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File Number(s): 2026/00350987

Publication restriction: Nil

JUDGMENT – EX TEMPORE (REVISED)

1. The plaintiff has brought a summons seeking leave to appeal from a decision of the Local Court on 20 August 2026 dismissing her statement of claim against the defendant in that Court and ordering her to pay the defendant’s costs.

2. The plaintiff seeks before me a stay of execution of the Local Court’s orders pending appeal.

3. On the question whether the plaintiff has an arguable ground or grounds of appeal, the Court does not have the pleadings below or the reasons of the Local Court. It is necessary to proceed on the basis of the plaintiff’s summary in her evidence of what occurred and what (relevantly) the primary judge held. On the basis of that summary in evidence, I accept there is an arguable ground of appeal, although I stress I cannot conclude that any ground is strong.

4. The High Court in Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 overturned the previous rule in relation to self-represented solicitors and held that a self-represented solicitor is not entitled to recover, pursuant to a favourable costs order, remuneration for work done by themselves on their own case.

5. In Birketu Pty Ltd v Atanaskovic (2025) 282 CLR 300; [2025] HCA 2 at [33]-[35], in dealing with the costs of an employed solicitor, the High Court observed that the conventional approach is to award costs on a basis comparable to the costs which would have been incurred and allowed had an independent solicitor been engaged, but that this is no more than a “sensible and reasonable presumption”. It may be open to an objecting party to show that the approach in a particular case results in the employer-litigant receiving more than an indemnity. Having said that, the Court also notes at [36] that there could be a different conception of “indemnity” – it might rather be regarded as the reasonable value of non-gratuitous legal work done by another (akin to the way in which a quantum meruit award is given).

6. The point may be attended by complexity. Light has been shed on it especially by the judgment of Leeming JA in Elias v Smidt (No 3) [2025] NSWSC 1062 at [53] and by the Court of Appeal in Rahman v Rahman (No 2) [2025] NSWCA 266 at [74]-[78].

7. Now is not the occasion to rule on the issue, especially mindful that I do not have the judgment and only have the plaintiff’s version of what the evidence disclosed. Nevertheless, I am prepared to accept that there is an arguable ground of appeal. In the absence of the material below, I cannot conclude that it is a strong ground.

8. The applicant also submits that there was a concession in cross examination that there was no retainer and that this is an independent reason why costs could not be recovered. It is unnecessary to address this point separately. It may turn on the transcript below, which is not yet available.

9. The plaintiff also asserts a denial of procedural fairness. That will require consideration of what actually occurred and the circumstances in which it occurred before the Local Court. On the plaintiff’s affidavit version of events, I am willing to accept that there is an arguable ground of appeal on this point. Again, without further information I cannot conclude that the ground for appeal is strong.

10. The amount in dispute, in this appeal the plaintiff tells me, is between $18,000-$20,000 plus the costs liability in respect of the adverse costs order by the Local Court below.

11. The defendant has filed a submitting appearance in this Court.

12. The plaintiff has expressed a concern that the defendant will “move swiftly to enforce the Local Court’s costs orders”. She says that the financial prejudice will be severe and that the utility of her appeal will be substantially undermined or rendered nugatory.

13. I am not able to conclude, on the material before me, that the utility of an appeal would be undermined or rendered nugatory, but I accept on the evidence that the plaintiff would suffer material prejudice if the costs order in the Local Court were enforced against her.

14. In the absence of any evidence or submissions from the defendant, and in light of the submitting appearance, I am satisfied that the balance of convenience favours a stay. While I consider a stay should be ordered, I am not persuaded that it is necessary to restrain the defendant from having his costs assessed if he chooses to do so. That is a matter for him. If he incurs those costs, and the appeal is allowed the costs may be wasted and that will be for him to bear. While this may require the plaintiff to participate in the costs assessment process unless she does not dispute the quantum, the balance of convenience in my view, favours this course.

15. The balance of convenience does not require that the Court make an order which would delay the defendant’s assessment of the costs so the defendant is in a position to proceed in the event that the defendant decides to have the costs assessed, and the plaintiff’s appeal is unsuccessful in having the costs order below set aside.

16. Accordingly, I make the following order:

17. The defendant is restrained from enforcing any costs assessment he obtains in respect of the costs order below.

18. Note for the avoidance of doubt, order 1 does not restrain the defendant from taking steps to have the costs order below assessed.

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