Stoltz v Peter Skidmore of Phoenix Legal Consulting Pty Limited

[2021] NSWSC 1063

Supreme Court

New South Wales

Medium Neutral Citation:

Stoltz v Peter Skidmore of Phoenix Legal Consulting Pty Limited [2021] NSWSC 1063

Hearing dates:

24 August 2021

Decision date:

24 August 2021

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) Grant leave to the plaintiff pursuant to s 198(4) of the Legal Profession Uniform Law (NSW) (the Uniform Law) to apply for a costs assessment on the basis that it is just and fair for her application for assessment to be dealt with after the expiry of the 12-month period specified in s 198(3) of the Uniform Law.

(2)   The Court notes that the parties have reached a final agreement as to the terms of the costs assessment in dispute between them; and notes further that each party agrees to indemnify the other and release the other from all further claims arising from the costs assessment claim and costs agreement between them.

(3)   The Court notes that:

(a)   the final agreement is that the funds held on trust in ANZ controlled moneys account BSB xx10, account number xx86 on behalf of both parties by Genuine Legal Pty Ltd be distributed as follows.

(b)   payment of $45,000 to the office account of Phoenix Legal Consulting Pty Ltd.

(c)   payment of the remainder being $16,608.85 as at 23 August 2021 to the plaintiff within 14 days.

(d)   the Family Court of Australia made orders (order 36) on 3 May 2017 by which $61,241 of funds to be paid by way of property settlement to Ms Stoltz were to be paid into a controlled money account established by Ms Stoltz’s then solicitors, Genuine Legal Pty Ltd, and those solicitors were and are restrained from disbursing those funds pending an assessment of costs between the wife and the intervener, Phoenix Legal Consulting Pty Ltd.

(e)   Ms Stoltz and Phoenix Legal Consulting Pty Ltd accept and agree that orders 3(b) and (c) above represent a final assessment of costs between them as referred to in order 36 of the orders of the Family Court of Australia dated 3 May 2017.

Catchwords:

COSTS — Costs assessment — Application for assessment — Timing — Application for extension of time — power to decide whether to extend time lies with the Manager, Costs Assessment — Manager did not treat the plaintiff’s application as an application for an extension of time — Manager’s decision construed as a constructive refusal to exercise jurisdiction — power of single judge to review acts and decision of the Manager — plaintiff’s summons treated as an application for review of the Manager’s constructive refusal — leave granted to apply for a costs assessment

CIVIL PROCEDURE — Court administration — Overriding purpose — Just, quick and cheap resolution of the real issues in the proceedings

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Legal Profession Uniform Law (NSW), s 198

Legal Profession Uniform Law Application Act 2014 (NSW), ss 11, 93B

Category:

Principal judgment

Parties:

Nataliya Stoltz (Plaintiff)
Peter Skidmore of Phoenix Legal Consulting Pty Limited (Defendant)

Representation:

Counsel:
In person (Plaintiff)
P Skidmore (Defendant)

Solicitors:
Not applicable (Plaintiff)
Phoenix Legal Consulting (Defendant)

File Number(s):

2021/182658

Judgment (EX TEMPORE)

Introduction

1. By summons filed on 22 June 2021, Nataliya Stoltz (the plaintiff) seeks an extension of time pursuant to s 198(4) of the Legal Profession Uniform Law (NSW) (the Uniform Law). In support of the summons she reads her affidavit, affirmed on 8 June 2021. The order is sought against Peter Skidmore of Phoenix Legal Consulting Pty Ltd (the defendant), who acted as her solicitor. He relies on his affidavit affirmed on 18 August 2021.

2. The application arises in the context where Mr Skidmore provided a final bill of costs to the plaintiff on 13 July 2015. As a consequence, time began to run under s 198(3) of the Uniform Law, which relevantly provides that an application for costs assessment is to be made within 12 months after the bill was given to the client. Accordingly, the time for applying for a costs assessment expired in July 2016.

3. However, the running of time is subject to the power under s 198(4) which provides:

“However, an application that is made out of time may be dealt with by the cost assessor, if the designated tribunal on application by … the client or third party payer who made the application for assessment, determines, after having regard to the delay, and the reasons for delay that it is just and fair for the application for assessment to be dealt with after the 12-month period.”

