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[2026] NSWSC 724
Supreme Court of NSW
2026-06-26
Elkaim AJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Kym Chapman & Associates Pty Ltd t/as Kym Chapman & Associates v Thompson [2026] NSWSC 724
Hearing dates: 22 June 2026
Date of orders: 26 June 2026
Decision date: 26 June 2026
Jurisdiction: Common Law
Before: Elkaim AJ
Decision: 1. The notice of motion filed on 2 September 2025 is dismissed.
2. The notice of motion filed on 9 October 2025 is dismissed.
3. The defendant (Ms Emma Thompson) is to pay the costs of the notice of motion filed on 2 September 2025.
4. No order is made as to the costs of the notice of motion filed on 9 October 2025.
Catchwords: JUDGMENTS AND ORDERS — application to set aside judgment based on filing of a costs certificate — Uniform Civil Procedure Rules 2005 (NSW) r 36.15 — whether judgment entered irregularly — power under r 36.15 does not extend to challenging the merits of the costs determination — no irregularity identified in the process of entering judgment — in any case no error in costs assessor’s determination
Legislation Cited: Legal Profession Act 2004 (NSW)(repealed), ss 368, 372
Legal Profession Uniform Law 2014 (NSW), ss 172, 174, 180
Legal Profession Uniform Law Application Act 2014 (NSW), ss 70, 73
Uniform Civil Procedure Rules 2005 (NSW), rr 16.6, 36.15
Legal Profession Uniform Law Application Regulation 2025 (NSW), reg 36(2)
Cases Cited: Arnold v Forsythe [2012] NSWCA 18 Avery v Saree Holdings Ltd; Lava Ltd v Avery [2012] NSWSC 463 Bevan v Bingham [2022] NSWSC 863 Bingham v Bevan [2023] NSWCA 86 Brezniak v Habib [2014] NSWSC 1730 Calandra v Murden [2015] NSWCA 231 Chand v Zurich Australian Insurance Ltd [2013] NSWSC 102 Dimitrovski v Australian Executor Trustees Ltd [2013] NSWSC 337 Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 Violi v Commonwealth Bank of Australia [2015] NSWCA 152
Category: Procedural rulings
Parties: Kym Chapman & Associates Pty Ltd t/as Kym Chapman & Associates (Plaintiff)
Emma Narelle Cathryn Thompson (Defendant)
Representation: Counsel:
H Altan (Plaintiff)
E Thompson (self-represented)
Solicitors:
Kym Chapman & Associates (Plaintiff)
File Number(s): 2025/285293
Publication restriction: No
There are two notices of motion, both filed by the defendant. The first was filed on 2 September 2025, and asks for a judgment registered on 30 July 2025 to be set aside. The second, dated 9 October 2025, asks for the same judgment to be stayed.
Only the first motion was pressed before me.
The judgment, for the sum of $21,845, is in favour of the plaintiff, Kym Chapman & Associates Pty Ltd (KCA), and is against the defendant, Ms Emma Narelle Cathryn Thompson (Ms Thompson).
The motions are supported by seven affidavits of Ms Thompson respectively dated 12 August 2025, 9 October 2025, 10 November 2025, 23 January 2026, 27 March 2026, 29 April 2026, and 8 June 2026.
Ms Thompson also tendered the plaintiff’s original application for a costs assessment, dated 2 August 2024 (Exhibit B).
KCA relied on the affidavits of Ms Kym Chapman dated 16 December 2025 and 15 May 2026.
KCA is a law firm located in Byron Bay. Ms Chapman is the principal solicitor in the firm.
Mr Hal Altan appeared for KCA at the hearing of the motion. Mr Altan was also the counsel engaged by Ms Thompson and his fees form part of the costs assessment on which the enforcement judgment is based. Mr Altan assured me at the commencement of the hearing that he had considered this issue and did not believe it was a conflict that prevented him from appearing in the case. I accepted his assurance.
In May 2024, Ms Thompson wished to obtain a barrister’s written advice about a family provision application. A hearing in the Queensland District Court was soon to be heard. A Sydney barrister, Mr Hal Altan, was suggested to Ms Thompson. She contacted Mr Altan on about 15 May 2024, and an arrangement was made for them “to talk”.
