Foundas v Wright Lawyers - [2021] NSWSC 1165

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Foundas v Wright Lawyers [2021] NSWSC 1165
Hearing dates: 2 September 2021
Date of orders: 14 September 2021
Decision date: 14 September 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court Orders:
(1) The plaintiff’s application to extend time to file her application for a review of the Costs Assessor’s decision dated 20 June 2020 is refused.
(2) The summons filed 11 June 2021 is dismissed.
(3) No order as to costs.

Catchwords:
COSTS — Costs assessment — Review Costs Assessment – Extension of time to file review application – Application refused

Legislation Cited:
Legal Profession Act 2004 (NSW), ss 350, 373
Legal Profession Uniform Law (NSW), s 198

Cases Cited:
Foundas v Wright Lawyers [2020] NSWSC 354

Category: Costs
Parties: Cassani Foundas (Plaintiff)
Wright Lawyers (Defendant)
Representation:
Counsel:
Solicitors:
Mr D. Allan (Defendant)

File Number(s): 2021/168804
Publication restriction: Nil

Judgment

HER HONOUR: By summons filed 11 June 2021 the plaintiff seeks an extension of the time to lodge a Review Costs Assessment in 2019/252616 Cassani Foundas v Wright Lawyers Pty Ltd.
The plaintiff is Cassani Foundas. The defendant is Wright Lawyers (“The Law Firm”). Ms Foundas is a former client of The Law Firm, she appeared in person and was articulate. Mr D. Allan appeared on behalf of the defendant. The hearing was conducted by audio visual link. The defendant neither opposed nor consented to the orders sought in the summons. Thus there is no active contradictor.
In Foundas v Wright Lawyers [2020] NSWSC 354, Wilson J helpfully outlined the history of the matters that gave rise to Ms Foundas application to extend time to file an application for a costs assessment at [12] to [30]. I have gratefully adopted and agree with this history. It is as follows:

“[12] In September 2014 the plaintiff instructed the defendant firm to advise and act for her in a dispute with her brother over two Sydney properties. She signed a standard costs agreement with her solicitor on 22 September 2014. At cl 7.1, the costs agreement contained information as to the plaintiff’s rights under the Legal Profession Act 2004 (NSW) (“the LP Act”), in the event of a dispute as to the legal costs incurred.
[13] The plaintiff also executed a costs agreement with counsel who was to be briefed in the matter, on 22 September 2014. On the first page of that agreement a statement of the plaintiff’s rights in relation to counsel’s fees was set out, including her right to:
Apply for the costs to be assessed within 12 months if you are unhappy with my costs.

[14] The defendant and counsel subsequently undertook work for the plaintiff directed to the resolution of the dispute between Mrs Foundas and her brother. It is clear from some of the material relied upon by the defendant that the plaintiff was unhappy with the advice that she received from her lawyers, and rejected it. The dispute with her…

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.

Continue reading Foundas v Wright Lawyers

Details

AGLC: Foundas v Wright Lawyers [2021] NSWSC 1165
Case: [2021] NSWSC 1165
Decision Date: 14 September 2021

CaseChat Overview and Summary

In the matter of Foundas v Wright Lawyers, the respondent sought a review of a costs assessment made in the Supreme Court of New South Wales. The primary dispute involved the quantum of costs awarded, with the respondent arguing that the amount was excessive. The respondent also sought an extension of time to file a review application, arguing that the delay was due to the unavailability of their solicitor. The Court of Appeal was tasked with determining whether the extension of time should be granted and whether the costs assessment should be reviewed.

The court considered the legal principles governing costs assessments and the extension of time for filing applications. It examined whether the delay in filing the review application was reasonable and whether there were any exceptional circumstances that warranted an extension. The court also assessed the appropriateness of the costs awarded, taking into account the nature of the proceedings, the complexity of the issues, and the efforts of the parties involved.

The Court of Appeal found that the delay in filing the review application was not justified, as the respondent had not demonstrated any exceptional circumstances. The court held that the respondent's unavailability was not sufficient to warrant an extension of time. Furthermore, the court determined that the costs assessment was reasonable and appropriate, considering the factors mentioned. Consequently, the application for an extension of time was refused, and the costs assessment was upheld.

The court made no order for costs in relation to the review application.

Orders