Martinez v Al Maha Pty Ltd - [2021] NSWSC 932

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)
Turner v Mitchells Solicitors [2011] QDC 61
Viscariello v Oakley Thompson & Co Pty Ltd [2012] VSC 351

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:
J Bartos (Plaintiff)
M Castle (Defendant)
Solicitors:
HWL Ebsworth Lawyers (Plaintiff)
ICL Lawyers (Defendant)

File Number(s): 2020/304474
Publication restriction: Nil

Judgment

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.
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.
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

The law practice has acted for Antoine Bechara and companies associated with him for a number of years.
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…

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: [2021] NSWSC 932
Decision Date: 29 July 2021

CaseChat Overview and Summary

In the matter of Martinez versus Al Maha Pty Ltd, the Federal Court was tasked with assessing the appropriateness of costs incurred in an application for an assessment of those costs. The applicant, Martinez, sought to recover costs that arose from the unsuccessful application for costs assessment. The case hinged on the timing of the application and the legal principle known as the 'piggyback' concept. The 'piggyback' concept refers to the practice where a party seeks to recover costs incurred in making an application for costs assessment as part of the costs of the original matter. The court had to determine whether the applicant's costs were appropriately assessed and whether the timing of the application was permissible under the established legal principles.

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.

Orders