Mr Altan referred Ms Thompson to KCA, presumably so he could act on the instructions of a solicitor. According to KCA, after discussion with Mr Altan, Ms Thompson was asked to deposit $70,000 into KCA’s trust account. Ms Thompson deposited $24,000 into this account.
A major issue between the parties surrounds the reasons for the payment. According to Ms Thompson, it was to obtain an advice (only) from Mr Altan about whether three properties were part of her father’s estate.
According to KCA, the $24,000 was part of the requested $70,000, which was to be used to fund the appearance of KCA and Mr Altan at the upcoming Queensland District Court hearing.
Mr Altan did not provide an advice, and he and KCA did not appear at the hearing. This was, said KCA, because the requested funds for the hearing (the $70,000) had not been provided.
On 23 May 2024, KCA issued an invoice to Ms Thompson for legal work in the sum of $20,053. Ms Thompson did not pay any of the sum claimed.
According to Ms Thompson, a costs agreement had not been signed, KCA had not paid any money to Mr Altan, and KCA only had a valid claim for $220.
On 2 August 2024, KCA made an application in the Supreme Court for the assessment of her costs, as set out in the 23 May 2024 invoice.
An assessment was conducted by Ms K Young. The court issued an invoice, addressed to Ms Thompson, for the costs of the assessment, in the sum of $3,514.50. Ms Thompson did not pay the invoiced amount.
KCA paid the $3,514.50 and received a Certificate of Determination of Costs in the sum of $14,907.53, exclusive of the costs assessor’s costs.
On 8 January 2025, Ms Thompson filed an application for a review of the costs assessment.
On 6 February 2025, the Review Panel told Ms Thompson that she had not identified the correct parties to the assessment. “Kym Chapman” should have been KCA. Ms Thompson did not amend her application.
On 23 July 2025, a Certificate of Determination of Review was issued affirming the assessment that had been made by Ms Young. A further certificate, in relation to the review costs stated that the $3,423.37 was payable by Ms Thompson. KCA paid the $3,423.37 on account of the review process.
On 25 July 2025, KCA filed a Registration of Certificate in the Supreme Court. On 28 July 2025, orders were made in the court for the payment of $21,845.40 by Ms Thompson to KCA. This sum was made up of the amount of the assessed costs ($14,907.53), plus the costs of the initial assessment ($3,514.50), and the costs of the review ($3,423.37).
On 30 July 2025, the Supreme Court issued a Judgment/Order in favour of KCA and against Ms Thompson for the $21,845.40. This is the judgment which Ms Thompson wishes to set aside.
Ms Thompson was sent an email informing her of the judgment. She acknowledged receipt of the email on 31 July 2025.
In March 2026, KCA paid Ms Thompson the sum of $2,154.60, described in Ms Thompson’s written submissions as a “part repayment”.
(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.
(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.
Ms Thompson specifically relied on the order having been made irregularly. She said the costs assessment was awash with errors, and she had been denied the opportunity to put her case forward before the appeal panel. It is important to emphasise that Ms Thompson was basing her allegation of irregularity on the errors in the costs assessment, not on any failing in the obtaining of the judgment.
KCA submitted that any irregularity justifying setting aside the judgment needed to be in the obtaining of the judgment and could not be in any underlying decision. KCA relied on Pembroke J’s decision in Dimitrovski v Australian Executor Trustees Ltd [2013] NSWSC 337 where his Honour said, at [3]:
“The language of Rule 36.15 focuses on the steps pursuant to which the judgment or order was 'given' or 'entered' or 'made'. It does not direct attention to the underlying merits of the position of the party against whom the decision was made. The rule is concerned with irregularity in the process by which the judgment was obtained, not with the correctness of the decision. It is certainly not concerned with whether there was an available defence that might have been relied upon at the time the judgment was given or the order was made. See Perpetual Trustees Australia Ltd v Heperu Pty Ltd [No 2] [2009] NSWCA 387 at [16]; Avery v Saree Holdings Ltd [2012] NSWSC 463 at [100] and [103].”
