Havas Legal Pty Ltd v McKenzie

Judgment

1. Substantially, this judgment resolves what has reduced mainly to a cost dispute generated by a cost dispute. The plaintiff legal practice acted for Mr McKenzie in criminal proceedings brought against him. He was convicted and sentenced to a term of imprisonment commencing on 11 February 2019. The legal practice's costs of acting for Mr McKenzie were assessed under the Legal Profession Uniform Law Application Act 2014 (NSW) ('the Act'). A Certificate of Determination of the costs under s 70 of the Act in the sum of $17,776 and a Certificate of Determination of the Manager's assessment costs under s 71 of the Act in the sum $783.75 were filed in the Supreme Court Registry under s 133 Civil Procedure Act 2005 and Rule 36.10 Uniform Civil Procedure Rules 2005 (NSW) on 11 June 2020. The aggregate amount of $18,559.75 is taken to be a judgment of this Court under ss 70 and 71 of the Act.
2. When the judgment went unpaid, the plaintiff caused a bankruptcy notice for the amount of the unsatisfied judgment to be served on Mr McKenzie in custody on or about 19 March 2021. Mr McKenzie instructed his solicitors that service of the Bankruptcy Notice constituted the first notice he had received of the costs assessment and its registration. On 9 April 2021, Mr McKenzie's solicitor filed a Notice of Motion seeking to set aside the judgment, or in the alternative a stay of enforcement pending the review of the costs assessment for which application, and an extension of time, had been made on the same day.
3. Proceedings were also commenced in the Federal Court to forestall the making of any bankruptcy order against Mr McKenzie based on non-compliance with the Bankruptcy Notice.
4. By consent at various times Mr McKenzie's application to set aside the judgment in this Court was adjourned pending the outcome of his application for review of the costs assessment. On 30 June 2021, the Manager of Costs Assessments granted an extension of time to file the Review Application and referred the matter to a Review Panel. By force of s 86 of the Act, the cost assessor's original determination was suspended pending the Review Panel's decision which was made on 15 December 2021. By a Certificate under s 87 of the Act, made by the Review Panel on 15 December 2021 and published by the Manager, Costs Assessment on 21 January 2022, the Review Panel set aside the Cost Assessor's determination, substituted a certificate for costs assessed in the amount of $13,200 and directed the legal practice to pay the costs of the Review Assessment, certified separately in the sum of $783.75.