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Category: Procedural rulings

Parties: Julie Ann Orsini (Plaintiff)
Mark Taouk (First Defendant)
Maroun Taouk (Second Defendant)
TQM Design & Construct Pty Ltd (Third Defendant)
Clarence Developments Pty Ltd (Fourth Defendant)
George Habambo (Fifth Defendant)

Representation: Counsel:
P Doyle Gray (Plaintiff)
Q Rares (First to Fourth Defendants)
Solicitors:
Wilson Fox Lawyers (Plaintiff)
BCP Lawyers & Consultants (First to Fourth Defendants)
Fifth Defendant (self-represented)

File Number(s): 2025/00154897

JUDGMENT

1. Before me are three motions arising out of a dispute between a solicitor and her former clients. The solicitor, Ms Julie Orsini, acted for one of those clients, Mr Habambo, in criminal and matrimonial proceedings. The question of who is liable to pay her fees in those matters has been the subject of two costs assessments, one of which was completed, and a review.

2. These proceedings were commenced when the Plaintiff filed her summons on 22 April 2025. On 11 December 2025, the Plaintiff filed a notice of motion seeking leave to file and serve an amended summons (the proposed Amended Summons) in the form attached to the motion, an injunction restraining the Fifth, Seventh and Eighth Respondents to the motion from progressing costs assessment 2024/00069348 (the second costs assessment) until further order, discovery against the Sixth Respondent and an order that the matter proceed by way of pleadings. The Sixth Respondent to the motion is a company known as Rawson Constructions Pty Ltd (Rawson Constructions). The Seventh Respondent is the manager of costs assessment and the Eighth Respondent is the costs assessor assigned the second costs assessment.

3. The second motion, filed by the First to Fourth Defendants (the Taouk Parties) on 4 March 2026, seeks dismissal of these proceedings as incompetent.

4. The third motion, filed on 13 April 2026 by the Fifth Defendant, Mr Habambo, who is presently incarcerated, seeks leave to bring a cross-appeal out of time.

5. I distil my conclusions in relation to those motions as follows:

6. in relation to the Taouk Parties’ Notice of Motion, I accept that the declaratory and ancillary relief sought by the Plaintiff in the proposed Amended Summons cannot now be pursued. That is so on the basis of issue estoppel and abuse of process;

7. the Plaintiff’s attempt to join Rawson Constructions to these proceedings is also an abuse of process;

8. the Summons, as well as the proposed Amended Summons, is defective in failing properly to identify any errors made by the costs review panel. For this reason, I strike out the Summons and refuse the Plaintiff leave to file the proposed Amended Summons. Within 14 days, the Plaintiff is to file a summons, in the proper form, which addresses the deficiencies identified at [50]–[56];

9. insofar as the Plaintiff contends that she has justifiable grounds, in terms of error, that she wishes to pursue pursuant to an appeal under s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) (the LPULAA), I will not foreclose her from so doing, however, bearing in mind the length of time that these proceedings have been on foot, I do not propose to allow more than 14 days for this to occur. By this stage, the Plaintiff must be well aware of whatever errors she contends have been made by the review panel. In any event, I see no reason why, if the Plaintiff has not repleaded after 14 days, these proceedings should be allowed to continue;

10. I refuse to restrain the second costs assessment from proceeding. I see no reason such a restraint should be granted;

11. Mr Habambo’s proposed Notice of Cross-Appeal will not be filed because it is out of time, there is no satisfactory explanation for the delay and the cross-appeal has limited prospects of success. His 13 April 2026 Notice of Motion is dismissed.

12. It is necessary to set out in some detail the parties, their relationships and the transactions out of which the dispute arises.

Background

7. Since 2009, the Plaintiff has been retained by brothers Mark and Maroun Taouk, the First and Second Defendants, to act on their behalf, and on behalf of their companies, on approximately 25 occasions, encompassing both litigation and transactional work.

8. The Fifth Defendant, Mr George Habambo, was previously employed as a construction manager by a corporate subsidiary of the Third Defendant, TQM Design & Construct Pty Ltd (TQM).

9. The Fourth Defendant, Clarence Developments Pty Ltd (Clarence), operates as a construction funding entity.

10. In about October 2020, the Fifth Defendant’s wife reported him to the New South Wales Police for domestic violence. He was subsequently charged with 39 offences of that kind. At around the same time, the Fifth Defendant’s wife commenced proceedings for divorce in the then Family Court of Australia, seeking orders in relation to marital property and the custody of their children. It was in these circumstances that Mark Taouk introduced Mr Habambo to the Plaintiff for the purpose of engaging her as his legal representative.

11. By 28 October 2020, the Plaintiff had entered into costs agreements with (on her account) all the Defendants, pursuant to which each assumed joint responsibility for payment of her fees. The Defendants dispute her characterisation and instead say that only the Fifth Defendant was party to the costs agreement. There appears to be no controversy that the Plaintiff provided no legal services to the Taouk Parties. In due course, the Plaintiff opened two files in relation to the Fifth Defendant, (only) one concerning the criminal proceedings and the other concerning the matrimonial proceedings.

Rawson Constructions

12. The Plaintiff claims that, after rendering her first invoice of $29,425, addressed to all five Defendants, she was asked to reissue it, and all subsequent invoices, to Rawson Constructions.

13. On 20 February 2021, the Plaintiff issued an invoice for $29,425 to Rawson Constructions, which was paid by that company on 1 March 2021. Thereafter, the Plaintiff issued all further invoices in the name of (and to) Rawson Constructions and received, from that company, payments totalling approximately $350,000. In addition, Mr Habambo is alleged to have paid $27,000 in cash. None of the First to Fourth Defendants paid anything.

14. The exact nature of Rawson Constructions and its relationship with the Plaintiff or the Defendants is unclear on the evidence. The Plaintiff’s knowledge of Rawson Constructions is limited. She states that she had no dealings with it until the request was made that she address to it invoices concerning her work on behalf of Mr Habambo. The Plaintiff claims that she has undertaken searches concerning the nature of Rawson Constructions, but those searches did not illuminate any connection with the Defendants. Further evidence of those searches and what, if anything, they did illuminate is not before the Court.

