Mishra v Bennett & Philp Pty Ltd

Mishra v Bennett & Philp Pty Ltd concerned the applicants seeking an assessment of costs charged by their former solicitor, Bennett & Philp Pty Ltd, in relation to trial and appeal proceedings. The applicants had been served with a series of bills by the respondent and were now seeking an assessment of these costs under section 335(1) of the Legal Profession Act 2007. A central issue in the case was whether the applicants had filed their application within the required 12-month period after receiving the relevant bills, as mandated by section 335(5) of the Act. The respondents argued that the applicants were out of time for seeking an assessment of the costs related to the trial proceedings, as the last bill in respect of the trial had been delivered on 31 May 2018 and the application was filed on 16 October 2020. Another issue was whether the bill delivered on 31 May 2018 was an interim bill or a final bill, and whether the conclusion of the trial hearing constituted a 'natural break' in the proceedings. Additionally, the court had to consider whether the applicants had separate retainers for the work done prior to and at trial and that done subsequently.

The court found that the applicants were not out of time to seek an assessment of the costs related to the trial proceedings because the bill delivered on 31 May 2018 was not a final bill but rather an interim bill. Consequently, the 12-month period for seeking an assessment did not commence until the final bill was issued. The court also determined that the conclusion of the trial hearing did not represent a 'natural break' in the proceedings, and there was no evidence of separate retainers for the work done prior to and at trial and that done subsequently. The court further held that even if the applicants were out of time, it would exercise its discretion under section 335(6) of the Act to deal with the application for assessment of costs. Lastly, the court found that the affidavit provided by the applicants met the requirements of rule 743A(5) of the Uniform Civil Procedure Rules 1999, as it identified the part of the costs to be assessed and provided the necessary grounds of dispute.

The final orders of the court were that the costs and disbursements for acting on behalf of the applicants as contained in the specified tax invoices be assessed pursuant to section 335 of the Legal Profession Act 2007, and that Gregory Robert Ryan be appointed as costs assessor for that purpose.