Naomi Liu Legal Pty Ltd v Ren

[2023] VSC 744

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S ECI 2023 02860

NAOMI LIU LEGAL PTY LTD (ABN 64 609 908 269)	Applicant
v
MIN REN	Respondent

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JUDGE:	WATSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 December 2023
DATE OF JUDGMENT:	12 December 2023
CASE MAY BE CITED AS:	Naomi Liu Legal Pty Ltd v Ren
MEDIUM NEUTRAL CITATION:	[2023] VSC 744

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LEGAL COSTS – Application for assessment of costs – Application made out of time – Just and fair for the application for assessment to be dealt with – Application granted – Legal Profession Uniform Law s 198.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Naomi Liu Legal Pty Ltd
For the Respondent	Ms Ren was self-represented

HIS HONOUR:

1. By summons for taxation of costs dated 30 June 2023 (the summons), Naomi Liu Legal Pty Ltd (the applicant) seeks an order under s 198 of the Legal Profession Uniform Law (LPUL) for an assessment of its costs in accordance with invoices dated 30 March 2021, 13 April 2021, 27 April 2021 and 5 May 2021, which it says Ms Min Ren (the respondent) is obliged to pay. 

1. The application for the assessment of costs was made out of time. On 18 October 2023, Conidi JR referred the matter to a judge of the Court in order to determine whether the summons should be dealt with after the twelve-month period prescribed by the s 198(3) of the LPUL. For the reasons that follow, I determine that it is just and fair for the application for the assessment to be dealt with after the twelve-month period.

1. On 2 June 2021, the applicant received notification from the Victorian Legal Services Board and Commissioner (VLSB + C) that it had received a complaint from the respondent about the applicant.  Amongst other things, the complaint disputed  the bills of costs  which are the subject of the summons.  The respondent’s complaint was not finalised until 28 June 2023. 

1. Whilst the complaint before the VLSB + C was extant, s 197 of the LPUL precluded any assessment of costs under Div 7 of Part 4.3 of the LPUL. 

1. On 28 June 2023 (being the day it received notification of the finalisation of the complaint before the VLSB + C), the applicant contacted the Costs Court to enquire as to the appropriate procedure for arranging an assessment.  Further, on the same day, the applicant emailed the Registrar of the Costs Court in the following terms:

I seek to apply for a cost assessment of a lawyer/client cost dispute.  This application is outside the twelve-month limitation period.  The reason for the delay is because the dispute was being dealt with by the Legal Services Board.  However, the Legal Services Board has now closed the matter.  Kindly refer to letter from the Legal Services Board attached. 

May I have the Court’s permission to file this cost assessment application please?

1. On 30 June 2023, the applicant filed the summons.

1. In considering whether to exercise my discretion under s 198(4) of the LPUL to allow the assessment out of time I am required to consider three matters:

(a)   The period of delay;

(b)  The reason for the delay; and

(c)   Whether it is just and fair to permit the application to be dealt with after the expiry of the period limited by the statute.[1]

[1]Rohowskyj v S Tomyn & Co [2015] VSC 511, [3].

1. Whilst the period of delay in seeking an assessment of costs is significant (more than 12 months after the expiry of the LPUL time limit), I am persuaded that the applicant has a reasonable explanation for this delay.   No assessment could be conducted whilst the complaint to the VLSB + C was extant and the applicant filed its summons within two days of the finalisation of the complaint. 

1. In the circumstances, I think it is just and fair to permit the application for assessment of costs to be dealt with after the expiry of the period limited by the LPUL:

(a)   the delay in filing the summons is attributable to the respondent’s own conduct in lodging a complaint about costs with the VLSB + C;

(b)  the applicant will be prejudiced if the application cannot be dealt with in that effectively through no fault of its own, it will be precluded from having its costs assessed;

(c)   there is no evidence of any relevant prejudice to the respondent if the applicant’s costs are assessed.  I discuss this further below; and

(d)  whilst it is plain that the quantum of costs will be heavily disputed by the respondent, there is no material on which it would be safe to conclude at this stage that the application for an assessment is futile.

1. At the hearing of the matter the respondent appeared in person to oppose the application by the applicant to have its costs assessed out of time. The respondent had previously filed written submissions in opposition to the application on 2 November 2023. The respondent’s written and oral submissions all went to the question of whether she should be required to pay the costs which the applicant seeks and did not address the considerations which attend an application for leave to have a bill of costs assessed out of time under s 198(4).

1. The respondent submitted that if I allowed the bill of costs to be assessed out of time she will incur costs disputing the bills.  She also opposed the bill of costs being assessed out of time because she did not want to pay the applicant’s costs.  In circumstances where the delay in the applicant filing the summons is attributable to the respondent’s actions in making a complaint to the VLSB + C,  I do not give these matters any weight on this application.

1. In my view, the respondent will not be relevantly prejudiced by the grant of the applicant’s application for its costs to be assessed out of time:

(a)   she has been on notice regarding the costs the applicant seeks since 2021 and sought to agitate the question of her requirement to pay them in her complaint to the VLSB + C;

(b)  on 15 August 2023 and 2 October 2023, the respondent filed materials in the Costs Court which deal with substantive matters raised by the summons.  A review of those materials does not give rise to any suggestion that the delay in filing the summons will cause the respondent any difficulty in disputing the costs the applicant claims; and

(c)   the respondent says she in entitled to moneys held in the applicant’s trust account on account of costs. The respondent needs a resolution of the costs dispute between her and the applicant in order to gain access to any such moneys to which she is entitled. 

1. In short, having considered:

(a)   the period of the delay;

(b)  the reasons for the delay; and

(c)   whether it is just and fair to permit the application to be dealt with after the expiry of the period limited by the LPUL.

I have determined that it is just and fair for the application for assessment to be dealt with after the twelve-month period in s 198(3) of the LPUL.

1. The applicant’s application is granted.

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