15. The Plaintiff describes her knowledge of Rawson Constructions. In her affidavit affirmed 3 February 2026, she says:

“I do not know, and so cannot prove, who directed any payment to be made, who caused a payment to be made, why the payment was made when the defendants deny any liability to pay, or how [Rawson Constructions] accounted for these payments in their accounts. All I can prove is that [Rawson Constructions] made certain payments by electronic funds transfer and I received certain documents titled ‘Remittance Advice’.”

(emphasis added)

16. That is a frank description of the Plaintiff’s knowledge of Rawson Constructions. It is, however, difficult to reconcile with the position she took before the costs assessor. In those submissions, she stated:

“I was aware that [Rawson Constructions] is another company associated with Clarence and the TQM group and of which [the First Defendant] is a director.”

17. The evidence does not explain how the Plaintiff came to accept substantial payments from a company with which she had no apparent prior dealing, nor why she did not inquire of the Defendants as to its identity. On the material before the Court, Rawson Constructions was, so far as the Plaintiff is concerned, a stranger to the retainer.

18. The Plaintiff notes that Rawson Constructions is presently represented by the same solicitors as the Taouk Parties. The shared representation may suggest a relationship between Rawson Constructions and the Defendants. That fact does not, however, assist the Plaintiff, having come to light only after proceedings were commenced, years after the invoices had been issued and payment received from Rawson Constructions.

Mr Habambo’s conviction

19. For approximately two years after October 2020, the Plaintiff advised and represented Mr Habambo in both sets of proceedings, invoicing approximately $826,000 in total. On 6 October 2022, Mr Habambo was convicted of 28 of the counts with which he had been charged in the criminal proceedings and was sentenced to 10 years’ imprisonment with a non-parole period of 6 years. Following Mr Habambo’s conviction and sentence, the relationship between the Plaintiff and Defendants broke down. Rawson Constructions declined to pay subsequent invoices and the Defendants claimed that the Fifth Defendant was solely responsible for payment of the Plaintiff’s fees.

The First Costs Assessment Application

20. On 27 March 2023, the Plaintiff applied for costs assessments against Mark and Maroun Taouk, TQM and Clarence as well as Mr Habambo in relation to her work on Mr Habambo’s criminal matter.

21. The Plaintiff supplied evidence and detailed submissions to the costs assessor. That material makes plain that Rawson Constructions was the vehicle through which the Plaintiff’s bills were paid. Despite this, Rawson Constructions was not joined as a party to the assessment. The Plaintiff has not explained the omission.

22. The Plaintiff essentially provided the following grounds for the Taouk Parties’ liability:

23. the Second Defendant’s personal, oral guarantee of the fees, made with the knowledge that the costs in the matter could become very substantial;

24. the written costs agreement dated 28 October 2020 which names the Taouk Parties as third party payers, said to be accepted by those Defendants’ conduct;

25. section 172(2) of the Legal Profession Uniform Law 2014 (NSW) (the LPUL);

26. the long-standing course of dealing between the Plaintiff and Taouk Parties;

27. the First Defendant’s alleged acknowledgment of the guarantee and commitment to pay; and

28. continued payments made by Rawson Constructions.

29. Mr Habambo also filed submissions dated 29 September 2023 during his incarceration. In those submissions, he stated that he never received a written costs disclosure and that he relied on a verbal conversation which took place in August 2022 in which the Plaintiff is said to have told Mr Habambo that the total amount of legal fees would be $120,000.

30. Against that, the Plaintiff claims to have verbally disclosed her estimated fees of approximately $200,000–$250,000 separately to the First Defendant and Mr Habambo.

31. Mr Habambo argued that the Plaintiff disregarded his express instructions and thus overcharged him. Mr Habambo submitted that he directed the Plaintiff not to review the text messages in the Cellebrite download of his Samsung phone. However, he claims that the Plaintiff not only disregarded those instructions, but also charged him for that work. The Plaintiff characterised such work as essential for the proper preparation for Mr Habambo’s criminal trial.

32. On Mr Habambo’s version, such issues arose frequently, with the Plaintiff repeatedly undertaking (and then charging for) work she had not been instructed to perform. That extended to drafting affidavits he did not request as well as post-incarceration work on the appeal when he gave no instructions.

33. There was also a dispute about the quantum of fees outstanding. Mr Habambo claimed that he had paid approximately $346,573.50, exceeding the $343,698.17 he had been invoiced for the criminal proceedings.

34. In his decision, the costs assessor considered that the Taouk Parties were not associated third-party payers and that Mr Habambo alone was responsible for payment of the Plaintiff’s fees. The costs assessor determined that the Taouk Parties were paying the Fifth Defendant’s costs to assist him, not out of any legal obligation. The amount the costs assessor found Mr Habambo owed the Plaintiff was reduced from $426,139.43 to $240,888.50. This was due to a consistent lack of detail in the items within the invoice, excessive time claimed for certain tasks and costs claimed for communicating with the Taouk Parties about costs.

35. On 20 February 2024, the Plaintiff applied for a review of the decision of the costs assessor.

36. In addition to the material before the costs assessor, the review panel received documents including submissions from the Plaintiff, the Taouk Parties and Mr Habambo. Mr Habambo’s material included an affidavit dated 17 August 2023 attached to his submissions.

37. The Plaintiff identified three categories of error, being the liability of the Taouk Parties, setting aside the costs agreement and the reduction in assessed costs.

38. I will deal with the liability of the Taouk Parties and the costs agreement. The reduction in costs is not of significance at this time.

39. On liability, the Plaintiff primarily contended that the costs assessor failed to properly consider certain evidential matters raised in the application. These included:

40. an October 2020 conversation with the Second Defendant in which he said that the Taouk Parties would guarantee her fees;

41. a November 2020 email to the Taouk Parties and Fifth Defendant to which the costs agreement was attached;

42. a December 2020 request from the Taouk Parties for invoices to be issued to Rawson Constructions and those invoices being so issued;

43. the fact that Rawson Constructions paid 90% of the fees incurred and billed up to February 2022;

44. a February 2022 text exchange with Mark Taouk said to confirm the October 2020 guarantee;

45. the Taouk Parties’ termination of the retainer in October 2022, evidenced by the Plaintiff’s issuance of a new costs agreement to Mr Habambo’s mother and sister; and

46. Mr Habambo’s non-denial of the retainer in proceedings commenced in this Court concerning the Plaintiff’s statutory demand.

