Lelas v Nigams Legal - [2022] WASC 213

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   LELAS -v- NIGAMS LEGAL [2022] WASC 213
CORAM:   ACTING MASTER MCDONALD
HEARD:   24 MARCH 2022
DELIVERED          :   28 JUNE 2022
FILE NO/S:   LPA 7 of 2022
BETWEEN:   DENNIS LELAS
Applicant
AND
NIGAMS LEGAL
Respondent

Catchwords:

Costs - Application for an extension of time for assessment - Lump sum bills - Turns on own facts

Legislation:

Legal Profession Act 2008 (WA), s 252, s 291(3), s 292(1), s295(6), s 295(7)
Legal Profession Regulations 2009 (WA), reg 82

Result:

Time extended

Category: B

Representation:

Counsel:

Applicant	:	A J Camp
Respondent	:	C Bass

Solicitors:

Applicant	:	Alan Camp
Respondent	:	Nigams Legal Pty Ltd

Case(s) referred to in decision(s):

Frigger v Murfett Legal Pty Ltd [2012] WASC 447
Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112
Watson v Hewett & Lovitt Pty Ltd [2022] WASC 184

ACTING MASTER McDONALD:

Summary

This is an application for an extension of time within which to have bills of costs rendered by the applicant's practitioner assessed pursuant to s 295(7) of the Legal Profession Act 2008 (WA) (the Act).
The parties came before me on 24 March 2022 at which time I made orders for the filing of further affidavits. The parties were at liberty to apply for a further hearing by 21 April 2022, failing which the matter would be determined on the papers. Neither party applied for a further hearing.
For the following reasons, I am satisfied an extension of time in which to have the respondent's bills assessed should be granted in relation to Invoice 1014 and Invoice 1093. The application for an extension of time in which to assess Invoice 979 and Invoice 1083 is refused.

Application

On 7 February 2022 the applicant filed an application for an assessment of costs (the Application) of three invoices, namely Invoice 979 issued on 1 February 2019, Invoice 1014 issued on 7 November 2019 and Invoice 1093 issued on 24 March 2020 together with a chamber summons seeking leave for an extension of time. While the application does not refer to Invoice 1083 issued on 19 March 2020, the applicant sought orders by way of a minute filed on 9 March 2022 that the respondent serve itemised versions of all four invoices issued to the applicant. The Application proceeded on the basis that it applied to all four invoices issued to the applicant.
The Application is supported by the following affidavits:
(a)affidavit of Mr Dennis Lelas sworn on 3 August 2021 and filed 11 March 2022;
(b)affidavit of Mr Alan Camp sworn and filed on 15 March 2022;
(c)affidavit of Mr Alan Camp sworn and filed on 23 March 2022;
(d)affidavit of Mr Dennis Lelas sworn and filed on 6 April 2022.
The respondent opposes the Application and relies on the affidavit of Mr Shaswat Nigam sworn on 21 July 2021. The affidavit of Mr Nigam was originally filed in the Magistrates Court in support of the respondent's application for summary…

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] WASC 213
Decision Date

CaseChat Overview and Summary

Dennis Lelas (the Applicant) applied for an extension of time to have his legal costs assessed by Nigams Legal (the Respondent). The Applicant owed $21,415.12 in unpaid legal costs. The Applicant filed an application for assessment of costs of three invoices issued by the Respondent. The Applicant sought orders by way of a minute for the Respondent to serve itemised versions of all four invoices issued to the Applicant. The Applicant filed an affidavit in support of the application, to which the Respondent opposed. The Applicant was not a sophisticated client as defined in the Legal Profession Act 2008 (WA). An application by a client for a costs assessment must be made within 12 months of the bill being given or the request for payment being made. A client who is not a sophisticated client may make an application for an assessment to be made out of time. The court may grant an application for an assessment to be made out of time if, having regard to the delay and the reason for the delay, it determines that it is just and fair for the application to be dealt with after the 12-month period. The court must consider the length of the delay, the reasons for the delay, and whether an extension is just and fair in the circumstances. The Applicant's request for an extension of time to assess Invoice 979 and Invoice 1083 was refused. The Applicant's request for an extension of time to assess Invoice 1014 and Invoice 1093 was granted. The Applicant had not made any attempt to resolve the discrepancies in the invoices for 18 months. The Applicant had paid significant sums into the Respondent's trust account. The amounts payable were difficult to reconcile with what had been paid and what was outstanding. There was no description of the work done. The Applicant was confused as to what he was being charged for and how those bills were to be reconciled with what he had already paid to the Applicant’s solicitor.

Orders