Alhalek v Kells the Lawyers - [2021] NSWSC 205

Supreme Court

New South Wales

Medium Neutral Citation: Alhalek v Kells the Lawyers [2021] NSWSC 205
Hearing dates: 23 February 2021
Date of orders: 10 March 2021
Decision date: 10 March 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) The amended summons filed on 17 September 2020 is dismissed.
(2) The plaintiff is to pay the defendant’s costs of the proceedings on an ordinary basis.

Catchwords:
COSTS – Costs assessment – Late application to review certificate – Legal Profession Uniform Law Application Act 2014 (NSW) s 83(1) – Application to Manager, Costs Assessment to extend time – Whether plaintiff was denied procedural fairness – Whether Manager failed to take into account relevant considerations – Review dismissed

Legislation Cited:
Legal Profession Uniform Law Application Act 2014 (NSW) ss 83(1), 93B
Uniform Civil Procedure Rules 2005 (NSW), r 49.19

Cases Cited:
Hamod v New South Wales [2011] NSWCA 375
Kerr v Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721
Lollback v Brakepower Pty Ltd [2010] NSWSC 1457
Portal Software International Pty Ltd vBodsworth [2005] NSWSC 115
SolarusProjects Pty Ltd v Vero Insurance Ltd [2013] NSWSC 328
TomkovPalasty(No2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Voicu v The Owners – Strata Plan No 1624 [2020] NSWSC 296
Wentworth v Graham [2002] NSWSC 397; (2002) 55 NSWLR 638

Category: Principal judgment
Parties: Kyled Alhalek (Plaintiff)
Kells the Lawyers (Defendant)
Representation:
Counsel:
T Yeh (Plaintiff)
A Kaufmann (Defendant)
Solicitors:
Kells The Lawyers (Defendant)

File Number(s): 2020/226091
Publication restriction: Nil

Judgment

HER HONOUR: This is an application to review a decision of the Manager, Costs Assessment (“the Manager”).
By amended summons filed 17 September 2020, the plaintiff seeks:

1.   That the decision of B Bellach Manager Costs Assessment made on 17 July 2020 in Out of Time Costs Assessment Review numbered 2019/242728 be quashed.
2.   That the applicant have leave to provide further evidence on the summons.
3.   That additional time to lodge the review application for costs assessment be granted to the applicant.

The plaintiff is Kyled Alhalek. The defendant is Kells the Lawyers (“Kells”). The parties relied upon a court book.
The underlying dispute between the parties concerns the quantum owed by the plaintiff under an itemised bill of costs issued by Kells on 12 June 2019. Kells was retained by the plaintiff to prosecute certain proceedings on his behalf in the Local Court during 2018. The total amount of the bill was $37,587.55 (excluding $10,000 that had already been paid by the plaintiff) comprising some 172 individual items.
The precise nature of the plaintiff’s complaints in relation to the bill has evolved over time. By the time that the amended summons came to hearing, the complaints focused on nine individual items: six in relation to which the plaintiff alleges he was charged for work not actually performed (those items not appearing in individual invoices issued to the plaintiff from time to time), and three for work…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 205
Decision Date: 10 March 2021

CaseChat Overview and Summary

The case of Alhalek v Kells the Lawyers involved a plaintiff who sought costs from the defendant law firm. The plaintiff argued that the defendant's costs were excessive and unreasonable. The matter was referred to a costs manager for assessment. The plaintiff subsequently made a late application to review the costs certificate issued by the costs manager. The defendant objected to the application on the basis of its lateness, and the plaintiff sought an extension of time to make the application. The plaintiff further argued that the manager had failed to take into account relevant considerations and that the plaintiff had been denied procedural fairness.

The court was required to determine whether the plaintiff's application to review the costs certificate was made outside the statutory time limit and, if so, whether the plaintiff was entitled to an extension of time under section 83(1) of the Legal Profession Uniform Law Application Act 2014 (NSW). The court was also required to consider whether the plaintiff was denied procedural fairness and whether the manager failed to take into account relevant considerations in issuing the costs certificate.

The court found that the plaintiff's application to review the costs certificate was indeed made outside the statutory time limit. However, the court held that the plaintiff was not entitled to an extension of time because the plaintiff had failed to establish any of the grounds specified in section 83(1) of the Act. The court also found that the plaintiff had not been denied procedural fairness and that the manager had taken into account all relevant considerations in issuing the costs certificate. The court dismissed the plaintiff's application to review the costs certificate.

The court ordered that the plaintiff pay the defendant's costs of the application to review the costs certificate, including the costs of the defendant's appearance before the court on the application. The court also ordered that the plaintiff pay interest on the costs from the date of the costs certificate until the date of the order. The court did not make any order as to the costs of the defendant's appearance before the court on the application to extend time.

Orders