47. Most of those matters concerned communications said to evidence the costs agreement. The costs assessor found there was no evidence of communications with the Taouk Parties relating to the costs agreement. The Plaintiff also relied on a February 2022 text exchange with Mark Taouk, in which he said “… please understand that we are helping [Mr Habambo] out, we don’t owe this money… please understand this is a favour”. The Plaintiff’s reply to that message asserted the Taouk Parties’ liability as third parties and referred to the Second Defendant’s guarantee, ending “there was no objection to the agreement and work proceeded on that basis.” The Plaintiff submitted that Mark Taouk’s silence in the face of her assertions is significant, there being no denial of the guarantee nor indication of any intention to depart from the terms she had stated.

48. With respect to setting aside the costs agreement, the Plaintiff claimed that the costs assessor was wrong to find that she relied only on her disclosure of costs regarding the family law proceedings. The Plaintiff also claimed that he failed to take into account her long-term relationship with the Taouk Parties, oral disclosures of costs to the First and Second Defendants during the trial and several other matters.

49. The review panel divided its reasons into those concerning the liability of TQM and Clarence and those concerning Mark and Maroun Taouk.

50. Regarding TQM and Clarence, the review panel found that neither was liable for the following reasons:

51. the Plaintiff’s October 2020 conversation was with the Second Defendant alone. Neither TQM nor Clarence was mentioned;

52. the Plaintiff’s existing relationship with TQM and Clarence did not create an inference that they were guaranteeing Mr Habambo’s costs in his criminal proceedings;

53. a meeting of directors would usually be required for a company to commit to the sums of money involved in this matter;

54. the November 2020 email was addressed to the First, Second and Fifth Defendants. There was no mention of TQM or Clarence;

55. the various texts relied upon referred to “you guys”, which would be an unconventional way to refer to a company or companies;

56. the purported agreement lacked a sufficiently clear offer and consideration, and was allegedly made without independent advice.

57. As to the First and Second Defendants’ liability, the review panel found that:

58. the Second Defendant’s account that, in the October 2020 conversation, he only introduced the Plaintiff to Mr Habambo, was inherently more likely than Ms Orsini’s account that he gave the guarantee before she had even met Mr Habambo;

59. a bill was prepared on 28 October 2020, two days before the date on which the Plaintiff claims the parties entered into the costs agreement;

60. the key aspect of the First Defendant’s text exchange with the Plaintiff was his saying “we don’t owe this money”. The review panel regarded this as a clear denial of any guarantee and considered that the Plaintiff’s understanding of it as confirmation of a guarantee was her interpreting words according to what she expected to read; and

61. Mr Habambo’s affidavit dated 17 August 2023 attached a balance sheet showing debts to TQM companies and to the First Defendant, which supported his characterisation of the money as a loan rather than a guarantee.

62. Further, although the review panel accepted that a document referring to work to be undertaken on the criminal proceedings was sent by the Plaintiff, there is no evidence that it was ever received by any of the Defendants.

63. In summary, the review panel was not persuaded that any of the evidence before it demonstrated that the work was undertaken pursuant to a guarantee rather than a simple loan from the Taouk Parties to Mr Habambo.

64. Once again, Rawson Constructions figured significantly in the review panel proceedings. The Plaintiff submitted that the request that she address invoices to Rawson Constructions was evidence that the Taouk Parties were liable and that she was aware that the First Defendant was a director of the company. However, at no point did she raise its potential liability for the invoices.

The Second Costs Assessment Application

42. On 22 February 2024, Mr Habambo lodged an application for assessment of costs against the Plaintiff concerning both the criminal and matrimonial matters. Ms Orsini was the sole respondent. None of the other defendants in these proceedings were joined.

43. The application included invoices already assessed and others not yet assessed. The original costs assessor for the second costs assessment retired partway through without making any determination. The manager of costs assessments then reassigned the second costs assessment to another costs assessor, who is now joined as the Eighth Respondent to the Plaintiff’s notice of motion.

44. In that application, Mr Habambo claimed that the $80,000 the Plaintiff initially estimated for the matrimonial matter is the proper amount for that proceeding. In his opinion, he should not be made to pay anything for the criminal proceedings since the Plaintiff had already been paid the full amount determined by the costs assessor for that proceeding.

45. The second costs assessment remains pending and is the subject of the Plaintiff’s and Mr Habambo’s motions.

Determination

46. I will deal with the issues arising from the Plaintiff’s and Taouk Parties’ motions in the following order:

47. whether the Summons filed by the Plaintiff ought be dismissed as sought by the Taouk Parties;

48. whether the Plaintiff ought be given leave to file her proposed Amended Summons; and

49. whether the Plaintiff ought be granted the injunctive relief she seeks to prevent the Taouk Parties, as well as the other respondents to her motion, from progressing the second costs assessment.

Should the Summons be dismissed?

47. By her Summons the Plaintiff seeks under s 89 LPULAA to set aside both certificates of determination issued by the review panel and leave to adduce fresh, additional or substituted evidence to that before the review panel. She also seeks orders that the first costs assessment (and the costs arising from it) be remitted to a differently-constituted review panel.

48. The Taouk Parties’ submissions fall into two distinct parts. The first concerns the presently constituted proceedings and raises a number of deficiencies in the form and content of the Summons and its date of filing. The second part concerns substantive grounds as to why leave ought not be granted to file the proposed Amended Summons including:

49. that the relief sought is beyond the scope of a s 89 appeal;

50. the proceedings in the form of the proposed Amended Summons confront issue or Anshun estoppel difficulties or constitute an abuse of process; and/or

51. the proposed Amended Summons is oppressive, vexatious and introduces staged litigation in the absence of any proper explanation for seeking to join the Sixth Respondent.

