Batterham v Goldberg Trading as Turner Freeman

The applicant, Mr. Batterham, sought to set aside a bankruptcy notice issued by the respondent, Goldberg, trading as Turner Freeman. The dispute arose from unpaid legal fees incurred by Mr. Batterham in prior High Court proceedings. Mr. Batterham's solicitors had changed during these proceedings, but the same counsel was retained. Crucially, neither the solicitors nor counsel had entered into the form of costs agreement required by the *Legal Profession Act 2004* (NSW). An account was rendered for disbursement of counsel's fees, which remained unpaid, leading to a costs assessment sought on a solicitor-client basis. This assessment was not disputed, and the bankruptcy notice was subsequently issued.

The primary legal issues before the court were whether the solicitors were the correct creditor for the purpose of the bankruptcy notice, and whether the High Court's power, as extended by its Rules, encompassed the taxation of costs on a solicitor and own client basis. Further questions arose regarding whether an assessment of solicitor and own client costs should have been made in the High Court, whether a costs certificate was invalid, and consequently, whether a judgment obtained in the Local Court was void. The court also considered whether the provisions of the *Legal Profession Act 2004* (NSW) and its associated Rules constituted a code, and if so, whether they were inconsistent with and therefore invalid by reason of the provisions of the *High Court of Australia Act 1979* (Cth) and the *High Court Rules 2004* (Cth).

Judge Raphael reasoned that the *Legal Profession Act 2004* (NSW) and its Rules did not operate to invalidate the costs assessment or the subsequent judgment. The court found that the provisions of the NSW Act and Rules were not inconsistent with the Commonwealth legislation and Rules governing the High Court. The assessment of costs, even on a solicitor-client basis, was considered valid, and the solicitors were therefore the correct creditor for the bankruptcy notice. The application to set aside the bankruptcy notice was dismissed.