Bryony Adams on her own and on behalf of all the partners in the firm known as Herbert Smith Freehills (ABN 98 773 882 646) v PlayUp Ltd (ACN 612 529 307)

1. [1]

   PAYNE JA: On 10 February 2026, this matter came before me in the Common Law Division. The plaintiffs, Bryony Adams on her own behalf and on behalf of all the partners in the firm known as Herbert Smith Freehills (ABN 98 773 882 646), were represented by Mr Baron Levi. The first and second defendants, PlayUp Limited and Fan Technologies Pty Limited, were represented by Mr Bailey. A two-volume Court Book was tendered. Mr Bailey did not have instructions to consent to the relief sought by the plaintiffs but accepted that he could advance no submission in opposition to the making of the orders sought.

2. [2]

   The orders I made on that day were:

3. [3]

   These are my reasons for making those orders.

Relevant facts

1. [4]

   This proceeding concerns one aspect of the consumer protection provisions of the Legal Profession Uniform Law 2014 (NSW) (“LPUL”).

2. [5]

   In February 2022, Ms Bryony Adams, a partner of Herbert Smith Freehills (“HSF”) (as it was then known), was approached by the first defendant with a request to provide legal advisory services in relation to proceedings it had commenced in the Federal Court of Australia (NSD1247/2021) against one of the first defendant’s former directors, Dr Laila Mintas.

3. [6]

   On 15 March 2022, the primary contact of the first defendant, General Counsel Mr Kerr, returned executed copies of an engagement letter and a third party payer costs agreement engaging HSF for the provision of legal advisory services to the first defendant, and confirming that all invoices issued by the firm in relation to those services would be addressed to and paid by the second defendant. On 23 March 2022, HSF filed a Notice of Acting for the first defendant in the Federal Court.

4. [7]

   On 31 March 2022, HSF sent a revised engagement letter and third party payer costs agreement to reflect an expanded scope of work that included estimates of the legal costs to be incurred in advising and acting for the first defendant in response to an interlocutory application to strike out the claim filed by Dr Mintas. On 7 April 2022, Mr Kerr returned executed copies of both documents.

5. [8]

   Costs updates and monthly invoices were provided by HSF to the first and second defendants between about April 2022 and about April 2023.

6. [9]

   Between March 2022 and September 2022, the monthly invoices for professional fees and disbursements were paid in full by the first and second defendants.

7. [10]

   An October 2022 invoice was partially paid. The first and second defendants had paid $40,000 as against an invoice that totalled $57,352.97.

8. [11]

   No further payments were made on invoices issued from November 2022 onwards, leaving invoices issued between November 2022 and September 2023 outstanding. This remained the case until partial payments of $1,000 per week, starting 24 March 2024, were initiated following the plaintiffs’ filing of recovery proceedings in the District Court of New South Wales (see paragraph [14] below). Since that time, outstanding amounts on certain invoices have been paid.

9. [12]

   So far as the evidence before me revealed, the invoice from December 2022 remains partially unpaid, and invoices issued monthly between January 2023 and September 2023 remain unpaid.

10. [13]

    On 6 September 2023, HSF ceased acting for the first defendant in the Federal Court proceedings due to non-payment of fees. The same day, a Notice of Ceasing to Act was lodged with the Federal Court.

11. [14]

    On 31 May 2024, HSF commenced proceedings in the District Court of New South Wales (2024/00217511) against the first and second defendants for recovery of outstanding legal fees incurred in the Federal Court proceedings in the amount of $327,326.71 plus interest.

12. [15]

    On 27 May 2025, the first and second defendants filed an application with this Court seeking an extension of time for an assessment of the costs charged by HSF pursuant to s 198 of the LPUL.

13. [16]

    On 19 June 2025, HSF submitted a response that the application should be dismissed as the costs applicants (the first and second defendants) were commercial clients and the relevant costs regime under which assessment was sought was not applicable to this dispute.

14. [17]

    On 11 July 2025, the third defendant, the Manager, Costs Assessment (“MCA”), made a decision in respect of the application, that the time for assessment should be extended (the “extension decision”):

15. [18]

    On 22 July 2025, in relation to the debt recovery proceedings commenced by HSF in the District Court, Judicial Registrar J Howard ordered that those proceedings be stayed “until such time as 5 days after the First Defendant and Second Defendant’s application number 2025/00205632, filed in the New South Wales Supreme Court on 27 May 2025, is determined”.

16. [19]

    On 25 July 2025, the fourth defendant, Mr Castagnet, advised the parties that he had been appointed as a Costs Assessor in respect of the application (“appointment decision”):

17. [20]

    On 29 July 2025, solicitors for the plaintiffs told the fourth defendant that the plaintiffs would be commencing proceedings in this Court to have the extension decision and the appointment decision set aside.