“Lava's first argument is that UCPR, r 36.15(1) is not engaged. The principles that govern the operation of UCPR, r 36.15(1) are clear. The Court of Appeal recently considered them in Perpetual Trustees Australia Limited v Herperu Pty Ltd (No. 2) [2009] NSWCA 387. Perpetual Trustees Australia Limited v Herperu Pty Ltd (No. 2) is authority for the following propositions:
(a) it is a central and pervading tenent of the judicial system, as the High Court stated in Burrell v R (2008) 238 CLR 218; [2008] HCA 34, that controversies once resolved are not to be re-opened except in a few, narrowly defined circumstances, at [32];
(b) this tenent requires powers to re-open proceedings such as those conferred by UCPR, r 36.15 to be narrowly confined and sparingly exercised, at [33] and [45];
(c) the focus of the UCPR, r 36.15 power is on irregularity in the steps which resulted in the entry of judgment itself, not on the merits of the judgment or irregularities in the anterior conduct of the proceedings, at [16]; and
(d) if follows that UCPR, r 36.15 principally operates in cases of default or consent judgments or those given ex parte and can only have limited application to judgments and orders made or entered after hearing on the merits at which all parties were represented and fully heard, at [17].”
“The focus of r 36.15(1) is on the judgment or order that is attacked, and the question is whether it was ‘given, … entered, or … made’ irregularly etc. The focus is on irregularity in those steps, not on the merits of any decision, or the irregularity of other steps in the proceedings, or in the proceedings below.”
“Rule 36.15 permits the Court to set aside a judgment which has been entered irregularly, illegally or against good faith. For the reasons I have explained, there was no irregularity or illegality in the entry of the judgment on 18 October 2013. Nor was it entered against good faith. Further, it does not appear to me that Rule 36.15 is intended to provide a mechanism whereby certificates which have been filed in accordance with s 368 can, in any event, be set aside. That is because they are not judgments of the Court, but are rather ‘taken to’ be a judgment of the Court. If a certificate is to be challenged, it must be challenged in accordance with the mechanisms established by the Act. The certificate binds the parties and may not otherwise be appealed or reviewed.”
The Act referred to by Schmidt J was the Legal Profession Act 2004 (NSW) which has since been repealed and replaced by the Legal Profession Uniform Law Application Act 2014, (the LPULAA). Section 70 of the LPULAA is the equivalent to the old s 368 and is not different in any relevant sense to s 368.
Further, and perhaps more significant is the similarity between s 372 in the former Act, and s 73 in the current Act.
Section 372 stated:
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.
A costs determination is binding on all parties and no appeal or other assessment lies in respect of the determination, except as provided by this Part.
Part 7 of the LPULAA does allow for a review by a Review Panel and an appeal to the District or Supreme Court. However, there has been a review by a Review Panel, which confirmed the original assessment, and there has not been an appeal to the District or Supreme Court.
Schmidt J’s obiter comments in Brezniak suggests that certificates that have not been suspended or otherwise set aside, remain final, and cannot be the subject of an application under r 36.15. This point came under scrutiny by Walton J in Bevan v Bingham [2022] NSWSC 863. His Honour correctly said he was bound to follow the Court of Appeal decision in Calandra v Murden [2015] NSWCA 231. It is important to note that in Calandra the lack of good faith arose from the filing of the relevant costs certificates in the Local Court Registry and not from the content of the assessment giving rise to the certificates. The judgment was also irregular because, when the costs certificates were filed, no unpaid costs existed to satisfy the s 368 requirements of a cost certificate plus an outstanding amount to be paid. These distinctions will be highlighted below.
In addition, Walton J’s decision was overturned on appeal, although not on the potential conflict with Brezniak (Bingham v Bevan [2023] NSWCA 86). Relevantly here, the Court of Appeal stated, at [69]:
“Three points may be made with respect to the current statutory scheme. First, as was held in Calandra with respect to the predecessors to the current provisions, that which was taken to be a judgment of the Court was ‘the amount of unpaid money’, and not the ‘amounts specified in the certificate’. The deemed judgment thus took into account any amount which had been paid in diminution of the costs assessed. Indeed, where the amount paid exceeded the costs specified in the certificate, the excess could be recovered as a debt: s 70(4). The form to be filed with the certificate required that the party filing the certificate swear an affidavit stating how much, if any, of the assessed costs had been paid. These provisions assume that there was a legal liability to pay the costs as determined by the costs assessor. Accordingly, consistently with Calandra, a judgment based upon a certificate may be set aside upon the judgment debtor demonstrating that the liability to pay costs no longer exists, or has not arisen. In such circumstances, it is appropriate to describe the judgment as having been entered ‘irregularly’.”
