Santo v Childs Family Kindergarten Limited & Anor

[2007] NSWLEC 117

Land and Environment Court

of New South Wales

CITATION:	Santo v Childs Family Kindergarten Limited & Anor [2007] NSWLEC 117
PARTIES:	APPLICANTS Michele Santo and Paolina Santo FIRST RESPONDENT Childs Family Kindergarten Limited SECOND RESPONDENT Rita Dora Shagrin
FILE NUMBER(S):	40869 of 2005
CORAM:	Pain J
KEY ISSUES:	Costs :- whether costs order should limit costs assessor's discretion to award costs for undertaking costs assessment
LEGISLATION CITED:	Legal Profession Act 2004 Pt 3.2 s319, s357, s 359, s363, s364 s373, s373A and s374
DATES OF HEARING:	29 January 2007
EX TEMPORE JUDGMENT DATE:	29 January 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr M Brabazon SOLICITOR Burrell Solicitors FIRST RESPONDENT Mr M Fraser SOLICITOR Elliot Tuthill Solicitors SECOND RESPONDENT No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

31 January 2007

40869 of 2006 Michele Santo and Paolino Santo v Childs Family Kindergarten Limited & Anor

EX TEMPORE JUDGMENT ON COSTS

1 Her Honour: On 15 December 2006 orders were made by consent and costs in this matter were reserved. The parties have agreed that the First Respondent should pay the costs of the Applicant as agreed or assessed. The Applicant seeks additional words to be added to the costs order that:

… in the event of assessment of costs the reasonable costs of any Law Practice acting on such assessment .

2 An affidavit of the Applicant’s solicitor Mr Burrell sworn on 24 January 2007 was relied on. He attests to his experience in three matters where costs assessors have substantially reduced the amount of fees claimed for costs assessment preparation of his firm and applied a lesser rate likely to be paid to a non legally qualified costs consultant. Essentially his submission and evidence is that if this matter proceeds to costs assessment his firm’s fee for preparing the party/party bill is unlikely to be paid to the extent that it should be and his client will be at a costs disadvantage.

3 The First Respondent opposes this application on the grounds that it is premature and the Court should not intrude prior to the costs assessment process being undertaken under the Legal Profession Act 2004 (the Legal Profession Act).

4 At this stage the costs assessment process has not been embarked upon and no bill of costs has been prepared and submitted to a costs assessor. The relevant part of the Legal Profession Act is Ch 3 Pt 3.2 Div 11 Subdivision 3 Party/party costs. Part 3.2 Costs Disclosure and Assessment provides a comprehensive process for the assessment of costs; see particularly s 319, s 357, s 359, s 363 and s 364.

5 I am not aware of an order in the terms sought ever being made by this Court, nor have the parties been able to identify any such orders in this Court or elsewhere. The Applicant’s solicitor argued that such an order is justified in this matter because he should undertake the costs assessment process. He is familiar with it and the efficient billing system used by him indicates those matters that are party/party and those which are solicitor/client and his system should be utilised in the costs process. That fact alone does not sufficiently differentiate this matter from any other litigation to suggest that the Court should intervene in the costs assessment process and make the order sought. Essentially the Applicant is seeking by the form of the order for costs sought to have the Court limit the discretion of the costs assessor who deals with the matter. The order, if made, prevents the assessor ordering the allocation of costs for the assessment process on the basis of a percentage fee. The Applicant's solicitor considers the percentage fee approach does not result in adequate compensation of the costs of undertaking the assessment. I am not convinced that there is sufficient reason provided that I should exercise my discretion to make the order sought.

6 I agree with the Respondent’s submissions that this application is premature and the costs assessment process under the Legal Profession Act should proceed. I note there is a review process available under s 373, s373A and s374 of the Legal Profession Act in the costs assessment process whereby a costs assessor’s decision can be referred to a panel of two further assessors for review.

Orders

7 I therefore makes the following order, that the First Respondent pay the Applicants’ reasonable costs of and incidental to the proceedings as agreed or assessed, except the costs of and incidental to the hearing on costs on 29 January 2007 in relation to which the Applicants shall pay the costs of the First Respondent as agreed or assessed.