Foundas v Wright Lawyers

1. [1]

   HER HONOUR: By summons filed 11 June 2021 the plaintiff seeks an extension of the time to lodge a Review Costs Assessment in 2019/252616 Cassani Foundas v Wright Lawyers Pty Ltd.

2. [2]

   The plaintiff is Cassani Foundas. The defendant is Wright Lawyers (“The Law Firm”). Ms Foundas is a former client of The Law Firm, she appeared in person and was articulate. Mr D. Allan appeared on behalf of the defendant. The hearing was conducted by audio visual link. The defendant neither opposed nor consented to the orders sought in the summons. Thus there is no active contradictor.

3. [3]

   In Foundas v Wright Lawyers [2020] NSWSC 354, Wilson J helpfully outlined the history of the matters that gave rise to Ms Foundas application to extend time to file an application for a costs assessment at [12] to [30]. I have gratefully adopted and agree with this history. It is as follows:

4. [4]

   Her Honour continued at [34] where she stated:

5. [5]

   Also at [47] her Honour stated:

6. [6]

   The costs assessment has now taken place. The proceedings in the Penrith Local Court still remain outstanding.

7. [7]

   The plaintiff now applies for an extension of time to apply for a review of the cost assessment.

8. [8]

   Section 373 of the Legal Profession Act 2004 (NSW) reads:

9. [9]

   In proceedings number 87221/20 (Foundas v Dean Stuart and Wright t/as Wright Lawyers and Associates), Ms Foundas is the Costs Applicant, and former client of the Costs Respondent.

10. [10]

    The client instructed the law firm to act for her about commercial ligation and disputes in relation to property. Both parties provided written submissions and the client also provided specific objections in relation to certain items for consideration by the costs assessor.

11. [11]

    The law firm rendered 6 invoices between 10 June 2015 and 20 November 202 in the total sum of $45,629.44. The client disputed $37,132.83 of the costs.

12. [12]

    The Cost Assessor’s reasons dated 24 June 2020 relevantly read:

13. [13]

    The Cost Assessor provided detailed reasons. At [9.2] the Costs Assessor assessed the fair and reasonable costs payable by the Cost Applicant to the Cost Respondent as $39,500.55.

14. [14]

    On 17 July 2020, the certificate for determination of the Managers Assessment of Costs in the sum of $2,476.65 was sent to the parties. The Law Practice had to pay the Costs of the assessment including the assessor fees and the filing fee.

15. [15]

    On 18 November 2020, the plaintiff lodged a review application dated 18 November 2020 under s 373 of the Legal Profession Act 2004 (NSW) (reproduced earlier in this judgment). Under that section, the review application had to be lodged 30 days after the certificate being sent to the parties. At the latest, the review application had to be lodged by 17 July 2020. It was lodged about 3.5 months late but I accept that the costs manager said it was 3 months late. The application included grounds of review and a supporting affidavit of the Costs applicant dated 13 November 2020. The Costs Manger stated in his reasons dated 6 January 2020 [should be 6 January 2021]:

Explanation for delay

1. [16]

   The review applicant’s explanation for delay in lodging her review, as deposed in her affidavit sworn on 1 February 2021 is as follows:

2. [17]

   In oral submissions, the plaintiff says that s 198 of the Legal Profession Uniform Law (NSW) should apply (T6.20-24).

3. [18]

   Section 198(3) of the Legal Profession Uniform Law allows for an application for review of a costs assessor’s decision. It states that an application under the section must be made within 12 months after the bill was given. Section 198(4) states that an application made out of time may be dealt with by the Cost Assessor if it is deemed that it is just and fair that the application for assessment be dealt with after the 12-month limitation period.

4. [19]

   As Wilson J explained in Foundas v Wright Lawyers [2020] NSWSC 354 at [47], the Legal Profession Act 2004 (NSW) is applicable here. Although the Legal Profession Act 2004 was repealed from 1 July 2015, the invoices giving rise to the costs assessment process were issued prior to the Legal Profession Uniform Law. The time limit under s 373 Legal Profession act 2004 is 30 days.

5. [20]

   She also says that she does not want the cost assessment process to have any bearing on this review (T7.31-33). She complained about the Law Firm failing to put in an objection to the review which she finds “highly offensive and unfair” (T7.49-T8.17).

6. [21]

   She also stated at T8.43-T9.28:

7. [22]

   Further, she alleges that at times when her husband represented her due to her suffering from anxiety, the lawyer did work for her husband and the costs agreement did not say “did work for your husband and charged you.” That is unfair. The lawyer should have signed a different costs agreement with her husband (T10.5-12). In so far as costs are concerned, she submitted that should not have to pay costs in relation to this matter including those incurred during the hearing on the basis that if the lawyer had replied on 9 December 2020 she would not be incurring costs (T10.31-40).

Resolution

1. [23]

   I have carefully read the Cost Assessor’s decision and the Manager of Costs Assessments reasons for refusing to extend time for the plaintiff to lodge her review application.

2. [24]

   The cost assessor received and considered the following documents and material from the parties :

3. [25]

   As to the retainer between the costs applicant and the Law Firm, the costs assessor stated at 7.2.3 that the instructions were broader than to simply advise in relation to the Commonwealth Bank. The Law Firm provided advice that was far broader than that issue. The Law Firm was instructed to provide and advise and prepare and act in “any litigation as necessary.”

4. [26]

   At 8.4-8.6 the costs assessor stated the Law Firm’s hourly rate of $350.00 per hour was applied to all reductions of professional costs. He also stated that it is clear from his consideration of the files that the Law Firm did considerable work on the matter, pursuing a strategy of attempting to negotiate an early outcome. There were many documents that had to be considered by them and the history of the matter stretched over many years. There were serious family differences about history. The client wanted the matter pursued vigorously and some issues were urgent. It would appear that a later falling out between the Law Firm and the client coloured some of the submissions of Ms Foundas.

5. [27]

   The Manager of costs assessment in his decision dated 6 January 2021 considered the delay of 3 months in lodging the review application significant. It is my view that the review applicant provided the Costs Assessor with generalised objections and specific objections in her submissions to the Costs Assessor which were considered by him. She has not demonstrated that the costs assessor erred in his reasons, but rather has expressed her dissatisfaction with the result. This too was the opinion of the Manager Costs Assessor. In my view the review applicant has not provided a satisfactory explanation for her delay in filing her application for review, particularly as she was aware that there was a time limit imposed on lodging a costs assessment application. She had to lodge a summons seeking to extend time for a cost assessment. The Court, with “some misgivings”, granted her an extension of time. The costs are for legal work carried out in November 2014 to 24 April 2015, some of which was urgent. It has been some 6 years since the Law Firm provided its legal services and they are entitled to be paid for them. For these reasons, and in the exercise of my discretion, I decline to grant the review applicant an extension of time to file to review of the Costs Assessor’s decision.

Costs

1. [28]

   As the Law Firm neither consented nor opposed the order sought by the costs review applicant, I make no order as for costs.

   1. (1)

      The plaintiff’s application to extend time to file her application for a review of the Costs Assessor’s decision dated 20 June 2020 is refused.

   2. (2)

      The summons filed 11 June 2021 is dismissed.

   3. (3)

      No order as to costs.