Voicu v The Owners-Strata Plan No 1624

The plaintiff, Mr Voicu, sought judicial review of a costs assessment appeal decision made by the District Court. The dispute concerned the basis on which costs should be assessed following an earlier appeal to the District Court. The Owners-Strata Plan No 1624 was the respondent. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the District Court had erred in law by applying the repealed *Legal Profession Act 2004* (NSW) instead of the *Legal Profession Uniform Law Application Act 2014* (NSW) when assessing costs. A further issue was whether, even if an error occurred, it was so fundamental as to be jurisdictional, and whether relief should be refused on discretionary grounds, particularly given that the application of the correct statute would have resulted in the same substantive order for indemnity costs. The interpretation of the savings provisions of the *Interpretation Act 1987* (NSW) and the definition of "proceedings" under clause 59 of the *Legal Profession Uniform Law Application Regulation 2015* (NSW) were also relevant.

The Court of Appeal found that the District Court had erred in applying the repealed Act. However, it held that this error was not jurisdictional. The Court reasoned that the savings provisions of the *Interpretation Act 1987* (NSW) meant that the repealed Act continued to apply to proceedings that commenced before its repeal, and that the relevant proceedings had commenced prior to the repeal. Crucially, the Court determined that even if the *Legal Profession Uniform Law Application Act 2014* (NSW) had been applied, the substantive outcome of the costs assessment would have been the same, namely that the plaintiff should pay the costs of the Owners-Strata Plan No 1624 on the ordinary basis. Given this, the Court exercised its discretion to refuse relief on the grounds that the error did not occasion any substantial injustice.

The Court of Appeal set aside the costs order made in the District Court on 6 December 2018 and substituted an order that the plaintiff pay the costs of the Owners-Strata Plan No 1624 to be assessed on the ordinary basis. The applicant's notices of motion filed on 18 and 28 October 2019 were dismissed, as was the summons in the Court of Appeal, with no order as to costs.