Procedural irregularity

49. Rule 50.4 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) provides that the summons commencing an appeal must be in the approved form and must contain a statement setting out briefly (but specifically) the grounds relied on in support of the appeal including, in particular, any grounds on which it is contended that there is an error of law in the decision of the court below. The designated form for this is Form 84. The Summons deployed by the Plaintiff is not a Form 84 but, rather, a form referable to r 6.2 UCPR, which is concerned with the institution of proceedings in the Court at first instance, not appeals.

50. That issue should, however, be put to one side. The question of form is secondary and could be amended under s 64 of the Civil Procedure Act 2005 (NSW) (the CPA). The substantive difficulty with the Summons is the Plaintiff’s failure to identify any error by the review panel. That essential deficiency is the core of this matter.

51. The Taouk Parties rely upon a number of authorities in support of the proposition that the Plaintiff must identify one or more errors in the decision of the review panel, namely, Amirbeaggi v EB [2023] NSWCA 108 at [52] (Basten AJA; Kirk JA and Simpson AJA agreeing); Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 at [8] (Meagher JA, Macfarlan and White JJA agreeing); Sweeten v Haggerty [2025] NSWSC 673 at [19] (Payne JA); Bolton v Atanaskovic Hartnell [2024] NSWSC 833 at [38]–[40] (Faulkner J); A.C.N. 627 087 030 Pty Ltd t*/*as Yates Beaggi Lawyers v Poche [2024] NSWCA 145; ACN 627 087 030 Pty Ltd v Theodore [2024] NSWDC 592; (2024) 44 DCLR(NSW) 137 at [17] 144 (Newlinds SC DCJ) and GB v EB [2022] NSWDC 322 at [34] (Gibson DCJ).

52. The leading authority in this area is Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 (Gilmore Finance). At [8] of that judgment, Meagher JA quotes Gageler J (as his Honour then was) in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at 555 [31] where his Honour confirms that, on appeal by way of rehearing, the requirement to identify an error “may be satisfied by reason of further evidence adduced in the appeal or a change in the law which has the result that looked at in retrospect the decision appealed from was in one or more respects incorrect”.

53. When [8] of Gilmore Finance is read together with the preceding paragraph, it is plain that the Court’s power under s 89(4) is exercisable only where the appellant demonstrates that the order is the result of some legal, factual or discretionary error.

54. The foundation of the distinction between an appeal by way of rehearing, on the one hand, and a hearing de novo on the other, is drawn from Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at 180–181 [23].

55. Applying these authorities to the Summons establishes that the pleading fails in a critical way to disclose any error by the review panel which justifies setting aside the certificates of determination issued on 6 February 2025.

56. The legal principles concerning appeals against costs review panels’ decisions are well established. The Summons does not disclose any error in the review panel’s decision. It seeks to challenge the decision of a costs review panel without articulating the precise grounds upon which such a challenge is made in circumstances of a rehearing rather than a de novo hearing. I consider that the Summons is embarrassing in the sense expressed in McGuirk v University of New South Wales [2009] NSWSC 1424 at [30] (Johnson J) and I will strike it out pursuant to r 14.28 UCPR.

Should leave be granted to file the proposed Amended Summons?

57. That is not the end of the matter. The proposed Amended Summons contains additional orders, including declaratory relief concerning the identities of parties that are alleged to have entered into the 28 October 2020 costs agreement followed thereafter by ten forms of declaratory relief. The proposed Amended Summons also seeks an order that the Sixth Respondent be added as a party to the first costs assessment and that the Taouk Parties and Rawson Constructions be added as parties to the second costs assessment.

58. The Taouk Parties oppose the proposed Amended Summons on the basis that to allow it would ignore the issues argued before, and determined by, the costs assessor and review panel concerning the identity of the parties liable to pay fees. They also argue that the proposed Amended Summons is a collateral attack and cannot be raised due to either issue estoppel, Anshun estoppel or an abuse of process.

59. Further, the Taouk Parties argue that the proposed Amended Summons contains the same deficiencies that render the Summons embarrassing.

Issue Estoppel

60. The Taouk Parties submit that an issue estoppel is said to be created by the review panel’s finding that there was no valid third-party payer costs agreement between the Plaintiff and the Taouk Parties and that the finding was a necessary step in the review panel’s decision.

61. In support of their position, the Taouk Parties cite the recent decision of Walton J in Kekatos Lawyers Pty Ltd trading as Kekatos Lawyers v Dana Rahme [2025] NSWSC 1320 (Kekatos) at [71]–[114]. In answer, the Plaintiff submits that the decision in Bingham v Bevan (2023) 111 NSWLR 287; [2023] NSWCA 86 (Bevan**) supports the ability of the Plaintiff to agitate these matters by seeking declaratory relief in the proposed Amended Summons. To resolve this issue, it is necessary to consider these two decisions.

62. In Kekatos, the plaintiff had successfully acted for Ms Rahme on appeal against B&K (solicitors). Following the appeal, Ms Rahme conducted two party/party cost assessments against B&K. In both of those assessments, she presented the written cost agreements between herself and Mr Kekatos (the principal of Kekatos Lawyers) to the costs assessor and asserted her liability to pay Kekatos Lawyers under those agreements. She obtained cost certificates, registered as judgments, in her favour. Those assessments were affirmed on review and by consent on appeal.

63. Kekatos Lawyers then commenced a solicitor/client assessment to recover its fees from Ms Rahme. When faced with this assessment, Ms Rahme took a position diametrically opposed to that which she adopted in her party/party assessment. She denied that written agreements existed, claiming that the retainer was in the nature of a ‘no-win-no-pay’ and ‘pay-if-paid’ agreement. The costs assessor rejected that argument and assessed costs of $288,590.74 due to Kekatos Lawyers. In the subsequent review of the assessor’s decision, Ms Rahme did not challenge the existence of the written agreements and in fact relied on their terms.