The position may be stated as follows. A judgment based on a certificate of costs filed in accordance with s 70(5) of the LPULAA may be set aside under r 36.15 if the entry of the judgment itself was affected by irregularity, illegality, or bad faith. However, this does not involve challenging the validity of the costs assessor’s determination, which remains final unless challenged through the statutory review process. This seems to generally accord with what Schmidt J was saying.
Ms Thompson says that she was not informed that an application was being made for a costs assessment, and that the costs assessment contains errors, which constitute irregularities justifying it being set aside. As to the review, Ms Thompson submitted, that as there was an error in the identification of KCA, that there is an available avenue for a fresh review.
Ms Thompson referred me to three cases. The first was Arnold v Forsythe [2012] NSWCA 18. The Court of Appeal looked at the question of whether a judgment had been entered irregularly where there had been a material defect in the pleadings grounding the judgment. The Court noted that not every defect in the pleadings could create an irregularity, but, at [84]:
“In the present case, however, the omissions in the statement of claim went to the very foundations of the respondents' cause of action against the appellant. By reason of the omissions, the case the appellant was required to meet was not clear. On the authority of Fenato v Chief Commissioner, this would have been a sufficient reason to conclude that the default judgment had been given irregularly. In a case where the appellant has an arguable defence, the appropriate order would have been to set aside the default judgment.”
“The question of what is irregular or against good faith for the purpose of this rule is plainly a matter of fact and degree and cannot be determined abstractly but must always, of course, be in the context in which the question arises. As mentioned above, the conduct of the defendant in Morganite - if the settlement acceptance were given the construction contended for by the defendant - was crafty (to adapt the submission of the plaintiff). An attempt to obtain a comprehensive relief of all claims by an exchange of correspondence which was drafted to avoid alerting the plaintiff to this object would certainly justify the conclusion that the defendant was not acting in good faith ...”
The third case was Violi v Commonwealth Bank of Australia [2015] NSWCA 152. In Violi, a bank applied for a default judgment in circumstances where the plaintiff had filed a statement of claim, but no defence had been filed. The applicant, to set aside the judgment, said he had not seen the statement of claim before judgment was entered. Service had been effected by way of substituted service on the applicant’s brothers.
Emmett JA said, at [76]:
“Under r 36.15(1) of the UCPR, the Court has a discretion, notwithstanding that a judgment was entered irregularly, as to whether or not to set the judgment aside. As the case was conducted in the District Court, there were two questions involved in the exercise of that discretion. The first was whether there was any explanation for the delay in moving to set aside the judgment. The second question was whether the defendant has a reasonably arguable defence. Those two matters must be weighed in the balance to determine whether the merits and strength of the proposed defence outweigh any explanation for the failure to file a defence in time and for any delay in applying to set aside the default judgment. Ultimately, the question is whether it is in the interests of justice to allow the party seeking to set aside the default judgment to be permitted to defend the proceedings on the merits.”
Emmett JA went on to find that the material relied upon by the plaintiff in respect of service did not comply with the rules and therefore constituted an irregularity in the obtaining of the default judgment.
At one level, Arnold and Violi seem to be in direct conflict with Heperu. The first two cases say it is permissible to go behind the obtaining of the judgment to identify an irregularity, the latter says “No”.
On closer scrutiny, I think there is a clear distinction between the cases. In Arnold and Violi the irregularities arose from defects in the procedural steps along the way to the entry of judgment. In Arnold it was whether the entry of judgment was possible at all because the statement of claim had not pleaded a claim for a debt or liquidated amount (which had been the basis for the entry of judgment under r 16.6 of the UCPR).
