view, if a Court is satisfied that s.178(1) applies, it is not a matter that can be waived by a party – the mandate of the section operates as a matter of law.
With respect to the first failure, it appears that Diamond Conway assert that in relation to the fee disclosure sent by the plaintiff on 12 May 2017, the relevant brief or retainer connected to that fee disclosure arose in October 2016, some 7 months before the provision of the fee disclosure.
The obligation on a barrister (being the second law practice) under s.175(2) of the LPUL is to disclose to the instructing solicitor (being the first law practice) the information necessary for the first law practice to comply with its obligations under s.175(1) in relation to the second law practice. The obligation on the instructing solicitor under s.175(1) is to disclose to the client the details specified in s.174(1) in relation to the second law practice.
I accept that the effect of s.175 is to impose upon a barrister an obligation to provide sufficient information necessary to enable the instructing solicitor to provide to the client, “as soon as practicable”, the basis on which the barrister’s legal costs will be calculated in the matter and an estimate of the total legal costs of the barrister (being the information in s.174(1) “in relation to the second law practice”).
The phrase ‘as soon as practicable’ has, in a different context, been described as importing two elements. One temporal (by the use of the words ‘as soon as’) and one which identifies that which is able to be put into practice, and which can be affected or accomplished (by the use of the word ‘practicable’). The expression has also been described, again in a different context, as “imprecise and flexible in its application” [3] .
Diamond Conway submits that the phrase, as used in the LPUL, is measured in days not weeks. They rely, for that submission, on a decision of this Court in A.C.N.627087030 Pty Ltd atf the YBL Trust v Elisabeth Theordore [4] . However, that decision did not purport to identify how the phrase is to be measured in all cases but simply considered the question on the facts that were before the Court (in the context of an appeal from a costs assessment review panel). Indeed, his Honour Judge Newlinds SC made plain that the phrase requires a fact specific enquiry noting [at 110] that what “is practicable can only be determined in all the surrounding circumstances, including how busy the legal practitioner is*”*.
The plaintiff submits that Diamond Conway should not be permitted to raise the alleged first or second failure in their motion. He submits that those allegations are not properly pleaded in the defence and further submits that the response to his requests for particulars referred to above disclaimed any allegation of a failure to comply with s.175(2) by the plaintiff. Diamond Conway for their part submitted that the pleas in paragraph 9 of its defence was sufficient to enable them to rely on the first and second failures, and they were under no obligation to explain their case in this regard any further.
The plaintiff further submits that he would, if the first and second failures are to be advanced, wish to file further evidence addressing both alleged failures.
In my view, it is doubtful that paragraph 9 of the defence complies with Uniform Civil Procedure Rules r.14.14. That rule requires a party to ‘specifically’ plead any matter that may take the other party by surprise and any matter that the party alleges makes the other party’s claim not maintainable. The purpose of the rule is to promote the ‘just, quick and cheap’ disposal of proceedings such that the real issues in dispute are litigated in a proper, timely and efficient manner. The broad pleading in paragraph 9 leaves the reader in a state of confusion as to what it is that is specifically being alleged and what facts are relied upon for the broad allegation. For example, within that plea it might be alleged, at least, that:

It is unnecessary for me to decide whether paragraph 9 complies with r14.4, because in the light of the various ways that the allegation could specifically be put, it was entirely proper for the plaintiff to seek particulars of the allegation. The responses to the plaintiff’s request failed to illuminate what was being alleged by Diamond Conway. Twenty-Four years ago, Allsop J (as the Honourable James Allsop AC was then), observed that “the only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to unnecessary costs by the partie**s…” [5] . Whilst it is true that legal practitioners of one party do not owe duties to the other party, all parties and practitioners have duties imposed on them by s.56 of the Civil Procedure Act 2005 (NSW).
Although the plaintiff’s potential further evidence was not disclosed to the Court other than in a general way, it seems clear that a question (in relation to which evidence may address) may arise as to what in fact was the relevant brief or retainer upon which time is reckoned when considering whether disclosure was provided “as soon as practicable”. Further, counsel for the plaintiff, Ms Castle did inform the Court that evidence would go to the “practicable” issue in that phrase.
With respect to the alleged second failure, Diamond Conway, submits that the plaintiff failed to provide an estimate of his costs in his fee disclosure. I do not understand there to be a dispute about that given the fee disclosure had “N/K” next to the estimate (it is not disputed that those initials meant ‘not known’).