64. Kekatos Lawyers then commenced proceedings in the Supreme Court to enforce a lien held over the funds. Ms Rahme filed a cross-claim effectively repleading that the retainer was oral and conditional and that no written costs agreement existed. Kekatos Lawyers moved to strike out the cross-claim. Walton J, granting the motion, held that the cross-claim was an abuse of process. Ms Rahme had previously and successfully relied on the existence and terms of the written costs agreement to establish her liability in the party/party assessments. To now deny that those agreements existed was directly contrary to positions successfully maintained in prior proceedings of the same court.

65. His Honour drew a sharp distinction between s 93C(3) L**PULAA, and s 199(2) LPUL. Section 93C(3) of the LPUL**AA is as follows:

93C Costs assessors

…

(3) For the purpose of determining an application for assessment or exercising any other function as a costs assessor, a costs assessor may determine any anterior or incidental question of fact or law, but not so as to establish an issue estoppel for that question for the purpose of any other proceedings.

66. Section 199(2) LPUL is as follows:

199 Costs assessment

…

(2) On a costs assessment, the costs assessor must—

(a) determine whether or not a valid costs agreement exists; and

(b) determine whether legal costs are fair and reasonable and, to the extent they are not fair and reasonable, determine the amount of legal costs (if any) that are to be payable.

67. In effect, s 93C(3) LPULAA authorises costs assessors to determine anterior or incidental matters without creating an issue estoppel for those determinations, while s 199(2) LPUL mandatorily requires a costs assessor to determine whether valid costs agreements exist as a substantive, primary function rather than as an incidental step.

68. Bevan involved different circumstances to those in Kekatos. In Bevan a barrister (Mr Bevan) entered into costs agreements with a solicitor (Mr Bingham) for High Court proceedings. Each agreement contained a condition that Mr Bingham’s liability to pay Mr Bevan’s fees was conditional upon Mr Bingham first recovering those fees from either the client or the opposing party (the cl 4 condition). Mr Bevan’s disclosure of estimated fees was grossly inadequate. He estimated approximately $60,000 but ultimately invoiced over $300,000. Since the client became bankrupt without paying, Mr Bingham’s liability to pay under the condition never arose.

69. The costs assessor found that Mr Bevan had contravened his disclosure obligations under s 175(2) LPUL. On the basis of that finding, Mr Bevan argued that the costs agreements were void under s 178(1) LPUL, thereby stripping away the cl 4 condition and rendering his fees immediately recoverable in full from Mr Bingham. The costs assessor accepted this argument and assessed costs in Mr Bevan’s favour.

70. Mr Bevan subsequently registered the certificate of determination of costs as a judgment of the Supreme Court against Mr Bingham, who applied under r 36.15(1) UCPR to set aside the judgment on the basis that it was obtained irregularly. The application was dismissed at first instance, before an appeal was allowed by the Court of Appeal.

71. The Court of Appeal was required to consider a number of matters in relation to the contractual relationship between Messrs Bevan and Bingham. Basten AJA, who delivered the principal judgment (with which Meagher and White JJA agreed), observed the following at 293 [30]:

“The substantive issue was whether the failure of the barrister to make proper disclosure of the costs estimates in accordance with Pt 4.3 Division Three of the uniform law resulted in the avoidance of the whole of each of the second and third costs agreements, including CL4, thus depriving the solicitor of the right to rely on the non-satisfaction of the condition in that clause. If that were the case, the failure of the barrister to fulfil his legal obligation resulted in his obtaining an unconditional right to payment of his costs by the solicitor, being a right which did not arise under the costs agreement which he had proposed and voluntarily entered into. That somewhat surprising result was adopted by the primary judge.”

72. The key issue that the Court of Appeal was required to determine was the interplay between ss 178(1)(a) and 199(2)(a) LPUL. In relation to s 199(2), Basten AJA stated at 294 [34]:

“There was no doubt that, in accordance with Pt 4.3, Div 7 of the Uniform Law, the costs assessor was required to “determine whether or not a valid costs agreement exists” (s 199(2)(a)). That was necessary for the purpose of determining whether the charges were “fair and reasonable” (s 199(2)(b)), because a costs agreement constitutes “prima facie evidence that legal costs disclosed in the agreement are fair and reasonable”: s 172(4). However, that evidential provision only operates if the provisions of Div 3 concerning cost disclosures have been complied with: s 172(4)(a).”

73. Basten AJA went on to state, at 294–295 [36], being the central paragraph upon which the Plaintiff relied before me, as follows:

“In principle, there is no doubt that the costs assessor, like any tribunal, has power to determine whether a criterion of engagement of a statutory power has been fulfilled. However, it does not follow that the view formed by the costs assessor will be determinative for other purposes. If the effect of the ruling by the assessor as to whether costs were due and payable were to be determinative, it would effectively deprive a court of jurisdiction to determine contractual issues between the parties. While it might be open to the legislature to remove such a right of access to the ordinary courts, as a matter of statutory construction, such an intended outcome should only be accepted where expressed in clear terms. In circumstances where a costs assessor has no power to take evidence or conduct adversarial proceedings in relation to contractual issues, that would be a startling outcome. In fact, the Application Act, in Pt 7, Div 8, expressly denies such an outcome, no doubt from an abundance of caution.”

74. Basten AJA then addressed s 93C.

75. The judgment of Basten AJA does not in itself resolve the controversy here. The issue before me is whether the assessor and review panel, in complying with their central obligation under s 199 LPUL, are engaged in the determination of “any anterior or incidental question of fact or law”. This was not determined by the Court of Appeal in Bevan but was determined by Walton J in Kekatos. At [82]–[95] his Honour held as follows:

“82 It is evident that the provisions of s 93C(3) and s 199(2) are dealing with different functions of a costs assessor. This conclusion may be arrived at on two bases. The first is the nature of the function conferred.

83 The power conferred upon the costs assessor under s 93C(3) is ancillary to any other substantive function engaged in by the costs assessor.

84 It is clear that the function conferred on the costs assessor under s 199(2)(a) is, in contrast, a substantive power as illustrated by the use of the word “determine” on two occasions in subs (2).

85 The second indicator of the difference is that the legislature has drawn a distinction between the scope of the functions of the costs assessor in each such provision as between the conferral of a discretion under s 93C(3) and the mandatory requirement to assess the validity of a costs agreement under s 199(2)(a).