4. The matters contained in the plaintiff’s affidavit explain the reasons for the lengthy delay in applying for a costs assessment. I note that the application for an extension is supported by the defendant and the parties have agreed on proposed orders which will resolve all issues between them.

The relevant facts

5. The present application has come about in circumstances where the plaintiff applied for costs assessment to the Supreme Court. The matter was allocated to the Manager, Costs Assessment (the Manager) who, by email dated 28 May 2021, informed the plaintiff that as she had lodged the application late she needed to apply for an extension of time. Further, the Manager told her that, in order to apply for an extension of time, she needed to file a summons in the Common Law Division of this Court and have the matter referred to a judge, who could consider whether or not the extension ought be granted. As is evident from the facts set out above, the plaintiff did what the Manager had suggested she do.

Consideration

6. Section 11 of the Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act) provides, in Table 2, that the designated tribunal for an application under s 198(4) of the Uniform Law is the Manager. Thus, the Manager is the person who has power under s 198(4) of the Uniform Law to decide whether to extend time. The acts and decisions of the Manager are reviewable by this Court in the same manner as acts and decisions of other registrars are reviewable by the Court: s 93B(3) of the Application Act.

7. In other words, had the Manager refused the application for extension of time it would have been open to the plaintiff to seek review of that decision before me and I would have had power under s 93B(3) to reverse that decision and grant an extension of time. Were I simply to remit the matter for determination by the Manager, I would be requiring the parties to engage in a process which, in my view, would be inimical to the just, quick and cheap resolution of the real issues in the proceedings, which is the overriding purpose of the Civil Procedure Act 2005 (NSW) as provided in s 56.

8. I propose to construe the Manager’s decision not to treat the plaintiff’s application for a costs assessment as an application for an extension of time as amounting to a constructive refusal to exercise the jurisdiction conferred by s 11 of the Application Act, from which a right of review would lie under s 93B of the Application Act. In these circumstances, I am prepared to regard the plaintiff’s summons as being, in effect, an application for review of the Manager’s constructive refusal.

9. The power to review the Manager’s decision is a power to be exercised de novo on the merits. I am satisfied on the basis of the plaintiff’s affidavit that it is both just and fair for her application for costs assessment to be dealt with after the 12-month period. I have also taken into account Mr Skidmore’s evidence.

10. The parties have helpfully provided short minutes of order, which they have signed. I will make those orders with some amendments as follows.

Orders

11. For the reasons given above I make the following orders and note the following matters:

1. Grant leave to the plaintiff pursuant to s 198(4) of the Legal Profession Uniform Law (NSW) (the Uniform Law) to apply for a costs assessment on the basis that it is just and fair for her application for assessment to be dealt with after the expiry of the 12-month period specified in s 198(3) of the Uniform Law.

2. The Court notes that the parties have reached a final agreement as to the terms of the costs assessment in dispute between them; and notes further that each party agrees to indemnify the other and release the other from all further claims arising from the costs assessment claim and costs agreement between them.

3. The Court notes that:

1. the final agreement is that the funds held on trust in ANZ controlled moneys account BSB xx10, account number xx86 on behalf of both parties by Genuine Legal Pty Ltd be distributed as follows.

2. payment of $45,000 to the office account of Phoenix Legal Consulting Pty Ltd.

3. payment of the remainder being $16,608.85 as at 23 August 2021 to the plaintiff within 14 days.

4. the Family Court of Australia made orders (order 36) on 3 May 2017 by which $61,241 of funds to be paid by way of property settlement to Ms Stoltz were to be paid into a controlled money account established by Ms Stoltz’s then solicitors, Genuine Legal Pty Ltd, and those solicitors were and are restrained from disbursing those funds pending an assessment of costs between the wife and the intervener, Phoenix Legal Consulting Pty Ltd.

5. Ms Stoltz and Phoenix Legal Consulting Pty Ltd accept and agree that orders 3(b) and (c) above represent a final assessment of costs between them as referred to in order 36 of the orders of the Family Court of Australia dated 3 May 2017.

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Decision last updated: 24 August 2021