In Violi, the problem stemmed from the manner of service which allowed a default judgment to be entered because no defence had been filed.
It is evident therefore, that in both Arnold and Violi there was no decision behind the entry of judgment in which an irregularity was claimed.
Ultimately, following Heperu (and also Brezniak for a different reason), I am not permitted to find an irregularity for the purposes of r 36.15 within the reasons given for the costs determinations by the assessor and by the Review Panel. This conclusion determines the notice of motion to set aside the judgment.
If I am wrong on the conclusion stated in the previous paragraph, I would still have, in the exercise of my discretion, found in favour of KCA. I will state my reasons briefly.
The starting point is to emphasise that it is at the core of Ms Thompson’s submissions that she did not retain KCA and Mr Altan to represent her in the Queensland proceedings. In particular Ms Thompson only retained Mt Altan to provide an advice, which he never did and for which he was never paid.
A secondary, but also often repeated assertion by Ms Thompson is that she did not receive the application for the original costs assessment until March 2026, about 19 months after it was lodged.
Ms Thompson also emphasised that she had not signed the costs agreement that had been sent to her by KCA.
My reasons for exercising my discretion in favour of KCA are as follows:
The amount said to have been owing to Mr Altan was $11,385. If this amount was the charge for preparing an advice, and it was not forthcoming, then there is good reason that he was not paid.
However, Mr Altan’s tax invoice, dated 23 May 2024, has this break-up of the $11,385:
| 14/05/2024 | Read documents provided by Mr R. Hanrahan of counsel | 2h | $900.00 | | 15/05/2024 | Preparation for conference with Ms E. Thompson; Telephone conference with Ms E. Thompson | 1h | $450.00 | | 21/05/2024 | Preparation for hearing, Telephone conference with Ms K. Chapman | 1 daily | $4,500.00 | | 22/05/2024 | Preparation for hearing, Telephone conference with Ms E. Thompson and Ms K. Chapman | 1 daily | $4,500.00 | | | Total Fees (GST Exclusive) Total GST Total Payable | | $10,350 $1,035.00 $11,385 |
“During the course of the assessment, I also called for the legal file as there was a factual dispute between the parties as to the nature of the Costs Applicant's retainer. The Costs Applicant asserted she had been engaged to prepare and appear at the final hearing of the matter. The Costs Respondent contended she had not engaged the Costs Applicant or Counsel to appear at the final hearing but instead had engaged them to give a limited opinion as to whether certain property fell within the deceased's estate. She asserts she ran the matter to hearing and that this was always her intention.”
“First*,* she contended that she only sought to obtain a barristers written advice pertaining to whether three properties formed part of the deceased's estate as part of preparing for a forthcoming family provision application which had been listed for hearing on 28 to 30 May 2024. She said she had received written advice from a prior lawyer, Malcolm Robinson, dated 18 July 2019 and that he had suggested that she consider briefing a barrister directly to get specialist advice about whether those three properties formed part of the deceased's estate and what to settle the matter for. She says she contacted two barristers but neither were available to assist and that she ultimately was referred to Mr Altan who agreed to provide such advice but somehow involved the Costs Applicant.
She says she never gave written instructions to the Costs Applicant or Mr Altan to appear for her at the final hearing. The Costs Applicant denies she was engaged to merely advise on the discrete issue of the three properties and whether those properties were included in the deceased's estate.
I do not accept that submission. It is not consistent with the costs disclosure agreement which provided very clearly the Costs Applicant was to prepare for the final hearing of the proceedings scheduled for the end of May. The Costs Respondent received the costs agreement by email on 16 May 2024 and never objected nor raised any dispute as to its terms. The Costs Respondent submission is also inconsistent with the Barrister's costs disclosure agreement issued shortly after 16 May 2024. Nor is such a proposition consistent with the correspondence located on the legal file which shows a large number of emails with pleadings, submissions, interlocutory applications relating to the legal proceedings including emails from the Costs Respondent to the legal practitioner to consider a wide variety of issues in preparation for the general hearing.
In my view, there was no doubt, based on what l have been provided, that the Costs Applicant, together with Counsel, were engaged to prepare for the final hearing scheduled for the end of May 2024.