86 In s 199(2)(a), the legislature has used the word “must” to govern the function of the costs assessor. Normally the use of the word “must” involves the legislature entrusting a function which is to be taken prima facie as imposing an obligation to exercise that function: Grunwick Processing Laboratories Ltd v Advisory Conciliation & Arbitration Service [1978] AC 655 at 690 (per Lord Diplock) and 698 (per Lord Salmon).

87 There is an even stronger inference that the word “must” in s 199(2)(a) creates a mandatory requirement in this case as the legislative scheme plainly indicates an intention that the assessment under s 199(2)(a) is a pre-requisite to the ultimate determination of the costs assessor. So much is also clear from the terms of s 199(2)(b) which, in my view, involves a discrete step for which a conclusion must be reached after the determination made under subs (2)(a). Under subs (2)(b), the cost assessor must determine whether the legal costs are reasonable, and if not, what legal costs (if any) are payable.

88 Before turning to s 93C of the Uniform Law Application Act, I note that this is not a case where, strictly speaking, the legislature has within the one statute used the words “shall” or “must” in juxtaposition to the word “may”; this representing an aid to construction. However, it should be noted that there is clearly different language being employed between these related statutes by the use of the words “may” and “must”.

89 It was not suggested by the defendant that the use of the word “may” in s 93C(3) of the Uniform Law Application Act did not confer a discretion. In any event, the language of the provision is consistent with any presumption of permissiveness that comes with the use of the word “may” because the provision is plainly permissive or facultative. This is illustrated by the function of the costs assessor being such that the costs assessor may determine an anterior or incidental question without creating an issue estoppel.

90 It is plain then that in exercising the function under s 199(2)(a) of the Uniform Law, the costs assessor is engaged in a different function from that reposing on the costs assessor, in the exercise of the costs assessor’s discretion, under s 93C(3) of the Uniform Law Application Act, such that, the costs assessor is not engaged in the determination of a anterior or incidental question of fact or law when making a determination under s 199(2)(a). This is further illustrated by the fact that the function exercised under s 93C(3) expressly excludes the establishment of an issue estoppel in the resolution of the question of fact or law when no such limitation operates with respect to the exercise of the function under s 199(2)(a).

91 The different approaches to the conferral of power by the legislature under s 93C(3) and s 199(2) demonstrate the legislative intention to treat those functions as separate and discrete functions, such that the function exercised under s 199(2) is not an anterior or incidental question under s 93C(3).

92 The plaintiff is correct to submit that, whilst a costs assessor may determine an anterior or incidental question of fact or law for the purposes of s 93C of the Uniform Law Application Act, but without establishing an issue estoppel for that question, that must also mean that a costs assessor may determine a non-anterior or non-incidental question of fact or law, which may have the effect of establishing an issue estoppel for that question. That is given effect under s 199(2) of the Uniform Law.

93 It follows that a determination made under s 199(2)(a) of the Uniform Law may, in fact, create an issue estoppel. The remaining question, as properly posed by the plaintiff, is whether the question raised by the CC as to whether an agreement existed falls within the remit of the costs assessor under s 199(2)(a) of the Uniform Law.

94 On one view of s 199(2)(a), the question may be resolved by the reference to the word “exists”, but that word appears in a phrase “a valid costs agreement exists” and hence, the question arises as to whether the use of the word “valid” might suggest that the provision was not intended to deal with the question as to whether there existed a costs agreement per se.

95 In my view, the legislative intention is clear that the legislature contemplated that the costs assessor will determine whether, in law, a costs agreement exists and that the issue of validity is consistent with the costs assessor examining whether a costs agreement exists simpliciter: Judd v McKeon (1926) 38 CLR 380 at 386 (per Isaacs J).”

76. I am satisfied that this reasoning applies here. A critical issue before the costs assessor and the review panel was the identity of the party or parties liable to pay the Plaintiff’s fees. The Plaintiff sought to extend liability to five parties. She failed. The issues were comprehensively argued, therefore the assessor and then the review panel made substantive, and not ancillary, findings on this matter. Their decisions as to the identity of the party or parties liable to pay fees are, for this reason, the subject of an issue estoppel. The notion that they can be re-argued before this Court, with fresh evidence, would render the costs assessment process a ‘dry run’. This was not intended by Parliament, as is evident from s 93C LPUL**AA.

77. The declaratory relief sought in the proposed Amended Summons cannot be pursued.

Abuse of process

78. As set out at [21] and [30] above, the Plaintiff provided evidence and detailed submissions both before the costs assessor and review panel. The role of Rawson Constructions was included in that evidence and submissions. Indeed, it was relied upon in the Plaintiff’s application to the review panel, where the Plaintiff noted that Rawson Constructions paid approximately 90% of her fees. However, the Plaintiff only raised that central role to support her contention that the First to Fourth Defendants were liable. She did not join Rawson Constructions as a party.

79. It is clear the Plaintiff could have raised the issue of Rawson Constructions’ liability during the costs assessment. However, her failure to do so will only be an abuse of process if she also should have raised it: UBS AG v Tyne (2018) 265 CLR 45; [2018] HCA 45 (UBS) at 95–96 [44] (Kiefel CJ, Bell and Keane JJ).

80. Justice Gageler agreed with the plurality, stating at 103 [68]:

“… the question of whether the claim sought to be brought in the later proceedings “should” have been brought in the earlier proceedings cannot be determined solely by reference to interests of the parties to the action. There is a public interest in the timely and efficient administration of civil justice.”

81. In omitting to join Rawson Constructions despite clearly being aware of its role in the matter, the Plaintiff gave herself an opportunity to join Rawson Constructions to these proceedings in the event that her argument before the assessor and review panel failed. I do not suggest it was a tactical omission. I consider the omission of Rawson Constructions from the first costs assessment to be especially concerning in circumstances where, as the Plaintiff said in her submissions to the review panel, Rawson Constructions paid 90% of the total fees she received for her work.

82. On her own evidence before the assessor, the Plaintiff was aware that Rawson Constructions was a company controlled by Mark and Maroun Taouk. As set out above, the Plaintiff’s evidence in her affidavit prepared for the present matter was considerably less clear on this point.