The plaintiff submits that s.175(2) does not require the plaintiff to give an estimate. It is true that s.175(2) does not impose any specific requirement for a barrister to give an estimate. Rather, with respect to estimates, the obligation is to provide the information necessary to enable the instructing solicitor to comply with the obligation in s.174(1) to provide an estimate of the total costs in relation to the second law practice [the barrister].
How s.175(2) operates with respect to the provision of estimates by a barrister will be a fact specific enquiry. That is, there may be times when a barrister must give an estimate to enable compliance by the instructing solicitor with s.174(1). However, there will also be times when the provision of the daily and hourly rates of the barrister in a disclosure will be sufficient to enable the instructing solicitor, with his or her knowledge of the matter and the likely role of the barrister, to comply with s.174(1).
Presently, there is no evidence before the Court that any more information from the plaintiff was necessary (the word used in s.175(2)) for Diamond Conway to comply with s.174(1) in relation to the plaintiff. Further, there does not appear to be any follow up by Diamond Conway of the plaintiff for further information to enable them to comply with s.174(1) in relation to the plaintiff.
The plaintiff, as noted above, wishes to put on further evidence in response to the first and second failure allegations in the context of Diamond Conway’s motion.
I will indicate how I will deal with Diamond Conway’s notice of motion after I address the plaintiff’s notice of motion.

The plaintiff made an application for the assessment of his costs on 28 April 2025. He then made an application pursuant to s.198(4) of the LPUL for the assessment to be dealt with after the 12-month limitation period for such assessments on the basis that it was just and fair for the application to be dealt with after 12 months.
The costs assessor with carriage of the plaintiff’s application ultimately referred the matter to the Manager of Costs Assessment to determine the plaintiff’s application for an extension of time. The Manager has not yet made that determination.
The plaintiff submits that these proceedings should be stayed to enable the assessment process to conclude given he has made a standing offer to accept the assessed costs rather than his billed costs. The cost assessor remarked that the assessment appeared to be a relatively simple one.
In summary, the plaintiff’s submission on the stay was that the simple costs assessment process should be compared to the complexity, time and costs involved in these proceedings. Further, given the plaintiff’s indication that he would accept the assessed costs, he would have no need to continue these proceedings after assessment.
In my view, however, a stay is not appropriate in these circumstances. First, at present, there is no decision as to whether an extension of time will be granted such that there may never be an assessment. Secondly, even if there is an assessment, there are reviews and appeals available to Diamond Conway should it be dissatisfied with the assessment (notwithstanding the plaintiff’s stated position). Thirdly, regardless of the outcome of the assessment, no res judicata arises such that Diamond Conway could still seek to agitate the limitation defence and the first and second failure allegations (including in proceedings it commences, should the plaintiff discontinue these proceedings), or possibly through the review and appeals processes after the initial assessment.
The legal issues thrown up by the defence will not necessarily be resolved through the assessment process at least in a manner which creates a res judicata. In particular, whilst the assessment process may assist the parties to quantify the plaintiff’s reasonable costs, the crux of Diamond Conway’s primary position is that the plaintiff’s claim is statute barred so that irrespective of quantification he has no right of recovery.
Accordingly, I am unpersuaded that there is a sufficient basis to conclude that ordering a stay of the proceedings pending determination of the plaintiff’s application for assessment of costs, will facilitate the just, quick and cheap resolution of the real issues in the proceedings.
Diamond Conway submitted, relying on GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [6] , that the Court, in exercising the power to order a stay under s.67 of the Civil Procedure Act, is engaged in an evaluative judgment for which there is a binary outcome, and is not engaged in the exercise of a discretion. In oral submissions, Mr Doyle Gray accepted that the High Court was not holding that the exercise of the power in s.67 could never be a discretionary exercise. That acceptance was appropriate because the plurality expressly noted that in some circumstances the exercise of the power to order a stay in s.67 is discretionary. [7] In my view, unless I was persuaded by Diamond Conway that the plaintiff’s claim must be summarily dismissed (in which case the application for a stay would fail, as an evaluative exercise), the plaintiff’s application calls for the exercise of the Court’s discretion relying, as it does, on the proposition that as a matter of case management and promotion of the objects of the Civil Procedure Act, a stay is appropriate. As I have determined, the plaintiff has failed to establish that the Court should exercise its discretion by ordering a stay of the proceedings.