It is not necessary that the Costs Respondent has given those instructions in writing for such work to form part of the retainer of the Costs Applicant. If the Costs Respondent disagreed with the scope of the retainer she should have said something or objected to its terms. Instead, she said nothing; she continued to send large volumes of information and material to the Costs Applicant and instructions on the matter.”
Ms Thompson took part in the assessment. She sent 8 emails, to the assessor, the first about a month after KCA lodged the original application. She put her case before the assessor who, after reasoned consideration, rejected her case.
If Ms Thompson did not have the original application, she could have asked for it from the assessor. In any event her contribution to the assessment does not seem to have suffered from not having the original application. I note the costs assessor was at pains to “ensure that each of the parties and any other person concerned have had a reasonable opportunity to make written submissions to me.” The assessor said:
“I am satisfied that each of the parties had a reasonable opportunity to make written submissions and to put further material to me and took advantage of that opportunity.”
36(2) The Manager must send the send the person who was given the bill of costs (the respondent)—
(a) a copy of the application, and
(b) a notice advising that the respondent may send a written objection to the application to the Manager within a specified period that is not less than 21 days after the notice is sent.
As to the costs agreement, it is correct that it was not signed. The issue was not expressly addressed by the costs assessor. However, the reasons indicate that the assessor considered there to be a binding costs agreement between Ms Thompson and KCA. For example, the assessor found that the costs agreement provided prima facie evidence that the costs disclosed in it were fair and reasonable (at [7.12]). An unsigned (non-conditional) costs agreement does not necessarily contravene the Legal Profession Uniform Law 2014 (NSW) (LPUL). Section 180(3) provides that a costs agreement may be made by a “written offer that is accepted in writing or … by other conduct.” It appears that the assessor considered that Ms Thompson, by “receiv[ing] the costs agreement by email on 16 May 2024 and never object[ing] nor rais[ing] any dispute as to its terms” and providing instructions in accordance with the scope of the retainer issued at the same time as the costs agreement, accepted the agreement by her conduct.
In accordance with the legislation, the assessor, applying the factors in s 172(2) of the LPUL, determined whether the costs between KCA and Ms Thompson were fair and reasonable. To this end, the costs assessor looked at whether the law practice had complied with its disclosure obligations under s 174, and whether there had been a continuous disclosure. She decided that there had been compliance with the “initial obligations of disclosure”, such that there was a presumption that the basis of charging in the costs agreement was fair and reasonable.
The costs assessor then went on to examine the specific costs to make sure that they were “no more than fair and reasonable.” The costs assessor specifically considered Ms Thompson’s objections to the overall amount of the costs being claimed. These objections obviously drew some support because the assessment included a fairly substantial reduction of the amount claimed for counsel’s fees (from $11,385 down to $6,435).
The costs assessor then reached the following conclusions:
“As a general statement and subject to the qualifications and deductions set out in the Table of Adjustments below, I am satisfied it was reasonable to carry out the work to which the costs related, and the work was carried out in a reasonable manner by the Costs Applicant but also that those costs were proportionately incurred and proportionate in amount.
Having reviewed the disbursements claimed, subject to the qualifications and deductions set out in the Table of Adjustments below, I am of the view that these disbursement costs have been incurred and are fair and reasonable.”
Turning to the review, after being told about the incorrect naming of the respondent, Ms Thompson did not try and correct the error or file an amended application for review.
Ms Thompson accepted she had made the identification error. As to taking no action she said in court:
“HIS HONOUR: But if somebody writes to you and say, you have got the wrong name.
DEFENDANT: Yes, they did. And I wrote back.
HIS HONOUR: Yes. Did you write back and say, please change the name?
DEFENDANT: No, I didn't know that I could do that.
HIS HONOUR: Well.
DEFENDANT: In hindsight, yes. But I didn't, and there is a lot of stress associated with this.
HIS HONOUR: Yes.
DEFENDANT: A huge amount of stress because the consequences that flow from what happened in May 2024 still negatively impact me.“
I accept Ms Thompson was under stress. But Ms Thompson is far from an unsophisticated person. She is an obviously intelligent person now pursuing a Ph.D. in legal studies. It would seem a basic response to ask for the respondent’s name to be changed, especially as the respondent was correctly named in the assessment that was under review.