18. [21]

    On 5 August 2025, a summons seeking judicial review was filed in the Common Law Division of this Court. The plaintiffs sought orders that the extension decision and the appointment decision be set aside and that the fourth defendant be prohibited from taking any further step in the costs assessment. The third and fourth defendants filed submitting appearances save as to costs.

19. [22]

    On 27 October 2025, a further amended summons was filed, seeking the following orders:

20. [23]

    On 26 November 2025, Judicial Registrar Howard ordered that the District Court debt recovery proceedings be further adjourned and listed for a directions hearing on 16 April 2026.

Relevant Legislation

1. [24]

   Section 169 of the LPUL provides the objectives of Part 4.3 in the following terms:

2. [25]

   Section 170(1) of the LPUL modifies the scope of Part 4.3 by excluding its application to commercial or government clients as defined in s 170(2), a definition inclusive of several entities defined or referred to in the Corporations Act 2001 (Cth):

3. [26]

   Section 170(1) expressly preserves regulation of conditional costs agreements and a prohibition on contingency fees as applicable to commercial or government clients under Part 4.3. These sections do not refer to the LPUL costs assessment framework set out in ss 196–205.

4. [27]

   Section 9 of the Corporations Act defines a public company in the following terms:

5. [28]

   A subsidiary of a public company is defined in s 46 of the Corporations Act as:

6. [29]

   The LPUL was introduced in New South Wales in 2014 by the Legal Profession Uniform Law Application Bill 2014 (NSW). The Council of Australian Governments (“COAG”) draft legislation that preceded the LPUL, including what is now Part 4.3, contained the s 170 exclusion (and associated costs assessment regime, though it has since been modified): Council of Australian Governments, Legal Profession National Law Post-COAG Draft, (31 May 2011) at 72 (“COAG 2011 Draft Legislation”).

7. [30]

   Proposals for the LPUL were developed by COAG between 2009 and 2011. From 2011, New South Wales and Victoria worked together to adopt that framework into law following the withdrawal of other States and Territories from the process. The COAG 2011 Draft Legislation provided for the exclusion of commercial or government clients from the draft legal costs regime, while retaining the same “carve-outs” for contingent and conditional costs agreements as were present in the previous legislation.

8. [31]

   An interim report by COAG addressing key issues in the development of the LPUL made clear the purpose of the exclusion of commercial and government clients (Council of Australian Governments National Legal Profession Reform Taskforce, Interim Report on Key Issues and Funding, (8 November 2010) at 4):

9. [32]

   The second reading speech introducing the LPUL into law in Victoria recognised that this was legislation developed in collaboration with New South Wales and that “as well as operating in Victoria, the uniform law will be applied initially by NSW”: Victorian Legislative Council, Parliamentary Debates (Hansard), 20 February 2014 at 486. A feature of the new law was that (at 489):

Corporate structure of the first and second defendant

1. [33]

   The first defendant, PlayUp Limited (“PlayUp”), is a public company. The company was registered on 20 May 2016. The second defendant, Fan Technologies Pty Limited (“Fan Technologies”) is a subsidiary of PlayUp.

2. [34]

   On 14 March 2022, the first defendant formally engaged the plaintiffs. An engagement letter sent by the plaintiffs and signed by the first defendant identified the second defendant, Fan Technologies, as having agreed to pay the legal costs of the first defendant. The second defendant thus meets the definition of a third party payer under s 171(1)(a) of the LPUL:

3. [35]

   As a wholly owned subsidiary of PlayUp, Fan Technologies is also an excluded client under s 170(2)(b)(i).

Jurisdictional error

1. [36]

   The plaintiffs’ claim is that the extension decision and the appointment decision were affected by jurisdictional error and that any further step in costs matter 2025/00205632 would be outside jurisdiction as PlayUp and Fan Technologies are excluded clients under s 170 of the LPUL.

2. [37]

   The concept of “jurisdictional error” was explained in the joint reasons of three members of the High Court of Australia in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 per Kiefel CJ, Gageler and Keane JJ (footnotes supplied):

3. [38]

   In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, six members of the High Court returned to the topic of jurisdictional error and explained (footnotes supplied):

4. [39]

   The consequence of a finding of jurisdictional error was described in May v Northern Beaches Council [2023] NSWCA 205:

Application for extension of time and an assessment of costs in the present case

1. [40]

   In the application for an assessment of costs filed on 27 May 2025, the first and second defendants alleged infringements of Division 3 Part 4.3 of the LPUL. The first and second defendants explicitly relied upon ss 174 and 175 of the LPUL, being sections that a commercial entity is disallowed from relying on by virtue of s 170. The first and second defendants are commercial entities, as defined. The consequences asserted as flowing from these purported breaches were identified by reference to ss 178 and 204 of the LPUL; provisions that cannot be relied on by commercial clients.

