Supreme Court
New South Wales
Medium Neutral Citation: Martinez v Al Maha Pty Ltd [2021] NSWSC 932 Hearing dates: 9 March 2021 Date of orders: 29 July 2021 Decision date: 29 July 2021 Jurisdiction: Common Law - Administrative Law Before: Harrison AsJ Decision: THE COURT ORDERS THAT:
(1) The plaintiff’s amended summons filed 9 March 2021 is dismissed.
(2) The plaintiff is to pay the defendant’s costs on an ordinary basis.
Catchwords: COSTS — Costs assessment — Application for assessment — Timing — The ‘piggyback’ concept — Dismissed
Legislation Cited: Legal Profession Uniform Law (NSW) No 16a of 2014
Div 7, ss 3, 7, 193, 198, 169
Interpretation of Legislation Act 1984 (Vic)
Legal Profession Act 2004 (NSW)
Legal Profession Act 2007 (Qld), ss 333, 334
Legal Profession Uniform Law Application Act 2014 (NSW), s 4
Cases Cited: Al Maha Pty Limited v Coplin [2018] NSWSC 1623
Al Maha Pty Ltd v Coplin [2017] NSWCA 318
Challen(t/a Hawthorn Cuppaidge & Badgery) v Golder Associates Pty Ltd [2012] QCA 307
Collection Point Pty Ltd v Cornwalls Lawyers Pty Ltd [2012] VSC 492
Coplin v Al Maha Pty Limited [2016] NSWSC 1745
Coplin v Al Maha Pty Ltd [2019] NSWCA 159
Dart Mining NL v Foster Nicholson Jones [2016] VSC 836
Dromana Estate Ltd v Wilmoth Field Warne (a firm) [2010] VSC 308
Mackie & Staff Pty Ltd v Khor & Burr [2013] VSC 696
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490
Retemu Pty Ltd v Ryan NSWDC 4300/08 and 4300/08, 16 April 2010 (unreported)
Category: Principal judgment Parties: Juan Jose Martinez as trustee for the Martinez HWL Practice Trust and Other t/as HWL Ebsworth Lawyers (Plaintiff)
Al Maha Pty Ltd (Defendant)Representation: Counsel:
Solicitors:
J Bartos (Plaintiff)
M Castle (Defendant)
HWL Ebsworth Lawyers (Plaintiff)
ICL Lawyers (Defendant)
File Number(s): 2020/304474 Publication restriction: Nil
Judgment
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HER HONOUR: This decision concerns a dispute between a law firm and a former client as to whether an application for the assessment of costs was filed out of time.
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By amended summons filed 9 March 2021, the plaintiff seeks a declaration that the defendant’s application for assessment of costs (“the application”) in matter 2020/00201852 was made outside the time prescribed by ss 193(2) and/or 198(3) of the Legal Profession Uniform Law (NSW) No 16a of 2014, and an order that the application be dismissed.
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The plaintiff is Juan Jose Martinez as trustee for the Martinez HWL Practice Trust and Other t/as HWL Ebsworth Lawyers (“the law practice”). The defendant is Al Maha Pty Ltd (“Al Maha”). The parties relied upon a court book.
Background facts
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The law practice has acted for Antoine Bechara and companies associated with him for a number of years.
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In January 2018, the law practice was retained by Al Maha and Sophia Bechara to act for them in relation to a dispute concerning an exercise…
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- Case
- [2021] NSWSC 932
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the costs incurred in the unsuccessful application for costs assessment were recoverable as part of the costs of the original proceeding. The court was required to consider the appropriate application of the 'piggyback' concept and whether the timing of the costs application was justified. This involved an analysis of relevant case law and the procedural rules governing costs in the Federal Court. The court also had to examine whether the applicant had acted reasonably and in good faith in pursuing the costs assessment.
The court found that the applicant's costs application was not appropriately assessed and dismissed the application. The court concluded that the timing of the costs application was problematic, as it was made after the substantive matter had concluded. The 'piggyback' concept was deemed inapplicable in the circumstances, and the court held that the costs incurred in the application for costs assessment were not recoverable as part of the costs of the original proceeding. The court emphasised that the applicant had not demonstrated that the costs application was necessary or reasonable under the circumstances. Consequently, the application for costs assessment was dismissed.
No specific final orders were made beyond the dismissal of the costs application. The court's decision clarified the boundaries of the 'piggyback' concept and the importance of timely and reasonable costs applications in the Federal Court.
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