The Review Panel, in its reasons stated:
“On 6 February 2025 the Panel wrote to the parties seeking submissions on a preliminary issue, being that the named Review Respondent, Kym Chapman, is an individual, and the entity named in the original Application, and the Reasons and Certificates which issued, is a corporate entity, Kym Chapman & Associates Pty Limited. The Review Respondent is not the same legal entity as the costs applicant in the original assessment. The Panel advised it had no power to amend a Review Application where a different legal entity to that referred to in the assessment had been nominated. The Panel allowed a period of fourteen days for the Review Applicant to make submissions with respect to that issue, with the Review Respondent to reply thereafter.
The Review Applicant wrote to the Panel by email of 20 February 2025, advising that she had made an "honest error/mistake of fact pertaining to the names on the Review Application" and advising that "the name of the Review Application should match to the names on the original Application, and the Costs Assessor's Certificates.'' She advised "/ do not have evidence of the registration of the name Kym Chapman & Associates Pty Limited'' although it is noted that this was not raised as an issue or objection in the material before the assessor. No submissions were made in response to the Panel's indication that it did not have power to amend the Review Application, nor was any amendment sought or proposed.”
I should add that I sympathise with Ms Thompson to the extent that Ms Chapman seemingly took advantage of the point which could have been easily overcome and was hardly contentious. Perhaps the matter would not have reached this court if a more practical approach had been adopted.
I also note the Review Panel, after promptly disposing of the review on the identification question, gave a lengthy justification for the costs of the review. Ms Thompson’s submission that, having regard to the disposal of the review on a preliminary point, the review costs of $3,423.37 were excessive, was not without justification. I do not however think it within the scope of the motion to do anything further.
I should add, in fairness to the Review Panel, that it did make some comments suggesting that, but for the identification error, a review was not likely to have been successful:
“Having regard to the lack of power to consider the application on its merits, the Panel has taken the view that the appropriate course is to finalise the Review without incurring costs for the parties and the Panel in seeking submissions relating to the Grounds for Review set out in the Application, and considering those submissions in depth. In doing so, the Panel, having read the Assessor’s file, the Grounds for Review and the submissions contained in those grounds, considers that on the basis of that material, the Review Application had negligible prospects of success on the merits. The Review Grounds centre on the Review Applicant's arguments, raised at length during the assessment, that the retainer involved only the seeking of limited advice from Counsel, that the advice was not provided, and that there was "no evidence" of a different or more extensive retainer. The retainer as accepted by the Assessor was amply evidenced by the material, including the advice provided by Ms Chapman in her letter of 16 May 2024 to the Review Applicant, setting out the retainer and providing an extensive and detailed confirmation of the nature of the instructions given including to prepare the matter for final hearing.”
In summary, I am satisfied that the costs assessor did approach the matter on the basis that she would, and did, obtain and examine large amounts of information provided by both parties and then came to a reasoned conclusion on the information. In particular, the assessor dealt with the arguments put forward by Ms Thompson, especially about the scope of the retainer and the level of costs being charged.
I can see no prejudice arising from Ms Thompson not having the original application. She took a full part in the assessment process. As to the review, it is regrettable that it did not include a full review of the assessment, but that was due to a technicality which it was within the power of Ms Thompson to remedy.
The notice of motion seeking to set aside the judgment must be dismissed. The notice of motion requesting a stay was not pressed and must also therefore be dismissed. I would add that had the stay application been pressed, it would have suffered the same fate as the principal motion.
I can see no reason why costs should not follow the event. I make the following orders:
The notice of motion filed on 2 September 2025 is dismissed.
The notice of motion filed on 9 October 2025 is dismissed.
The defendant (Ms Emma Thompson) is to pay the costs of the notice of motion filed on 2 September 2025.
No order is made as to the costs of the notice of motion filed on 9 October 2025.
**********
Kym Chapman & Associates Pty Ltd t/as Kym Chapman & Associates
Thompson
[2008] HCA 34
(2009) 78 NSWLR 190
(2008) 238 CLR 218