83. The Plaintiff has failed to adequately articulate her reasons for failing to join Rawson Constructions as a party to the first costs assessment. In her submissions, the Plaintiff simply states that she “omitted making Rawson Constructions a party to the costs assessment”. No further explanation was given.

84. The Plaintiff was aware of the significant role played by Rawson Constructions and (at least for the purposes of the first costs assessment) that it was among the companies associated with the Taouk brothers. As I have said, Rawson Constructions was central to the Plaintiff’s costs application. She not only could have joined it, she should have done so.

85. These proceedings concern precisely the same facts as those in the first costs assessment. It is in the first costs assessment that the Plaintiff had an opportunity to join Rawson Constructions. For these reasons, the Plaintiff’s application to join Rawson Constructions is an abuse of process and must be refused. To do otherwise would be inconsistent with the overriding purpose and the objects of case management contained in ss 56 and 57 CPA.

Anshun Estoppel

86. In finding that Ms Orsini’s attempt to join Rawson Constructions is an abuse of process, whether Anshun estoppel applies is no longer a matter of significance.

87. However, the same factual stratum and much of the reasoning that concerns abuse of process are applicable to Anshun estoppel. As Gageler J noted in UBS at 103 [68]–[69], there is substantial overlap between abuse of process and Anshun estoppel.

88. For Anshun estoppel to arise, the subject matter in a proceeding must be “so connected” to the subject matter of a previous proceeding so as to make it unreasonable for the claim not to have been raised in that previous proceeding: Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 256 CLR 212; [2016] HCA 44 at 229 [27].

89. The substance of the first proceeding was the Plaintiff’s asserting her right to payment for the work she undertook in Mr Habambo’s criminal proceedings. A necessary aspect of that was who would make any payment to which the Plaintiff was entitled. That corresponds with the subject matter of this proceeding, which the Plaintiff describes in her written submissions as “who is liable to pay Ms Orsini’s fees?”

90. Having regard to the same factual circumstances that inform my findings with respect to abuse of process, I am of the opinion that Anshun estoppel may arise, with one caveat.

91. The caveat, as to the application of Anshun estoppel, is that I am not persuaded that Anshun estoppel necessarily can arise in the circumstances. The first proceedings were before a review panel. There is some debate and complexity concerning the circumstances in which such a body can give rise to Anshun estoppel.

92. For a costs assessor’s determination to give rise to Anshun estoppel, there must have been some kind of judicial or quasi-judicial determination: Cachia v Isaacs (1985) 3 NSWLR 366 at 368–369. The entry of judgment on a costs assessor’s certificate is a ministerial act and not a judgment of a court: Zepinic v Chateau Constructions (Australia) Ltd (No. 2) [2013] NSWCA 227 at [76] (McColl JA). However, it is not only the decision of a court that can give rise to Anshun estoppel. The issue seems to be heavily dependent on the precise nature of the power and the language of any act under which the power arises: Burrell Solicitors Pty Ltd v Reavill Farm Pty Ltd [2016] NSWSC 303 at [133]–[140] (White J). Although that issue could arise with regard to issue estoppel, too, I consider that the Court of Appeal’s decision in Bevan demonstrates otherwise.

93. If an Anshun estoppel were to arise I consider that it would apply here. In the circumstances, I need not consider that issue further as my finding that the matter is an abuse of process has led to questions of Anshun estoppel falling away.

94. The Taouk Parties also raised an issue concerning whether the proposed Amended Summons, in seeking to join additional parties, is out of time. But for the joinder of those additional parties, no issue as to the timeliness of filing would arise but I accept the Taouk Parties’ arguments that the joinder of these parties would reconstitute the claim and require an application for leave to file out of time and evidence from the Plaintiff as to why the Court should exercise its discretion in the Plaintiff’s favour. Because I have found, for other reasons, that the Plaintiff should not be granted leave to file the proposed Amended Summons, I need not decide this issue. The Summons is being struck out. Leave is not being granted to file the proposed Amended Summons. The issue as to time is rendered supererogatory.

Conclusion

95. In accordance with the foregoing reasons, I will not grant the Plaintiff leave to file the proposed Amended Summons. However, I will grant the Plaintiff leave to replead and refile a further Summons within 14 days.

Addenda

96. I add that any attempt by the Plaintiff to establish an entitlement to recover costs against Rawson Constructions would be doomed to fail. The Plaintiff, in her affidavit prepared for this matter, acknowledged the extent of her own ignorance concerning Rawson Constructions. The notion that she could establish some form of binding legal obligation for it to pay her fees (over and above what she has already received) is fanciful. Where a client pays its legal fees using money borrowed from a family member, a bank, or some other source, and that money passes directly from the lender to the solicitor, it does not follow that the lender thereby incurs any liability to the solicitor. I need not say anything further about this issue.

Mr Habambo’s Notice of Motion

97. Mr Habambo filed his own notice of motion on 13 April 2026. Although he also filed a motion on 18 March 2026, Mr Habambo informed me during the hearing that he was not moving on that motion as it was “superseded” by the 13 April 2026 motion. Accordingly, for completeness, I will dismiss the 18 March 2026 motion.

98. Mr Habambo’s motion seeks, primarily, leave to file a cross-appeal pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (the FCPA) and leave to bring a cross-appeal out of time. Should leave be granted, he wishes to file a proposed Notice of Cross-Appeal.

99. Mr Habambo seeks in his proposed cross-appeal to attack the review panel for a denial of procedural fairness or some form of constructive failure to exercise jurisdiction. He also seeks leave to adduce fresh, additional or substituted evidence on the appeal pursuant to s 89(4) LPULAA, though it is not clear how that or several other orders connect to Mr Habambo’s grounds of appeal.

100. If such leave is not granted, Mr Habambo seeks orders that he be granted leave to adduce fresh evidence at the hearing of the appeal, that the Taouk Parties be excused from the proceedings, that the first costs assessment be remitted for reassessment, that the second costs assessment proceed, and that both be determined having regard to any overlap between the invoices which they concern. Mr Habambo also seeks a stay on the enforcement of the certificates of determination arising from the costs assessments until the remitted assessments are completed.

