Nano Logistics Pty Ltd v Harper James Law Group Pty Ltd

Supreme Court of NSW|2024-03-14|Before: Chen J, Kunc J

Introduction

This matter arises out of a costs dispute between three plaintiffs and their former solicitor.
The first plaintiff is Nano Logistics Pty Ltd, the second plaintiff is Hany Rohaim and the third plaintiff is Opeti Kei. The second and third plaintiffs are, and were at the relevant times, directors of the first plaintiff. The defendant is Harper James Law Group Pty Ltd.
The dispute, in simple terms, arises out of the following. The defendant sent the plaintiffs a bill of costs for the work they had performed, and disbursements incurred, in February 2022, which was not paid. The defendant applied to have its costs assessed. An assessment of the solicitor and client costs took place in 2023, and a Certificate of Determination of Costs thereafter issued dated 7 September 2023. The defendant filed that certificate in the registry of the Local Court - and the amount referred to in that certificate ($96,035.98) became a judgment of that Court. The defendant now seeks to enforce that judgment against the second and third plaintiffs by the filing and service of a bankruptcy notice upon them.
By summons filed 28 November 2023, the plaintiffs seek the following order (summons, par 1): That leave be granted to appeal out of time the Costs Determination Certificate dated 15 May 2023 entered as a judgment in the Local Court of New South Wales on 26 September 2023 for the sum of $96,035.98.
The plaintiffs also sought other substantive orders - that the "Costs Determination be stayed instanter and the Local Court Judgment be set aside" (summons, par 2) and that "the Cost Assessment be set aside" (summons, par 3).

The plaintiffs' submissions

The plaintiffs filed written submissions that identified the basis for making the orders sought. There it was said (plaintiffs' outline of submissions, pars 1 and 2): 1) The Court has general jurisdiction to hear an Appeal on a Costs Assessment or in its discretion refers it to the Costs Assessment Appeal Panel. The present application is not an application in relation to quantum of costs. 2) The Court has an inherent or supervisory jurisdiction in relation to its own process and the conduct of its practitioners.
Otherwise, the written submissions did not identify the power of the Court to make the orders sought in the particular circumstances.

Prayer 1: leave to appeal out of time the Costs Determination Certificate

The first order sought by the plaintiffs was an order granting them "leave…to appeal out of time the Costs Determination Certificate".
Once the certificate issued following the costs assessment, the plaintiffs were entitled to apply for a review of that determination "within 30 days after the certificate of determination by the costs assessor has been forwarded to the parties in accordance with the regulations or the costs assessment rules": s 83(1) of the LPULA Act. The application for a review must be filed with the Manager, Costs Assessment: s 83(3) of the LPULA Act. The review is conducted by a review panel: s 85 of the LPULA Act. The Manager, Costs Assessment "may extend the period for lodging an application" for a review: s 83(1A) of the LPULA Act.
The Manager, Costs Assessment is a registrar appointed to the position by the Chief Justice: s 93B(1) of the LPULA Act. By s 93B(3) of the LPULA Act, the "acts and decisions of the Manager, Costs Assessment are reviewable by the Supreme Court in the same manner as acts and decisions of other registrars are reviewable by the Court". This has the consequence that any decision made by the Manager, Costs Assessment is reviewable under r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR').
Here, the costs assessment has not been the subject of a review by a review panel, nor has an application been filed for such a review to occur pursuant to s 83(1) of the LPULA Act. To the extent that any application is to be made, it is not made to this Court but to the Manager, Costs Assessment: s 83(3). And, to the extent any extension of time is needed, that is a matter for the Manager, Costs Assessment who "may extend the period for lodging an application" by a party for a review of the costs determination: s 83(1A).
The plaintiffs submitted that this Court has "general jurisdiction to hear an Appeal on a Costs Assessment". That submission is only partly accurate. The power of this Court to hear an appeal is rather more constrained. A party to a costs assessment can only appeal to this Court when that costs assessment has been the subject of a review by a review panel under Part 7 of the LPULA Act: s 89 of the LPULA Act.
Here, as earlier noted, the costs assessment has not been the subject of a review by a review panel, nor has an application been filed for such a review to occur pursuant to s 83(1) of the LPULA Act.
In my view, there is no basis to make the first order sought by the plaintiffs.

Prayer 2: an order staying the costs determination

The Court has power to grant a stay of any proceedings before it: s 67 of the Civil Procedure Act 2005 (NSW) ('CPA').
But, here, there are no proceedings before the Court - only a summons seeking, inter alia, a stay. This Court has not made any orders, and the judgment entered was in the Local Court. The plaintiffs did not identify any authority that might tend to suggest that the issuing of the Certificate of Determination of Costs constitutes a "proceeding" within s 67, and in my view, it is not.
The Court also has power to give directions with respect to the enforcement of its judgments and orders: s 135 of the CPA. But, again, this Court has not made any orders, and the judgment entered was in the Local Court.

Prayers 2 and 3: setting aside the Local Court judgment and the costs assessment

The plaintiffs also sought an order that the Local Court judgment be set aside. The only way in which that order could be set aside by an order of this Court would be following an appeal or, possibly, following proceedings for judicial review. There are no such proceedings in this Court and, even if there were, an order of that kind could only be made after the hearing of it.
The rules make provision for setting aside judgments or orders (see rr 36.15 and 36.16 of the UCPR). However, the engagement of those rules is a matter for the court making the judgment or order, not some other court. These rules do not, therefore, avail the plaintiffs.
To the extent that the plaintiffs sought an order "setting aside" the costs assessment, that could only occur following the hearing of any appeal under s 89 of the LPULA Act. No appeal under that section has been brought. Nothing more need be said about it.

Orders

In my view, there is simply no basis upon which to make the orders sought by the plaintiff.
I therefore make the following orders: 1. The summons filed 28 November 2023 is dismissed. 2. Order the plaintiffs pay the defendant's costs of the summons.

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: 14 March 2024

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (1)