2. [41]

   The third defendant, a ‘‘Manager, Costs Assessment’’ under the LPUL costs assessment regime, responded to the application made by the first and second defendants on 11 July 2025. In making the extension decision, the costs assessor acknowledged the exclusion of commercial or government clients from the LPUL costs assessment regime, but also indicated that the “client” definition in s 6 of the LPUL may be in conflict with the restriction in s 170. No party sought to support this reasoning in this Court and it is unsustainable. The clear language of s 170 provides that commercial or government clients are excluded from this part of the LPUL costs assessment regime. The express statutory purpose which emerges from the extrinsic materials is wholly consistent with this statutory language of exclusion.

3. [42]

   The assessor concluded that:

4. [43]

   The appointment decision was then made. The costs assessment application was subsequently referred to the fourth defendant, costs assessor Mr Maurice Castagnet, for assessment, as indicated in his email sent on 25 July 2025 where he stated that he had “been appointed by the Supreme Court of New South Wales as a Cost Assessor in respect to this application” (referring to assessment no. 2025/205632).

Conclusion — jurisdictional errors established

1. [44]

   The determination of the MCA to (1) extend time (the “extension decision”) and (2) subsequently appoint an individual costs assessor pursuant to the costs assessment regime under s 198(4) of the LPUL Part 4.3 and cl 34(1)(c) of the Legal Profession Uniform Law Application Regulation 2015 (NSW) (the “appointment decision”) were outside of the third defendant’s power, because at all relevant times the first and second defendants were commercial clients as defined by the LPUL.

2. [45]

   For the same reason, the fourth defendant subsequently had no authority to conduct a costs assessment or take any further step in that assessment, as his appointment related to a dispute between parties not subject to the regime under which the relevant duties are referrable.

3. [46]

   This dispute between a commercial client and a law firm is beyond the jurisdiction of the costs assessment regime as defined in the LPUL and associated regulations.

4. [47]

   Two Supreme Court of Victoria decisions relating to the interpretation of an identical question under Part 4.3 under the Legal Profession Uniform Law 2015 (Vic) have held that “commercial clients” are not permitted to use the cost assessment regime contained in that Part: Jasmin Solar Pty Ltd v Fitzpatrick Legal Pty Ltd [2017] VSC 220 and Bilson v Dominic Esposito Solicitors [2019] VSC 801.

5. [48]

   Mr Bailey, counsel for the first and second defendants, indicated that he had nothing to say in opposition to the making of the orders sought by the plaintiffs or to their form (Tcpt, 10 February 2026, p 5(22–34)):

6. [49]

   This is a case where jurisdictional error in the making of the impugned decisions was established by the plaintiffs. No submission was advanced by the first and second defendants as to why relief in the form sought by the plaintiffs should not be granted.

Orders

1. [50]

   For the foregoing reasons, on 10 February 2026 I made orders 1–3 set out at [2] above.

Subsequent costs submission

1. [51]

   In relation to orders 4–5, I made an order for costs on an ordinary basis (order 4) but permitted written submissions to be filed about amending the form of that order (order 5). The parties made supplementary submissions in accordance with order 5.

2. [52]

   The plaintiffs had originally sought an order which permitted the recovery of costs associated with the impugned decisions as part of the costs of the judicial review proceedings. No authority was advanced clearly supporting that approach. The plaintiffs nevertheless sought orders that the plaintiffs be awarded their costs “of and incidental to” the Further Amended Summons, so that the matter may be further addressed, if necessary, in any assessment of costs.

3. [53]

   I am not persuaded to amend the orders I have made in that respect. Neither party identified any directly relevant authority which permitted the recovery of costs associated with an impugned decision as part of judicial review proceedings in which a plaintiff was successful. It is not helpful in those circumstances for me to amend the order to include costs “of and incidental to” the judicial review proceedings. Simply put, I am not persuaded to depart from the orders I have already made in circumstances where authority has not been drawn to my attention permitting an order to be made for the recovery of costs associated with the impugned decisions as part of the costs of judicial review proceedings.

4. [54]

   In so concluding I am not ruling against the plaintiffs’ ability to recover such an amount on assessment or, perhaps as an incident of legal costs incurred in relation to the District Court proceedings (2024/00217511). To be clear, I am not expressing a view about the recoverability of costs by the plaintiffs in any of these circumstances.

5. [55]

   For the foregoing reasons, I decline to amend order 4 of the orders made on 10 February 2026.