Benton v CMC Lawyers Pty Ltd - [2022] NSWSC 1548

Supreme Court

New South Wales

Medium Neutral Citation: Benton v CMC Lawyers Pty Ltd [2022] NSWSC 1548
Hearing dates: 1 June 2022 – 2 June 2022
Decision date: 17 November 2022
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Order under s 728 of the Legal Profession Act 2004, that the defendant provide to the plaintiff an itemised bill of costs in respect of the legal costs the subject of the invoice issued on 11 April 2018, including in respect of the services rendered by Mr Quinlivan within 28 days of the date of this order.
(2) Declare that it is just and fair for an application for assessment to be dealt with after the 12-month period permitted under s 350(5) of the Legal Profession Act 2004.
(3) Costs are reserved.

Catchwords:
CIVIL PROCEDURE – application for itemised bill of costs from previous solicitors – application for declaration that costs assessment application is just and fair – where application is made more than 12 months after issue of invoice – where applicant not a sophisticated client – where potential duplication of legal costs and disbursements – limited prejudice to respondent if orders made – troubling aspects

Legislation Cited:
Evidence Act 1995 (NSW)
Legal Profession Act 2004 (NSW)

Cases Cited:
Golden Destiny Investments Pty Ltd v McCrohonBergseng Partners t/as MBP Legal [2016] NSWSC 1639
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Le v Brydens Lawyers Pty Ltd [2017] NSWSC 180
Mackowiak v Hagipantelis; Bickhoff v Hagipantelis [2015] NSWSC 1087

Category: Principal judgment
Parties: Michelle Benton (Applicant)
CMC Lawyers Pty Ltd (Respondent)
Representation: Counsel:
R Sheldon SC & M Castle (Applicant)
F Salama & E Bartley (Respondent)
Solicitors:
Brydens Lawyers Pty Ltd (Applicant)
CMC Lawyers Pty Ltd (Respondent)

File Number(s): 2021/165007
Publication restriction: Nil

Judgment

Introduction

By way of a summons filed in this Court on 8 June 2021, Ms Michelle Benton (for clarity in light of her differing roles at differing stages of related litigation, “the applicant”) seeks two substantive orders against CMC Lawyers (“CMC” or “the respondent”).
The first is that, pursuant to s 728 of the Legal Profession Act 2004 (NSW) (since repealed; “the LPA”), the respondent provide her with an itemised bill of the legal costs reflected in an invoice of 11 April 2018, within 28 days of the making of such an order.
The second, sought pursuant to s 350(5) of the same Act, is a declaration that it is just and fair for an application for assessment of costs to be dealt with after the expiry of the twelve month limitation period referred to in s 350(4) of the Act.
It was agreed between the parties that the iteration of that repealed Act that applied as at the date of first consultation of the applicant with CMC is the one to which I must give consideration. I have acted upon that joint submission.
For the following reasons, I consider that both orders should be made.

Background chronology

I understood…

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: [2022] NSWSC 1548
Decision Date: 17 November 2022

CaseChat Overview and Summary

Benton, the appellant, lodged an application against CMC Lawyers Pty Ltd, the respondent, seeking an itemised bill of costs from a previous matter and a declaration that the costs assessment application was just and fair. The application was made more than twelve months after the issue of the invoice. The appellant was not considered a sophisticated client, and there was potential for duplication of legal costs and disbursements. The court was required to determine if the application was made within a reasonable time and if the troubling aspects outweighed the potential prejudice to the respondent.

The court examined the principles governing the enforcement of costs orders and the statutory provisions regarding the time limits for such applications. The court considered the appellant's status as a non-sophisticated client and the potential for duplication of costs. The troubling aspects of the case, such as the delay in making the application and the potential for duplication, were weighed against the limited prejudice to the respondent if the orders were made. The court held that the troubling aspects outweighed the potential prejudice to the respondent, and the application was not made within a reasonable time. The court dismissed the application.

The court noted that the troubling aspects of the case, including the delay in making the application and the potential for duplication of costs, were significant. The court found that these aspects outweighed the limited prejudice to the respondent if the orders were made. The court emphasised the importance of adhering to the statutory time limits for making costs assessment applications and the need to balance the interests of both parties in such cases. The court dismissed the application and ordered the appellant to pay the respondent's costs of the application.

Orders