101. In substance, Mr Habambo’s proposed grounds of appeal are that the review panel failed to address certain of his submissions, with the consequence that it erred in determining the quantum of costs.

102. A defendant to an appeal who themselves wish to appeal must, subject to the Court’s discretion, file a cross-summons within 28 days after they are served with the summons commencing the appeal: r 50.10 UCPR.

103. There is a preliminary issue, being that the proposed Notice of Cross-Appeal is not a cross-summons as required by r 50.10 UCPR, which would be a Form 84A. It is instead a Form 105A, which is to be used in proceedings assigned to the Court of Appeal: rr 51.1 and 51.17 UCPR.

104. As was the case with the Plaintiff’s Summons, the form is secondary and I am able to amend documents pursuant to s 64 CPA.

105. For his cross-appeal to be filed, Mr Habambo would need leave to file a cross-appeal pursuant to s 4 of the FCPA, leave to file the proposed Notice of Cross-Appeal out of time and leave to amend the proposed Notice of Cross-Appeal.

106. I consider the most significant and substantial barrier to be Mr Habambo’s required leave to file any cross-appeal out of time. The primary considerations on such an application are the extent of and explanations for the delay, the prejudice to each party if leave is refused and the prospects of success on the proposed appeal: Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34 (Huntley Heritage) at [9] (Basten JA, Beazley P and Leeming JA agreeing).

107. Mr Habambo was required to file a cross-summons within 28 days after being served with the Plaintiff’s Summons: r 50.10 UCPR. That Summons was filed on 22 April 2025. Mr Habambo did not file his Notice of Motion until nearly a year later, on 13 April 2026. There is no evidence of the date on which Mr Habambo was served with the Summons, though at a directions hearing on 10 October 2025, Mr Habambo said that while in gaol, it takes “a minimum of three weeks” for him to receive and reply to material. Even allowing generously for delays occasioned by his incarceration, the application is substantially out of time.

108. Although there is no application for an extension of time in the proposed Notice of Cross-Appeal as required by r 50.10(3) UCPR, some reasons for the delay are provided in Mr Habambo’s affidavit in support of his Notice of Motion. The reasons provided are that he is self-represented, incarcerated and unaware of the appeal process or its procedural requirements.

109. Mr Habambo, while incarcerated, has been able to participate in two costs assessments. Although courts make allowances for self-represented litigants, those litigants are bound by the same duties as other litigants: Duraisamy v Sydney Trains [2019] NSWCA 269 at [25] (Bell P, Macfarlan and Payne JJA agreeing). I do not consider Mr Habambo’s incarceration or decision to represent himself to satisfactorily explain such a long delay.

110. In the same affidavit, Mr Habambo deposes that, if leave is not granted, he will be prejudiced because the review panel’s determination will remain in effect even though his concerns have been voiced since the beginning of the costs application process. I do not consider this to be significant prejudice. The fact that Mr Habambo did not seek to challenge the determination at an earlier time tends to diminish the weight of any prejudice he now claims to suffer from its continuation.

111. I consider that there will be prejudice to the other parties if Mr Habambo is granted leave to file and amend the proposed Notice of Cross-Appeal. The proceedings would take longer and, likely, expand in scope, leading to an associated increase in costs.

112. Regarding the cross-appeal’s prospects of success, if Mr Habambo’s cross-appeal were not so greatly delayed or if he provided an adequate reason for that delay, a fairly arguable case would generally be sufficient. Given the delay and the limited explanation offered for it, I must be persuaded that the proposed cross-appeal has more substantial merit than being fairly arguable: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at 64 [14] (Hodgson JA, Ipp JA agreeing).

113. I am not persuaded that Mr Habambo’s cross-appeal has real prospects of success. There is no self-evident flaw in the review panel’s reasons. Mr Habambo fails clearly to identify a specific error of the kind that would warrant the grant of leave.

114. For those reasons, I will not allow Mr Habambo leave to file his proposed Notice of Cross-Appeal.

115. Even if I had allowed that leave, having regard to the dictates of justice contained in s 58 CPA, I do not consider that the proposed Notice of Cross-Appeal should be filed. Of the greatest salience is the fact that Mr Habambo has not approached filing his cross-appeal expeditiously and to allow it would not be an efficient use of judicial and administrative resources nor would it assist the timely disposal of the proceedings.

116. Mr Habambo seeks alternative orders in the event that leave is not granted to file his cross-appeal out of time. The alternative orders sought are substantially the same as those sought in the proposed Notice of Cross-Appeal.

117. I do not propose to grant any of those orders. They are either now inapplicable, as neither the Plaintiff nor Mr Habambo will be granted leave to appeal and cross-appeal respectively, or they are not matters that I consider it necessary for me to determine.

118. I will not restrain the second costs assessment as there is no need to do so. Nor is there any reason or basis to remit the first costs assessment and have both assessments managed together. Any overlap between the costs the subject of that assessment can be brought to the attention of the assessor of the second costs assessment. For the same reasons, I do not consider that the certificates of determination arising from the first costs assessment need be stayed.

119. As the Plaintiff’s Summons has been struck out and no appeal or cross-appeal will be proceeding unless and until the Plaintiff re-files her Summons within 14 days, there is no proceeding in which new, fresh or substituted evidence could be received. I will dismiss Mr Habambo’s 13 April 2026 motion.

Orders

120. In accordance with the foregoing reasons, I make the following orders:

121. The Plaintiff’s Summons is struck out.

122. The Plaintiff’s Notice of Motion is dismissed.

123. The Plaintiff is granted leave to file any Amended Summons within 14 days of the date of this order.

124. The First to Fourth Defendants’ Notice of Motion is otherwise dismissed.

125. The Fifth Defendant’s Notice of Motion filed on 18 March 2026 is dismissed.

126. The Fifth Defendant’s Notice of Motion filed on 13 April 2026 is dismissed with no order as to costs.

127. The Plaintiff is to pay the Defendants’ costs of the Plaintiff’s Notice of Motion and the First to Fourth Defendants’ Notice of Motion.

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